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.
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 ...