FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

THEODORE KOOTSWATEWA,

Defendant-Appellant.

No. 16-10228

D.C. No.

3:15-cr-08034-DLR-1

ORDER AND

AMENDED OPINION

Appeal from the United States District Court

for the District of Arizona

Douglas L. Rayes, District Judge, Presiding

Argued and Submitted September 13, 2017

San Francisco, California

Filed March 23, 2018

Amended June 27, 2018

Before: J. Clifford Wallace and Paul J. Watford, Circuit

Judges, and W. Louis Sands,* District Judge.

Order;

Opinion by Judge Watford

* The Honorable W. Louis Sands, United States District Judge for the

Middle District of Georgia, sitting by designation.
2 UNITED STATES V. KOOTSWATEWA

SUMMARY**

Criminal Law

The panel (1) amended an opinion filed March 23, 2018,

affirming a conviction for sexually abusing K.C., a

developmentally delayed 11-year-old girl; (2) denied a

petition for panel rehearing; and (3) denied on behalf of the

court a petition for rehearing en banc.

In the amended opinion:

The panel held that the district court properlyexercised its

discretion in admitting under Fed. R. Evid. 803(4) K.C.’s

statements to a nurse practitioner concerning the nature of the

abuse and the identity of her abuser. The panel observed that

the statements were made for purposes of medical diagnosis

or treatment, were reasonably pertinent to that subject, and

described the inception or general cause of K.C.’s past or

present symptoms. Rejecting the defendant’s contention that

the government failed to lay an adequate foundation, the

panel explained that the declarant herself need not testify; an

adequate foundation may be laid under Rule 803(4) by

introducing objective evidence, including testimony by the

medical professional who conducted the examination, of the

context in which the statements were made. The panel

concluded that the government presented ample evidence

supporting the inference that K.C. understood that the nurse

practitioner was seeking information for purposes of

diagnosis or treatment.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
UNITED STATES V. KOOTSWATEWA 3

The panel held that the district court properlyexercised its

discretion in admitting under Fed. R. Evid. 801(d)(1)(B)(i)

K.C.’s statements to a law enforcement officer in order to

rebut defense counsel’s suggestion that K.C.’s in-court

testimony had been tainted by her mother’s alleged coaching. 

The panel held that K.C.’s prior statements to the officer were

consistent with her in-court testimony, as required under Rule

801(d)(1)(B).

The panel held that the prosecutor’s brief and accurate

recitation of trial testimony concerning what K.C. told others

about the offense did not constitute misconduct. The panel

concluded that the prosecutor’s misstatement of the

record—that K.C. told the officer that the defendant had

“lured” her into a trailer rather than “took” her into the

trailer—amounted to harmless error.

COUNSEL

Michael L. Burke (argued), Assistant Federal Public

Defender; Jon M. Sands, Federal Public Defender; Office of

the Federal Public Defender, Phoenix, Arizona; for

Defendant-Appellant.

Helen H. Hong (argued), Special Attorney for the United

States, Office of the United States Attorney, San Diego,

California, for Plaintiff-Appellee.
4 UNITED STATES V. KOOTSWATEWA

ORDER

The opinion filed on March 23, 2018, and published at

885 F.3d 1209 is amended as follows:

At 885 F.3d at 1214, replace the first two paragraphs

appearing in the left column, beginning with the sentence

<Contrary to Kootswatewa’s contention, however, the

declarant herself need not testify about her subjective thought

process at the time she made the statements in question.> and

ending with the sentence <That inference was bolstered here

by the nurse practitioner’s testimony that she conducted

K.C.’s examination in an examination room, with her

stethoscope on, after measuring K.C.’s height and weight and

taking her medical history.>, with the following two

paragraphs:

<Contrary to Kootswatewa’s contention,

however, the declarant herself need not testify

about her subjective thought process at the

time she made the statements in question. 

Indeed, the declarant need not testify at all. 

An adequate foundation may be laid under

Rule 803(4) byintroducing objective evidence

of the context in which the statements were

made. See id. That evidence can include

testimony provided by the medical

professional who conducted the examination.

Here, the government presented ample

evidence supporting the inference that K.C.
UNITED STATES V. KOOTSWATEWA 5

understood that the nurse practitioner was

seeking information for purposes of diagnosis

or treatment. Most significantly, K.C. made

the statements in response to questions posed

by a medical professional during a medical

examination conducted at a medical facility. 

Absent evidence indicating otherwise, the

district court could reasonably infer from

those circumstances that K.C. understood she

was providing information for purposes of

diagnosis or treatment. See, e.g., Lukashov,

694 F.3d at 1114–15; United States v.

Gonzalez, 533 F.3d 1057, 1062 (9th Cir.

2008); see also 30B Charles Alan Wright et

al., Federal Practice and Procedure § 6844, p.

324 (2017) (“statements made by most people

in the context of an injury-related visit to a

medical professional can be presumed to be

made for the purpose of medical treatment”). 

That inference was bolstered by the nurse

practitioner’s testimony that she conducted

K.C.’s examination in an examination room,

with her stethoscope on, after measuring

K.C.’s height and weight and taking her

medical history.>

With this amendment, the panel unanimously votes to

deny the petition for panel rehearing. Judge Watford votes to

deny the petition for rehearing en banc, and Judge Wallace

and Judge Sands so recommend. The full court has been

advised of the petition for rehearing en banc, and no judge
6 UNITED STATES V. KOOTSWATEWA

requested a vote on whether to hear the matter en banc. Fed.

R. App. P. 35. The petition for panel rehearing and rehearing

en banc, filed May 29, 2018, is DENIED.

No further petitions for panel rehearing or rehearing en

banc will be entertained.

OPINION

WATFORD, Circuit Judge:

Theodore Kootswatewa was convicted following a jury

trial of sexually abusing K.C., a developmentally delayed 11-

year-old girl. On appeal, Kootswatewa challenges two of the

district court’s evidentiary rulings. Over Kootswatewa’s

hearsay objections, the court allowed a nurse practitioner and

a law enforcement officer to testify about statements K.C.

made to them during interviews conducted shortly after the

abuse occurred. We conclude that the district court properly

exercised its discretion in admitting the testimony of both

witnesses. We also conclude that Kootswatewa’s remaining

challenge to the propriety of the prosecutor’s closing

argument does not merit reversal.

I

Kootswatewa and K.C., both members of the Hopi Tribe,

lived in the same small community on the Hopi Reservation

in Arizona. Early one evening, a neighbor saw K.C. follow

a man into an abandoned trailer. Soon after, as the neighbor

approached the trailer to investigate, she saw K.C. emerge

looking scared. K.C. told the neighbor that the man had tried
UNITED STATES V. KOOTSWATEWA 7

to “rape” her. The neighbor identified the man as

Kootswatewa when he walked out of the trailer moments

later. The neighbor called the police and contacted K.C.’s

mother.

A law enforcement officer drove to the scene to

investigate. He waited for K.C.’s mother to arrive and

obtained her permission to interview K.C. During the

interview, K.C. told the officer that Kootswatewa had taken

her into the abandoned trailer, pulled down her pants, and

touched her vagina with his hand and tongue. At trial, during

the government’s rebuttal case, the district court overruled

Kootswatewa’s hearsay objection and allowed the officer to

recount K.C.’s statements to the jury. The court ruled that the

statements were admissible as prior consistent statements

because they aligned with K.C.’s trial testimony and rebutted

the implication, raised by the defense on cross-examination

of K.C., that K.C. had fabricated the alleged abuse. See Fed.

R. Evid. 801(d)(1)(B)(i).

The morning after the abuse occurred, K.C.’s mother took

her to a part of the outpatient pediatric wing of the Flagstaff

Medical Center, called the Safe Child Center. K.C. saw a

nurse practitioner there who was certified as a Sexual Assault

Nurse Examiner. The nurse practitioner conducted a sexual

assault examination of K.C., during which K.C. said that a

man who lived in a red house had recently touched her vagina

with his hand and tongue. (Multiple witnesses testified that

Kootswatewa lived in a red cinder-block house.) At trial,

during the government’s case-in-chief, the district court

allowed the nurse practitioner to recount K.C.’s statements,

again over the defense’s hearsay objection. The court ruled

that the statements were admissible under the hearsay
8 UNITED STATES V. KOOTSWATEWA

exception for statements made for purposes of medical

diagnosis or treatment. See Fed. R. Evid. 803(4).

The jury convicted Kootswatewa of aggravated sexual

abuse of a minor, in violation of 18 U.S.C. §§ 1153, 2241(c);

abusive sexual contact, in violation of 18 U.S.C. §§ 1153,

2244(a)(5); and committing a felony offense involving a

minor while being required to register as a sex offender, in

violation of 18 U.S.C. § 2260A. The district court sentenced

Kootswatewa to 40 years in prison.

II

We first address Kootswatewa’s challenge to the

admission of the nurse practitioner’s testimony under Rule

803(4) of the Federal Rules of Evidence. Under that

provision, out-of-court statements made for purposes of

medical diagnosis or treatment are admissible as an exception

to the hearsay rule, which generally forbids admission of outof-court statements offered to prove the truth of the matter

asserted. A statement is admissible under Rule 803(4) if it:

“(A) is made for—and is reasonably pertinent to—medical

diagnosis or treatment; and (B) describes medical history;

past or present symptoms or sensations; their inception; or

their general cause.” Fed. R. Evid. 803(4). A statement

covered byRule 803(4) is admissible as substantive evidence,

regardless of whether the declarant is available to testify.

Statements covered by Rule 803(4) are admissible

because the rationale for excluding hearsay statements does

not apply to them. Hearsay statements are inadmissible as a

general rule because they typically lack indicia of

trustworthiness. Unlike testimony offered in court, hearsay

statements are not made under oath and the declarant is not
UNITED STATES V. KOOTSWATEWA 9

subject to cross-examination, so the accuracy and reliability

of the statements cannot be tested. Certain categories of outof-court statements, however, are excepted from the rule

against hearsay because they are made under circumstances

in which the declarant would be particularly unlikely to lie. 

Idaho v. Wright, 497 U.S. 805, 820 (1990). Statements made

for purposes of medical diagnosis or treatment comprise one

such category. An individual seekingmedical care is unlikely

to lie about her medical history or symptoms because she

knows that “a false statement may cause misdiagnosis or

mistreatment.” White v. Illinois, 502 U.S. 346, 356 (1992). 

The declarant’s selfish interest in obtaining appropriate

medical care renders statements made for purposes of

diagnosis or treatment inherently trustworthy, such that

“adversarial testing [through cross-examination] would add

little to their reliability.” Wright, 497 U.S. at 820–21.

The district court properly exercised its discretion in

admitting K.C.’s statements to the nurse practitioner because

the statements fall comfortably within the scope of Rule

803(4). K.C. spoke to the nurse practitioner as part of a

sexual assault examination. As the nurse practitioner

testified, one of the purposes of such an examination is to

diagnose any physical, psychological, or emotional injuries

the victim may have suffered and to prescribe an appropriate

course of treatment. To diagnose and treat K.C.’s injuries,

the nurse practitioner first had to find out what happened to

her, and so she asked K.C., “Did something happen?” K.C.’s

statements describing the abuse she suffered were made in

response to that question. The statements satisfied both

prongs of Rule 803(4): They were made for purposes of

medical diagnosis or treatment and were “reasonably

pertinent” to that subject; and they described the “inception”

or “general cause” of K.C.’s past or present symptoms. In
10 UNITED STATES V. KOOTSWATEWA

that respect, K.C.’s statements are no different from the

statements we have held admissible in past cases involving

child sexual abuse. See United States v. JDT, 762 F.3d 984,

1003–05 (9th Cir. 2014); United States v. Lukashov, 694 F.3d

1107, 1115 (9th Cir. 2012); Guam v. Ignacio, 10 F.3d 608,

613 (9th Cir. 1993); United States v. George, 960 F.2d 97,

99–100 (9th Cir. 1992).

Kootswatewa contends that the government failed to lay

an adequate foundation for admission of K.C.’s statements

under Rule 803(4). In particular, he asserts that although the

government established that the nurse practitioner elicited the

statements for purposes of medical diagnosis or treatment, the

government did not establish what K.C. herself was thinking

when she made the statements. As Kootswatewa correctly

points out, it is the declarant’s understanding of the purposes

for which the statements were made that matters under Rule

803(4). Ignacio, 10 F.3d at 613 n.3; 4 Christopher B. Mueller

& Laird C. Kirkpatrick, Federal Evidence § 8:75 (4th ed.

2017). The declarant herself must understand that she is

providing information for purposes of diagnosis or treatment

because that understanding is what provides assurance that

the statements are particularly likely to be truthful. United

States v. Yazzie, 59 F.3d 807, 813 (9th Cir. 1995).

Contrary to Kootswatewa’s contention, however, the

declarant herself need not testify about her subjective thought

process at the time she made the statements in question. 

Indeed, the declarant need not testify at all. An adequate

foundation may be laid under Rule 803(4) by introducing

objective evidence of the context in which the statements

were made. See id. That evidence can include testimony

provided by the medical professional who conducted the

examination.
UNITED STATES V. KOOTSWATEWA 11

Here, the government presented ample evidence

supporting the inference that K.C. understood that the nurse

practitioner was seeking information for purposes of

diagnosis or treatment. Most significantly, K.C. made the

statements in response to questions posed by a medical

professional during a medical examination conducted at a

medical facility. Absent evidence indicating otherwise, the

district court could reasonablyinfer from those circumstances

that K.C. understood she was providing information for

purposes of diagnosis or treatment. See, e.g., Lukashov,

694 F.3d at 1114–15; United States v. Gonzalez, 533 F.3d

1057, 1062 (9th Cir. 2008); see also 30B Charles Alan

Wright et al., Federal Practice and Procedure § 6844, p. 324

(2017) (“statements made by most people in the context of an

injury-related visit to a medical professional can be presumed

to be made for the purpose of medical treatment”). That

inference was bolstered by the nurse practitioner’s testimony

that she conducted K.C.’s examination in an examination

room, with her stethoscope on, after measuring K.C.’s height

and weight and taking her medical history.

No evidence in the record negates the inference that K.C.

understood the medical purpose of her answers to the nurse

practitioner’s questions. It is true that K.C. was only 11 years

old at the time of the examination, and due to developmental

delays she had the mental capacity of a child several years

younger than that. But we have consistently held that even

young children have the capacity to understand the medical

purpose of an examination. See JDT, 762 F.3d at 988

(children between the ages of five and seven); Lukashov, 694

F.3d at 1110 (eight-year-old child); Ignacio, 10 F.3d at

610–11 (three-year-old child).
12 UNITED STATES V. KOOTSWATEWA

Kootswatewa contends that, even if K.C.’s statements

describing the nature of her abuse were admissible under

Rule 803(4), her statement identifying the perpetrator was

not. Some courts and commentators have held that

statements identifying the perpetrator of a crime are not

pertinent to medical diagnosis or treatment and therefore fall

outside the scope of Rule 803(4) and its state-law

counterparts. See 4 Mueller & Kirkpatrick, Federal Evidence

§ 8:75 n.36 (collecting cases). Our court has squarely

rejected that view, at least in cases involving child sexual

abuse. See JDT, 762 F.3d at 1003–05; Ignacio, 10 F.3d at

613; George, 960 F.2d at 99–100. We have held that medical

providers need to know who abused a child in order to protect

her from future abuse at the hands of the same perpetrator,

and to assist in diagnosing and treating the psychological and

emotional injuries caused by sexual abuse. Lukashov,

694 F.3d at 1115; George, 960 F.2d at 99. The nurse

practitioner in this case testified that she asks her patients

about the identity of their abuser for precisely these reasons.

In short, the government laid an adequate foundation for

the admission of K.C.’s statements concerning the nature of

the abuse and the identity of her abuser. The district court

properly admitted the statements under Rule 803(4).

III

We turn next to Kootswatewa’s objection to the

admission of the officer’s testimony concerning the

statements K.C. made to him shortly after the abuse occurred. 

The government offered this evidence in its rebuttal case,

after defense counsel attacked K.C.’s credibility while crossexamining her. The district court admitted K.C.’s statements

under Rule 801(d)(1)(B)(i), which renders admissible a prior
UNITED STATES V. KOOTSWATEWA 13

statement that is consistent with the declarant’s in-court

testimony and is offered “to rebut an express or implied

charge that the declarant recently fabricated [her testimony]

or acted from a recent improper influence or motive in so

testifying.” Fed. R. Evid. 801(d)(1)(B)(i).

The district court properly exercised its discretion in

admitting K.C.’s statements to the officer. To explain why,

a bit of background information is necessary. K.C. testified

on direct examination that a man who lived in a red house (by

implication Kootswatewa) had touched her vagina with his

hand. During her opening statement, defense counsel

previewed for the jury how she planned to attack the

credibility of this anticipated testimony. Defense counsel

suggested that K.C. had fabricated her story of being sexually

abused by Kootswatewa because she wanted to avoid being

disciplined by her mother, who had previously warned K.C.

not to wander away from home and not to have any contact

with Kootswatewa:

The evidence will also show that [K.C.] had a

reason to make up a false story about Mr.

Kootswatewa at that moment, at that moment

when she ran into [the neighbor] outside the

trailer on that day. At that moment, K.C. had

just been caught very far from home, in

someone else’s trailer that she didn’t belong

in, with a man she had been told to stay away

from. Making up this story was a way to

escape getting in trouble.

During her cross-examination of K.C., defense counsel

returned to this theme and added another. She suggested

through her questions that K.C. had two separate motives for
14 UNITED STATES V. KOOTSWATEWA

fabricating her story: She wanted to avoid getting in trouble

with her mother, as alluded to during opening statement; and,

in addition, she was complying with her mother’s instructions

about what to say during her in-court testimony. As to the

second alleged motive, for example, defense counsel asked,

“your mom told you what to say today?”

Against this backdrop, K.C.’s prior statements to the

officer were admissible to rebut defense counsel’s suggestion

that K.C.’s in-court testimony had been tainted by a “recent

improper influence or motive”—namely, K.C.’s mother’s

alleged coaching. To be admissible under Rule

801(d)(1)(B)(i), K.C.’s statements must have been made

before this alleged improper influence or motive to fabricate

arose. See Tome v. United States, 513 U.S. 150, 156 (1995);

United States v. Chang Da Liu, 538 F.3d 1078, 1086 (9th Cir.

2008). That requirement was met here. K.C. spoke to the

officer shortly after the abuse in the trailer occurred. She did

not have an opportunity to speak with her mother before the

officer interviewed her, so the statements K.C. made to the

officer could not have been tainted by any coaching from her

mother.

Kootswatewa contends that the officer’s testimonyshould

have been excluded because defense counsel asserted two

different improper influences or motives, and K.C.’s prior

statements to the officer rebutted only one of them. 

Kootswatewa correctly points out that K.C.’s alleged motive

to fabricate her story to avoid being disciplined by her mother

arose before K.C. spoke to the officer, and thus her

statements to the officer could not rebut that motive. But

Rule 801(d)(1)(B)(i) does not require that a prior statement

rebut all improper influences or motives suggested by defense

counsel. It is sufficient if the prior statement tends to rebut
UNITED STATES V. KOOTSWATEWA 15

one of them. See Gonzalez, 533 F.3d at 1063; see also United

States v. Londondio, 420 F.3d 777, 784–85 (8th Cir. 2005);

United States v. Wilson, 355 F.3d 358, 361 (5th Cir. 2003). 

Here, as explained, K.C.’s prior statements to the officer

rebutted defense counsel’s suggestion that K.C.’s in-court

testimony was the product of her mother’s coaching.

Kootswatewa also argues that K.C.’s prior statements to

the officer were not “consistent” with her in-court testimony,

as required under Rule 801(d)(1)(B). See Chang Da Liu, 538

F.3d at 1086. Kootswatewa contends that this requirement

was not met because K.C.’s prior statements differed from

her testimony in court: K.C.’s statements to the officer

placed the abuse in the trailer, whereas K.C.’s confusing incourt testimony (given in response to a series of leading

questions on cross-examination) suggested that the abuse

occurred at her mother’s house.

K.C.’s prior statements were consistent with her in-court

testimony with respect to the elements that were critical given

the nature of defense counsel’s attack. K.C.’s statements to

the officer were offered to rebut the charge that K.C. had

fabricated the entire episode of abuse by Kootswatewa. 

K.C.’s statements to the officer tended to rebut that charge

because she told the officer shortly after the incident the same

thing she said in court: that the man who lived in the red

house had touched her vagina. To that extent, then, K.C.’s

statements to the officer were admissible as prior consistent

statements. To the extent K.C.’s prior statement as to the

location of the abuse differed from her trial testimony, any

error in admitting that statement was harmless. K.C.’s

neighbor and the nurse practitioner had alreadytestified about

the statements K.C. made to them, and in both instances

K.C.’s statements established that the abuse occurred in the
16 UNITED STATES V. KOOTSWATEWA

trailer. Thus, the officer’s reference to where the abuse

occurred added nothing to the record that could have

prejudiced Kootswatewa.

IV

Finally, we address Kootswatewa’s objections to the

prosecutor’s closing argument. He contends that the

prosecutor committed misconduct in two respects.

First, Kootswatewa argues that it was improper for the

prosecutor to begin her closing argument by quoting or

paraphrasing the key statements K.C. made to the neighbor,

the nurse practitioner, and the law enforcement officer

describing the abuse. For example, the prosecutor stated, “He

tried to rape me. He took me into an abandoned trailer. . . . 

Put fingers inside. The man in the red house.” While these

statements were phrased in the first person, it is not accurate

to say that the prosecutor spoke “in the voice of the victim,”

a practice we have condemned as improper. Drayden v.

White, 232 F.3d 704, 712 (9th Cir. 2000). The prosecutor

instead accurately recited the trial testimony recounting what

K.C. told others about the abuse and immediately disclosed

the source of the statements: “Those are the words that have

been used by K.C. when talking about what happened to her

on March 27th, 2014.” The prosecutor’s statements, in total,

filled less than six lines of the trial transcript. Briefly reciting

the trial testimony concerning what K.C. told others about the

offense—accurately and with proper attribution—did not

constitute misconduct.

Second, Kootswatewa argues that the prosecutor

misstated the record when she said that K.C. told the officer

that Kootswatewa had “lured” her into the trailer. K.C.
UNITED STATES V. KOOTSWATEWA 17

actually told the officer that Kootswatewa “took” her into the

trailer, so the prosecutor did indeed err. Nonetheless, this

misstatement of the record amounted to harmless error. See

United States v. Washington, 462 F.3d 1124, 1135 (9th Cir.

2006). The evidence against Kootswatewa was compelling,

and none of the charges turned on whether he “lured” or

merely “took” K.C. into the abandoned trailer.

AFFIRMED.