Criminal – Sex Abuse – Venue – Air Force – Japanese Base – Statements to Investigators

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U.S. v. Holmes (Lawyers Weekly No. 12-01-0313, 24 pp.) (Agee, J.) No. 10-4738, Feb. 29, 2012; USDC at Newport News, Va. (Davis, J.) 4^th Cir. Full-text opinion.

Holding: A defendant convicted of aggravated sexual abuse of a child for twice forcing his stepdaughter, under age 9, to perform oral sex on him during a time defendant was stationed in Japan with the Air Force, has his convictions affirmed by the 4^th Circuit despite his challenge to venue and claim that his statements to investigators should have been excluded.

Defendant contends the district court made the following errors prior to trial, which require reversal: denial of his motion to suppress statements made to military investigators, denial of his motion to dismiss the indictment due to the lack of venue and exclusion of his proposed expert witness who would testify about false confessions, which defendant claimed he made in this case.

We conclude the district court did not err in concluding that defendant’s confession was voluntarily made. Although defendant had just returned from a long trip from his last duty station in Qatar to Norfolk, Va., he told the investigating agent he “felt fine” and his response was consistent with the agent’s own observation of defendant’s demeanor, physical appearance and behavior. At no time did defendant ask for the interview to end or indicate he was tired, desired a break or otherwise was unwilling to proceed. And suppression is not required every time a defendant has a diminished mental state. The agent’s statements about how defendant’s decision whether to cooperate could impact his former stepdaughter fell within the acceptable ambit.

The district court did not err in concluding defendant’s statement was intelligently, knowingly and voluntarily made.

The district court also did not err in denying defendant’s motion to dismiss his indictment on venue grounds. Because defendant was first arrested for the two counts of aggravated sexual abuse in the Eastern District of Virginia, and that arrest was for the same charges for the same conduct listed in the operative third indictment, venue was proper in the Eastern District of Virginia.

Finally, the district court did not err in excluding defendant’s expert on false confessions. Because Fed. R. Civ. P. 16 is silent as to the timing of expert witness disclosures and there is no pretrial discovery order governing such timing in this case, we consider whether the district court abused its discretion in finding that as a matter of general fairness, defendant’s disclosure regarding this witness was untimely. Defendant disclosed his proposed expert witness with only three days remaining before trial, two of which were on a weekend. The government expressed concern as to its ability to locate and prepare adequate cross-examination and rebuttal expert witnesses in time for trial. Given these circumstances, the district court appropriately found this consideration weighed in favor of granting the government’s motion. The court also found defendant’s disclosure – a brief synopsis of the proposed testimony and the expert’s C.V. – failed to satisfy Rule 16(b)(1)(C)’s requirement as to the content of the disclosure.

Conviction on two counts of aggravated sexual abuse affirmed.