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Menendez v. United States

Court of Appeals of Columbia District

March 2, 2017

Enrique Menendez, Appellant,
v.
United States, Appellee.

          Argued May 17, 2016

         On Appeal from the Superior Court of the District of Columbia Criminal Division (CF1-13583-11) (Hon. Russell F. Canan, Trial Judge)

          Fleming Terrell, Public Defender Service, with whom Samia Fam, and James Klein, were on the brief, for appellant.

          Stephen F. Rickard, Assistant United States Attorney, with whom Channing D. Phillips, United States Attorney, and Elizabeth Trosman, Chrisellen R. Kolb, and Lindsay Suttenberg, Assistant United States Attorneys, were on the brief for appellee.

          BEFORE: GLICKMAN and THOMPSON, Associate Judges; and REID, Senior Judge.

         JUDGMENT

         This case came to be heard on the transcript of record and the briefs filed, and was argued by counsel. On consideration whereof, and as set forth in the opinion filed this date, it is now hereby

         ORDERED and ADJUDGED that the judgment of the trial court is affirmed.

          OPINION

          INEZ SMITH REID SENIOR JUDGE.

         A jury found appellant, Enrique Menendez, guilty of first-degree child sexual abuse; the jury also responded to two questions on the verdict form, finding that at the time of the offense, (a) the victim was under the age of twelve, and (b) the victim was under the age of eighteen and "[Mr.] Menendez had a significant relationship to [the victim] in that [Mr.] Menendez was [the victim's] uncle." Mr. Menendez argues on appeal that (1) the amount of uncharged abuse evidence introduced at trial far exceeded that allowed in this jurisdiction as context for the charged crime, and (2) the government violated his constitutional due process rights by failing to disclose the bias of an important witness.[1] For the reasons stated below, we affirm the judgment of the trial court.

         FACTUAL SUMMARY

         The record shows that Mr. Menendez was indicted on one count of child sexual abuse (penetration of the anus), with aggravating circumstances; the sexual act occurred in the Northwest quadrant of the District of Columbia, sometime between January 1, 2009 and May 16, 2009. The victim was Mr. Menendez's nephew, C.G. C.G. was born in February 1999. To prove the charge against Mr. Menendez, the government called several witnesses.

         C.G. was the primary government witness. Prior to the incarceration of his father, C.G. lived in Germantown, Maryland with his father, his mother (Kristeen), his younger brother (Z.), and his mother's middle sister (Sharon). When C.G.'s mother and aunt no longer could afford the residence in Germantown after C.G.'s father was incarcerated, they moved to the Laurel, Maryland home of their oldest sister (Kathryn) and her husband, Mr. Menendez. Also occupying the Menendez home were Kathryn's two minor sons - D. and J.; D. is Mr. Menendez's son, and J. is his stepson. Mr. Menendez, his wife, and their son D. slept in one bedroom; Sharon and J. shared a bunk bed in another bedroom; and C.G., his mother, and his brother slept on a mattress in the living room. Mr. Menendez worked at an optical shop in the District of Columbia.

         During his testimony, C.G. first related earlier acts of uncharged sexual abuse that took place in Maryland. Mr. Menendez began performing sexual acts against C.G. at his Laurel, Maryland home - in the living room, Mr. Menendez's bedroom, the bathroom, the back yard, the kitchen, and J.'s bedroom. In the living room incident, C.G. was alone, had on boxer shorts and a tank top, and was in bed, with the lights off. His mother was at work, his brother was in the room that his aunt Sharon shared with J., and his aunt Kathryn was asleep in her room. His uncle came into the living room, "pulled [C.G.'s] body up into a bending-over position and took off [C.G.'s] clothes." C.G. felt Mr. Menendez's private part enter into "his butt." Mr. Menendez was moaning, groaning, and moving; he moaned the loudest before releasing C.G. C.G. "felt like something in his butt was bleeding." He went to the bathroom to see if he was bleeding but detected no blood. He did not tell his mother or anyone else what had happened because he was "scared and confused [and] didn't know what to do." Mr. Menendez "was like a father figure to [his] cousin [J.] and [C.G.] didn't want [J.] to lose that."

         Mr. Menendez performed other sex acts on C.G. in the bedroom that he and his wife shared. These acts happened while other members of the family were out shopping. Mr. Menendez would play DVDs of people engaging in sex acts such as the one he performed on C.G. in the living room. He would tell C.G. to touch himself; Mr. Menendez would touch himself and then anally penetrate C.G. while the sex DVD was playing. When he engaged in the sex act, Mr. Menendez would wear a black object, "with silver like circles around it"; it had the shape of a ring. "[P]arts of it felt like metal" . . ., and it was like leathery, and then like the little circles around it were metal." Mr. Menendez would put a yellow object on C.G.'s private part that had "a jelly-ish feeling."

         C.G. recalled that Mr. Menendez had him perform oral sex twice, once in the bathroom. To perform oral sex the second time, Mr. Menendez awoke C.G., and took him to the backyard while everyone else was asleep. After oral sex, Mr. Menendez removed C.G.'s clothing and anally penetrated him. While C.G. was in the kitchen on one occasion, and while he was in J.'s bedroom on another occasion, Mr. Menendez touched himself. He told C.G. to block the door so no one would come in. As Mr. Menendez touched himself, he moaned and ultimately said, "fire in the hole; semen is coming." Mr. Menendez thanked C.G. for blocking the door and then left the room.

         After the sex acts, Mr. Menendez would ask C.G. if he liked it. He instructed C.G. not to tell anyone or he, Mr. Menendez, would get into trouble. C.G. interpreted the statement to mean that Mr. Menendez would go to jail.

         When C.G. was in the fourth grade, he had a friend named D.T. who lived in Maryland. While C.G. was sleeping over at D.T.'s home, Mr. Menendez called C.G. on C.G.'s cell phone. D.T. and D.T.'s brother heard Mr. Menendez tell C.G. to go to the bathroom, put Vaseline on his private part, and "put it in D.'s butt." The boys laughed. C.G. laughed because he "didn't want to like show like (sic) [he] was scared, " because he "didn't know what to do."

         Before C.G. related what occurred during the sex act in the District of Columbia, the trial court ruled that the prosecutor could ask C.G. about two poems he wrote - "I Hurt" and "Life Has No Meaning." Mr. Menendez's trial counsel moved for a mistrial. He argued that "'other crimes' evidence has overwhelmed this trial in a more prejudicial than probative way, " and that "[i]t has been completely unfair." The trial court denied the motion, and C.G. responded to questions about the incident that happened in the District.

         C.G. also was in the fourth grade when the charged incident occurred. On the day of the incident, Mr. Menendez drove family members to C.G.'s grandmother's house. On the way there, C.G. fell asleep. When he awoke, he was alone in the van with Mr. Menendez. Mr. Menendez drove to the optical office where he worked; he went there to make eyeglasses for one of his sons.[2] He took C.G. to a small room with a big chair and another chair that was black and circular. He closed the door, removed C.G.'s pants and underwear, and he took off one leg of his own jean overalls and lowered the other to his ankle. Mr. Menendez sat on the big chair and instructed C.G. to bend over. He put his private part inside C.G.'s butt, began moving his hips, told C.G. to hold onto the black circular chair to support his stomach, began moaning, and after an "extra loud" moan, he stopped. He asked C.G. if he "liked it." C.G. did not answer. C.G. did not tell anyone about the incident because "he was scared [and] confused" and he "didn't know what to do." Eventually he told his mother about the incident, but she "didn't believe [him] at first, because [he] said it out of anger." After Mr. Menendez put C.G., his mother, Aunt Sharon, and his brother out of his home because he was angry with C.G., C.G. again told his mother about the incident, and later spoke with the police.

         At the end of his direct testimony, C.G. identified the notebook containing the poems he had written. He wrote the poems when he was in the fourth grade. He read the poems before the jury. The poem, "I Hurt, " stated: "When I get mad, I keep it inside, but sometimes I just push it aside. One day I kept the hurt inside. I hate the hurt." The second poem, "Life Has No Meaning, " said: "[I]t just makes you mad. Some people kill themselves because they're so sad. I think of doing that sometimes in my mind, but I push back, so it's hard to find. Life has no meaning." C.G. did not remember exactly why he wrote the poems, but he "was feeling sad, so [he] had to let something out, and wrote [the poems]." He did not feel that way before he moved into Mr. Menendez's home.

         The government presented other witnesses. D.T., who knew C.G. in the fourth grade, testified that C.G. told him that Mr. Menendez had "raped" him. He admitted on cross-examination that he told the grand jury that C.G. said Mr. Menendez was "touching him, " but he explained on redirect examination that when he said "raped" he meant "touched, " that "basically . . . rape mean[s]" touching. D.T. remembered that during a sleepover at D.T.'s home, C.G. received a call on his cell phone. C.G. ...


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