[592] MEMORANDUM **
Willard John appeals his jury conviction and life sentence for federal second-degree murder. We affirm.
1. The district court did not err in denying John’s motion to suppress his statements to the investigating agent. We review de novo whether a confession was made voluntarily, but we review “the district court’s factual findings underlying its determination of voluntariness” for clear error. United States v. Gamez, 301 F.3d 1138, 1144 (9th Cir. 2002). Whether a confession was made voluntarily is determined by “‘whether [the] defendant’s will was overborne’ by the circumstances surrounding the giving of [the] confession.” Dickerson v. United States, 530 U.S. 428, 434, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)).
The district court did not clearly err in determining that, although John was unable to speak when the agent questioned him, John was alert and oriented during the time of the interviews. John’s doctor testified that John was alert and oriented on the days of the interviews. The agent testified that, before he questioned John, he asked the nurse what medications John was taking and the nurse said John was not taking any medications that would alter his thinking or make him sleepy—that he was fully able to communicate. The agent also testified that John appeared alert and coherent during the interviews. The agent testified that John “was writing notes” and, “although he couldn’t speak, [they] were communicating just fine without any problems.”1
Thus, given these facts, we cannot conclude that the district court erred in finding that John’s statements to the agent were made voluntarily; that his will was not overborne by the circumstances surrounding the confession. See Dickerson, 530 U.S. at 434, 120 S.Ct. 2326.
2. The district court did not abuse its discretion by denying John’s motion for a continuance in response to the government’s disclosure of its report concerning the DNA evidence on the eve of trial. John had moved for a continuance or, in the alternative, to exclude the report. The district court denied the continuance and granted John’s alternative motion to exclude the report. The district court explained that the government did not have exclusive control over the DNA evidence, and that John could have tested the DNA evidence himself and prepared his own report, but did not. Further, any potential prejudice that would have resulted from the government’s use of the report was ameliorated by the district court’s decision [593] to grant John’s alternative request to exclude the report.
3. The government did not violate John’s due process rights by failing to preserve potentially exculpatory evidence from the crime scene. For the government’s destruction of evidence to rise to the level of a due process violation, John must prove “that the government acted in bad faith, the presence or absence of which ‘turns on the government’s knowledge of the apparent exculpatory value of the evidence at the time it was lost or de- . stroyed.’ ” See United States v. Sivilla, 714 F.3d 1168, 1172 (9th Cir. 2013) (quoting United States v. Cooper, 983 F.2d 928, 931 (9th Cir. 1993)). Whether the government acted in bad faith is a factual finding determined by the district court, which we review for clear error. Id.
The district court did not clearly err in finding that the government did not dispose of the potentially exculpatory evidence in bad faith. The district court noted that John “scantly” argued the element of bad faith when John claimed that the government had failed to preserve the evidence. John argued before the district court that “[t]he FBI deliberately gave the evidence away, knowing it would be destroyed.” The district court found that this did not rise to the level of bad faith, because the investigating agent “specifically collected a blood sample from the top of the mattress and cut-out the bloody fingerprints on the underside, thereby preserving the most relevant portions of the mattress prior to its destruction.” The district court further found that the agent “credibly testified that he did not believe that the remainder of the mattress constituted potentially exculpatory evidence, in part because the lack of evidence of an intruder and the fact that the mattress undeniably had been saturated with [John’s] and [the victim's] blood.”
As to the government’s failure to preserve the photographs of John’s injuries, the government did not violate John’s due process rights. The district court did not clearly err in finding that John’s argument with respect to the photographs was moot. John’s injuries were not at issue. Further, thumbnail-sized images of the photographs were preserved and admitted into evidence.
4. The district court did not abuse its discretion by denying John’s request for an adverse inference instruction with respect to the lost evidence. A defendant may be entitled to an adverse inference instruction even if the government did not act in bad faith, but only when the quality of the government’s conduct was poor and the prejudice to the defendant was significant. Sivilla, 714 F.3d at 1173-74. Here, the government’s conduct in handling the evidence was not poor, and John was not significantly prejudiced. As explained above, the government collected a blood sample from the top of the mattress and preserved a cut-out of the mattress before disposing of it. Additionally, the photographs of John’s injuries were preserved via the thumbnail-sized images. Thus, any resulting prejudice was insignificant.
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[592] MEMORANDUM **
Willard John appeals his jury conviction and life sentence for federal second-degree murder. We affirm.
1. The district court did not err in denying John’s motion to suppress his statements to the investigating agent. We review de novo whether a confession was made voluntarily, but we review “the district court’s factual findings underlying its determination of voluntariness” for clear error. United States v. Gamez, 301 F.3d 1138, 1144 (9th Cir. 2002). Whether a confession was made voluntarily is determined by “‘whether [the] defendant’s will was overborne’ by the circumstances surrounding the giving of [the] confession.” Dickerson v. United States, 530 U.S. 428, 434, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)).
The district court did not clearly err in determining that, although John was unable to speak when the agent questioned him, John was alert and oriented during the time of the interviews. John’s doctor testified that John was alert and oriented on the days of the interviews. The agent testified that, before he questioned John, he asked the nurse what medications John was taking and the nurse said John was not taking any medications that would alter his thinking or make him sleepy—that he was fully able to communicate. The agent also testified that John appeared alert and coherent during the interviews. The agent testified that John “was writing notes” and, “although he couldn’t speak, [they] were communicating just fine without any problems.”1
Thus, given these facts, we cannot conclude that the district court erred in finding that John’s statements to the agent were made voluntarily; that his will was not overborne by the circumstances surrounding the confession. See Dickerson, 530 U.S. at 434, 120 S.Ct. 2326.
2. The district court did not abuse its discretion by denying John’s motion for a continuance in response to the government’s disclosure of its report concerning the DNA evidence on the eve of trial. John had moved for a continuance or, in the alternative, to exclude the report. The district court denied the continuance and granted John’s alternative motion to exclude the report. The district court explained that the government did not have exclusive control over the DNA evidence, and that John could have tested the DNA evidence himself and prepared his own report, but did not. Further, any potential prejudice that would have resulted from the government’s use of the report was ameliorated by the district court’s decision [593] to grant John’s alternative request to exclude the report.
3. The government did not violate John’s due process rights by failing to preserve potentially exculpatory evidence from the crime scene. For the government’s destruction of evidence to rise to the level of a due process violation, John must prove “that the government acted in bad faith, the presence or absence of which ‘turns on the government’s knowledge of the apparent exculpatory value of the evidence at the time it was lost or de- . stroyed.’ ” See United States v. Sivilla, 714 F.3d 1168, 1172 (9th Cir. 2013) (quoting United States v. Cooper, 983 F.2d 928, 931 (9th Cir. 1993)). Whether the government acted in bad faith is a factual finding determined by the district court, which we review for clear error. Id.
The district court did not clearly err in finding that the government did not dispose of the potentially exculpatory evidence in bad faith. The district court noted that John “scantly” argued the element of bad faith when John claimed that the government had failed to preserve the evidence. John argued before the district court that “[t]he FBI deliberately gave the evidence away, knowing it would be destroyed.” The district court found that this did not rise to the level of bad faith, because the investigating agent “specifically collected a blood sample from the top of the mattress and cut-out the bloody fingerprints on the underside, thereby preserving the most relevant portions of the mattress prior to its destruction.” The district court further found that the agent “credibly testified that he did not believe that the remainder of the mattress constituted potentially exculpatory evidence, in part because the lack of evidence of an intruder and the fact that the mattress undeniably had been saturated with [John’s] and [the victim's] blood.”
As to the government’s failure to preserve the photographs of John’s injuries, the government did not violate John’s due process rights. The district court did not clearly err in finding that John’s argument with respect to the photographs was moot. John’s injuries were not at issue. Further, thumbnail-sized images of the photographs were preserved and admitted into evidence.
4. The district court did not abuse its discretion by denying John’s request for an adverse inference instruction with respect to the lost evidence. A defendant may be entitled to an adverse inference instruction even if the government did not act in bad faith, but only when the quality of the government’s conduct was poor and the prejudice to the defendant was significant. Sivilla, 714 F.3d at 1173-74. Here, the government’s conduct in handling the evidence was not poor, and John was not significantly prejudiced. As explained above, the government collected a blood sample from the top of the mattress and preserved a cut-out of the mattress before disposing of it. Additionally, the photographs of John’s injuries were preserved via the thumbnail-sized images. Thus, any resulting prejudice was insignificant.
5. The district court did not plainly err in admitting the victim’s statements to her physical therapist, because such statements were “reasonably pertinent” to medical diagnosis and treatment and described the “inception” and “general cause” of her injuries. See Fed. R. Evid. 803(4). Although the dissent notes this hearsay exception does not generally extend to “statements of fault,” both this Court and at least one sister Circuit have held to the contrary in the context of domestic violence cases. See United States v. Hall, 419 F.3d 980, 986 (9th Cir. 2005) (“Hawkins’ statements to Dr. Grover, in-[594] eluding that her live-in boyfriend had caused her injuries, were statements made for the purpose of medical diagnosis or treatment, and also hearsay exceptions.”); United States v. Joe, 8 F.3d 1488, 1495 (10th Cir. 1993) (holding doctor’s testimony admissible under Federal Evidence Rule 803(4) where “the identity of the sexual assailant was important for his recommendation regarding Ms. Joe’s aftercare, including appropriate counseling”). The dissent further suggests that statements regarding the identity of an abuser are only admissible under this exception when necessary to treat emotional or psychological injuries related to the abuse. That is the case here. As in Joe, the victim and her medical provider discussed her future safety, and the physical therapist “offered help” in seeking protection from her abuser. This conversation took place during the victim’s physical therapy session. It is therefore admissible as “reasonably pertinent” to her treatment for the injuries she sustained.
6. The district court’s admission of the roommate’s statement to the officer did not violate the Confrontation Clause, because the roommate testified at trial and was subject to cross-examination. See Padilla v. Terhune, 309 F.3d 614, 621 (9th Cir. 2002). Moreover, the district court instructed the jury that the officer’s testimony regarding the roommate’s statement could be “considered for impeachment purposes only and not as substantive evidence.”
7. The district court did not abuse its discretion when it admitted prior act evidence of John’s physical abuse of the victim. The court admitted the evidence, because it was relevant in demonstrating that John had the “motive, opportunity, [or] intent” necessary to commit the crime. Fed. R. Evid. 404(b)(2); see also United States v. Chea, 231 F.3d 531, 534 (9th Cir. 2000) (explaining that Rule 404(b) is “one of inclusion” in that “other acts evidence is admissible whenever relevant to an issue other than the defendant’s criminal propensity” (quoting United States v. Mehrmanesh, 689 F.2d 822, 830 (9th Cir. 1982))). Furthermore, the probative value of the evidence was not substantially outweighed by the danger of unfair prejudice, because the district court instructed the jury, both during and at the end of trial, that such evidence was “admitted only for the limited purpose of proving [John’s] intent, motive, opportunity, preparation, plan, knowledge, identity, absence of mistake, or absence of accident, and, therefore, [must be considered] only for that limited purpose and not for any other purpose.” See Fed. R. Evid. 403, 404(b)(2). Finally, even if the district court erred in admitting the evidence pursuant to Rule 404(b), the error was harmless. See United States v. Hodges, 770 F.2d 1475, 1480 (9th Cir. 1985) (holding an error is harmless if “it is more probable than not that the erroneous admission of the evidence did not affect the jury’s verdict”).
8. The prosecutor did not commit misconduct during closing argument. We review John’s claims of prosecutorial misconduct for plain error, because John failed to object at trial. See United States v. Moreland, 622 F.3d 1147, 1158 (9th Cir. 2010). We can reverse a conviction under this standard only if, “viewed in the context of the entire trial, the impropriety seriously affected the fairness, integrity, or public reputation of judicial proceedings, or where failing to reverse [the] conviction would result in a miscarriage of justice.” United States v. Geston, 299 F.3d 1130, 1135 (9th Cir. 2002) (quoting United States v. Tank Huu Lam, 251 F.3d 852, 861 (9th Cir. 2001)).
First, the prosecutor did not err in arguing that “[t]here is no way the murderer [595] could have left [the] scene without leaving tracks [of blood] behind,” because prosecutors are permitted to make reasonable inferences from the evidence during closing argument. See United States v. Cabrera, 201 F.3d 1243, 1250 (9th Cir. 2000). Furthermore, the district court specifically instructed the jury that they were to decide the case based on the evidence presented during trial and not on the attorneys’ arguments. Thus, even if the prosecutor did misstate the evidence, such error was harmless. See Fields v. Brown, 503 F.3d 755, 782 (9th Cir. 2007) (en banc) (finding that jurors are presumed to follow the court’s instructions).
Second, the prosecutor criticized only the defense’s theory by calling it a “red herring,” a proper practice in closing argument. See United States v. Sayetsitty, 107 F.3d 1405, 1409 (9th Cir. 1997) (“Criticism of defense theories and tactics is a proper subject of closing argument.”).
Lastly, the prosecutor did not improperly comment on John’s silence. The prosecutor argued that
[I]f somebody else did this, why didn’t [John] say that [to the investigating agent]? Why didn’t he say that? He had not one, but two opportunities, at lengthy interviews with [the agent].... If somebody else did this, he would have said so. He would have told [the agent] that. But he didn’t.
John had communicated at length with the investigating agent on two separate occasions. Thus, when “viewed in the context of the entire trial,” the prosecutor’s statements were not made in regard to John’s silence, but rather to the implications of John’s statements to the investigating agent. See Geston, 299 F.3d at 1135 (citation omitted); see also Leavitt v. Arave, 383 F.3d 809, 827 (9th Cir. 2004) (per curiam) (“[W]hen a defendant chooses to speak, the prosecutor can, surely, explore that speech and its implications.”).
9. The district court did not plainly err in failing to instruct the jury on “absence of heat of passion” as an element of second-degree murder. Because John’s theory of the case was that he did not kill the victim, the evidence did not support giving a heat-of-passion instruction. John made no argument relevant to the instruction and did not request that the instruction be given. See United States v. Roston, 986 F.2d 1287, 1290 (9th Cir. 1993) (“The prosecution is required to negate a killing in the heat of passion only if that issue is ‘properly presented in a homicide case.’ ” (quoting Mullaney v. Wilbur, 421 U.S. 684, 704, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975))).
10. John’s life sentence was not unreasonable. Because John argues for the first time on appeal that his life sentence was unreasonable, we review for plain error. See United States v. Waknine, 543 F.3d 546, 551 (9th Cir. 2008).
The district court did not err procedurally, because the district court explained its reasoning and based the increase to a life sentence on U.S.S.G. § 5K2.8, “Extreme Conduct,” and other factors, as permitted by 18 U.S.C. § 3553(c)(2).
The district court’s upward departure under U.S.S.G. § 5K2.8, “Extreme Conduct,” was not substantively unreasonable, because John’s conduct was unusually heinous. The medical examiner found that the victim suffered multiple lethal wounds, including a slashed throat that cut through to the spine and two deep stab wounds to her back. She also suffered numerous other wounds, including seven other stabs wounds to her back and multiple cuts to her arms and side of her head.
Furthermore, the district court’s upward departure to arrive at a life sentence was not substantively unreasonable. The dis[596] trict court chose to only depart upward two levels under U.S.S.G. § 5K2.8, though it could have gone further. The district court stated that “these [heinous acts] would all justify ... a four-level upward departure [under U.S.S.G. § 5K2.8] to offense level 42,” which would have resulted in a range of 360 months to life. However, instead of imposing a four-level upward departure under U.S.S.G. § 5K2.8, the district court “elected to adopt [a] criminal history category III [from category I] and a two-level upward departure [under U.S.S.G. § 5K2.8] to offense level 40,” which the district court noted also resulted in a range of 360 months to life.
On appeal, John argues that the district court erred by jumping from criminal history category I to III, because the district court had no basis for doing so under the Guidelines. We review a district court’s upward departure from the Guidelines under U.S.S.G. § 4A1.3 for an abuse of discretion. Koon v. United States, 618 U.S. 81, 98-100, 116 S.Ct. 2035, 135 L.Ed.2d 392 (1996). Under this standard, we may reverse the district court’s decision only if we are “convinced firmly that the [district court’s] decision lies beyond the pale of reasonable justification under the circumstances.” Harman v. Apfel, 211 F.3d 1172, 1175 (9th Cir. 2000).
The district court did not abuse its discretion by departing upward to impose a life sentence. The district court based its decision-on the “grossly underrepresented” criminal history, on the “especially cruel and heinous and brutal” murder, and on John’s long history of abusing and assaulting the victim. The revised Guidelines range for a life sentence was based on specific and general deterrence factors to prevent similar crimes in the future. The district judge stated that he had “absolutely no confidence that upon release [John] won’t revert to the same patterns that he displayed over such a long period of time. So I’m satisfied that protection of the public requires this sentence.”
AFFIRMED.