United States of America v. Louie Josytewa

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LOUIE JOSYTEWA,
Defendant-Appellant.
No. 19-10416
D.C. No.
3:18-cr-08300-DLR-1
District of Arizona,
Prescott
ORDER
Before: HAWKINS, BEA, and BUMATAY, Circuit Judges.
The memorandum disposition filed in this case on March 30, 2021, is
amended by the attached memorandum disposition. With this amended
memorandum disposition, the panel has unanimously voted to deny Louie
Josytewa’s petition for panel rehearing. The panel modifies the memorandum to
review the district court’s admission of testimony regarding the details of the
sexual conduct that preceded Josytewa’s confession to a 1991 sexual assault for
abuse of discretion instead of plain error.
The panel will not allow future petitions for rehearing from the amended
memorandum disposition.
FILED
MAY 26 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LOUIE JOSYTEWA,
Defendant-Appellant.
No. 19-10416
D.C. No.
3:18-cr-08300-DLR-1
AMENDED
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Douglas L. Rayes, District Judge, Presiding
Argued and Submitted March 1, 2021
Phoenix, Arizona
Before: HAWKINS, BEA, and BUMATAY, Circuit Judges.
Louie Josytewa appeals his conviction for abusive sexual contact with a
child and committing an offense as a registered sex offender for molesting by
touching seven-year-old K.A. over her clothes at a family party in 2016 (“the 2016
assault”). 18 U.S.C. §§ 1153, 2244(a)(5), 2246, and 2247 (abusive sexual contact
* This disposition is not appropriate for publication and is not
precedent except as provided by Ninth Circuit Rule 36-3.
FILED
MAY 26 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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with a child); 18 U.S.C. § 2260A (offense by registered sex offender). Josytewa
argues under Fed. R. Evid. 403 that the district court erred in admitting testimony
regarding the details of the sexual conduct that preceded Josytewa’s confession to
a 1991 sexual assault (“the 1991 assault”), in admitting testimony regarding his
status as a sex offender, and by giving the jury an impermissibly coercive Allen
charge.1 He asserts that the cumulative effect of these errors deprived him of a fair
trial. We affirm.
A. Challenged Testimony
Josytewa objected to the admission of the testimony regarding the 1991
assault at trial, so this Court reviews the district court’s admission of the testimony
for abuse of discretion. United States v. Garrido, 596 F.3d 613, 616 (9th Cir.
2010). In sexual assault cases, Rule 414 permits the admission of evidence of
prior sexual assaults. Fed. R. Evid. 414(a). “The evidence may be considered on
any matter to which it is relevant.” Id.
Under the LeMay factor test, this Court considers a non-exhaustive list of
factors when evaluating evidence of prior sexual assault under Rule 403, including
the “similarity of the prior acts to the acts charged,” the “frequency of the prior
acts,” and the “necessity of the evidence beyond the testimonies already offered at
trial.” United States v. LeMay, 260 F.3d 1018, 1027–28 (9th Cir. 2001).
1 Allen v. United States, 164 U.S. 492 (1896).

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Ultimately, the question is whether the district court exercised its “discretion . . . in
a careful and judicious manner.” Id. Due to the similarity of the 1991 assault to
this case, evidence of a third incident involving three children before the 1991
assault, and testimony that Josytewa did not have the opportunity to commit the
2016 assault, the district court exercised its “discretion . . . in a careful and
judicious manner.” LeMay, 260 F.3d at 1027–28. Accordingly, the district court
did not abuse its discretion when it admitted the testimony regarding the 1991
assault.
Because Josytewa did not object to the admission of the compliance
specialist’s testimony regarding his sex offender status, it is reviewed for plain
error. United States v. Rizk, 660 F.3d 1125, 1132 (9th Cir. 2011). Under this
standard, reversal is warranted “only when it appears necessary to prevent a
miscarriage of justice or to preserve the integrity and reputation of the judicial
process.” United States v. Bryan, 868 F.2d 1032, 1039 (9th Cir. 1989) (citation
omitted); see also United States v. Olano, 507 U.S. 725, 732 (1993). K.A.
testified about the 2016 assault and identified Josytewa as the perpetrator. The
Government also played part of Josytewa’s confession to that offense, in which he
admitted to touching K.A.’s “vagina” because he “[j]ust wanted to touch it,” and
K.A.’s mother testified to K.A.’s changed behavior immediately after the assault
and the fact that at the party she switched couches away from Josytewa. For these

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reasons, as well as the fact that Josytewa stipulated to his status as a sex offender
before trial, the admission of the compliance specialist’s testimony regarding that
status was not plain error.2
B. The Allen Charge
Josytewa asserts that the district judge implied that the jurors were required
to reach a verdict when, in the context of discussing scheduling, he asked that if
they did not “have a verdict by 4:30 this afternoon, [that they] recess and come
back tomorrow at 9:00.” Josytewa did not object to these remarks, which the
judge made immediately after he told the jurors that they “should not change an
honest belief . . . for the mere purpose of returning a verdict.”
Within minutes, the judge called the jury back to clarify that he “didn’t mean
to leave the impression that you have to reach a verdict . . . . [I]f you don’t reach a
verdict, then you’ll let us know . . . . [Y]ou’re not going to be held here forever.”
Because of this almost immediate clarification, there is not a high probability that
any error materially affected the verdict. United States v. Berger, 473 F.3d 1080,
1090–91 (9th Cir. 2007) (finding no coercion when the court took hours to provide
an “adequate counterbalance” to the “so-called” Allen charge). Moreover, after
the challenged remarks, the jury deliberated for a significant portion of its total
2 The Government asserts that the parties stipulated to the testimony of one
witness in this regard, but there is no evidence of this in the record.

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time—another hour and a half on top of approximately three hours by that point.
United States v. Hernandez, 105 F.3d 1330, 1334 (9th Cir. 1997) (holding that
forty minutes of deliberation after Allen charge was “not so short as to raise the
specter of coercion,” especially because the jury had already deliberated for four
and a half hours).
Accordingly, reversal is not warranted for any of the district court’s alleged
errors. Thus, the decision of the district court is AFFIRMED.

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