United States of America v. Valentin Cardenas Gonzales

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
VALENTIN CARDENAS GONZALES,
Defendant - Appellant.
No. 13-30348
D.C. No. 2:13-cr-00022-TOR-1
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of Washington
Thomas O. Rice, District Judge, Presiding
Argued and Submitted
September 2, 2015—Seattle, Washington
Before: HAWKINS, GOULD, and N.R. SMITH, Circuit Judges.
Valentin Gonzales appeals his convictions for two counts of aggravated
sexual abuse of a minor, 18 U.S.C. § 2241(c), and two counts of abusive sexual
contact, 18 U.S.C. § 2244(a)(5). We affirm.
FILED
OCT 30 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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1. Because E.A. and K.A. testified at trial, the admission of other
witnesses’s testimony recounting their out-of-court statements that Gonzales
touched them inappropriately did not violate the Confrontation Clause. See
Crawford v. Washington, 541 U.S. 36, 59 n.9 (2004). Nor did the admission of
Gonzales’s own statements violate the Confrontation Clause. See United States v.
Romo-Chavez, 681 F.3d 955, 961 (9th Cir. 2012) (citing United States v.
Nazemian, 948 F.2d 522, 525–26 (9th Cir. 1991)). We also reject Gonzales’s
argument that his right to confrontation was violated when the district court
precluded him from introducing, through cross-examination, exculpatory
statements he made during an interview with the FBI, even though the court had
admitted incriminating statements he made in the same interview. United States v.
Ortega, 203 F.3d 675, 682–83 (9th Cir. 2000).1
Gonzales’s opening brief did not argue that E.A.’s out-of-court statements
about under-the-clothes touching, as recounted by Agent Knapp, were inadmissible
1 Gonzales has not distinctly challenged this limitation as a violation of due
process, so we do not discuss that issue. Cf. United States v. Fernandez, 839 F.2d
639, 640 (9th Cir. 1988) (per curiam) (holding that exclusion of defendant’s
exculpatory hearsay statement did not violate due process because government did
not introduce inculpatory hearsay statements by defendant); United States v.
Beneviste, 564 F.2d 335, 339–42 (9th Cir. 1977) (holding that excluding
declarant’s exculpatory out-of-court statements while admitting her inculpatory
out-of-court statements deprived defendant of a fair opportunity to defend himself).
2

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hearsay under the Federal Rules of Evidence. On that basis alone, we could
decline to consider the issue, but we exercise our discretion to review the issue
because the state has fully briefed the issue and would suffer no prejudice.2
Andrews v. Davis, 798 F.3d 759, 788–89 (9th Cir. 2015). Because Gonzales did
not object to these statements at trial, we apply the four-part test for plain error.3
United States v. Lapier, 796 F.3d 1090, 1096 (9th Cir. 2015) (citing United States
v. Marcus, 560 U.S. 258, 262 (2010)).
The district court erred by admitting E.A.’s hearsay statement to the agent
that she was touched under her clothing. That error was plain for the reason that
follows: Prior consistent statements of a witness are admissible to rebut a charge
of recent fabrication or improper motive or to rehabilitate the witnesses’s
credibility when attacked on another ground. Fed. R. Evid. 801(d)(1)(B). But this
was not a prior consistent statement because E.A. testified at trial that Gonzales
touched her over her clothes, which is inconsistent with Knapp’s testimony that
E.A. reported under-the-clothes touching.
2 The government indicated in supplemental briefing that it would not be
prejudiced by the panel reaching the issue.
3 While Gonzales successfully objected to the government’s attempt to
introduce a transcript and videotape of forensic interviews with E.A. and K.A., he
did not object to Agent Knapp’s statements describing E.A.’s assertions that
Gonzales touched her under her clothes.
3

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This error was prejudicial and affected Gonzales’s substantial rights, as
without Knapp’s testimony, the government likely would not have presented
sufficient evidence to corroborate Gonzales’s admission that he touched E.A. under
her clothes. See United States v. Norris, 428 F.3d 907, 914–15 (9th Cir. 2005)
(citing United States v. Lopez-Alvarez, 970 F.2d 583, 592 (9th Cir. 1992)); United
States v. Corona-Garcia, 210 F.3d 973, 978 (9th Cir. 2000). Considering the total
circumstances of this case, however, we conclude that the error does not “seriously
affect[] the fairness, integrity or public reputation of judicial proceedings.” Id.
(quoting Marcus, 560 U.S. at 262). We have no reason to believe that Agent
Knapp’s statement was unreliable, particularly because she made it after reviewing
the interview transcript to refresh her memory about which child alleged under-the-
clothes touching. Nor can we conclude that E.A.’s out-of-court statement to
Knapp was unreliable, given both that her contradictory in-court statement may
have merely reflected a disinclination to discuss the details of the abuse
allegations4 and that an FBI agent also testified at trial that Gonzales had
previously confessed to him in an interview that Gonzales had touched E.A. under
4 For instance, E.A. at one point testified that she did not know where
Gonzales touched her, only to then clarify in response to government questioning
that she just didn’t want to talk about it.
4

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her clothing. Under these circumstances, we do not find the error to be so serious
as to warrant reversal on plain error review.5
2. The district court did not plainly err in its response to a juror’s
question about the intent required for the crimes charged. The district court
informed the jury that “the definition of sexual contact has a definition of the
intent” on a particular page in the written jury instructions, and those instructions
correctly described the required intent. It is not clear from the transcript what the
juror meant by then asking “does that count?” or what the district court meant
when responding “[i]t’s not necessary,” but because the written instructions were
correct and we have no reason to believe the jury disregarded those instructions
based on the ambiguous commentary following the judge’s correct response,
Gonzales does not show plain error. See United States v. Ancheta, 38 F.3d 1114,
1117 (9th Cir. 1994).
3. Gonzales argues that the record lacks sufficient evidence for a rational
jury to find (1) that Gonzales committed a sexual act with E.A. and (2) that N.B.
was an Indian within the meaning of the Indian Major Crimes Act (IMCA). We
5 We do not consider whether Gonzales’s trial counsel was constitutionally
ineffective for failing to object to the admission of these hearsay statements.
Gonzales may raise that issue through a habeas corpus petition where a record is
made of the reasons for action or inaction of counsel.
5

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consider all the evidence presented to the jury, whether properly admitted or not,
when assessing the sufficiency of the evidence. United States v. Preston, 751 F.3d
1008, 1029 (9th Cir. 2014) (en banc). Gonzales’s admission that he touched E.A.
“skin-to-skin,” resulting in an erection, and Knapp’s testimony that E.A. told her
that Gonzales placed his hand beneath her underwear were enough for a rational
jury to conclude that a sexual act had occurred. 18 U.S.C. § 2246(2)(D).
The trial record also contains sufficient evidence that N.B. had a sufficient
quantum of Indian blood and was affiliated with a federally recognized Indian tribe
at the time of the charged conduct. See United States v. Zepeda, 792 F.3d 1103,
1113 (9th Cir. 2015) (en banc). Gonzales concedes that N.B. had sufficient Indian
blood. Regarding tribal affiliation, N.B. lived on the Spokane Indian Reservation
for three years and studied Salish, which she referred to as “our Indian language,”
in middle school. N.B. also received benefits through Indian Health Services, and
her father was an enrolled member in the tribe. This evidence is sufficient to
establish N.B. as an Indian under the IMCA. See United States v. LaBuff, 658 F.3d
873, 877 (9th Cir. 2011) (listing factors for analyzing tribal affiliation).
AFFIRMED.
6

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