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United States v. Watanabe

United States District Court, D. Hawaii

March 20, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
SAMANTHA LEIALOHA WATANABE, Defendant.

          ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S APPEAL, REVERSING JUDGMENT IN A CRIMINAL CASE AND REMANDING CASE TO THE MAGISTRATE JUDGE FOR A NEW TRIAL

          Leslie E. Kobayashi United States District Judge

         Before the Court is Defendant Samantha Leialoha Watanabe's (“Defendant”) appeal from the magistrate judge's Judgment in a Criminal Case (“Judgment”), entered pursuant to the jury's guilty verdict (“Appeal”). [Judgment, filed 5/3/15 (dkt. no. 189); Notice of Appeal, filed 5/4/16 (dkt. no. 192).] Defendant filed her Opening Brief in Support of Appeal from Magistrate Judge's Judgment of Conviction and Sentence (“Opening Brief”) under seal on September 19, 2016. [Dkt. no. 214.] Plaintiff the United States of America (“the Government”) filed its Answering Brief on November 21, 2016, and Defendant filed her Reply Brief in Support of Appeal from Magistrate Judge's Judgment of Conviction and Sentence (“Reply Brief”) under seal on November 30, 2016. [Dkt. nos. 216, 217.] Defendant's Appeal came before this Court for oral argument on December 19, 2016.

         On January 20, 2017, this Court issued an entering order ruling on the Appeal (“1/20/17 EO Ruling”). [Dkt. no. 219.] The instant Order supersedes the 1/20/17 EO Ruling. After careful consideration of the briefs, the record, and the arguments of counsel, Defendant's Appeal is HEREBY GRANTED IN PART AND DENIED IN PART. Specifically, this Court GRANTS the Appeal insofar as this Court CONCLUDES that: the magistrate judge abused his discretion by allowing the Government to present lay opinion testimony regarding whether Defendant's actions toward her daughter were within the authority of parental discipline; and the error was not harmless. This Court DENIES the Appeal in all other respects. In light of this Court's rulings on the lay opinion testimony issue, this Court HEREBY REVERSES the Judgment and REMANDS the case to the magistrate judge for a new trial.

         BACKGROUND

         On May 20, 2015, the Government filed an Information charging Defendant with “being an individual on an aircraft within the special aircraft jurisdiction of the United States” who “did intentionally and knowingly assault ‘C.K.' born 01/29/2014, by striking her repeatedly, ” in violation of 49 U.S.C. § 46506 and 18 U.S.C. § 113(a)(5). [Dkt. no. 5.]

         The magistrate judge held a jury trial on December 2, 3, 4, and 7, 2015. The jury began its deliberations on December 7, and returned a guilty verdict on December 8, 2015. [Dkt. nos. 131, 134, 136, 137, 139 (Minutes); Verdict Form, filed 12/8/15 (dkt. no. 140).] After ruling on post-trial motions and a sentencing motion, the magistrate judge sentenced Defendant to thirty days of imprisonment, one year of supervised release, and a $25.00 special assessment. [Minutes of sentencing hearing, filed 5/3/16 (dkt. no. 188).] The Judgment was entered on May 3, 2015, [dkt. no. 189, ] and the instant Appeal followed.

         The Appeal raises the following issues: 1) the magistrate judge's denial of Defendant's request to strike a potential juror - who was actually biased - for cause, which forced Defendant to use one of her peremptory challenges on the biased juror; 2) the magistrate judge's admission, over Defendant's objections, lay opinion testimony about whether the witnesses believed Defendant's actions toward C.K. were parental discipline; 3) the magistrate judge's admission, over Defendant's objections, testimony about an incident that occurred during boarding; 4) the Government improperly argued that the jury could base a conviction on acts that did not constitute striking and were not within the offense charged in the Information; and 5) even if none of these errors individually warrants vacating her conviction, the collective effect of these errors and other evidentiary rulings does.

         The following events and testimony at trial are relevant to the issues on appeal.

         I. Juror Bias

         During jury selection, the Government asked the potential jurors, “[d]o any of you have any beliefs about child rearing or parenting or parental discipline that you think would make it difficult for you to be a fair and impartial juror in a case where the charges are assault against a child under the age of 16 years?” [Jury Selection (12/2/15) Trans., filed 6/8/16 (dkt. no. 197) (“Jury Selection Trans.”), at 34-35.] The potential juror who has been referred to as Juror Number 10 - a preschool teacher - stated that she was “prebiased.” [Id. at 35, 42.] Specifically, she stated: “As a teacher, I am prebiased, as it is part of my responsibility to monitor the well-being of my students and other children in their home, as well as at school.” [Id. at 35.] When asked to explain her use of the word “prebiased, ” Juror Number 10 responded:

It's just - it's hard to kind of turn off my personal and professional beliefs. You know, as a teacher, it is my responsibility and - you know, to maintain the well-being of my students, the children. So it's kind of hard to be outside of it, even outside of a school.

[Id.] When the Government's counsel asked if her beliefs would prevent her from being fair and impartial and from following the judge's instructions and the law, she answered, “I would like to say no, but it's kind of hard to tell.” [Id.] The magistrate judge then asked her if she would listen to all of the evidence and keep an open mind, and if she would listen to the law as he gave it to her and follow the law. She responded “yes” to both questions. [Id. at 35-36.] When she was questioned by defense counsel, the following exchange occurred:

MR. JEROME: So as part of your working at the preschool, are you required by law to report any suspected physical abuse that you might see?
A PROSPECTIVE JUROR: Yes.
MR. JEROME: Okay. And when you do that, what kind of standard do you use?
A PROSPECTIVE JUROR: We have a procedure that the teachers are supposed to follow based - or given - provided by our school board, and then also abiding by the law.
MR. JEROME: Okay. And if there is any doubt, what do you do in that kind of case?
A PROSPECTIVE JUROR: It usually just - it still needs to be reported, and then it will go based on further, you know, discernment of like the director and higher.
MR. JEROME: So if there is any doubt, you report it to the authorities and you let them take care of it.
A PROSPECTIVE JUROR: Yes. No matter what, if there is just any suspicion, it's reported.
MR. JEROME: Okay. And one of things you said to Mr. Wallenstein when he asked you if you could kind of put that aside and put your experience with that aside, and be fair in this case, I think what you said to him was that you would like to say you would be able to do that.
A PROSPECTIVE JUROR: Yeah, I would like to say, but I can't - MR. JEROME: You can't say for sure.
A PROSPECTIVE JUROR: Yeah, it would be really hard for me.
MR. JEROME: Okay. So even if the judge instructs you that that's the law, you still have some doubt in your mind about whether you would be able to do that.
A PROSPECTIVE JUROR: Yes.
MR. JEROME: Okay. And that's just based on- A PROSPECTIVE JUROR: Personal - my personal belief and, you know, the reason why I became a teacher.
MR. JEROME: Okay. So you kind of feel like maybe you're predisposed to believe that something happened versus something didn't happen.
A PROSPECTIVE JUROR: Yes.
MR. JEROME: Okay. So it would be really hard for you to put your experiences aside.
A PROSPECTIVE JUROR: Yes.

[Jury Selection Trans. at 42-44.]

         Defendant challenged Juror Number 10 for cause, and the Government responded that the magistrate judge “sufficiently questioned [Juror Number 10] in the relevant area, and rehabilitated” her. [Id. at 62-63.] The magistrate judge overruled Defendant's objection to Juror Number 10. In a sidebar, defense counsel further explained his reasons for wanting Juror Number 10 stricken for cause, and renewed the request. Defense counsel also argued that, if the magistrate was not inclined to excuse Juror Number 10 for cause, he should grant the defense a fourth peremptory challenge. The magistrate judge noted Defendant's objection to Juror Number 10 for the record, but denied both requests. Defense counsel then stated for the record that, if he had not been forced to use one of Defendant's three peremptory challenges on Juror Number 10, he would have used it on Juror Number 15. Ultimately, Juror Number 10 was excused, and Juror Number 15 remained on the jury. [Id. at 63-66.]

         II. Lay Opinion Testimony

         Defendant states that, over her objection, the magistrate judge allowed the Government to present testimony from at least five witnesses who opined that Defendant's conduct was not “parental discipline.” Defendant contends that this was improper lay opinion testimony.

         During Brian Miller's testimony, the following exchange occurred:

THE WITNESS: . . . And then [Defendant's] behavior was as I described it, it was kind of very nervous, very - you know, very excessive.
MR. SILVERT: Objection, Your Honor.
THE COURT: Overruled.
BY MR. WALLENSTEIN:
Q Did the woman appear to you to be disciplining her child?
A No.

[Trial Day 1 (12/2/15) Trans., filed 6/8/16 (dkt. no. 198) (“12/2/15 Tr. Trans.”), at 38.]

         Cari Miller described Defendant's actions and stated that C.K. was not misbehaving.[1] [Trial Day 2 (12/3/15) Trans., filed 6/8/16 (dkt. no. 199) (“12/3/15 Tr. Trans.”), at 79-86.]

         Cari Miller testified:

Q Was what you saw parental discipline?
MR. SILVERT: Objection.
THE COURT: Overruled.
BY MR. WALLENSTEIN:
Q You can answer the question.
A I can answer?
Q Um-hm.
A No, it was not.
Q Why not?
A Because the child wasn't doing anything to be disciplined for.
Q Any other reason why not?
A It was very excessive. It wasn't discipline.
Q What do you mean by that?
A It was abusive.

[Id. at 86-87.]

         One of the flight attendants, Arthur Moeller, testified:

Q Was that arm jerk that you saw parental discipline?
A I mean, I don't think that it's discipline that should happen, but yeah, she was very irritated.
Q I'll rephrase the question. Was it justified parental discipline?
MR. SILVERT: Objection.
THE COURT: Overruled.
BY MR. WALLENSTEIN:
Q You may answer.
A No.
Q Why not?
A Why isn't that right or - Q Why is it not justified parental discipline, from what you saw?
A It was just too rough. It was just too rough. . . .

[Id. at 65.] Another flight attendant, Charise Pleitez, testified:

Q And based on your own personal observations of the woman, and not what you've heard about from other people, do you think she was just disciplining her child?
A No.
MR. JEROME: Objection, Your ...

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