United States v. James Leroy

• Court: Court of Appeals for the Third Circuit
• Decided: September 6, 2019
• Docket: 17-2513
• Status: Unpublished

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _________________

No. 17-2513 _________________

UNITED STATES OF AMERICA

v.

JAMES MARK LEROY, Appellant

_________________

On Appeal from the United States District Court for the Western District of Pennsylvania (D.C. No. 2-16-cr-00243-001) District Judge: Hon. Arthur J. Schwab _________________

Submitted Under Third Circuit L.A.R. 34.1(a) July 11, 2019

Before: SHWARTZ, KRAUSE, and FUENTES, Circuit Judges.

(Filed: September 6, 2019) _________________

OPINION ** _________________

FUENTES, Circuit Judge.

** This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. James Mark Leroy owned a trailer-axle and tire repair shop, where he occasionally

hired adolescent boys, often the relatives of his employees, to help with tasks. Two boys,

Mike K. and Mikey D., came forward recounting instances of sexual abuse that occurred

in Leroy’s home and on out-of-state trips paid for by Leroy. Leroy was charged with two

counts of travel with intent to engage in illicit sexual conduct 1 and two counts of

transportation with intent to engage in criminal sexual activity. 2 After a three-day trial,

Leroy was found guilty and was sentenced to thirty years’ imprisonment on each count, to

be served concurrently. Leroy brought this appeal, arguing that he was entitled to a new

trial. For the following reasons, we will affirm Leroy’s judgment of conviction.

I. 3

On appeal, Leroy raises six arguments, all of which we find to be meritless. We

briefly address each issue.

A.

First, Leroy argues that his rights under the Due Process Clause were violated when

the Government failed to correct testimony by one of its witnesses, Amanda (Mike K.’s

stepmother), about whether or not she sought help from Mike K. in disposing of drugs and

drug paraphernalia. Leroy moved to strike the entirety of Amanda’s testimony, and the

Government responded that the federal agent who attended the meeting with Amanda

1 18 U.S.C § 2423(b), (e). 2 Id. § 2423(a), (e). 3 The District Court had jurisdiction under 18 U.S.C. § 3231. We have jurisdiction under 28 U.S.C. § 1291. 2 would testify and Leroy could examine him to “clarify what happened before the jury.” 4

The District Court agreed that it would wait until after the agent’s testimony to make a

decision. The agent could not recall being at a meeting in which Amanda said that she and

Mike K. got rid of the drugs together, and therefore offered no substantive clarification.

Leroy’s motion was renewed, and the District Court denied the motion, concluding that a

falsus in uno, falsus in omnibus charge would be sufficient.

To establish a due process violation, Leroy must show that: “(1) [Amanda]

committed perjury; (2) the Government knew or should have known of [Amanda’s]

perjury; (3) [Amanda’s] testimony went uncorrected; and (4) there is a reasonable

likelihood that the false testimony could have affected the verdict.” 5 “‘[W]hen it should

be obvious to the Government that the witness’[s] answer, although made in good faith, is

untrue,’ it has an obligation to correct that testimony.” 6

In United States v. Stadtmauer, we faced a nearly identical situation and explained

that “there was no way for the prosecutor to know whether [the witness] was giving false

testimony” because the prosecutor did not have “personal knowledge that the witness’s

answers were not correct.” 7 For the same reason, Leroy has not met his burden here. The

4 A. 538. 5 United States v. Hoffecker, 530 F.3d 137, 183 (3d Cir. 2008). 6 United States v. Stadtmauer, 620 F.3d 238, 268 (3d Cir. 2010) (quoting United States v. Harris, 498 F.2d 1164, 1169 (3d Cir. 1974)). 7 Id. at 268–69 (citing Tapia v. Tansy, 926 F.2d 1554, 1563 (10th Cir. 1991) (“Contradictions and changes in a witness’s testimony alone do not constitute perjury and do not create an interference, let alone prove, that the prosecution knowingly presented perjured testimony.”)). 3 prosecutors had no personal knowledge about whether Amanda asked Mike K. to help

dispose of his father’s drug paraphernalia; they only recalled her saying so in a meeting.

Notwithstanding Leroy’s failure to show perjury, Leroy has also failed to show that

the Government’s actions—asking Amanda about the incident and then disclosing to the

District Court that the prosecutors had a different recollection of the meeting—were

unconstitutional. In Lambert v. Blackwell, we explained that while a prosecutor must “fully

and openly inform[] the Court” when she believes testimony is untruthful, she is under no

obligation “to characterize the entirety of the testimony as perjury [or] to withdraw the

witness.” 8 We explained that a witness who gives false testimony “in one area” is not

incompetent to testify overall and that striking the entire testimony of a witness, even if

that witness fabricated some testimony, is not constitutionally required. 9 Thus, the

Government’s opposition to Leroy’s motion to strike, and the Court’s denial of the motion,

did not deprive Leroy of his due process rights.

B.

Second, Leroy argues that his Sixth Amendment right to counsel, his Fifth and Sixth

Amendment right to be present, and his rights under Federal Rule of Criminal Procedure

43 were violated when a courtroom deputy communicated with a juror outside the presence

of counsel. Before the jury was seated on the second day of trial, and before Leroy himself

arrived, the Government explained that it observed a conversation between one juror and

the courtroom deputy, during which the juror was tearful. The Court explained that it had

8 387 F.3d 210, 255–56 (3d Cir. 2004). 9 Id. at 256. 4 “dealt with [the Juror] and she’s aware she needs to continue.” 10 Leroy’s attorney, who

was present, did not request further information about the conversation with the juror and

did not object to the conversation. We review for plain error. 11

Under plain error review, we may correct only “(1) an error (2) that was plain—i.e.,

‘clear or obvious, rather than subject to reasonable dispute’—and (3) that ‘affected the

appellant’s substantial rights’—i.e., there is ‘a reasonable probability’ that it affected the

outcome of the proceedings.” 12 Even then, we may correct only errors that “seriously affect

the fairness, integrity, or public reputation of judicial proceedings.” 13

Assuming that it was error for Leroy and his counsel to be excluded from the

conference, 14 Leroy cannot show that his exclusion affected his substantial rights. Leroy

argues that the deprivation of the right to counsel is a structural issue that necessarily

caused prejudice. 15 But in United States v. Toliver, we explained that deprivation of the

right to counsel does not always mandate automatic reversal. 16 We instead look to the type

10 A. 359. 11 Leroy argues that plain error review is inappropriate because he did not have any opportunity to object before the courtroom deputy spoke with the juror outside the presence of counsel. Nevertheless, we have used the plain error standard of review before when a defendant “did not raise a contemporaneous objection when he [later] became aware” of the troubling conduct. United States v. Brown, 595 F.3d 498, 520 (3d Cir. 2010). 12 United States v. Johnson, 899 F.3d 191, 200 (3d Cir. 2018) (quoting United States v. Marcus, 560 U.S. 258, 262 (2010)). 13 Id. (alteration omitted) (quoting Marcus, 560 U.S. at 265). 14 We note, however, that in general “the mere occurrence of an ex parte conversation between a trial judge and a juror does not constitute a deprivation of any constitutional right.” United States v. Gagnon, 470 U.S. 522, 526 (1985) (quoting Rushen v. Spain, 464 U.S. 114, 125–26 (1983) (Stevens, J., concurring in judgment)). 15 Leroy does not argue that his own absence from the conference affected his substantial rights. 16 330 F.3d 607, 613–14 (3d Cir. 2003). 5 of ex parte communication that occurred. 17 Leroy claims that the conversation between

the juror and the deputy “created the potential that a juror with bias or predisposition was

seated on the jury.” 18 But there is no indication in the record that the juror was speaking

to the deputy about bias or predisposition. Instead, the District Court implied that her

“situation” was personal by noting that it was “much less” than that of another juror, who

had a personal issue that prevented her attendance at trial. 19 The mere fact that the juror

was tearful does not establish that counsel’s absence from her discussion with the deputy

affected Leroy’s substantial rights. We therefore reject this argument.

C.

Leroy also argues that the District Court abused its discretion by allowing the

Government’s expert, Dr. Veronique Valliere, to testify. Dr. Valliere is a clinical and

forensic psychologist who has treated hundreds of victims of abuse and thousands of

offenders. She testified about common behaviors of child sexual-abuse victims and

common techniques of abusers. Leroy argues that Dr. Valliere’s testimony was not based

on reliable principles and methods, was not the type of testimony for which expertise was

needed, and was more prejudicial than probative.

We agree with the District Court that Dr. Valliere’s testimony was reliable and

relevant. Dr. Valliere has extensive academic experience in the field of psychology, and

her robust clinical and forensic practice involves a similar patient population of sexual

17 See, e.g., United States v. Bertoli, 40 F.3d 1384, 1399 (3d Cir. 1994) (determining that counsel’s absence during ex parte in camera interviews was not prejudicial). 18 Appellant’s Br. at 51. 19 A. 359. 6 offenders and child abuse victims, which we find to be sufficient for the purposes of Rule

702 in this case. 20 Her testimony was relevant because it assisted the jury in learning about

specialized topics—for example, she explained that the most significant factor in whether

a victim comes forward is his relationship to the offender, that the use of alcohol or drugs

can shame the victim into feeling he cannot come forward, and that many offenders

ingratiate themselves to child victims by allowing victims to “act more grown up around

them.” 21

Finally, we reject Leroy’s argument that the District Court did not conduct a

balancing test under Rule 403 of the Federal Rules of Evidence before admitting Dr.

Valliere’s testimony. First, Leroy’s motion to exclude Dr. Valliere’s testimony was limited

to Rule 702 and did not mention Rule 403. Second, even if this issue were properly raised,

we are not convinced by Leroy’s arguments that Dr. Valliere’s testimony constituted unfair

vouching or bolstering of the victims. The fact that the jury may have drawn comparisons

20 See Elcock v. Kmart Corp., 233 F.3d 734, 745–46 (3d Cir. 2000) (explaining that in determining whether an expert’s testimony is reliable, we consider, inter alia, “the qualifications of the expert witness testifying based on the methodology” and “the non- judicial uses to which the method has been put” (quoting In re Paoli R.R. Yard PCB Litig., 35 F.3d 717, 742 n.8 (3d Cir. 1994))). 21 A. 380. We also place no stock in Leroy’s argument that because there have been recent child sex-abuse scandals in the past several years, the District Court should have assumed that all jurors would understand that child sex-abuse commonly occurs at the hands of men in positions of trust and privilege. See United States v. Batton, 602 F.3d 1191, 1201 (10th Cir. 2010) (finding that expert testimony sharing “that sex offenders are generally not strangers to their victims and their families but are more often than not close family members, friends, or well-respected individuals in a community who often use their positions to groom their victims into trusting them” was admissible); see also United States v. Kirkie, 261 F.3d 761, 766 (8th Cir. 2001) (admitting expert testimony into the characteristics of sexually abused children). 7 between Leroy’s relationships with Mike K. and Mikey D. and the relationships Dr.

Valliere described does not make the latter’s testimony unduly prejudicial. Third, the

District Court concluded that it could “see nothing in [Dr. Valliere’s] proposed testimony

that would be unduly prejudicial to [Leroy] and the probative value outweighs the

prejudicial effect under Rule 403,” as her testimony would “assist the jury because many

jurors are at a disadvantage when dealing with sexual abuse of children.” 22 This analysis

satisfies the Rule 403 balancing test. 23

D.

Leroy’s remaining arguments fare no better. Fourth, Leroy argues that the District

Court unconstitutionally limited his ability to conduct juror voir dire by rejecting specific

voir dire questions he proposed. Because Leroy did not object at the time, we review for

plain error. Here, we see no plain error, because the District Court did not “bar[] all inquiry

into a relevant subject matter designed to elicit a disqualifying prejudice” 24 and conducted

a “basically adequate” voir dire. 25

Fifth, Leroy argues that the District Court abused its discretion by denying his

untimely motion for a new trial. While some courts have excused late filed motions for

22 A. 24. 23 Cf. United States v. Smith, 725 F.3d 340, 348 (3d Cir. 2013) (holding that a district court’s analysis was “insufficient” and its reasoning “not apparent from the record,” where the court described the evidence as “significantly prejudicial” and then concluded that it was “not unfairly prejudicial” without addressing the probative value of the evidence). 24 Butler v. City of Camden, City Hall, 352 F.3d 811, 816 (3d Cir. 2003). 25 United States v. Urian, 858 F.2d 124, 127 (3d Cir. 1988). Indeed, the voir dire questions used by the District Court elicited responses from two jurors who revealed themselves to be unable to serve impartially due to their opinions on child sex-abuse cases. 8 ineffective assistance of counsel, 26 Leroy has not pointed to any cases in which we have

found a district court abused its discretion by choosing not to consider such a motion.

There is little reason to do so here, when the District Court also rejected Leroy’s motion

on the merits, correctly concluding that ineffectiveness claims are better raised in collateral

proceedings. 27

Sixth, Leroy argues that the District Court abused its discretion by allowing

testimony pertaining to a plan to film Mike K.’s drug use. 28 The Government’s theory at

trial was that Leroy enlisted a minor named Matthew to entice Mike K. to use drugs and

film the encounter, which would discredit Mike K.’s allegations. We agree with the

Government and with the District Court that evidence that Leroy was actively attempting

to undercut the credibility of his accusers by inducing them to partake in illegal activities

26 See United States v. Munoz, 605 F.3d 359, 369–73 (6th Cir. 2010); United States v. Washington, 184 F. Supp. 3d 149, 155 n.2 (E.D. Pa. 2016), aff’d in part and vacated in part 869 F.3d 193 (3d Cir 2017). 27 See Washington, 869 F.3d at 202 (observing that ineffective assistance of counsel claims are generally not considered on direct appeal and are more commonly brought in collateral proceedings). 28 As a preliminary matter, Leroy argues that the District Court erred because its written decision allowing Matthew’s testimony on the subject was “a nearly verbatim copy of the [G]overnment’s submission.” Appellant’s Br. at 99. While the District Court’s opinion hewed closely to the Government’s brief, “a district court’s verbatim adoption” of a party’s argument “although highly disapproved of, is not per se grounds for reversal” so long as the court exercised independent judgment in adopting the argument. In re Cmty. Bank of N. Va., 418 F.3d 277, 300 (3d Cir. 2005). We are satisfied that District Court’s opinion as a whole demonstrated independent judgment and analysis. We note that the District Court did not simply rubber stamp the Government’s arguments, as it granted one of Leroy’s motions in limine. 9 is relevant to Leroy’s consciousness of guilt. 29 We therefore conclude that the District

Court did not abuse its discretion by permitting the testimony.

II.

For the foregoing reasons, we will affirm.

29 See United States v. Kemp, 500 F.3d 257, 296–97 (3d Cir. 2007) (concluding that evidence a defendant lied about his wealth could show consciousness of guilt in a pension fraud case and was admissible under Rule 404(b)). 10