United States v. Eubanks

• Court: Court of Appeals for the Tenth Circuit
• Decided: August 20, 2024
• Docket: 24-7005
• Status: Unpublished

Opinion

Appellate Case: 24-7005 Document: 010111097232 Date Filed: 08/20/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT August 20, 2024 _________________________________ Christopher M. Wolpert Clerk of Court UNITED STATES OF AMERICA,

Plaintiff - Appellee,

v. No. 24-7005 (D.C. No. 6:21-CR-00222-CBG-1) AARON RICHARD EUBANKS, (E.D. Okla.)

Defendant - Appellant. _________________________________

ORDER AND JUDGMENT* _________________________________

Before BACHARACH, McHUGH, and FEDERICO, Circuit Judges. _________________________________

Aaron Richard Eubanks appeals his conviction for aggravated sexual abuse.

He challenges the district court’s ruling rejecting his objection to a jury instruction

about the propriety of attorneys interviewing witnesses prior to trial. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm.

* After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument. This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. It may be cited, however, for its persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and Tenth Circuit Rule 32.1. Appellate Case: 24-7005 Document: 010111097232 Date Filed: 08/20/2024 Page: 2

I. BACKGROUND

Following a four-day trial, a jury convicted Mr. Eubanks of five counts of

Aggravated Sexual Abuse in Indian Country, in violation of 18 U.S.C. §§ 2241(c),

2246(2), 1151, and 1153. Mr. Eubanks was found to have sexually abused his

biological twin daughters on several occasions.

Prior to closing arguments, the Government proposed the inclusion of a jury

instruction explaining that “[i]t is proper for an attorney to interview any witness in

preparation for trial” (the “attorney-interview jury instruction”). ROA Vol. I at 40.

Defense counsel objected to the inclusion of this instruction, asserting that because

most trial witnesses were Government witnesses, this instruction would “put the

[c]ourt’s thumb on the scale in favor of the United States.” ROA Vol. III at 7. The

Government responded that it proposed this instruction because defense cross-

examination of the victims suggested that the victims had been coached. The

Government explained, “in order to rebut th[is] suggestion, it would be helpful for

each side to have the court instruct the jury that meeting with witnesses is not

necessarily improper.” Id. at 8. Defense counsel conceded, “it is a true statement that

every lawyer has a right to meet with witnesses,” but then asserted the claim of

witness coaching was part of his defense, implying that this instruction would defeat

this argument. Id. at 10.

The court acknowledged Mr. Eubanks’s “right to make [the] argument[] that

there has been some suggestion to [the victims] that affected what they have to say

and, therefore, affected their testimony.” Id. But the court then stated that the

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proposed instruction appeared to be a “fairly innocuous [instruction] just saying that

it is proper for an attorney to interview any witness in preparation for trial.” Id.

Defense counsel responded that he agreed with this statement, but he was concerned

the instruction could nonetheless unfairly “telegraph to the jury” that the Government

had properly interviewed witnesses. Id. at 11. The court asked the Government to

explain again why it believed the instruction was necessary, and the Government

responded that the purpose of the instruction was to clarify that counsel may

interview witnesses. The Government noted, however, that Mr. Eubanks could still

argue that the Government coached its witnesses irrespective of the inclusion of this

instruction.

The court allowed the attorney-interview jury instruction and overruled the

objection, explaining:

I think this instruction, in and of itself, is a simple and correct statement of something that is true, that it is proper for an attorney to interview a witness in preparation for trial. And it does not foreclose the defendant from arguing that there was some suggestion that occurred, directly or indirectly, that affected the witness’s testimony along the way, and that that would be improper, of course.

ROA Vol. III at 12.

Mr. Eubanks appeals the district court’s decision to overrule his objection to

the attorney-interview jury instruction.

II. DISCUSSION

Mr. Eubanks contends the district court abused its discretion in overruling his

objection to the Government’s attorney-interview jury instruction, arguing the

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instruction undermined his impeachment of the victims based on the claim they were

coached, denied him his sole defense that the abuse never happened, and misled the

jury on how to use the impeachment evidence. We conclude the district court did not

abuse its discretion in overruling his objection.

“This court reviews the jury instructions de novo in the context of the entire

trial to determine if they accurately state the governing law and provide the jury with

an accurate understanding of the relevant legal standards and factual issues in the

case.” United States v. Jean-Pierre, 1 F.4th 836, 846 (10th Cir. 2021) (internal

quotation marks and alterations omitted). “In doing so, we consider whether the

district court abused its discretion in shaping or phrasing . . . a particular jury

instruction and deciding to give or refuse a particular instruction.” United States v.

Christy, 916 F.3d 814, 854 (10th Cir. 2019) (quotation marks omitted). “An abuse of

discretion occurs when a judicial determination is arbitrary, capricious[,] or

whimsical.” United States v. Shumway, 112 F.3d 1413, 1419 (10th Cir. 1997)

(quotation marks omitted). “We will not overturn a discretionary judgment by the

trial court where it falls within the bounds of permissible choice in the

circumstances.” Id. (internal quotation marks omitted). “[A] trial judge is given

substantial latitude and discretion in tailoring and formulating the instructions so long as

they are correct statements of law and fairly and adequately cover the issues presented.”

United States v. Wood, 207 F.3d 1222, 1235 (10th Cir. 2000) (quotation mark omitted).

“As a general rule, instructions on how to assess evidence are particularly matters of

trial-court discretion, because they are directed to guiding the jurors’ common sense

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in the context of the case rather than informing them of the governing law.” United

States v. John, 849 F.3d 912, 918 (10th Cir. 2017).

We affirmed the denial of a similar objection to a nearly identical jury

instruction in United States v. John, 849 F.3d at 919–20. There, the defendant-

appellant claimed the district court abused its discretion by overruling an objection to

the following jury instruction: “[a]n attorney has the right to interview a witness for

the purpose of learning what testimony the witness will give. The fact that a witness

has talked to an attorney does not reflect adversely on the truth of such testimony.”

Id. at 919. We explained that this jury instruction presented an accurate statement of

law and educated jurors on a point that may have been otherwise unfamiliar. Id.

at 920. We also noted that, contrary to the defendant’s argument, this jury instruction

did not imply that “nothing improper could possibly occur in such discussions.” Id.

Additionally, we explained in John that the challenged instruction “[did] not

prevent defense counsel from making a commonsense suggestion that the witness

was influenced by inappropriate coaching.” Id. And here, like in John, Mr. Eubanks

conceded that he could and did argue that the victims were coached both in cross-

examination and closing statements. See id.

Although the challenged attorney-interview jury instruction here and the jury

instruction in John are not identical, the differences weigh in favor of affirming the

district court’s ruling. The instruction in John included a second sentence that spoke

directly to the truthfulness of a previously interviewed witness’s testimony: “The fact

that a witness has talked to an attorney does not reflect adversely on the truth of such

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testimony.” Id. at 919. Here, the instruction was more limited, stating only that, “[i]t

is proper for an attorney to interview any witness in preparation for trial.” ROA

Vol. I at 40. Where this court has previously held that the district court did not abuse

its discretion in approving a more robust instruction in John, we easily conclude the

district court here did not abuse its discretion in overruling Mr. Eubanks’s objection.

The challenged attorney-interview jury instruction did not misstate the law, did not

misrepresent the factual issues in the case, educated jurors on a point that may have

been otherwise unfamiliar, and did not prevent the defense from suggesting the

Government coached the witnesses during the interviews. Accordingly, the district

court’s approval of the jury instruction fell within the bounds of permissible choice.

See John, 849 F.3d at 920; Jean-Pierre, 1 F.4th at 846; Shumway, 112 F.3d at 1419.

Notwithstanding our decision in John, Mr. Eubanks points us to a District of

New Mexico ruling in which the district court sustained a defense objection to the

following proposed jury instruction: “[a]n attorney has the right to interview a

witness for the purpose of learning what testimony the witness will give. The fact

that the witness has talked to an attorney does not reflect adversely on the truth of

such testimony.” United States v. Harry, No. CR 10-1915 JB, 2014 WL 6065677,

at *21 (D.N.M. Oct. 14, 2014). We are unpersuaded by Harry for two reasons. First,

the District of New Mexico issued Harry more than two years before this court

approved the same jury instruction in John. And unlike Harry, John is controlling

precedent on this court. Second, the issue in Harry is not the same as the issue

presented here. A district court has wide discretion in approving or rejecting jury

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instructions. Wood, 207 F.3d at 1235. Thus, while the district court in John did not

abuse its discretion in approving such an instruction, there is nothing in John that

suggests such an instruction must be given in every case. It is thus possible that the

district courts in Harry and in John both acted properly within their broad discretion.

The district court here also acted properly within its broad discretion in permitting

Mr. Eubanks also cites an unpublished Ninth Circuit decision, United States v.

William, 491 F. App’x 821 (9th Cir. 2012), claiming that it shows how a jury

instruction that undermines the basis for a defense is misleading and harms the

validity of the underlying verdict. But in William, the court reversed and remanded a

conviction based on an erroneous jury instruction which the court held could be

understood by the jury “as relieving the government of its burden to prove intent” in

a trial for mail theft and possession of stolen mail.1 Id. at 822. Here, even

Mr. Eubanks concedes the jury instruction is an accurate statement of the law.

Having considered “the context of the entire trial,” we conclude the challenged

jury instruction “accurately state[d] the governing law and provide[d] the jury with

an accurate understanding of the relevant legal standards and factual issues in the

case.” Jean-Pierre, 1 F.4th at 846 (quotation marks omitted). The district court did

1 The challenged instruction directed that the jury may infer that the defendant stole a letter “if it was ‘properly addressed and recently mailed,’ ‘never received by the addressee,’ and ‘found in [his] possession.’” United States v. William, 491 F. App’x 821, 822 (9th Cir. 2012) (alteration in original). 7 Appellate Case: 24-7005 Document: 010111097232 Date Filed: 08/20/2024 Page: 8

not abuse its discretion in overruling Mr. Eubanks’s objection to this proposed

III. CONCLUSION

We AFFIRM Mr. Eubanks’s conviction.

Entered for the Court

Carolyn B. McHugh Circuit Judge