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United States v. Willis

United States Court of Appeals, Tenth Circuit

June 21, 2016

UNITED STATES OF AMERICA, Plaintiff - Appellee,
IVAN BENNETT WILLIS, Defendant-Appellant.

         Appeal from the United States District Court for the Western District of Oklahoma, (D.C. No. 5:13-CR-00267-C-1)

          Jacquelyn L. Ford, Ford Law Firm, Oklahoma City, Oklahoma (Jack Dempsey Pointer, Pointer Law Office, Oklahoma City, Oklahoma, with her on the briefs), for Defendant-Appellant.

          K. McKenzie Anderson, Assistant United States Attorney (Mark A. Yancey, Acting United States Attorney, and Rozia McKinney-Foster, Assistant United States Attorney, with her on the briefs), Oklahoma City, Oklahoma, for Plaintiff-Appellee.

          Before BRISCOE, LUCERO, and McHUGH, Circuit Judges.

          McHUGH, Circuit Judge.


         Appellant Ivan Bennett Willis was charged with aggravated sexual abuse committed in Indian country. Mr. Willis admitted he had sex with a seventeen-year- old acquaintance, K.M., and that the events occurred in Indian country. But Mr. Willis maintained that K.M. consented to the encounter. Thus, the only issue at trial was whether Mr. Willis used force against K.M. After a two-day trial, the jury returned a guilty verdict.

         Mr. Willis now appeals, challenging multiple evidentiary rulings by the district court. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.


         A. Factual History

         Throughout the summer and fall of 2013, K.M. lived with her cousin, Jamee Black, and Ms. Black's boyfriend, Wesley Bear. On the evening of September 22, 2013, K.M. was babysitting the couple's two children while Mr. Bear and Ms. Black were working. Mr. Bear's sister, Christi Bear, came to the Bear/Black home with her boyfriend, Mr. Willis. Ms. Bear and Mr. Willis left their son with K.M. while Mr. Willis drove Ms. Bear to work.

         When Mr. Willis returned, instead of picking up his son and leaving, he began making sexual advances toward K.M. After K.M. rejected Mr. Willis's suggestion that they have sex, Mr. Willis took her into the bathroom. Despite K.M.'s continued objections, Mr. Willis pulled down her shorts and underwear, removed his pants, pressed his body against hers, and tried to make her "touch his private area." Although K.M. continued to say no, Mr. Willis lifted her onto the sink and tried to penetrate her. While continuing to resist, K.M. slid off the sink and tried to pull up her shorts, but Mr. Willis pushed her. K.M. stumbled and caught herself on the toilet, and Mr. Willis penetrated her from behind. K.M. stopped resisting at this point because she was scared and "didn't know what to do."

         Mr. Willis left the house but later returned "to check on [K.M.] because he knew [she] was crying." K.M. testified that Mr. Willis "asked if it felt like he forced [her], " and she said yes.

         K.M. called Ms. Black and asked if someone else could watch the children. Ms. Black then called Mr. Bear, who returned home to check on K.M. When Mr. Bear arrived, he found K.M. crying and asked what was wrong. Before K.M. answered, Mr. Bear's three-year-old daughter said, "Daddy, I saw Uncle Ivan kissing [K.M.] in the bathroom." K.M. began crying harder and explained that Mr. Willis had forced her into the bathroom and forced himself on her. Mr. Bear immediately called the Bureau of Indian Affairs (BIA) police and BIA officers arrested Mr. Willis a few hours later.

         B. Procedural History

         On November 12, 2013, a federal grand jury returned a single-count indictment alleging that Mr. Willis "knowingly engaged and attempted to engage in a sexual act with [K.M.], by using force."

         In a pretrial motion, the government gave notice of its intent to offer evidence pursuant to Rule 413 of the Federal Rules of Evidence of two prior sexual assaults involving Mr. Willis while he was a juvenile. Mr. Willis filed a motion to exclude his juvenile records and all information gleaned from those records, including the Rule 413 evidence. He also moved to suppress statements he made during a custodial interview with two federal agents. And Mr. Willis moved under Rule 412 to admit evidence of specific instances of K.M.'s sexual behavior. The district court admitted the Rule 413 evidence and denied Mr. Willis's remaining motions.

         The parties tried the case to a jury in the United States District Court for the Western District of Oklahoma. The jury found Mr. Willis guilty. He now appeals.


         On appeal, Mr. Willis challenges the district court's evidentiary rulings, described above. He further asserts that an investigating agent improperly vouched for K.M.'s credibility when he testified at trial. Finally, Mr. Willis argues he is entitled to a new trial based on cumulative error. We address each of these issues in turn.

         A. Evidence of Prior Sexual Assaults

         Mr. Willis first argues the district court erred by admitting evidence of the two prior sexual assaults. We review the admission of evidence for abuse of discretion, United States v. Contreras, 536 F.3d 1167, 1170 (10th Cir. 2008), and will not reverse if the district court's ruling "falls within the bounds of permissible choice in the circumstances and is not arbitrary, capricious or whimsical, " United States v. Sturm, 673 F.3d 1274, 1286 (10th Cir. 2012) (internal quotation marks omitted).

         In addition, events before and during trial may determine the scope of our review. "We have stated often the general rule that in evaluating the correctness of the district court's rulings, the appellate court may consider the entire record developed from the trial even though such evidence may not have been presented during the suppression hearing, " but we have applied the rule in practice "only in cases in which the trial evidence supported the district court's earlier ruling at the suppression hearing." United States v. Parra, 2 F.3d 1058, 1065 (10th Cir. 1993) (internal quotation marks and brackets omitted). "Because 'the district court should have the first opportunity to correct its mistake, ' we ordinarily 'will not consider trial evidence which undermines a district court decision rendered at a pretrial suppression hearing.'" United States v. Bass, 661 F.3d 1299, 1303 (10th Cir. 2011) (quoting Parra, 2 F.3d at 1065). "The district court may consider trial testimony if the defendant renews the suppression motion at trial, but the court ordinarily need not do so if counsel fails to alert the court to how the evidence has been altered or supplemented at trial and why the change would affect the ruling." Id. (citation omitted). In Bass, the defendant "renewed his motion [to suppress] twice at trial but the renewals were perfunctory" because the defendant merely stated he wanted to renew his objection. Id. The defendant "did not so much as hint that he believed he had a ground for suppression that had not been fully vetted at the suppression hearing." Id. Accordingly, "we address[ed] only the record from the suppression hearing." Id. at 1304.

         Here, the district court held a pretrial evidentiary hearing before ruling on the admissibility of the prior-acts evidence. Specifically, the two women who claimed to be victims of the prior sexual assaults testified about the circumstances surrounding those events, and, based on their testimony, the district court admitted the evidence under Rule 413. At trial, however, both women testified differently than they had at the evidentiary hearing. When the government rested, Mr. Willis stated only that he "object[e]d to Federal Rule 413 witnesses, [A.M.] and [A.N.], being present." Mr. Willis did not identify new grounds for excluding the Rule 413 evidence and did not otherwise explain why the district court should reconsider its pretrial evidentiary ruling in light of the new testimony provided at trial. We therefore limit our review to the evidence presented at the pretrial hearing and do not consider trial evidence contradicting the district court's decision.

         In criminal sexual-assault cases, a district court may "admit evidence that the defendant committed any other sexual assault." Fed.R.Evid. 413(a). Indeed, we have recognized a "presumption in favor of admission" of such evidence. United States v. Enjady, 134 F.3d 1427, 1431 (10th Cir. 1998). But before evidence is admitted under Rule 413, the district court must determine whether the evidence "meet[s] three threshold requirements": (1) that the defendant is accused of a sexual-assault offense; (2) that the evidence is evidence of another sexual-assault offense by the defendant; and (3) that the evidence is relevant. United States v. Guardia, 135 F.3d 1326, 1328 (10th Cir. 1998).

         Although there is no dispute that Mr. Willis was accused of sexually assaulting K.M., Mr. Willis contends the other incidents did not rise to the level of sexual assault. And he asserts the evidence was not relevant. Moreover, even if the evidence were relevant and otherwise satisfied Rule 413's requirements, Mr. Willis argues the district court should have excluded the evidence under Rule 403 as substantially more prejudicial than probative.

         1. Evidence of Other Sexual Assaults

         At the pretrial evidentiary hearing, the district court first heard testimony from A.M., [1] a woman who dated Mr. Willis in middle school. A.M. testified that, in 2007, after they had stopped dating, she and Mr. Willis ran into each other at a basketball game. She voluntarily left the game with Mr. Willis and began "making out" with him in a dugout on the high school softball fields. According to A.M., she consented to the kissing but told Mr. Willis to stop when he touched her breasts, laid her down, and "got on top." She testified that she told him repeatedly to stop and when he did not, she eventually hit or shoved him. Mr. Willis then stopped but "started laughing at [A.M.], and then he told [her] not to tell anybody." On cross-examination, A.M. testified she could not remember whether she hit or pushed Mr. Willis. She also admitted that, in interviews right ...

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