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Date: 02-01-2018

Case Style:

United States of America v. David W. LaCouture

District of Massachusetts Federal Courthouse - Boston, Massachusetts

Case Number: 17-1021

Judge: Stahl

Court: United States Court of Appeals for the First Circuit on appeal from the District of Massachusetts (Suffolk County)

Plaintiff's Attorney: Alexia R. De Vincentis

Defendant's Attorney: Joushua R. Hanye - FPD

Description: David Lacouture appeals his 74-
month sentence for failure to register under the Sex Offender
Registration and Notification Act ("SORNA"), in violation of 18
U.S.C. § 2250(a). Lacouture challenges the district court's
application of an eight-level enhancement to his sentence. The
district court imposed the enhancement because it found Lacouture
had committed a sex offense against a seven-year-old child in
Missouri while unregistered. Lacouture also challenges the
imposition of a special condition of supervised release. After
careful consideration, we affirm.
We review a district court's factual findings supporting
the application of a sentencing enhancement for clear error.
United States v. Savarese, 686 F.3d 1, 15 (1st Cir. 2012). "It is
the government's burden at sentencing to prove sentencing
enhancement factors by a preponderance of the evidence, and a
district court may base its determinations on 'any evidence that
it reasonably finds to be reliable.'" United States v. Almeida,
748 F.3d 41, 53 (1st Cir. 2014) (quoting United States v. Walker,
665 F.3d 212, 232 (1st Cir. 2011)).
- 3 -
This is Lacouture's second appeal to this court.1 We
vacated Lacouture's first sentence, which included the same eightlevel
enhancement, and remanded to the district court in order for
it to clarify whether it found the out-of-court statements the
then eight-year-old child made in a Sexual Abuse Investigative
Network ("SAIN") interview reliable and why it found these
statements reliable. United States v. Lacouture, 835 F.3d 187,
192 (1st Cir. 2016). Without an explicit finding from the district
court on this issue, we could not determine "whether the judge
clearly erred in finding that the sentencing enhancement applied
on the basis of the evidence." Id. at 191. We observed that, to
assist in determining the reliability of the child's responses,
"the district court may wish to request that the government produce
the video recording of the SAIN." Id. at 192 n.8. The government
had previously provided only the written transcript of the SAIN.
On remand, the government submitted the video of the
SAIN to the court, as well as an anatomical drawing of a girl used
by the child during the interview.2 After reviewing the evidence,
the district court again found that Lacouture had committed a sex
offense while he was unregistered. The district court based that
1 For a more detailed recitation of the facts and history of
this case, see United States v. Lacouture, 835 F.3d 187, 188-89
(1st Cir. 2016).
2 The government has also included the video as a part of its
sealed submissions to this court.
- 4 -
finding "on statements of the then eight-year-old victim in the
SAIN." The district court found the child's responses in the video
to be "credible, clear and consistent" and found that the child
"adequately identified the Defendant as the perpetrator."
Because the district court provided an additional
explanation, based on a supplemented record, as to why it found
the child's statement reliable, we are now able to conclude that
the district court's factual findings in support of the enhancement
were not clearly erroneous. At resentencing, the district court
explicitly stated that it found the child's responses in the
interview "credible, clear and consistent." In imposing the
enhancement, the district court also relied on the statements of
the child's mother and Lacouture himself. The presentence report
described how when Lacouture was first asked about the alleged
incident, he denied ever touching the child, but in a subsequent
interview, he recalled an instance where he picked the child up
off the ground by placing his arm underneath her "crotch area."
Finally, the district court considered Lacouture's history of sex
offenses.3 Based on this evidence, the district court concluded
that the government had shown, by a preponderance of evidence,
3 As we observed in his first appeal, such propensity
evidence, which "is normally inadmissible in criminal trials . . .
is admissible in cases involving child molestation" and was offered
here only "for purposes of sentencing." Lacouture, 835 F.3d at
190 n.4.
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that Lacouture committed a sex offense against the child while he
was unregistered.
By explaining why it found the child's responses in the
SAIN interview reliable, the district court addressed the precise
ambiguity that gave us pause in Lacouture's first appeal. Although
Lacouture continues to point to apparent inconsistencies in the
child's account, we believe the district court performed its duty
to resolve these potential conflicts and provided a sufficient
explanation as to why it reached the conclusion it did. "'[W]here
there is more than one plausible view of the circumstances, the
sentencing court's choice among supportable alternatives' is not
clearly erroneous and a reviewing tribunal cannot disturb it."
United States v. Correa, 114 F.3d 314, 317 (1st Cir. 1997) (quoting
United States v. Ruiz, 905 F.2d 499, 508 (1st Cir. 1990)).4 We
find no clear error in the district court's finding and therefore
affirm the district court's application of the enhancement.
Despite the limited nature of our earlier remand,
Lacouture at resentencing sought to lodge a new objection to one
of his conditions of supervised release. When Lacouture was first
4 We further note, as we did in his first appeal, that
"recounting a sex crime can be a traumatic experience that may
make telling a linear story difficult, and that this hardship is
compounded when the victim is a child." Lacouture, 835 F.3d at
191 n.6.
- 6 -
sentenced, the district court imposed a condition of supervised
release preventing Lacouture from possessing an internet capable
cellular phone without the prior approval of the probation office.
Lacouture did not object to this condition and did not raise any
challenge to this condition in his first appeal to this court. At
the resentencing hearing, after the sentence had been announced,
Lacouture's counsel raised an oral objection to the condition,
arguing that the condition ran afoul of our decision in United
States v. Hinkel, 837 F.3d 111 (1st Cir. 2016).5 Although the
district court permitted Lacouture to file a short memorandum
addressing the issue, it ultimately retained the condition.
Under the law of the case doctrine, Lacouture forfeited
his objection to the condition of supervised release when he failed
to raise the issue in his first appeal to this court. As we have
long held:
a legal decision made at one stage of a civil
or criminal case, unchallenged in a subsequent
appeal despite the existence of ample
opportunity to do so, becomes the law of the
case for future stages of the same litigation,
and the aggrieved party is deemed to have
forfeited any right to challenge that
particular decision at a subsequent date.
United States v. Bell, 988 F.2d 247, 250 (1st Cir. 1993); see also
United States v. Medina-Villegas, 700 F.3d 580, 585 (1st Cir. 2012)
5 Lacouture did not challenge the condition in the sentencing
memorandum he submitted for the resentencing.
- 7 -
("The law of the case doctrine 'bars a party from resurrecting
issues that either were, or could have been, decided on an earlier
appeal.'" (quoting United States v. Matthews, 643 F.3d 9, 12-13
(1st Cir. 2011))). If Lacouture had wished to challenge the
district court's imposition of the condition, he needed to raise
the issue in his first appeal.
In his reply brief, Lacouture contends that the
government waived its law of the case argument by failing to raise
it below, citing our decisions in United States v. Lorenzo-
Hernández, 279 F.3d 19, 22 (1st Cir. 2002) and United States v.
Olivero, 552 F.3d 34, 41 n.4 (1st Cir. 2009). We have since said
that those cases "should not be understood to suggest that the
government waives all law of the case arguments by failing to raise
them in the district court" and have noted that we retain the
ability to "raise the law of the case issue sua sponte if we deem
it appropriate." United States v. Wallace, 573 F.3d 82, 90 n.6
(1st Cir. 2009). We find application of the doctrine appropriate
in this case.
In the alternative, Lacouture argues that Hinkel
constituted a change in "controlling legal authority," Bell, 988
F.2d at 251, such that he did not have an opportunity to raise the
issue before Hinkel was decided. We disagree. Although Hinkel
addressed and struck down a somewhat similar condition of
supervised release restricting internet usage, it was not a change
- 8 -
in controlling legal authority. At most, Hinkel extended earlier
decisions by this court striking down broad bans on internet and
computer use. See, e.g., United States v. Ramos, 763 F.3d 45, 62
(1st Cir. 2014); United States v. Perazza-Mercado, 553 F.3d 65, 74
(1st Cir. 2009). Lacouture had a fair opportunity at his first
sentence to raise an objection to the condition by relying on these
earlier decisions.

Outcome: For the foregoing reasons, we affirm.

Plaintiff's Experts:

Defendant's Experts:


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