from the United States District Court for the District of New
Mexico (D.C. No. 1:13-CR-02730-MV-1)
Michael Keefe, Assistant Federal Public Defender, Office of
the Federal Public Defender, Albuquerque, New Mexico, for
Jennifer M. Rozzoni, Assistant United States Attorney (Damon
P. Martinez, United States Attorney, with her on the brief),
Office of the United States Attorney, Albuquerque, New
Mexico, for Plaintiff-Appellee.
HARTZ, MURPHY, and HOLMES, Circuit Judges.
a jury trial in the United States District Court for the
District of New Mexico, Defendant Steven John was convicted
on one count of attempted aggravated sexual abuse in Indian
country, see 18 U.S.C. §§ 1153(a),
2241(a)(1), and 2246(2)(B), and one count of abusive sexual
contact in Indian country, see 18 U.S.C.
§§ 1153(a), 2244(a)(2), and 2246(3). On appeal
Defendant argues (1) that the district court violated his
Sixth Amendment right to confrontation and his right to
present a complete defense by restricting his
cross-examination of the victim, (2) that several of the jury
instructions regarding assessment of the evidence were
improper, and (3) that the district court should have
instructed the jury on the lesser-included offense of simple
assault. Exercising jurisdiction under 28 U.S.C. § 1291,
and the victim are relatives. At trial the victim testified
as follows about an incident at her home on July 18, 2013:
She was showering when she heard knocking on her front door.
She put on some clothes, opened the door, and saw Defendant.
He asked for his sunglasses, but she told him that her niece
had broken them. She closed the door on him and locked it
before returning to the shower. Not long afterwards she
noticed a shadow near the shower door. She cracked the shower
door open and saw Defendant undressing. She asked him what he
was doing. Continuing to take his clothes off, he answered,
"I'm taking a shower." R., Vol. 4 at 174. She
tried to get out of the shower-stepping onto the toilet and
grabbing a towel hanging on the shower door. Defendant came
toward her, and a struggle ensued while both were naked.
Despite her pleas to be left alone and for him to get out,
Defendant grabbed the towel away from her and pulled her head
toward his "private area." Id. at 177-78.
She made her way to the bathroom door to try to escape, but
Defendant pulled her back toward the shower. Although she
elbowed him, he got his hands around her stomach and then
across her chest. She eventually was able to push Defendant
down into the shower, grabbed her cell phone, got a blanket
in the living room to cover herself, and ran outside, where
she called the police.
arrived after Defendant had left. They found the shower door
tilted, the bathroom trashcan turned over, and the
victim's menstrual blood smeared on the floor. No
forensic testing was conducted.
trial Defendant wanted to cross-examine the victim about her
being placed in inpatient treatment at a Phoenix
behavioral-health facility four months before the assault.
The district court disallowed this line of questioning.
Defendant challenges the court's ruling, relying on the
Confrontation Clause of the Sixth Amendment and the right to
present a complete defense under the Fifth and Sixth
summarize what we know of the Phoenix incident from police
reports and hospital records presented to the district court:
In March 2013 the victim visited her sister in Phoenix. She
alleged that her sister pressured her to drink alcohol, they
argued, and the victim grabbed a knife and tried to cut her
wrists, making superficial cuts. She was taken to the
hospital. After she told the medical staff that she had been
having suicidal thoughts for two years, she was transferred
to an inpatient behavioral-health unit. During intake she
denied using any illicit substances, despite having told the
emergency-department staff that she used marijuana. The
intake notes characterized the victim as having immature
judgment, marked impulsivity, an evasive attitude, and a
severely limited fund of knowledge. Staff determined that she
had a mood disorder and needed psychotherapy. Defendant's
brief asserts that the victim was prescribed medication when
she was checked out. But the discharge summary says that no
medication was needed.
victim's sister denied to police that she had given the
victim any alcohol or coerced her to drink. Because the
police could not determine whether the victim got the alcohol