Argued: November 29, 2017
from the United States District Court for the Western
District of Michigan at Marquette. No. 2:14-cr-00030-R. Allan
Edgar, District Judge.
Marino, VANDERBILT LAW SCHOOL APPELLATE LITIGATION CLINIC,
Nashville, Tennessee, for Appellant.
Davis, UNITED STATES ATTORNEY'S OFFICE, Grand Rapids,
Michigan, for Appellee.
Mark Pickrell, VANDERBILT LAW SCHOOL APPELLATE LITIGATION
CLINIC, Nashville, Tennessee, Christopher F. Cowan, THE LAW
OFFICE OF C. F. COWAN, P.L.L.C., Columbus, Ohio, for
Davis, Hannah Bobee, UNITED STATES ATTORNEY'S OFFICE,
Grand Rapids, Michigan, for Appellee.
Before: DAUGHTREY, CLAY, and COOK, Circuit Judges.
Lynn Michael LaVictor appeals denial of his motions for a
judgment of acquittal and a new trial under Federal Rule of
Criminal Procedure 29 and Rule 33,
respectively. He also appeals a number of evidentiary
rulings made by the district court during his trial for the
sexual assault of his girlfriend, hereinafter referred to as
"C.B." For the reasons set forth below, we AFFIRM
the district court's judgment.
27, 2014, after a night of heavy drinking, LaVictor and C.B.
returned to LaVictor's mother's house on the Sault
Ste. Marie Tribe of Chippewa Indians Reservation. Around
three in the morning, LaVictor contacted emergency services
to notify them that C.B., his girlfriend, was bleeding from
her vagina. Following a brief conversation, the dispatcher
told LaVictor to monitor C.B. and call back if her condition
failed to improve. Approximately thirty minutes later,
LaVictor called again to request assistance.
police arrived on scene with emergency personnel to examine
C.B. LaVictor informed the officer on the scene that he and
C.B. had engaged in consensual sex on the couch. Blood stains
were identified on the living room carpet. At the time, C.B.
told the first responders that while having sex, LaVictor
became angry and then stuck an unknown object inside of her.
C.B. was taken to the emergency room while LaVictor remained
in his mother's house.
her arrival to War Memorial Hospital at 4:30 in the morning,
C.B. was admitted directly to the emergency room because of
internal vaginal bleeding and swelling. Dr. Nelu Cristof, a
gynecologist, performed surgery on C.B. to repair a
two-centimeter perineal laceration, as well as lacerations
extending up the vaginal mucosa and underlying fascia.
Testifying at trial, Dr. Cristof expressed doubt that an
erect penis caused C.B.'s injuries. Medical staff
continued to question C.B. about the extent of her injuries
and the events of the previous night. Nurse Christina Simpson
testified that C.B. stated that LaVictor had put something
inside of her. C.B. would later inform Nurse Simpson that
LaVictor inserted a wine bottle into her vagina and anus.
Although C.B. declined a sexual assault examination, the
police were contacted.
police officer Daniel Menard arrived at the hospital to
interview C.B. He observed her lying in bed, crying, and
complaining of pain. C.B. began to cry vociferously as soon
as Officer Menard inquired about LaVictor and the incident in
question. Recounting the events of the previous night, C.B.
told the officer that she and LaVictor went to several bars
and the next thing she could remember was waking up naked on
LaVictor's floor. She mentioned to Officer Menard that
something did not feel right, but refused to divulge any
further information. Instead, C.B. asked Officer Menard to
leave. He complied and went directly to LaVictor's home
to interview him. LaVictor reiterated that the sex from the
previous night was consensual. He explained that they
regularly enjoy "crazy sex" which frequently
"turns rough." At the time, LaVictor denied using a
foreign object inside of C.B., instead claiming that C.B.
commonly bled from her vagina during sexual intercourse. When
Officer Menard returned to the hospital, C.B. asked him to
retrieve her personal items from LaVictor's residence. In
the course of doing so, LaVictor asked Officer Menard whether
he could see C.B. Upon being informed of LaVictor's
desire to visit, C.B. started visually trembling and
explicitly requested that he be denied entry.
Madeleine Guevara, an obstetrician-gynecologist, was assigned
to provide postoperative care to C.B. Initially, C.B. was
reticent and scared. Eventually, she confided to Dr. Guevara
that she had nightmares. Expressing fear that LaVictor would
assault her, she acknowledged her involvement in a
progressively worsening violent domestic relationship with
LaVictor and noted that this situation would be the last
straw. C.B. denied that her injuries arose because of
"frisky sex;" rather, she stated that LaVictor
caused her injuries by placing a wine bottle inside of her.
Nonetheless, C.B. was unwilling to press charges.
after speaking to Officer Menard, LaVictor called and
requested an in-person meeting, which transpired at the
police station. Upon reiterating the consensual nature of his
and C.B.'s sexual encounter, LaVictor confessed to using
a sex toy with C.B. He brought it along to show Officer
Menard. The toy was shaped in the form of a life-sized rubber
arm and fist.
light of mounting evidence of abuse, hospital personnel
persuaded C.B. to talk with a counselor from a local domestic
abuse center on June 29, 2014. After her conversation with
the counselor, C.B. requested to speak to Officer Menard.
Their conversation recounted the events of the previous night
and was memorialized in a five-page affidavit C.B. wrote out.
On the basis of her statement, tribal police executed a
search warrant of LaVictor's home, seizing the sex toy, a
blood soaked rug, and two empty wine bottles.
Grand Jury testimony
22, 2014, C.B. testified before the grand jury. During the
proceedings, C.B. admitted writing a five-page statement that
chronicled the sexual assault. Specifically, she testified:
Q: And then you state that there is a moment after midnight
where I don't recall?
Q: And then it states that, I remember laying on the floor
A: I wrote that, yes, that's correct.
Q: Okay. I am - Yes, we are going over it. You immediately
asked for your clothes. Do you see that?
Q: Okay. You agree with that? Lynn was already furious. He
said, no, you are not getting your clothes. I know this is
difficult, and if you have to take a break, just let me know.
We can stop. Okay? Do you see that?
Q: Okay. Then he accuses you, when you ask for your clothes,
of wanting to see someone else; correct? Yes or no? Remember,
you have to -
A: Yes. It is, yes. It is true, yes.
(R. 165-5, Tr., PageID # 2780). The testimony continues:
Q: Okay. And then he continues to get upset. Then you state
that he forced your legs open. Do you see that?
Q: And then you state, I don't feel like doing that.
Q: And you put in there, meaning sex?
Q: Okay. Then he gets upset - more upset and he says you are
mine. You are doing whatever I want. Do you see that?
Q. That's what he told you?
Q: He pushed his fingers into your vagina?
A: Yes, I remember it.
Q. Okay, and you yelled, stop it. It hurts. Why do you have
to do that so hard? Do you see that?
Q: And his response was, never mind, shut up. And you again
say, you are hurting me?
A: Yeah, that's - -
Q: And then you - he -You state that he opened me so roughly
like it wasn't real skin. That's how it felt to you?
A: Oh, my God. Yes.
Q: And then you tried to get up, and he is more angry and he
says, lay down, bitch, put his elbow along your eyebrow area,
twisting you head sideways? Do you see what you said there, I
closed my eyes and I knew this was going to be a battle . . .
Q: -- again?
(Id. at 2781-83). C.B. further acknowledged that
LaVictor slapped her, cursed at her, and forced himself
inside of her without consent. (Id. at 2783) She
kept yelling at him to stop and that he was hurting her, but
he refused to do so until her vagina bled. (Id.) At
the conclusion of her testimony, the prosecutor offered C.B.
several opportunities to supplement or amend her testimony.
C.B. simply stated that she loved LaVictor and did not want
anything bad to happen to him. (Id. at 2788) She
informed the prosecutor that ...