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Bernal v. United States

Court of Appeals of Columbia District

June 29, 2017

Angel Bernal, Appellant,
United States, Appellee.

          Argued March 8, 2017

         Appeal from the Superior Court of the District of Columbia (CF1-9213-14) (Hon. Michael Ryan, Trial Judge)

          Daniel S. Harawa, Public Defender Service, with whom Samia Fam and Jaclyn S. Frankfurt, Public Defender Service, were on the brief, for appellant.

          Peter S. Smith, Assistant United States Attorney, with whom Channing D. Phillips, United States Attorney, and Elizabeth Trosman, Suzanne Grealy Curt, Danny Nguyen, and Rebekah Holman, Assistant United States Attorneys, were on the brief, for appellee.

          Before Blackburne-Rigsby, Chief Judge, [*] McLeese, Associate Judge, and Ferren, Senior Judge.


         Following a jury trial, appellant Angel Bernal was found guilty of sexually abusing, over the course of a year-and-a-half, E.A., the minor daughter of appellant's common law wife.[1] The government's evidence included testimony from appellant's common law wife, Jacqueline Alvarez, and E.A., and DNA evidence that matched semen found on E.A.'s perianal-buttocks and external genitalia to appellant's saliva recovered from a police buccal swab. Appellant's sole argument on appeal is that the trial court erred in granting the government a one-week continuance prior to trial. The continuance gave the government enough time to procure a second buccal swab of appellant and match his DNA to semen recovered from E.A. after the trial court had suppressed the first buccal swab on Fourth Amendment grounds. We conclude that the trial court did not err, and accordingly did not abuse its discretion, in granting the government a one week continuance. We affirm.[2]

         I. Background

         A. Factual Background

         Appellant was in an eight-year relationship with Ms. Alvarez and lived in the same household as Ms. Alvarez and E.A. since E.A. was one year old. E.A. refers to appellant as "my dad." According to E.A., appellant sexually abused her about "twice a week" starting in the second grade. The abuse included both oral and vaginal penetration.[3] Ms. Alvarez did not know about the abuse because it always occurred at night when Ms. Alvarez was at work at a nearby restaurant. However, Ms. Alvarez discovered the abuse on May 23, 2014, when she left work at around 11:00 p.m. without first texting or calling appellant, as she normally would do. When she got home, she noticed that the bedroom door was locked and, upon unlocking the door with a key, Ms. Alvarez saw appellant lying with E.A. on the bed. According to Ms. Alvarez, she saw that appellant "had his hands spread out on E.A.'s abdomen," and that E.A. was pulling up her pajamas. Ms. Alvarez also noticed that appellant, who was wearing nothing but shorts, had an erect penis as he stood up. Ms. Alvarez testified that she was in a state of "shock" and was "devastated."

         On the morning of May 24, E.A. told Ms. Alvarez that appellant had vaginally penetrated her the night before. In response, Ms. Alvarez called 911. The police took E.A. to Children's National Medical Center, where a medical examination was conducted. The medical examination revealed semen present on E.A.'s perianal-buttocks and external genitalia.

         B. Police Custody

         Metropolitan Police Department ("MPD") Detective Jonathan Rosnick arrested appellant at his place of employment in the afternoon of May 24. Appellant, who was from El Salvador and of limited English-language proficiency, was interviewed by Detective Rosnick at the Fourth District with the assistance of Officer William Vega, a certified Spanish-language interpreter. In Spanish, Officer Vega read appellant his Miranda[4] rights through the Spanish version of MPD's PD-47 form. In response to question three, "Do you wish to answer any questions?", appellant answered that he did not want to answer questions. Nonetheless, the police continued their interrogation. The government concedes that the government's failure to respect appellant's decision violated his Miranda rights. During the subsequent interrogation, appellant confessed to sexually abusing E.A.[5]

         Following appellant's confession, appellant was moved to the Central Cellblock at MPD Headquarters; at around 6:00 p.m., Detective Rosnick, alone, visited appellant for a buccal swab sample. In English and without the presence of a Spanish interpreter and without first securing a warrant, Detective Rosnick asked appellant for a saliva sample and ...

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