PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

_________________________________ UNITED STATES OF AMERICA, Plaintiff - Appellee,

v. IVAN BENNETT WILLIS, Defendant - Appellant. No. 15-6102

_________________________________ Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 5:13-CR-00267-C-1)

_________________________________ Jacquelyn L. Ford, Ford Law Firm, Oklahoma City, Oklaho ma (Jack Dempsey Pointer, Pointer Law Office, Oklahoma City, Oklahoma, with her on the briefs), for DefendantAppellant. K. McKenzie Anderson, Assistant United St ates Attorney (Mark A. Yancey, Acting United States Attorney, and Rozia McKinney -Foster, Assistant United States Attorney, with her on the briefs), Oklahoma C ity, Oklahoma, for Pl aintiff-Appellee.

_________________________________ Before BRISCOE , LUCERO , and McHUGH , Circuit Judges.

_________________________________ McHUGH , Circuit Judge.

_________________________________ I. INTRODUCTION Appellant Ivan Bennett Willis was ch arged with aggravated sexual abuse committed in Indian country. Mr. Willis admitted he had sex with a seventeen-yearFILED United States Court of Appeals Tenth Circuit 

### June 21, 2016 Elisabeth A. Shumaker Clerk of Court2 old acquaintance, K.M., and that the even ts occurred in Indian country. But Mr. Willis maintained that K.M. consented to the encounter. T hus, the only issue at trial was whether Mr. Willis used force agains t K.M. After a two-day trial, the jury returned a guilty verdict. Mr. Willis now appeals, challenging multip le evidentiary rulings by the district court. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we affirm.

II. BACKGROUND

A. Factual History Throughout the summer and fall of 2013, K.M. lived with her cousin, Jamee Black, and Ms. Black’s boyfriend, Wesley Bear. On the evening of September 22, 2013, K.M. was babysitting the couple’s tw o children while Mr. Bear and Ms. Black were working. Mr. Bear’s sister, Christi Be ar, came to the Bear/Black home with her boyfriend, Mr. Willis. Ms. Be ar and Mr. Willis left thei r son with K.M. while Mr. Willis drove Ms. Bear to work. When Mr. Willis returned, instead of pick ing up his son and leaving, he began making sexual advances toward K.M. Afte r K.M. rejected Mr. Willis’s suggestion that they have sex, Mr. Willis took her in to the bathroom. Despite K.M.’s continued objections, Mr. Willis pulled down her sh orts and underwear, removed his pants, pressed his body against hers, and tried to make her “touch his private area.” Although K.M. continued to say no, Mr. Willis lifted her onto the sink and tried to penetrate her. While continuing to resist, K.M. slid off the sink and tried to pull up her shorts, but Mr. Willis pushe d her. K.M. stumbled and caught herself on the toilet,3 and Mr. Willis penetrated he r from behind. K.M. stopped resisting at this point because she was scar ed and “didn’t know what to do.” Mr. Willis left the house but later retu rned “to check on [K .M.] because he knew [she] was crying.” K.M. testified that Mr . Willis “asked if it felt like he forced [her],” and she said yes. K.M. called Ms. Black and asked if so meone else could watch the children. Ms. Black then called Mr. Bear, who retu rned home to check on K.M. When Mr. Bear arrived, he found K.M. crying a nd asked what was wrong. Before K.M. answered, Mr. Bear’s three-ye ar-old daughter said, “Dad dy, I saw Uncle Ivan kissing [K.M.] in the bathroom.” K. M. began crying harder and e xplained that Mr. Willis had forced her into the bathroom and forced hi mself on her. Mr. Bear immediately called the Bureau of Indian Affairs (BIA) police and BIA officers arrest ed Mr. Willis a few hours later. B. Procedural History On November 12, 2013, a federal gr and jury returned a single-count indictment alleging that Mr. Willis “knowingl y engaged and attempted to engage in a sexual act with [K.M.], by using force.” In a pretrial motion, the government gave notice of its intent to offer evidence pursuant to Rule 413 of the Federal Rules of Evidence of two prior sexual assaults involving Mr. Willis while he was a juvenile . Mr. Willis filed a motion to exclude his juvenile records and all in formation gleaned from those records, including the Rule 413 evidence. He also moved to suppress statements he made during a custodial4 interview with two federal agents. And Mr. Willis move d under Rule 412 to admit evidence of specific instances of K.M.’s sexual behavior. The district court admitted the Rule 413 evidence and denied Mr. Willis’s remaining motions. The parties tried the case to a jury in the United Stat es District Court for the Western District of Oklahoma. The jury found Mr. Willis guilty. He now appeals.

III. DISCUSSION On appeal, Mr. Willis challenges the district court’s evidentiary rulings, described above. He further asserts that an investiga ting agent improperly vouched for K.M.’s credibility when he testified at trial. Fina lly, Mr. Willis argues he is entitled to a new trial based on cumulative error. We addre ss each of these issues in

turn. A. Evidence of Prior Sexual Assaults Mr. Willis first argues the district c ourt erred by admitting evidence of the two prior sexual assaults. We re view the admission of eviden ce for abuse of discretion, United States v. Contreras , 536 F.3d 1167, 1170 (10th Cir. 2008), and will not reverse if the district court’ s ruling “falls within the bou nds of permissible choice in the circumstances and is not arb itrary, capricious or whimsical,” United States v. Sturm , 673 F.3d 1274, 1286 (10th Cir. 2012) (internal quot ation marks omitted). In addition, events before and during trial may determine the scope of our review. “We have stated often the general ru le that in evaluati ng the correctness of the district court’s rulings , the appellate court may c onsider the entire record developed from the trial even though such evidence may not have been presented5 during the suppression hearing, ” but we have applied the rule in practice “only in cases in which the trial evidence supported the district court’s earlier ruling at the suppression hearing.” United States v. Parra , 2 F.3d 1058, 1065 (10th Cir. 1993) (internal quotation marks and brackets omitte d). “Because ‘the district court should have the first opportunity to co rrect its mistake,’ we ordina rily ‘will not consider trial evidence which undermines a district court decision rendered at a pretrial suppression hearing.’” United States v. Bass , 661 F.3d 1299, 1303 ( 10th Cir. 2011) (quoting Parra, 2 F.3d at 1065). “The district cour t may consider trial testimony if the defendant renews the suppressi on motion at trial, but the court ordinarily need not do so if counsel fails to al ert the court to how the ev idence has been altered or supplemented at trial and why the change would affect the ruling.” Id. (citation omitted). In Bass , the defendant “renewed his motion [to suppress] twice at trial but the renewals were perfunctory” because the defendant merely stated he wanted to renew his objection. Id. The defendant “did not so much as hint that he believed he had a ground for suppression that had notbeen fully vetted at the suppression hearing.” Id. Accordingly, “we address[ed] onl y the record from the suppression hearing.” Id. at 1304. Here, the district court held a pretrial evidentiary hearing before ruling on the admissibility of the prior-a cts evidence. Specifically, th e two women who claimed to be victims of the prior sexua l assaults testified about the circumstances surrounding those events, and, based on their testimony, the district court ad mitted the evidence under Rule 413. At trial, however, both wome n testified differently than they had at6 the evidentiary hearing. When the government rested, Mr. Wi llis stated only that he “object[e]d to Federal Rule 413 witnesses, [A.M.] and [A.N.], being present.” Mr. Willis did not identify new grounds for ex cluding the Rule 413 evidence and did not otherwise explain why the dist rict court should reconsider its pretrial evidentiary ruling in light of the new testimony provided at trial. We therefore limit our review to the evidence presented at the pretrial he aring and do not consider trial evidence contradicting the distri ct court’s decision. In criminal sexual-assault cases, a dist rict court may “admit evidence that the defendant committed any other sexual assault. ” Fed. R. Evid. 413(a). Indeed, we have recognized a “presumption in favor of admission” of such evidence. United States v. Enjady , 134 F.3d 1427, 1431 (10th Cir. 1998). But before evidence is admitted under Rule 413, the district cour t must determine whether th e evidence “meet[s] three threshold requirements”: (1) that the defendantis accused of a sexual-assault offense; (2) that the evidence is ev idence of another sexual-assa ult offense by the defendant; and (3) that the ev idence is relevant. United States v. Guardia , 135 F.3d 1326, 1328 (10th Cir. 1998). Although there is no dispute that Mr. Wi llis was accused of sexually assaulting K.M., Mr. Willis contends the other incide nts did not rise to the level of sexual assault. And he asserts the evidence was not relevant. More over, even if the evidence were relevant and otherwise satisfied Rule 413’s requireme nts, Mr. Willis argues the district court should have excluded the evidence under Rule 403 as substantially more prejudicial than probative.7 Evidence of Other Sexual Assaults 1. At the pretrial evid entiary hearing, the district court first heard testimony from A.M., 1 a woman who dated Mr. Willis in middl e school. A.M. testified that, in 2007, after they had stopped dating, she and Mr. Willis ran into each other at a basketball game. She voluntarily left the game with Mr. Willis and began “making out” with him in a dugout on the high school softball fields. According to A.M., she consented to the kissing but told Mr. Willis to stop when he touched her breasts, laid her down, and “got on top.” She testified that she to ld him repeatedly to stop and when he did not, she eventually hit or shoved him. Mr . Willis then stopped but “started laughing at [A.M.], and then he told [her] not to tell anybody. ” On cross-examination, A.M. testified she could not reme mber whether she hit or pus hed Mr. Willis. She also admitted that, in interviews right after the incident, sh e had told police that Mr. Willis had stopped after she said no and told him she had a boyfriend. The incident was reported to the police, but no charg es were filed agai nst Mr. Willis. Mr. Willis argues this incident was “ nothing more than a teenaged make-out session which was terminated when [A.M.] said so.” But, under Rule 413, “sexual assault” includes “any conduct prohibited by 18 U.S.C. chapter 109A.” Among other things, Chapter 109A criminalizes “abusiv e sexual contact,” i. e., sexual contact achieved by using force or by threatening or pl acing the other person in fear of death, serious bodily injury, or kidnapping. 18 U.S.C. §§ 2241(a), 2244(a)(1). “Sexual

1 Because A.M. and A.N. were both minor s at the time of the alleged sexual assaults, we use their initials rather than thei r full names.8 contact,” in turn, is defined as “the intenti onal touching, either di rectly or through the clothing, of the genitalia, a nus, groin, breast, inner thi gh, or buttocks of any person with an intent to abuse, humiliate, harass , degrade, or arouse or gratify the sexual desire of any person.” 18. U.S.C. § 2246( 3). And the level of force necessary under § 2251(a)(1) includes “such physi cal force as is sufficient to overcome, restrain or injure a person; or the use of a threat of harm sufficient to coerce or compel submission by the victim.” United States v. Reyes Pena , 216 F.3d 1204, 1211 (10th Cir. 2000) (internal quotation marks omitted) (interpreting the word “force” in applying sentencing enhancement under U.S. S.G. § 2A3.1(b)(1), which permits a four-level increase if the offense invol ves conduct prohibited by § 2241(a)). Although A.M. testified in consistently about whethe r she had to physically push or hit Mr. Willis, if the factfinder be lieved her testimony, there was sufficient evidence to establish an offe nse under 18 U.S.C. § 2241(a). A.M. testified Mr. Willis intentionally touched her breasts, laid he r down, and got on top of her despite her protests. After Mr. Willis stopped, he told A.M. not to tell anybody, and A.M. was disturbed enough that she re ported the incident to her co unselor, who reported it to the police. And Mr. Willis’s lying on top of A.M. until she hit or pushed him, could be considered physical forc e sufficient to restrain A. M. Although the question is close, we cannot conclude th e district court abused its discretion in determining the incident qualified as a sexual as sault for purposes of Rule 413. At the pretrial evidentiary hearing, the district cour t also heard from A.N., a woman who testified that she and Mr. Will is grew up in the same neighborhood in9 Choctaw, Mississippi. In 2008, when Mr. W illis was sixteen and A.N. was fourteen or fifteen, Mr. Willis was at A.N.’s house while A.N.’s mother was drinking with a group of friends. Mr. Willis a nd A.N. also began drinking and, at some point, A.N. passed out. A.N. recalled sitting in the kitc hen drinking, but her next memory was waking up in a bedroom as her mother banged on the door. As A.N. awoke, she felt “some pain in [her]” and felt someone on top of her. And when A.N.’s mother turned on the lights, Mr. Willis stood up from the be d and A.N. saw that she and Mr. Willis were not wearing pants or underwear. A.N. reported the incident to a neighbor, who called the police. Mr. Willis was charged w ith rape but ultimate ly pled guilty to battery. Mr. Willis argues there was no sexual as sault because there was no evidence of lack of consent and no evidence of a se xual act because A.N. was unconscious. The district court construed the incident as conduct that would violate 18 U.S.C. § 2242(2), which makes it a cr ime to “engage[] in a sexual act with another person if that other person is . . . (A) incapable of appraising the na ture of the conduct; or (B) physically incapable of d eclining participation in, orcommunicating unwillingness to engage in, that sexual act.” A.N. testif ied—and Mr. Willis did not dispute—that when she regained consciousness, Mr. Willis was on top of her, she felt pain in her groin area, and neither she nor Mr. Willis were wearing unde rwear. This evidence supports the district cour t’s conclusion that a sexual act occurred while A.N. was incapacitated and unable to consent.10 Relevance 2. The district court must also make a threshold determination of relevance— “that is, the evidence must s how both that the defendant had a particular propensity, and that the propensity it demonstrates has a bearing on th e charged crime.” Guardia , 135 F.3d at 1332. Here, whether Mr. Willis us ed force to overcome lack of consent was the only disputed issue at trial. A nd the evidence tended to show th at, in each prior incident, Mr. Willis engaged in sexual activity where th e other party either did not or could not consent. Thus, the prior-acts evidence demons trated a propensity that was directly relevant to the only issue fo r the jury to decide. Rule 403 3. Finally, the district court was required to decide wheth er the evidence was admissible under Rule 403 of th e Federal Rules of Evidence. Id. at 1330. This analysis requires balancing of multiple factors, including how clearly the prior act was proved, how probative it is to the ma terial fact, how seriously disputed the material fact is, and wheth er the government can use any less prejudicial evidence. United States v. Benally , 500 F.3d 1085, 1090 (10th Cir. 2007). When the district court ma de its pretrial decision, “[n]either part y addresse[d] whether the government [could] obtain less p rejudicial evidence.” The district court therefore did not weigh this factor but found the other factors weighed in favor of admission. First, as explai ned above, both A.M. and A.N. testified at the pretrial hearing, and their testimony supported a finding that each ac t occurred. And the11 material fact—whether Mr. Wi llis used force to overcom e lack of consent—was the only issue and was hotly disput ed. In considering the fina l factor, the probative value of the prior-acts evid ence, the analysis will depend on innumerable considera tions, including the similarity of the prior acts to the acts charged, the closeness in time of the prior acts to the charged acts, the frequency of th e prior acts, the presence or lack of intervening events, and the n eed for evidence beyond the testimony of the defendant a nd alleged victim. Guardia , 135 F.3d at 1331 (citations omitted). Here, the factors related to the probativ e value of the evidence weigh in favor of admission. First, the acts are quite similar. Each inci dent involved a girl in her mid- to late teens who was Mr. Willis’s friend or acquainta nce. In each situation, the events escalated from what could be consider ed harmless interacti on to a situation of forced sexual activity. And in each instance, Mr. Willis disregarded the lack of consent of the female invol ved. Although the prior acts happened in 2007 and 2008 and thus there was a “five-year time la pse between the prior acts and the act charged,” the district court correctly concl uded the lapse “does not negate [the prior acts’] probative value.” Indeed, we have he ld “there is no time limit beyond which prior sex offenses by a defendant are inadmissible.” United States v. Meacham , 115 F.3d 1488, 1492 (10th Cir. 1997). The five-yearlapse here is not sufficiently long to undermine the probative value of the evid ence. Moreover, ther e was no need for evidence beyond the testimony of A.M. a nd A.N. to establish the prior sexual assaults. Cf. Guardia , 135 F.3d at 1331–32 (affirming the exclusion of prior-acts evidence under Rule 403 where an elaborat e presentation including expert testimony12 would have been required to explain each prior incident and whether it was appropriate under the standard of care a pplicable to the defendant-physician). Mr. Willis argues the Rule 413 evid ence was not sufficiently probative under Rule 403 because the prior act s occurred while he was a j uvenile. But, as explained below, the district court did not err in denying Mr. Willis’s motion related to his juvenile records. Moreover, Mr. Willis has not cited any authority for the proposition that juvenile misconduct is per se inadmissible under Rule 413. See United States v. Caplette , 365 F. App’x 833, 834 (9th Cir. 20 10) (unpublished) (“ The fact that the prior crime was committed by [the defendant ] while he was a juvenile may be an appropriate consideration in determining whether to admit evidence of that crime, but . . . evidence of a juvenile crime is not categorically inadmissible.”). 2 Thus, the mere fact that Mr. Willis was a minor at the ti me of his alleged se xual assaults against A.M. and A.N. does not render evidence of those events inadmissible, and we cannot say his status as a juvenile conclusively outweighs th e other factors showing the probative value of the evidence. In sum, the district court analyzed the evidence presented at the evidentiary hearing, had the opportunity to assess the demeanor of the witnesses, and concluded the Rule 413 requirements were satisf ied and any potential prejudice did not

2 Although not precedential, we find th e reasoning of unp ublished opinions, including those from other ju risdictions, instructive. See 10th Cir. R. 32.1 (“Unpublished opinions are notprecedential, but may be ci ted for their persuasive value.”); Fed. R. App. P. 32.1; Grynberg v. Kinder Morgan Energy Partners, L.P. , 805 F.3d 901, 904 n.2 (10th Ci r. 2015) (“Although unpublis hed, out-of-circuit district court opinions lack precedential value, we find the reasoning of such decisions cited here to be instructive under the circumstances of this case.”).13 substantially outweigh the pr obative value of the evidence. This conclusion was not an abuse of discretion. B. Juvenile Records Mr. Willis also challe nges the means by which the government obtained the prior-acts evidence. In an interview with two federa l agents, Mr. W illis disclosed that, on two prior occasions, he had been accused of sexual offenses, both of which occurred while Mr. Willis was a minor living in Mississippi. The ag ents investigated further by requesting Mr. Willis’s records fr om the Choctaw Tribal Youth Court (the Tribal Court). And the Tribal Court releas ed Mr. Willis’s juve nile records to FBI Special Agent Scott Billings, who used the records to identify a nd contact A.M. and A.N. Mr. Willis argues the reco rds were available only b ecause the Tribal Court failed to follow its expungement rules. In particular, Choctaw Youth Code § 11-3-35 mandates the destruction of juvenile reco rds when a minor turns eighteen and has completed the terms of his probation. Becaus e the Tribal Court failed to destroy Mr. Willis’s records, he assert s “a Due Process interest in making sure that the Mississippi Band of Choctaw Indians foll ows its own unambiguo us rules regarding the destruction of such records.” 3

3 At oral argument on appeal, Mr. Willis for the first time asserted that his due process rights were violated not by the me re release of his j uvenile records but because Agent Billings was able to secure a copy of the j uvenile records, despite the Tribal Court’s refusal to release the records to defe nse counsel. Because this argument was raised for the fi rst time at oral argument, it is “considered waived.” Fed. Ins. Co. v. Tri-State Ins. Co. , 157 F.3d 800, 805 (10th Cir. 1998). Moreover,14 But we have previously rejected the argument that a statute requiring expungement creates a due pr ocess right preventing post-e xpungement disclosure of a defendant’s crimin al history. In Nilson v. Layton City , we recognized “that the right to privacy safeguards individuals fro m government disclosure of personal information,” but the protecti on does not apply to expunged criminal records because a defendant has no legitimate expectation of privacy related to such records. 45 F.3d 369, 371–72 (10th Cir. 1995); see also Sealed Appellant v. Sealed Appellee , 130 F.3d 695, 699 (5th Cir. 1997) (“There is no constitutional basis for a ‘right to expungement.’”); Duke v. White , 616 F.2d 955, 956 (6th Cir. 1980) (“The right to expungement of state reco rds is not a federal c onstitutional right.”). Mr. Willis urges us to apply a differe nt rule to juven ile records, citing heightened privacy concerns applicable in juvenile cases. Here, however, we are not required to and do not decide whether Nilson applies to juvenile expungement. Even if we assume Mr. Willis ha d a due process right in ha ving his juvenile records destroyed, without a showing of prejudice we would still af firm the district court’s decision. See United States v. Caceres , 440 U.S. 741, 752–53 (19 79) (concluding that IRS’s failure to follow its own regulations did not constitute a due process violation absent a showing of prejudice resulting from reasonable reliance on compliance). Mr. Willis cannot make such a showing here.

Mr. Willis conceded he obtained a copy of his records from the government at or before the pretrial evidentia ry hearing. And Mr. Willis has shown no prejudice from the delay in receiving his records.15 Mr. Willis concedes he di sclosed the earlier incide nts and thereby gave the federal agents the necessary information to independently investigate the previous assaults and to identify witn esses, even without the use of his juvenile records. Although use of the records likely simplified the agents ’ investigation, Mr. Willis cannot demonstrate prejudice resu lting from the release of hi s juvenile records due to his own disclosure of the prior sexual encounters. Cf. United States v. Griffin , 48 F.3d 1147, 1150 (10th Cir. 199 5) (holding the independe nt-source doctrine “permits the introduction of evidence initially discove red during, or as a consequence of, an unlawful search, but later obtained independently from activities untainted by the initial illegality”). We therefore re ject his due process argument. C. Custodial Statements Mr. Willis also asserts th e district court should ha ve granted his motion to suppress his statements to the federal ag ents, which he argues “were involuntary and illegally obtained.” 4 We are not persuaded. At the suppression hearing, BIA Speci al Agent Andrew Willey and FBI Special Agent Scott Billings testified about their interactions w ith Mr. Willis. Agent Willey testified that he began investigat ing K.M’s allegations on September 22 and

4 After the government rested at trial, Mr. Willis perf unctorily stated that he “re-urge[d] his motion to suppr ess,” but he failed to argue that one of the agents provided testimony not given atthe suppression hearing and failed to explain how the new testimony might have alte red the district court’s deci sion. Accordingly, we limit our review to the evidence presented at the pretrial hearing and do not consider any trial evidence that contradict s the district court’s denial of the motion to suppress. See United States v. Bass , 661 F.3d 1299, 1303 –04 (10th Cir. 2011).16 contacted Agent Billings to assi st. Both agents went to KC DC to interview Mr. Willis on September 25, 2013. After introducing themselves to Mr. Willis, the agents explained they wanted to talk about K.M.’s allega tions of sexual assault and pr esented Mr. Willis with a form explaining his Miranda rights. Mr. Willis read the form, acknowledged he understood it, and asked for an attorney . The agents immediately acknowledged they could not ask about the sexual- assault allegations. But they told Mr. Willis if he changed his mind and wanted to talk, he should contact them. The agents then stayed with Mr. Willis for a bout thirty minutes, until correction officers returned. Du ring this time, Agent Willey asked for, and Mr. Willis provided, routine personal information, in cluding date of birth, social security number, height, weight, a nd place of birth. Agent Willey also explained the investigation might lead to charges differe nt than those for which Mr. Willis had been arrested, and Mr. Willis asked if he would be ap pointed a public defender. As the agents prepared to leave, Mr. Willis asked if it was too late to change his mind and to speak with them. The agents asked if he meant right then or after he talked to an attorney, and Mr . Willis “clarified . . . that he was talking about right at the moment.” Agent Billings reminded Mr. Willis of his Miranda rights by again having him read the waiver form and specifically inform ed Mr. Willis that “he was waiving his attorney and that he could stop ta lking at any time if he wanted to.” After Mr. Willis again read the wa iver form, Agent Billings ve rbally confirmed, point by point, that Mr. Willis unders tood his rights. Mr. Willis signed the form before the17 agents asked any questions a bout K.M.’s allegations. Both agents testified they did not use any physical or emotional pressure against Mr. Willis. Mr. Willis did not introduce any evidence to the contrary. After signing the form, Mr. Willis gave a verbal statement to Agents Willey and Billings and then prepared a written statement while the agents were present. In total, the interview lasted about an hour and a half. 5 After hearing this evidence, the distri ct court orally denied the motion to suppress. It later issued a written order concluding that Mr. Willis spoke to Agents Willey and Billings after knowin gly and voluntarily waiving his right to counsel and to remain silent. Relying on Edwards v. Arizona , 451 U.S. 477 (1981), Mr . Willis contends the district court erred in r eaching that conclusion. In Edwards , the Supreme Court held that if a defendant “expresse[s] his desi re to deal with th e police only through counsel, [he] is not subject to further interrogation by the authorities until counsel has been made available to him , unless the accused hi mself initiates further communication, exchanges, or c onversations with the police .” Id. at 484 (emphasis

5 The agents did not record the inte rview, but Agent Willey took notes and Agent Billings prepared a summary. Mr. W illis argues law enforc ement should have recorded all interviews in this case, but he has not provided any author ity to support the conclusion that a failure to record a defendant’s statement, standing alone, warrants suppression. Mr. Willis cites United States v. Bundy , 966 F. Supp. 2d 1180 (D.N.M. 2013), but there, the officers’ repor ts lacked critical information and the officers were unable to recall th e details of the interrogation. Id. at 1187. Thus, the lack of recording was important because ther e was nothing to help fill in the missing details in the report or to otherwise refresh the officers ’ memories. Here, the agents recalled the interview with Mr. Willis and also had access to their notes.18 added). The Supreme Court ha s since instructed that, “ Edwards does not foreclose finding a waiver of Fifth Amendment protec tions after counsel has been requested, provided the accused has initiated the c onversation or discussions with the authorities.” Minnick v. Mississippi , 498 U.S. 146, 156 (1990). And in United States v. Obregon , we found a voluntary waiver of the right to counsel when a defendant initially requested an attorn ey but then asked the investigating agent “what would happen to him if he told her what she wanted to know.” 748 F.2d 1371, 1380–81 (10th Cir. 1984). Thus, even where a defendant invokes hi s right to counsel, he may waive that right if the wa iver is voluntary and constitu tes “a knowing and intelligent relinquishment or abandonment of a know n right or privilege, a matter which depends in each case ‘upon the particular facts and ci rcumstances surrounding that case, including the backgrou nd, experience, and cond uct of the accused.’” Edwards , 451 U.S. at 482 (quoting Johnson v. Zerbst , 304 U.S. 458, 464 (1938)). Here, the agents ceased questioning Mr . Willis about K.M’s allegations as soon as he invoked his right to counsel. As the district court concluded, “there was no evidence even remotely suggesting coercive actions by law enforcement officers.” See United States v. Lopez , 437 F.3d 1059, 1064–65 (10t h Cir. 2006). Although Agents Willey and Billings asked Mr. Will is for routine background information while waiting for correctional officers to return, such questions do not render Mr. Willis’s statements involuntary. See United States v. Lara-Garcia , 478 F.3d 1231, 1235 n.3 (10th Cir. 2007) (explaining that ques tions about identity and other personal information typically do not require Miranda warnings).19 When the correctional offi cers arrived and the agents began to leave, it was Mr. Willis who resumed the conversation by i ndicating he had ch anged his mind and wanted to talk. Even then the agents asked Mr. Willis to clar ify that he wanted to talk immediately, without first consulting c ounsel, and the agents again advised Mr. Willis of his Fifth Amendment rights. Under these facts, we agr ee with the district court that Mr. Willis know ingly and intelligently waived his right to counsel. Accordingly, we affirm the district c ourt’s denial of the motion to suppress. D. Evidence of K.M.’s Sexual Behavior The district court also denied Mr. Willis ’s pretrial motion to admit evidence of K.M.’s sexual behavior. We review this determinati on for abuse of discretion. United States v. Contreras , 536 F.3d 1167, 1170 (10th Cir. 2008). In sexual-offense cases, ev idence of the victim’s se xual behavior is generally inadmissible. Fed. R. Evid. 412(a). But an exception allows “evidence of specific instances of a victim’s sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence.” Id. R. 412(b)(1)(A). This exception applies “[ w]here the prosecution has directly or indirectly asserted that the physical evidence originated with the accused.” Id. R. 412 advisory committee’s note to 1994 amendment. Mr. Willis asserts the dist rict court erred in excludi ng evidence that K.M. had sex with her boyfriend at the Bear/Black residence before her encounter with Mr. Willis. Specifically, Mr. Wi llis moved to introduce the report from K.M.’s sexualassault examination, whic h showed that semen in K.M.’s underwear matched DNA20 samples from both Mr. Willis and K.M.’s boyfriend. Acco rding to Mr. Willis, this evidence established K.M.’s motive to lie: she did not want her boyfriend to know she had sex with Mr. Willis, and she did not want Mr. Bear a nd Ms. Black to know she had been having sex in their house while their children were present. Mr. Willis’s argument fails for several re asons. First, this is not a case where the government sought to prove the char ges against Mr. Wil lis by showing that physical evidence originated exclusively with him. Consequently, Mr. Willis’s reliance on our decision in United States v. Begay , 937 F.2d 515 (10th Cir. 1991), is misplaced. There, we revers ed the defendant’s convict ion and remanded for a new trial because the district c ourt had excluded evidence of pa st sexual assaults against the child-victim that was directly relevant to the source of physical evidence. We concluded the evidence should have been ad mitted to fully explain the victim’s physical injuries and to supp ort the defense theory that the injuries were caused by a previous assailant rather th an by the defendant, who deni ed having any sexual contact with the victim. Id. at 523, 526. The same rationale does not apply here because Mr. Willis admits he had sex with K.M. Thus, the government had no need to rely on the physical evidence to es tablish that fact. This case is similar to United States v. Nez , where the defendant “did not dispute the act of intercourse nor his involvement therein.” 661 F.2d 1203, 1205 (10th Cir. 1981). And in both this case and Nez , “the tendered testimony regarding the victim’s past sexual beha vior did not encompass behavi or with [the defendant].” Id. Under such circumstances, we held the district court properly excluded the21 evidence as irrelevant to the issue of consent. Id. at 1205–06. The same is true here. Evidence that K.M. had sex with another i ndividual does not tend to make it more or less probable that K.M. cons ented to sex with Mr. Willis. Accordingly, that evidence was irrelevant to the only issue at trial. See Fed. R. Evid. 401(a) . The district court therefore did not exceed its discretion in excluding it. Moreover, Mr. Willis cannot show prej udice because he was able to present other evidence of K.M.’s potential motive to lie. On cross- examination, K.M. admitted that Mr. Bear and Ms. Black woul d have been disappoin ted if they learned she had consensual sex with Mr. Will is. And Ms. Black confirmed K.M.’s assumption, testifying she would be upset if she learned K.M. had engaged in consensual sex with Mr. Willis. Thus, Mr. Willis was able to in troduce his defense theory to the jury even w ithout the evidence of K.M.’s prior sexual behavior. Under these circumstances, even if the district court erred in excluding the evidence—and it did not—the error was harmless. E. Vouching Mr. Willis also argues the district c ourt allowed Agent Willey to improperly vouch for K.M.’s credibility. Although we generally review evidentiary rulings for abuse of discretion, the government contends plain-error review is required because Mr. Willis’s objections to Agent Willey’s testimony were not sufficiently specific. See United States v. Taylor , 514 F.3d 1092, 1096 (10th Cir. 2008) (“[W]here a party seeks on appeal to raise an i ssue not squarely presented to the district court in order22 to allow it to exerci se its judgment in the first instance[,] we tr aditionally review only for plain error.”). Here, K.M. gave different accounts about whether Mr. Willis penetrated her during the assault: she initially reported to Officer Ortega that Mr. Willis had not penetrated her but later told Agent Willey th at he had. When asked at trial about the inconsistency, Agent Willey explained that “sometimes sexual assa ult victims are just ashamed to report or state wh at has happened to them. So metimes they’re scared to do it. Sometimes they don’t remember.” When the government asked whether the tendency to forget or be afraid is mo re frequent with younger victims, defense counsel objected that Agent Willey was testifying “as an e xpert witness as to the way children respond differently than adults” du ring an investigation. The district court sustained the objection. The government continued: Q. [BY THE GOVERNMENT] Did it surprise you that her disclosure was different th an it had previously been? A. No. Q. Did you believe her? A. Yes. [DEFENSE COUNSEL]: Objection, Your Honor. THE COURT: Overruled. Q. [BY THE GOVERNMENT Did you believe her? A. Yes. We agree with the government that Mr . Willis did not adequately bring the vouching issue to the districtcourt’s attention. Defense counsel first objected on the specific ground that Agent Willey had offere d expert opinions ab out child witnesses and then simply stated “objection,” withoutexplanation, when the government asked23 Agent Willey whether he believed K.M. Nowh ere in the record did defense counsel assert that the ques tions elicited improper vouching. To the contrary, defense counsel asked Agent Willey to reiter ate his testimony about K.M. ’s credibility. During cross examination, defense counsel asked, “And you have stood be fore this jury today and vouched for her credibility; isn’t that co rrect?” and Agent Willey responded, “I believe her.” Thus, Mr. Willis not only fail ed to state a specific objection, his own counsel reemphasized that Agent Willey believed K.M. We therefore review for plain error, which requires Mr. Willis to establish (1) error, (2) that is plain, which (3) af fects his substantial rights, and (4) that seriously affects the fairness , integrity, or public reputa tion of judicial proceedings. See United States v. Ruiz-Terrazas , 477 F.3d 1196, 1199 (10th Cir. 2007). Here, we resolve Mr. Willis’s vouching argument on the basis that he has not shown that Agent Willey’s testimony affected hi s substantial rights. To sa tisfy this requirement, a defendant must demonstrate a reasonable probability that the error influenced the outcome of the trial. United States v. Hinson , 585 F.3d 1328, 1338 (10th Cir. 2009). Mr. Willis has not made that showing here. As discussed, there was no dispute th at Mr. Willis penetrated K.M.; the only issue was consent. Thus, Ag ent Willey’s testimony that he believed K.M. when she changed her initial statement and reporte d that penetration had occurred was not relevant to the only issue before the jury. And even considering Agent Willey’s testimony more broadly as a comment on K. M.’s overall credib ility, Mr. Willis has not argued that there is a reasonable probability the jury would not have convicted24 him absent the testimony. Thus, even if improper vouching occurred, which is an issue we do not decide, any error was harmless. 6
F. Cumulative Error Finally, Mr. Willis claims that even if none of the alleged errors individually warrant reversal, the cumulative effect of the errors deprived him of a fair trial. “A cumulative-error analysis aggregates all er rors found to be harmless and ‘analyzes whether their cumulativ e effect on the outcome of the tr ial is such that collectively they can no longer be determined to be harmless.’” United States v. Toles , 297 F.3d 959, 972 (10th Cir. 2002) (quoting United States v. Rivera, 900 F.2d 1462, 1470 (10th Cir. 1990) (en banc)). There must be at least two errors before we may find cumulative error. See United States v. Thomas , 749 F.3d 1302, 1307 (10th Cir. 2014). But we have held that the district court did not err in admitting the evidence of prior sexual assaults, Mr. Willis’s custodial statements were made after a knowing and voluntary waiver of his right to counsel, and evidence of K.M.’s sexual history was properly excluded. Thus, at most, we have assumed one error for purposes of our analysis: that Agent Willis was permitted to vouch fo r K.M.’s credibility. Under these circumstances, we rej ect Mr. Willis’s argument b ecause there are not multiple errors to cumulate.

6 Even if Mr. Willis adequately preserved his vouchi ng objection and we applied an abuse-of-discretion standard, we would still review for harmlessness and would therefore reach the same result. See United States v. Harlow , 444 F.3d 1255, 1266 (10th Cir. 2006) (treating vouching as a non-constitutional error and therefore examining whether vouching ha d a substantial influence on the outcome of trial).25 IV. CONCLUSION For the above reasons, we AFFIRM the district court in all respects.