## Facts

- Jonathan Pablo and co-defendant Isaac Gordo encountered L.R.H., a sixteen-year-old, at a dance in Nageezi, New Mexico; the parties consumed alcohol, with defendants drinking heavily.
- After the dance, L.R.H. ended up in a vehicle with Pablo and Isaac and was driven to remote locations over the night.
- L.R.H. reported physical violence and sexual assault during the incident.
- The government presented medical testimony describing vaginal injuries consistent with rape.
- The government presented DNA evidence through analyst Kortney Snider, who testified to a match connecting Pablo to biological material, relying in part on work performed by other laboratory personnel.
- Pablo sought to introduce evidence that (a) earlier that evening L.R.H. was seen partially undressed with two other men and (b) L.R.H. made sexual advances toward Isaac at a different location earlier that night.
- The district court excluded both categories of sexual-history evidence under Federal Rule of Evidence 412.
- A jury convicted Pablo of vaginal rape, kidnapping, assault resulting in serious bodily injury, and carjacking; the court imposed concurrent sentences (200 months on rape/kidnapping/carjacking and 120 months on assault).

## Issues

1. Whether admitting DNA expert testimony that relied on non-testifying analysts’ work violated the Sixth Amendment Confrontation Clause.
2. Whether the prosecutor and district court unconstitutionally interfered with Pablo’s right to present a defense by warning potential defense witnesses about self-incrimination, allegedly discouraging their testimony.
3. Whether excluding proffered evidence of the victim’s other sexual behavior under Federal Rule of Evidence 412 violated the Federal Rules of Evidence and Pablo’s constitutional right to present a complete defense.

## Decision

- The court affirmed Pablo’s convictions and sentence.
- The court held the admission of the DNA expert’s testimony did not violate the Confrontation Clause; alternatively, any Confrontation Clause error was harmless beyond a reasonable doubt in light of other evidence.
- The court held warnings to potential defense witnesses about self-incrimination were permissible, non-coercive, and did not substantially interfere with the defense.
- The court held the district court properly excluded the victim’s sexual-history evidence under Rule 412 and that exclusion did not violate Pablo’s constitutional rights.

## Legal Principles

- The Confrontation Clause is not violated when a testifying expert offers her own opinions, is subject to unrestricted cross-examination, and relies on others’ laboratory work as a basis for those opinions rather than as independent testimonial assertions admitted for their truth.
- Even if a Confrontation Clause violation is assumed, a conviction may be affirmed if the error is harmless beyond a reasonable doubt.
- Neutral, informative warnings by the court or prosecutor regarding a witness’s potential self-incrimination and right to counsel do not amount to unconstitutional intimidation absent threats, coercion, or substantial interference with the witness’s free choice to testify.
- Federal Rule of Evidence 412 presumptively bars evidence of a victim’s other sexual behavior or sexual predisposition; the “other source of injury” exception requires a concrete, non-speculative link between the proffered evidence and the physical evidence at issue.
- Exclusion of sexual-history evidence under Rule 412 does not violate the right to present a defense when the limitation is not arbitrary or disproportionate and the defendant retains meaningful avenues to challenge the prosecution’s case.

## Conclusion

The Tenth Circuit affirmed Pablo’s convictions, holding that the DNA expert’s testimony did not violate confrontation rights (and was harmless even if error), that witness self-incrimination warnings did not unlawfully obstruct the defense, and that Rule 412 properly barred speculative and propensity-based sexual-history evidence without infringing the constitutional right to present a defense.


United States v. Pablo, 625 F.3d 1285 (10th Cir. 2010)