NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0256n.06 No. 10-1695 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

UNI TED STATES OF AMERI CA, Plaintiff-Appellee ,

v. EUGEN E WA L T E R G E O RG E RA N T A N EN, Def endant- Appellant. ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED STATES DI ST R I CT COURT FOR THE WES TERN DI STRI CT OF MI CHI GAN

OPI NI ON

Before: COLE and STRANCH, Circuit Judges; CARR , District Judge. * JANE B. STRANCH, Circuit Judge

. Def endant Eug ene Rantanen was convicted of s e xu al abuse of a minor (sometim es also called “statutory rape ”) in I ndian country pursuant to 18 U.S.C. §§ 2243(a) and 1153 for having sexual int erc ourse with his then-g irlfriend w hen she w as four teen y ear s old a

nd he was eig hteen. Rantanen appea ls his conviction and sentenc e on the g rounds that 1 (1) the district court improperly instructed the jury that he had the burden to prove his innocenc e, (2)
statements made in violation of h i s Fifth Amendment rig hts wer e err oneously admitted into evidenc e, (3) his sentence is procedur ally unrea sonable be cause the di strict court fa iled to addre ss

The Honora

ble J ames G. Carr, Senior United States District J udg e for the Norther n District * of Ohio, sitting by

desig nation. Although the dates of birth for the minors in this c ase have been reda cted from the rec ord, 1 the prosec utor stated during closing ar gu m en ts that the ag e differ ential was about four y ear s and three months. This puts Rantanen just outside the four- y ear “window” within which a person may eng ag e in a se x ual ac t with a minor without viol ating the statute. 18 U.S.C. § 2243(a)( 2).his main arg ument for a downwar d var i an ce , and (4) the Gover nment failed to disclose Brady materia l. Finding no err or, we AF F IRM Rantanen’ s conviction and sente nce. I. BACKG ROUND On October 28, 2008, Eug ene Rantanen was indicted by a fede ral g rand jury on four counts of var ious sex offe nses ag ainst S.P ., a minor. On S eptember 16, 2009, a S uperse ding I ndictment 2 added a fifth count for sexual a buse of a minor a g ainst a diffe rent alleg ed victim, R.G. A two-day trial was held three months later, which focuse d almost entirely on the allega tions in the first four
counts rela ting to S.P. Rantanen’ s defe nse to these counts was g ener ally that the alleg ed sexual acts did not occur a

nd S.P. l ied about her

ag e. The only evidenc e d i re ct l y relating to the fifth count was the rela tively brief testimony of R.G. herse lf. On direc t examina t i o n , R

. G. stated that she beg an dating Rantanen when she was twelve or thirteen, that they first had “consensual” sexual intercour se w h en she was fourtee n, and that they had sexual rela tions “[l] ike three or four times” in total. On cross examination, she ag ree d with Rantanen’ s attorney that she never complaine d to any one that Rantane n had “committed any kind of crime a g ainst” her , that he neve r “f orce d sex” on her, and that she l oved him and believe d he loved her. Rantanen provided no evidenc e or arg ument to ref

ute the elements in the fifth count. 3 4

The minors in this case a

re r efe rre d to by

their initials. 2 The jury also hear d her agre e t h at s h e does not “fe el like [she is] a victim of a crime,” 3 althoug h the cour

t sustained a re levanc e objec tion after he r answe r. Rantanen’ s counsel was presumably attempting to pursue a “strate g y of jury nullification.” 4 United States v. Steve rson , 230 F.3d 221, 223 (6th Cir. 2000); see United States v. Jones , 108 F.3d 668, 676 (6th Cir. 1997). 2The jury acquitted Rantanen on eac h of the first four counts but convicted on the fifth. Two

jurors wrote l et t er s to the court afte r their verdic t lamenting their “dishea rtening ” and “g utwre nching ” decision to convict in count five but a cknowledg ing the ir understa nding that they had “no choice ” to do otherwise under the law. One of the letters urg ed the court to “af ford some 5 leniency” in sentenc ing. At the sentenc ing hear ing, the district court calc ulated the Guidelines rang e to be 57-71 months. The Government and Rantanen advoca ted upward and downw ard va rianc es, respe ctively

. After considering these arguments, the district c ourt imposed a sentenc e at the lower end of this rang e—57 months’ imprisonment—to be followed by ten y ear s of supervised rele ase. Rantanen f

iled a timely

appea l. Be fore his appellate brief was filed, Rantanen alleg es he was told that R.G. had previously claimed to have been the victim of an unrela ted sexual assault but law enfor ceme nt au t h o ri ties deeme d her claims to be “fa lse.” The prosec utor who handled Rantanen’ s trial did not provide this 6 information in response to Rantanen’ s pre- trial reque st for Brady materia ls and claims to have been ignor ant of it at th e t i m e, though he was able to locate repor ts from tribal police and/or the F.B .I

. rela ting to an investigation of R.G.’s al l ega t i o n s . The parties g ive conflicting acc ounts of the contents of these repor

ts, which are not in the rec ord.

Rantanen’ s attorney stat ed d u ri n g the sentenc ing hear ing that “more than one juror 5 approa ched [hi m] ” with the same conce rns, althoug h it is unclea r whether these wer e differ ent jurors from the ones who wrote t h e l et t er s , an d if so, whether they had any additional fee lings about the verdic t. As will be discussed below, the Gover nment disputes the substance of this char acte rization 6 of the e vidence

. 3II. DISCUSS ION

A. Jury Instructions R an t an en first argues that the district court err ed in instructing the jury on the applicable burden of proof. Dur ing jur

y instructions, the court stated: T o fi n d t h e defe ndant g uilty , ever y one of y ou must ag ree that the defe ndant has overc ome the presumption of innocenc e that proves h is g uilt beyond a rea sonable doubt—with evidence that proves his g uilt bey ond a re asonable doubt. After the jury retire d to delibera te, the prose cutor told the j udg e that the word “ defe ndant” had been substitut ed in place of the word “g overnme nt” befor e the p h ra s e “h as overc ome the presumption.” Rantane n ’s attorney declined the judge ’s offe r to bring the jury back into the courtroom for t he correc t sentenc e to be read, stating “I think they g ot the messag e by

that time.” Be fore taking a rec ess, the judge stated: “[W ]e will send the sanitiz ed version of the jury char g e back” to the jury

along with the exhibi ts. Be cause Rantanen did not object to the jury instruction—and “indee d, he acquie sced in it”—

we re v i ew for plain err or. United States v. Cleaves , 299 F.3d 564, 567 (6th Cir. 200 2 ). “A n instruction is not pla inly err oneous unless there was an eg reg ious e rror , one that direc tly leads to a miscarr iag e of justice.” United States v. Daniels , 653 F.3d 399, 409 (6th Cir. 2011) (quoting United States v. Y

ang , 281 F.3d 534, 551 (6th Cir. 2002)). “A judgme nt may be reve rsed based upon an improper jury i n struction only if the i nstructions, viewed as a whole, wer e confusing, misl eading ,

or prejudicia l.” United States v. Ross , 502 F.3d 521, 527 (6th Cir. 2007) (quoting United States v. Harrod , 168 F.3d 887, 892 ( 6th Cir. 1999)) (interna l quotation marks omitted). On its fac e, the jury instruction at i s sue may appea r to violate the “cle arly establish[ed] ” principal that, “ [i ]n a criminal trial, the State must prove e very element of the offe nse.” Joseph v

. 4Coyle , 469 F.3d 441, 464 (6th Cir. 2006) (quoting Middleton v. McNeil , 541 U.S. 433, 437 (2004))

.

Howeve r, it seems clea

r to us—as it did to Rantanen’ s trial attorney —that, in the context of all the instructions, the jury would have interpre ted the statement as mere ly a “slip of the t o n gu e.” This Court has found that a simil arly mistaken ins t ru ct ion—that the defe ndant, rathe r than the g overnme nt, has the burde n to “convince y ou bey ond a re asonable doubt”—did not result in plain

err or for two rea sons. United States v. Edwards , 215 F. App’x 417, 421 (6th Cir. 2007). “F irst, the district court corr ectly stated the g overnme nt’s burden of proof in the written instructions provided to the jury .” Id. ; see also United St ates v. Jones , 468 F.3d 704, 710 (10th Cir. 2006) (joining five other circ uits in holding “slip-of-the -tong ue” err ors to be either harmless or not plain when coupled with corr ect written instructions). Second, “the court repe atedly stated the g overnmen t’s burden 7

corr ectly during its preliminary instructions to the jury and it s final charg e to the j ury .” Edwards , 215 F. App’x at 421; see also O’Neal v. Morris , 3 F.3d 143, 146-47 (6th Cir.1993), vacate d on other g r ounds sub nom. , O’Neal v. McAninc h , 513 U.S. 432 (1995). Her e, the corr ect b u rd en wa s articula ted, among other place s, in the very next sentenc e: “To find the defe ndant not g uilty , ever y

one of y ou must ag ree that the governm ent has failed to convince y ou bey ond a rea sonable doubt.” (Emphasis add ed ). Moreove r, the court’s misstatement was clea rly a “complete non sequitur ” beca use a defe ndant obviously would have no desire to overc ome the presumption of innocenc e to prove his own g uilt. United States v. Anche ta , 38 F.3d 1114, 1117 (9th Cir. 1994). I n light of these considerations, we hold that the mistaken sentenc e at issue he re did not amount to plain err or.

We do not rea ch the question of whether the corr ect written instructions alone would have 7 been sufficie nt to prec lude reve rsible err or. See United States v. Anche ta , 38 F.3d 1114, 1117 (9th Cir. 1994) (obser

ving that “ofte n oral instructions are used to cure ty pog raphic al and other err ors in written instructions”). 5B. Miranda Violation

Rantanen urg es this Court to g rant him a new trial on the basis that the Gover nment violated his Fifth Amendment rig hts by introducing at trial statements he made in custody without rec eiving the proper war

nings. See Miranda v. Arizona , 384 U.S. 436, 471-72 (1966). Rantanen conce des that he did not object to the i ntroduction o f t h es e st atements at trial or m ove to suppress them prior to trial but sug g ests that we can still revie w this cl ai m fo r plain err or. Howeve r, Fe dera l Rule of Criminal Procedur e 12 “p ro v ides that a party waives the ability to bring a motion to suppress by failing to file a motion befor e the pretria l motion deadline.” United States v. W alden , 625 F.3d 961, 967 (6th Cir. 2010) (citing Fe d. R. Crim. P. 12 (b )( 3), (e) ). Although Rule 12(e) allows courts to g rant relief from waiver for “g ood cause ,” we have held that even plain err or revie w is prec luded when “a defe ndant completely fails to file a pretria l motion to suppress evidenc e.” United States v. Jordan , 544 F.3d 656, 666 ( 6th Cir. 2008); W alden , 625 F.3d a

t 967. 8 Thoug h Rantanen may pursue this claim throug h a co llatera l appea l by arguing that his attorney was ineffec tive for failing to raise a t imely motion to suppress, W alden , 625 F.3d at 967 (citing Massaro v. United States , 538 U.S. 500, 504 (2003); 28 U.S.C. § 2255), it is prec luded from revie w her e. C. P roce dural Reasonab leness Rantanen argues his se ntence is proce durally unrea sonable beca use the district c ourt failed
to specific ally addre ss his arguments that he dese rved a lower sentence beca use he and R .G. were “dating and in love” and beca use she did not consider herse lf a “victim.” “I t is well established that,

This Court has sometimes ref err ed to this as a “jurisdictional” bar. United States v. Colli er , 8 246 F. App’x 321, 336 & n.5 (6th Cir. 2007); e.g. , Jordan , 544 F.3d at 666. The result is the same reg ardle ss of whethe r this term is applied. 6as part of its sentenc ing proce dure, a court must consider all non-fr ivolous arguments in support of

a l o we r s entenc e.” United States v. Gunter , 620 F.3d 642, 645-46 (6th Cir. 2010) (citing Un i t ed States v. Blackwell , 459 F.3d 739, 774 (6th Cir. 2006)). In revie wing this proce dure, this Court looks to the entirety

of the sente ncing proce eding s to de termine whether we are satisfied that the district
court ful fi l l ed its obliga tion to “conduc t a meaning ful sentenc ing hear ing and truly consider the d ef en d an t ’s ar g uments.” Id. at 647. “We are to focus less on what the transcr ipt reve als that the
court said and more on what the transcr ipt reve als that the court did.” Id. Be cause Rantanen did not object at the sentenc ing hear ing, he conce des that his claim will be revie wed for plain err or. See id. at 645. Af

t er revie wing the rec ord, we are satisfied that the sentenc ing judge “has considere d th e parties’ arg uments and has a rea soned basis for exercising his own leg al decision making authority .” United States v. Chiolo , 643 F.3d 177, 184 (6th Cir. 2011) (quoting Rita v. United States , 551 U.S. 338, 356 (2007))

. Fur

ther, the matter at issue—Rantanen’ s rela tionship with R.G.—was addre ssed by the court. After Rantanen raised it at t h e s en t en ci n g hear ing and mentioned the jury ’s unhappiness with their obliga tion to convict on the fifth count, the court responde d, “I n other words, the jury followed the law?

. . . That’s what they ar e s u p posed to do.” Moreove r, Rantanen’ s arg uments were addre ssed when the court provide d the following rea soning f or its sentence : I think ther e is one view that, y ou know, the defe ndant here is just a y oung kid w ho is out sewing his wild oats. That happens all of the time at the

. . . [I ndian] rese rvation and other place s, and there is another that he

. . . i s a p re d at or who is wanting to satisfy his sexual desires at all costs, no matter what the ag e or condition of the partne r. . . . Those two obviously cannot be rec onciled, althoug h

. . . it is probably some of both, at least that’s the safe st conclusion that I can rea ch here , and that’s the best I

can do w ith it. . . .

7The g overnme nt wants an upwa rd var iance . The de fense wants a lowe r var iance . I think that t h e C o u rt i s go ing to basica lly set his sentenc e at the low end of the g uidelines, beca

use I think that’s probably abo u t rig ht. I don’t think that

. . . we s hould pile upon him. At the same time, I don’t think we need to—or should b e g iving him any

brea ks at this point. Be cause we conclude Rantanen’ s arguments wer e addre ssed, we n ee d n ot consider the Gover nment’s sug g estion that matters of the victim’s consent and perc eived harm are per se frivolous as a matter of law in a statutory rape case . But see 18 U.S.C. § 3553(a) (1) (providing that
sentenc ing judg e must consider “ the nature and cir cumstance s of the off ense” ). D. Brady Violation Rantanen’ s final issue on appe al is tha t his constitutional rig ht to due proc ess was violate d when the Gover

nment failed to disclose exculpatory evidenc e. See Brady v. Maryland , 373 U.S. 83, 87 (1963). This evidenc e appa re n t l y consi sts of repor ts g ener ated by tribal police and/or the FB I indicating that the vi ctim in count five had previously filed sex ual assault allegations unrela ted t o this case which wer e investigated but did not result in criminal char g es. Rantanen lear ned about the alleg ations from a friend while incar cer ated following his c onviction. The prosec utor in char g e of Rantanen’ s case claims to have be en ig norant of the investigation until Rantanen’ s attorney asked him about it during the pe ndency of this appea l, at which time he wa s able to loca te the re cords. Be cause of the time at which he discovere d the exis tence of this information, Rantanen raises his Brady claim for the first time on appea l. “This court normally will not addre ss an issue not first raised in the district court unless exceptional circ umstances are prese nt.” United States v. McLain , 9 F. App’x 463, 464 (6th Cir. 2001) (citing E n er tech Elec., Inc. v. Mahoning Cnty. Comm’rs , 85

8F.3d 257, 261 (6th Cir. 1996)). As both parties re cog nize, such circumstanc es do not exist here

. 9

The rec ord does not contain the repor ts themselves and the parties disag ree ab o u t exactly what is contained there in: Rantanen submits that the repor ts demonstrate that the tribal po l i ce and F.B .I

. “investig ated her alleg ations and conclude d that they wer e false” wher eas the Gover nment submits the repor ts “did not involve a finding that [t he victim in count five] was ly ing or fabr icating what she descr ibed.” Cf. United States v. Neeley , 308 F. App’x 870, 880 (6th Cir. 2009) (dec iding to consider Brady issue on direc t appea l when content of materia l was undisputed and n o fu rt her fac tual development was require d). Acc ording ly , Rantanen’ s Brady claim is best raised in the first instance in the district court in a c ollatera l appea l pursuant to 28 U.S.C. § 2255. III. CONCLUSION For the re asons provided a

bove, Rantane n’s conviction and se ntence are AF F IRMED

.

Rantanen states that he is mere ly prese nting this claim on direc t appea l “in order to avoid 9 a cla im that the issue has bee n waived or forf eited.” 9