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United States v. Underwood

United States Court of Appeals, Sixth Circuit

June 13, 2017

United States of America, Plaintiff-Appellee,
v.
Iraephraim X. Underwood, Defendant-Appellant.

          Argued: April 27, 2017

         Appeal from the United States District Court for the Northern District of Ohio at Youngstown. No. 4:15-cr-00096-Patricia A. Gaughan, District Judge.

         ARGUED:

          Catherine J. Adinaro, FEDERAL PUBLIC DEFENDER'S OFFICE, Cleveland, Ohio, for Appellant.

          Michael A. Sullivan, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee.

         ON BRIEF:

          Catherine J. Adinaro, FEDERAL PUBLIC DEFENDER'S OFFICE, Cleveland, Ohio, for Appellant.

          Benedict S. Gullo, UNITED STATES ATTORNEY'S OFFICE, Cleveland, Ohio, for Appellee.

          Before: GUY, SILER, and DONALD, Circuit Judges.

          OPINION

          SILER, Circuit Judge.

         Iraephraim Underwood appeals his conviction of one count of crossing a state line with intent to engage in a sexual act with his step-granddaughter, a minor, in violation of 18 U.S.C. § 2241(c), and one count of transporting his step-granddaughter in interstate commerce with the intent that such person engage in unlawful sexual activity, in violation of 18 U.S.C. § 2423(a). On appeal, Underwood argues that the district court erred in allowing his wife, his daughter, and a sexual assault nurse to testify at his trial. He argues that by allowing his wife to testify, the district court violated both the confidential marital communications privilege and the adverse spousal testimony privilege. He also argues that the district court erred in allowing his daughter and the sexual assault nurse to testify in violation of Federal Rules of Evidence 403 and 803(4). We affirm because the district court did not err in any of these evidentiary rulings.

         FACTUAL AND PROCEDURAL BACKGROUND

         In 2014, Underwood's step-granddaughter ("Jane")[1] told her mother that Underwood had sex with her in August 2014 when the two were on a trip to Michigan. According to Jane, she and her cousin ("John")[2] had gone on a work trip with Underwood in his semi-truck. Jane, John, and Underwood first went to Pennsylvania. After Underwood took John back home, Underwood took Jane to Michigan with him.

         According to Jane, when they arrived in Michigan, Underwood sexually assaulted her. After learning of the allegations, Jane's mother took Jane to the local hospital and then to the Children's Advocacy Center. John also accused Underwood of sexual misconduct and was taken to the Advocacy Center.

         In 2015, a three count superseding indictment was filed against Underwood. The indictment charged him with one count of crossing state lines with the intent to engage in a sexual act with Jane, and two counts of transporting a person, under the age of eighteen, in interstate commerce, with the intent that such person engage in unlawful sexual activity (one count for each Jane and John).

         In 2016, Underwood was tried for the indicted charges. During the trial, the government presented three witnesses that are the subject of this appeal. It called Underwood's wife ("Cora") to testify. Over a marital communications privilege objection, Cora testified that she became increasingly concerned about Underwood's favoritism toward Jane. Cora also testified about an incident when she left Underwood and Jane at home alone and found that Underwood had changed their bed linens. Finally, Cora testified about text messages and four voicemails that she received from Underwood. In the text messages, Underwood denied sexually assaulting John, but he did not deny assaulting Jane. In the voicemails, Underwood apologized for not being a perfect man.

         The government also called Underwood's adult daughter and Jane's sexual assault examiner Nurse Gorsuch. Underwood's daughter testified about being sexually abused by Underwood in 1992-an incident for which Underwood pleaded guilty to Forcible Sexual Abuse. Nurse Gorsuch testified about her interview with Jane concerning the sexual assault.

         The jury convicted Underwood of aggravated sexual abuse of a child and transporting a minor as it related to Jane and acquitted him of the count relating to John. The district court sentenced Underwood to life on both counts to be served concurrently.

         DISCUSSION

         I. ...


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