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.
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
BRISCOE, LUCERO, and McHUGH, Circuit Judges.
McHUGH, Circuit Judge.
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.
Willis now appeals, challenging multiple evidentiary rulings
by the district court. Exercising jurisdiction pursuant to 28
U.S.C. § 1291, we affirm.
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.
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."
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.
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.
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."
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.
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.
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.
Evidence of Prior Sexual Assaults
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
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.
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.
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).
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.
Evidence of Other Sexual Assaults
pretrial evidentiary hearing, the district court first heard
testimony from A.M.,  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 ...