IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
July 17, 1997
UNITED STATES OF AMERICA,
STEVEN PAUL OLIVER,
Appeal from the United States District Court for the Western District of Wisconsin. No. 96-CR-5 John C. Shabaz, Chief Judge.
Before Posner, Chief Judge, and Flaum and Rovner, Circuit Judges.
Flaum, Circuit Judge.
Argued April 7, 1997
Decided JULY 17, 1997
Steven Oliver appeals his conviction for kidnapping under 18 U.S.C. sec. 1201 and for the interstate transportation of a minor for illegal sexual purposes under 18 U.S.C. sec. 2423 (the Mann Act). Before this court, Oliver argues that the district court's refusal to grant a continuance or, in the alternative, to suppress the DNA and serological evidence, deprived him of the effective assistance of counsel. He further argues that the district court erred at sentencing by departing upwards two levels without a proper evidentiary basis to show that Oliver caused his victim extreme psychological injury. Believing Oliver's trial to have been fundamentally fair, and the departure to have been well within the authority of the district court, we affirm both conviction and sentence.
Steven Oliver abducted a thirteen year-old girl from Wisconsin and lived with her in a series of Texas motels for three and one half months. He subjected his victim to daily sexual assaults. Tipped off through "America's Most Wanted," the FBI arrested Oliver on December 29, 1995. At the time of his arrest, the FBI conducted an inventory search of Oliver's room in a Houston Days Inn, and articles of clothing and bed sheets thought to be stained with semen were sent to FBI headquarters for evaluation.
Oliver was indicted on January 31, 1996, for both kidnapping and violating the Mann Act. A week later, an attorney was appointed for him. Jury selection and trial were slated to begin June 17. In a letter dated April 29, 1996, the government informed the defense that it intended to use the lab results and expert testimony relating to the garments collected from the motel room. The FBI lab tests, however, were not yet complete; the government kept the defense apprised of its progress and of the qualifications of its experts.
On May 3, the court moved the trial date up to June 3. In part because the test results were not yet available, both parties asked for a continuance. The defense hoped to obtain independent testing, a process which reportedly required two to three weeks at a minimum; in the alternative, the defense sought suppression of the lab evidence. After a hearing, the court moved the trial date a week forward to June 10 and denied the motion to suppress the forthcoming lab reports. Test results still not in hand, the government renewed its motion for a continuance. The defense, perhaps calculating that no test results were preferable to government test results unchallenged by defense testing, contested the motion for the continuance. The district court, relenting slightly on its strict schedule so that both sides could have testing completed, set jury selection and trial for June 24.
As of May 31, the physical evidence was available to the defense for the purpose of independent testing. *fn1 On June 3, the defense received the government's lab reports. On June 12, the defense sent the evidence to an independent lab to be tested. Trial commenced on June 24. That day and the next, the government put on its case, consisting of testimony from, among others, the victim, the victim's mother, a witness from the Texas motel, and two expert witnesses. Through DNA and serological tests, the government's expert witnesses linked the semen found on the victim's underwear to the defendant, and thus corroborated the victim's testimony of sexual abuse. The defense received its preliminary lab results on June 26, and put on its case, including an expert witness, that very day. The defense's preliminary results were not inconsistent with those of the government: independent tests confirmed that the semen on the victim's underwear was that of the defendant. Oliver's theory of defense with respect to the DNA evidence was that the semen stains on the victim's underwear were not a result of intercourse. The jury convicted Oliver on both counts.
After the guilty verdict, reflecting on the cramped nature of the time-frame he had imposed with regard to the DNA evidence, the judge stated, "I'm going to suggest if you have any further concerns with that [handling of DNA evidence] that you do continue to use governmental funds to have the full and complete DNA performed by your expert so that the Court can consider that at sentencing in the event you continue to pursue this issue in this case." Defense counsel, prior to the sentencing hearing, informed the court that the test results came back "inconclusive" and that he had no intention of adding any evidence to the case.
At sentencing, the judge departed two levels upwards based on the victim's psychological pain and injury. The court also departed upwards an additional five levels due to the number of sexual acts committed by the defendant. The court, on it own motion, then departed two levels downward, from 44 to 42, so as to sentence Oliver for a term of years, rather than for life. *fn2 Oliver was sentenced to 480 months in prison for kidnaping and 120 months, to run concurrently, for the Mann Act violation.
On direct appeal, Oliver pursues a somewhat counterintuitive strategy. He argues that he was denied the effective assistance of counsel and thus deprived of his rights under the Fifth and Sixth Amendments. Oliver does not contend, however, that his trial counsel did anything wrong. Rather, Oliver maintains that the trial court's unwillingness to grant a continuance, or in the alternative to suppress the DNA and serological evidence, resulted in his trial counsel's inability to adequately defend the case. *fn3
Oliver makes his case under United States v. Cronic, 466 U.S. 664 (1984), in which the Supreme Court describes circumstances so likely to prejudice a trial, that courts should presume a violation of a defendant's Sixth Amendment rights without regard to the prejudice component normally required of Sixth Amendment claims. See id. at 657. Such a presumption operates when, by reason of process, "'the accused is denied counsel at a critical stage of his trial' or when counsel is present but 'entirely fails to subject the prosecution's case to meaningful adversarial testing.'" United States v. Morrison, 946 F.2d 484, 500 n.3 (7th Cir. 1991) (quoting Cronic, 466 U.S. at 569); see United States v. Hernandez, 948 F.2d 316, 319-20 (7th Cir. 1991). As the record reflects *fn4 that Oliver's counsel was present throughout the trial (and no argument has been made to the contrary), we must inquire whether the court's scheduling of trial and admission of the serological and DNA evidence entirely prevented counsel from mounting a meaningful defense to the government's case.
Viewed in this light, there is no merit in Oliver's argument. With regard to the admission of the government's lab results, the actual results, the qualifications of the government experts, and the testing procedures were made available to defense counsel for trial preparation. At trial, Oliver's counsel was able to cross examine both the government's serologist and geneticist. As to the court's schedule, the trial commenced a week later than planned, a delay that allowed the defense to complete preliminary tests. The defense was able to put on its own expert witness, who presented an alternate theory as to how the defendant's genetic matter ended up on the victim's underwear. Moreover, the close timing between the receipt of the preliminary lab results and the commencement of the defense should not have affected the defense's ability to prepare. The semen was either going to be Oliver's or not: trial counsel could have prepared for both contingencies. The only deprivation counsel could point to is that he was unable to have a more extensive DNA test completed. *fn5 The district court, however, mindful that the defense had not had the opportunity for this more thorough evaluation, expressed its willingness to reopen the record should contradictory evidence come to light. In light of this record, we cannot say this was an instance where the procedures of the district court limited the ability of counsel to present a meaningful defense and thereby rendered the trial fundamentally unfair. *fn6
Oliver, in addition to his argument under Cronic, makes a straight forward Strickland ineffectiveness argument. To prevail under Strickland v. Washington, 466 U.S. 668, Oliver must first establish that his attorney's advocacy fell below an objective standard of reasonableness, see id. at 688, before we consider whether there was any prejudice, see id. at 691. This claim likewise lacks merit. Oliver's counsel made a couple of decisions that now appear incongruous with his argument on appeal: he delayed two weeks before sending the physical evidence to his independent lab for testing; and he opposed the government's second motion for a continuance. As Oliver maintains that his counsel "was not incompetent" *fn7 except with regards to matters out of his own hands, we will assume he had his reasons. As to his handling of the lab results at trial, it seems he did the best he could: counsel cross-examined the government's expert witnesses, completed independent preliminary tests, and presented an alternate theory to explain away this very damning evidence. Neither the process of the courts nor the skills of defense counsel can be blamed when the evidence does not go the defendant's way. On an additional note, were we to proceed to the prejudice prong of Strickland, Oliver would have difficulty getting around the fact that the more accurate lab results apparently did not exonerate him.
Arguing insufficiency of the evidence, Oliver takes issue with the district court's two level upward departure under section 5K2.3 of the United States Sentencing Guidelines for the psychological pain caused to Oliver's victim. *fn8 As evidence for this two point enhancement, the district court relied on a psychologist's report establishing the psychological damage to the victim. *fn9 Oliver argues that this report is insufficient because it provides no base line showing a "normal" psychological reaction to such a traumatic event with which to compare Oliver's victim's reaction. We review the district court's determination in this regard for clear error. See United States v. Ewers, 54 F.3d 419, 420 (7th Cir. 1991).
Given section 5K2.3's use of a term of degree in it's opening line, one might expect that a comparative diagnosis be required for a departure under this section. The Guideline, however, hastens to explain that the sentencing court is to apply this provision where it finds "substantial impairment" of an "extended or continuous duration." Other circuits have heeded this explanatory provision and required no statement of a normal reaction with which to compare a victim's plight. See United States v. Chatlin, 51 F.3d 869, 874 (9th Cir. 1995) ("There is no hard and fast rule establishing the type and quantum of evidence sufficient to meet this burden.") (upward departure warranted where minor victim underwent intensive therapy, feared harm for self and family, and was held back a year in school); United States v. Anderson, 5 F.3d 795, 804 (5th Cir. 1993) (letter from victim describing substantial changes in her psychological and behavioral functioning sufficient basis on which to depart); United States v. Ellis, 935 F.2d 385, 395 (1st Cir. 1991) (testimony of counselor that child victim suffered extreme stress, fear of physical harm to herself and her family, and guilt over the sexual abuse sufficient evidence for departure); but see United States v. Fawbush, 946 F.2d 584, 586-87 (8th Cir. 1991) (victim's participation in therapy and opinion of probation officer insufficient to substantiate upward departure). Similarly, we have not required a comparative analysis where the evidence revealed substantial psychological damage. See United States v. Herrera, 70 F.3d 444, 447 (7th Cir. 1995) ("One level of departure on this ground is not problematic, given the uncontested evidence that Cynthia [the victim] required extended psychiatric care."); United States v. Newman, 965 F.2d 206, 211 (7th Cir. 1992) (threats, confinement, lies and rape sufficient facts to warrant departure for psychological injury). The literal instructions of the guideline, in combination with the above precedent, convinces us that the Sentencing Commission envisioned that no comparative statement be included in evidentiary submissions at sentencing. Moreover, unversed in psychology, this court finds it hard to imagine what a "normal" reaction to being kidnapped and transported across state lines for illegal sexual purposes would be, and is thus strengthened in its conviction that no such evidence is warranted. Accordingly, we cannot say that it was clear error for the district court to rely on a thorough report of a psychologist, which predicted Oliver's victim would suffer "severe personal and interpersonal dysfunction."
For the above reasons, we AFFIRM the judgment of the district court.