May 17, 2016
Appeal from the Superior Court of the District of Columbia
Criminal Division (CF1-13583-11) (Hon. Russell F. Canan,
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,
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
and ADJUDGED that the judgment of the trial court is
SMITH REID SENIOR JUDGE.
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. For the reasons stated below, we affirm
the judgment of the trial court.
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.
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.
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."
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."
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
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.
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
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.
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. 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.
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.
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. ...