F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee
,

v.

T H E O D O R

E K O O T S W

A T E W A , Defendant-Appellant. No. 16-10228

D.C. No. 3:15-cr-08034-DL R-1

ORDER AND AMENDED OPI

NI ON

A ppeal from the United States District Court for the District of Ariz o na Doug las L . Ray es, District J udg e, Presiding

Arg u ed and Submitted September 13, 2017 San F rancisco, California

F iled March 23, 2018 Amended J une 27, 2018

B efore: J . Clifford W allace and Paul J . W atford, Circuit J udg e s, and W . L ouis Sands, * District J udg e.

Order; Opinion by

J u dg e W atford

* T h e Ho n o rab le W

. L o u is San d s, Un ited States District J u d g e f o r th e Mid dle District o f

Geo rg ia, sittin g b y

d esig n atio n

.U N I T E D S T A T E S V

. K O O T S W A T E W A 2

SUMMARY * *

Crim inal Law

The panel (1) amended an opinion filed March 2 3, 2018, affirming a conviction for s e x ually abusing K.C., a developmentally delay ed 11-y ear

- o l d g irl; (2) denied a petition f o r p a n e l r ehearing ; and (3) denied on b ehalf of the court a petition for rehearing en banc.

I n the amended opinion:

The panel held that the district c ourt properly ex ercised its discretion in admitting u nder F ed. R. E vi d

. 8 0 3 (4) K .C.’s
statements to a nurse practitioner concerning the nature o f the abuse and the identity of her abuser. The panel observed that the statements were made for purposes of medical diag nosis

or treatment, were reasonably pertinent to that subjec t , a nd described the inception or g eneral cause of K

. C

. ’ s past o r present sy mptoms. Rejecting the defendant’s contention that
t h e government failed to lay an adequate foundation, th e panel ex plained that the declarant herself need not testify ; an adequate foundation m a y b e laid u n der Rule 803(4) b y introducing objective e vidence, includin g testimony by the medical professional who conducted the ex amination, of the
contex t in which the statem e nts were made. The panel concluded t h at the g overnment p resented ample evidence
supp o rting the inference that K.C. u n derstood that the nurse practitioner was seeking informatio n f o r purposes o f diag nosis or treatment.

* * T h is su m m ary co n s titu tes n o p art o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. K O O T S W A T E W A 3

The panel held that the d istrict court properly ex ercised its discretion in admitting under F ed. R

. E vid. 801(d)(1)(B )(i) K

. C

. ’s statements to a law e nforcement officer in order t o rebut defense counsel’ s sug g estion that K.C.’s in-court testimony had been tainted by her mother’s alleg ed 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 ).

T h e panel held that the prosecutor’s brief and accur a t e 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 th e officer that the defendant h ad “lured” h er into a trailer rather than “too k ” h e r into the trailer—amounted to harmless error.

COUNSEL

Micha e l L

. B urke (arg u ed), Assistant F ederal Public Defender; J on M. Sands, F ederal Public Defender; Office o f the Fe d e ral Public Defender, Phoenix
, Ariz ona; for Defendant-Appellant.

Helen H. Hong (arg

ued), Speci a l A t t orney for the United States, Office o f the United States Attorney
, San Dieg o, California, for Plaintiff-Appellee.U N I T E D S T A T E S V

. K O O T S W A T E W A 4

ORDER

The opinion file d 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 p a ra gr aphs appearing in the left c olu m n , beg inning with the sentence <Contrary to Kootswatewa’s conten t ion, however, the declarant herself need not testify about her subjective thoug ht
process at the time she made the statements in question.> a nd ending with the sentence <That inference was bolstered here by the nurse pract i t i o ner’s testimony that she conducted K.C.’s ex amination in an ex a mination room, w ith her stethoscope on, after measuring K.C.’s heig ht and weig ht a nd taking her medical h i s t o ry .>, with the f ollowing two parag raphs:

<Contrary to Kootswatewa’s contention, however, the declarant herself n eed not testify abou t her subjective thoug ht process at the time s h e made the statements in question. I ndeed, the d e c larant need not testify at all. An adeq u a t e foundation may be laid under Rule 803(4) by introdu c i n g o b jective evidence of the contex t in wh i c h the statements were made. S e e id

. That evidence can include
t e s t i m o n y p r o v i d e d b y t h e m e d i c a l professional who conducted the ex amination.

Here, the g overnment presented ample evidence supporting th e inference that K.C.U N I T E D S T A T E S V

. K O O T S W A T E W A 5

under s t ood that the nurse practitioner was seeking information for purposes of diag nosis

or treatment. Most sig nificant l y , K.C. made the statements in response to q u estions posed by a medical professional d uring a medical

ex a mination c onducted at a medical facility

. Absent e vidence indicating otherwi se, the district c ou r t could r easonably infer f rom those circumstances that K .C. u nderstood she

was provid ing information for purposes o f diag nosis or treatment. See, e.g. , Lukashov
, 694 F .3 d at 1114–15; United States v

. Gonzalez
, 5 3 3 F .3d 1 057, 1062 (9th Cir. 2008); see also 30B Charles Al an W rig h t et al., F ederal Practice and Procedure § 6844, p. 324 (2017) ( “statements made by most people i n t he contex t of an injury -related visit to a medical professional can b e presumed to be made for the purpose of medical treatment”). That inferen ce w as bolstered b y the nurse practitioner’s testimony that she c onducted K.C.’s ex amination in an e x amination room, with he r stethoscope on, after measuring K.C.’s heig ht and weig ht and taking her medical history .>

W ith this amendment, the p a n el unanimously votes to deny the petition for panel rehearing

. J udg e W atford votes to deny the petition for rehearing en b a n c, and J udg e W allace and J udg e Sands s o r e c o m mend. The full court has been advise d o f the petition for rehearing en banc, and no judg eU N I T E D S T A T E S V

. K O O T S W A T E W A 6

requested a vote on w hether to hear the matter en banc. F ed. R. App. P. 35. The petition for panel rehearing and rehearing en banc, filed May

29, 2018, is DENIED

.

N o further petitions f

or panel rehearing or rehearing e n banc will be entertained.

OP INION

W A TF ORD, Circuit J udg e:

Theodore K ootswatewa was convicted following a jury trial of sex ually abusing K.C., a developmentally delay e d 11-
y ear-old g irl. On appeal, Kootswatewa challeng es two of the district court’s evidentiary ruling s. Over Kootswa tewa’s hearsay objections, the court allowed a nu rse practitioner a nd

a law enforcement officer to testify about statements K

. C. made to them during interviews conducted shortly afte r the abuse o ccurred. W e conclude that the district court properly

ex e r cised its discretion in admitting the testim o ny o f both witnesses. W e also c onclude that K ootswatewa’s remaining challeng e to the propriety of the prosecuto r’s closing
arg ument 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 Ariz ona. Early one evening
, a neig hbor s a w K.C. f ollow

a man into an abandoned trailer. Soon a fter, as the neig hbor approached the trailer to investig ate, s h e s aw K.C. emerg e looking scared. K.C. told the neig hbor that the man had triedU N I T E D S T A T E S V

. K O O T S W A T E W A 7

to “rape” her. T h e neig hbor identified the man a s Kootswa tewa when h e walked out of the trailer moments later. The neig hbor called the police and contacted K .C.’s mother.

A law enforcement officer d rove to the scene to investig ate. He waited for K.C.’s mo t h e r to arrive a nd obtained h er permission to interview K.C. During the interview, K. C

. t old the o fficer that Kootswatewa had taken her into the abandoned trailer, pulled down h er p an t s , a nd touched her v ag ina with his hand and tong ue. At trial, during the g overnment’s rebut t a l case, the district court overruled Kootswatewa’s hearsay objection and allowed t h e o fficer to recount K.C.’s statements to the jury

. The court ruled that the
statements were admissible as prior consistent statements because they alig ned with K.C.’s trial testimony and rebutted the implication, raised by the defense on cross-ex amination of K.C., that K .C. h ad fabricated the alleg ed abuse. See F ed. R. Evid. 801(d)(1)(B )(i).

The morning after the abuse o ccurred, K.C.’s mother took her to a p art of the outpatient pediatric wing of the F lag staff Medical Center, called the Safe Child Cent e r. K.C. saw a

nurse practitioner there who w as certified as a Sex ual Assault Nurse E x aminer. The nurse practitioner conducted a sex ual assault e x amination of K.C., during w hich K.C. said that a

man who lived in a red house had recently touched h er vag ina with his hand and tong ue. (Multiple w itnesses testi f i ed that Kootswatewa lived in a red ci n d er-block house.) A t trial, during the g overnment’s case-in-chief, the distri ct court allowed the nurse practitioner to r e c ount K.C.’ s s t atements, ag ain over the defense’s hearsay objection

. The court ruled that the statements w ere admissible under the hearsayU N I T E D S T A T E S V

. K O O T S W A T E W A 8

ex c e ption for statements made for purposes of medic al diag nosis or treatment. See F ed. R. Evid. 803(4).

The jury convicted Kootswatewa o f a g g ravated sex ual abuse of a minor, in v iolation of 1 8 U.S.C. §§ 1153, 2241(c);

a b usive sex ual contact, in v iolation of 18 U.S.C. §§ 1 1 5 3
, 2244(a)(5); and committing a felony o f f ense involving a minor while being required to reg ister as a s e x o ffender, in violation of 18 U.S.C. § 2260A. The d istrict court sentenced Kootswatewa to 40 y ears in prison.

I I

W e first address Kootswatewa’s ch a l l e ng e to the admission of the nurse p ractitioner’s testi m ony under Rule 803(4) of the F ederal Rules of E vidence. U nder that provision, out-of-court statemen t s m ade for purposes o f medical diag nosis o r treatment are admissible as an ex c eption
to the hearsay rule, w hich g enerally f o rbids admission of outof-court statements o ffered to prove the t r u t h of the matter asserted. A statement is admissible und e r R u l e 803(4) if it: “( A ) i s made for—and is r easonably pertinent to—medical diag nosis or treatment; and (B ) des cr ibes medical history ; past or present sy

mptoms or s e n s a tions; their inception; o r their g eneral cause.” F ed. R. E v id. 803(4). A s t a t ement covered by Rule 803(4) is admissible as substantive evidence,
reg ardless of whether the declarant is available to testify

.

Statements covered b y R u l e 803(4) are admissible because t h e r ationale for ex cluding hearsay statements does not apply to them. Hearsay statements a

re inadmissible as a
g eneral rule because they ty pically lac k indicia o f trustworthiness. Unlike testimony of fered in court, hearsay

s t a t e ments are not made under o ath and the declarant is n o tU N I T E D S T A T E S V

. K O O T S W A T E W A 9

subject to cross-ex amination, so the a ccuracy and r eliabil ity of the statements cannot b e tested. Certain categ o ries of outof-court statements, however, a r e ex cepted from the rule
ag ainst hearsay because they a re made under circumstances in which the declarant would b e particularly unlikely to lie. Idaho v. W

right
, 497 U.S. 805, 820 (1990). Statements made for p u rposes o f medical diag nosis or treatment comprise o ne such categ ory

. An individual seeking medical care is unlikely
to lie about her medical history o r sy mptoms because she k n o w s that “a false statement may c ause misdiag nosis o r mistreatment.” W

h ite v. Il l i n ois
, 5 02 U.S. 346, 356 (1992). The declarant’s selfish interes t in obtaining appropriate medical care renders statements made for purposes o f diag nosis or treatment i n h erently trustworthy
, such that “adversarial testing [ throug h cross-ex amina t i on] would a dd little to their reliability .” W right , 497 U.S. at 820–21.

The district court properly ex ercised i t s discretion in admitting K.C.’s statements to the nurse practitioner because the statements f

all comfortably within the scope of Rule 803(4). K.C. spoke to the nurse p rac t i t i o ner as part of a

sex ual assault ex a mination. As the nurse practitioner testified, one of the purposes o f s u c h a n ex amination is to diag nose any p hy sical, psy c h o l o g ical, or emotional injuries the victim may have suffered and to prescribe an appropriate

course o f tr e a t ment. To d iag nose and treat K.C.’s injuries,
t h e nurse practitioner first had to find out what happened t o her, and so she asked K.C., “Did something happen? ” K .C.’s
statements describing the a b use she suffered w er e m ade in
response to that q

u estion. The statements satisf i e d both
prong s of Rule 803(4): Th e y w e re made f or purposes o f medical diag nosis or treatment and were “ r easonably pertinent” to that subject; and they described the “inception”

or “g eneral cause” of K. C

. ’ s past or p resent sy mptoms. I nU N I T E D S T A T E S V

. K O O T S W A T E W A 10

that respect, K .C.’s s t atements a re no different from the
statements we have held admissible in past cases involvi n g child sex ual 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. 201 2 ); Guam v

. Ignacio
, 10 F .3d 608, 613 (9th Cir. 1 993); United States v. George
, 960 F

. 2 d 9 7
, 99–100 (9th Cir. 1992).

Kootswatewa contends that the g overnment failed to lay

an adequate foundation for admission of K.C.’s statements under Rule 803(4). I n p articular, he asserts that althoug h the
g overnment established that the nurse practitioner elicited the
statements for p urposes of medical diag nosis or treatment, the
g overnment did not establish what K.C. herself was thinking when she made the stat e m e n ts. 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 & L aird C. Kirkpatrick, F ederal Evidenc e § 8:75 (4th ed. 2017). T he declarant herself must u nde r s t a n d that she is providing information for purposes of diag nosis or treatment because that u nderstanding is what p r o v ides a ssurance that the statements are p articul a rl y likely to be truthful. United States v. Y

azzie , 59 F .3d 807, 813 (9th Cir. 1995).

Contrary to Kootswatewa’s contention, howe v e r , the declarant herself need not testify about her subjective thoug ht
process at t h e t ime she made the statements in question. I ndeed, the d e clarant need not testify at all. An adequate foundation may be laid under Rule 8 03(4) b y introducing objective evidence of the contex t in which the sta t ements

were made. See id

. T h a t e vidence can include testimony provided by the medical professional w h o conducted the

ex a mination.U N I T E D S T A T E S V

. K O O T S W A T E W A 11

He r e , the g overnment p r esented ample evidence supporting t h e inference that K.C. u n derstood that the nurse practitioner was seeking information for pu r p o s es o f diag nosis or treatment. Most sig nificantly
, K.C. made t h e sta t e m e nts in response to questions posed b y a medical
p r o f e ssional during a medical e x amination conducted at a medical f acility

. Absent evidence indicating o t h e r w ise, the district court could r easonably infer from those circumstances that K.C. understood she was pr o v iding information for
purposes of diag nosis or treatment. See, e.g. , Lukashov
, 694 F .3d at 111 4

– 1 5 ; United States v. Gonzalez
, 533 F .3d 1057, 1062 ( 9th Cir. 2008); see a lso 30B Charles Alan W r ig ht et a l., F ederal Practice and Procedure § 6844, p. 324 (2017) (“statements made by most people in the contex t o f an injury -related visit to a medical professional can be presumed
to be made for the p urpose of m e d i ca l treatment”). That inference was bolstered by the nurse practitioner’s testimony that she conducted K.C.’s e x amination i n an ex amination
room, with h er stethoscope on, after measuring K.C.’s heig ht and weig ht and taking her medical history

.

No evidence in the record neg ates the inference that K.C. understood the medical purpose of h e r answers to the nurse practitioner’s questions. I t is true that K.C. was o nly 11 y ears old at the time of the ex amination, and due to developmental delay s she had the me n tal c apacity of a child several y ears y oung er than that. Bu t we have consistently held that even y oung children have the capaci t y to understand the medical
purpose o f an ex amination. See JDT
, 762 F .3d at 988 (children between the ag es of five and seven); Lukashov
, 694 F .3d at 1110 (eig ht

- y ear-old child); Ignacio
, 10 F .3d at 610–11 (three-y

ear-old child).U N I T E D S T A T E S V

. K O O T S W A T E W A 12

Kootswatewa contends t h a t , even if K.C.’s statements describing the nature of her a buse were admi ssible under Rule 803(4), her statement identify ing the perpetrator w a s not. Some courts a

nd c ommentators have hel d that
statements identify ing t h e p erpetrator of a crime are not pertinent to medical diag nosis or treatment and therefore fall outside the scope of Rule 803(4) and its state-law counterparts. See 4 Mueller & Kirkpatrick, F e deral Evidence § 8:75 n .36 (collecting cases). O ur court has s q u a r ely rejected that view, at least in c ases involving child sex ual abuse. See JDT

, 762 F .3d at 1 0 0 3

– 0 5 ; I

gnacio
, 10 F .3d at 613; George
, 960 F .2d a t 99–100. W e have held that medical providers n eed to know who abused a c hild in order to protect h e r from future abuse at the hands o f the same perpetrato r, and to assist in diag nosing and treating the psy cholog ical a nd emotional injuries caused b y sex ual abuse. Lukashov
, 694 F .3d at 1115; G eorge , 960 F .2d at 99. T h e n u rse practition e r i n this case testified that she a sks her patients about the identity

of their abuser for precisely these reasons.

I n short, the g overnment laid an adequate foundation for the admission of K.C.’s statement s c oncerning the nature o f the abuse and the identity o f h e r a buser. The district court properly admitted the statements under Rule 803(4).

I I I

W e turn nex t to Kootswatewa’s objection to t he

a d m ission of the officer’s testimony concerning the
statements K.C. made to him shortly after the abuse o ccurred. The g overnment offered this e v i dence in its rebuttal c ase, after defense counsel attacked K.C.’s c redibility w hile crossex a mining h er. The district c ourt a dmitted K.C.’s statements under Rule 801(d)(1)(B )(i), which renders admissible a priorU N I T E D S T A T E S V

. K O O T S W A T E W A 13

s t a tement that is consistent with the declarant’s in-cour t testimony and is offered “to rebut an ex pres s o r implied charg e that the declarant recently fabricated [ her testimony ]

or acted from a recent improper influence or motive in so testify ing .” F ed. R. Evid. 801(d)(1)(B )(i).

The district court properly ex ercised i t s discretion in admitting K.C.’s statements to the officer

. To ex p lain why
, a b i t of backg round information is n ecessary

. K.C. testified

on direct ex amination that a man who lived in a red house (by implication Koo t s w a tewa) had touched her vag ina with his hand. During her opening statement, defense counsel
p r e v i ewed for the jury how she planned to a ttack t h e

c r e dibility of this anticipated testimony

. Defense couns el
sug g ested that K.C. had fabricated h er story of b eing sex ually abused by Kootswatewa becau s e she wanted to avoid being disciplined by her mother, who had p re v iously w arned K.C.
not to wander away from home a n d not t o have a

ny contact with Kootswatewa:

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

reason to make u

p a false story about M r. Kootswatewa a t that moment, at that moment when she r an into [ the nei gh bor] outside the trailer on that day

. At that moment, K.C. h ad just been caug ht very far from h o me, in

someone else’s trailer that she d idn’t b elong in, with a man she had been told to stay away from. Making up t his story was a way to escape g etting in trouble.

During her c r o s s-ex amination of K.C., defense counsel returned to this theme an d a d ded another. She sug g ested throug h her questions that K.C. had two separate motives forU N I T E D S T A T E S V

. K O O T S W A T E W A 14

fabricating her story : She wanted to avoid g etting in trouble with her mother, as alluded to d uring opening statement; and, in addition, she was comply ing with h er mother’s instructions about what to say during h er i n -court testimony

. A s to the second a lleg ed motive, for ex ample, d efense counsel a s k ed, “y our mom told y ou what to say today ? ”

Ag ainst this backdrop, K.C.’s prior statements to the officer were admissible to r ebut d efense counsel’s sug g estion that K.C.’s in-court testimony h ad b e en tainted b y a “recent improper influence or motive”—namel y , K.C.’s mother’s alleg ed coaching

. To be admissible under Ru le 801(d ) ( 1)(B )(i), K.C.’s statements must have been made before this alleg ed improper influence or motive to fabricate

arose. See Tome v. United States
, 513 U.S. 150, 156 ( 1 995); United S tates v. Chang Da Liu
, 5 3 8 F .3d 1078, 1086 (9th Cir. 2008). That requirement w as met her e

. K.C. spoke to the officer shortly after the abuse in the trailer occurred. She did
not h ave an o pportunity to speak with her mother before the officer interviewed her, so the stateme n t s K.C. made to the officer could not have been tainted by any coaching from her mother.

K o o t swatewa contends that the officer’s testimony shou l d have been ex clude d because defense counsel asserted two different improper influences or m o t ives, and K.C.’s prior

s t atements to the officer r ebutted only o ne of t h e m

. Kootswatewa correctly p o ints out that K.C.’s alleg ed motive
to fabricate her story to avoid being disciplined by her mother

arose before K.C. spoke to t he o fficer, and thus her
statem ents to the officer c ould n ot rebut that motive. B ut Rule 801(d)(1)(B )(i) does not require that a p r i or statement rebut all improper influences or motives sug g ested by defense counsel. I t is suff

i ci e nt if the prior statement tends to rebutU N I T E D S T A T E S V

. K O O T S W A T E W A 15

one of them. See Gonzalez
, 533 F .3d at 1 063; see a lso United States v. Londondio
, 420 F .3d 777, 7 84–85 ( 8th Cir. 2005 ); United States v. W

ilson
, 355 F

. 3 d 358, 361 (5th Cir. 2003). H e r e, a s ex plained, K.C.’s prior statements to the off i c e r rebutted d efense c o unsel’s sug g estion that K.C.’s in- co u r t testimony was the product of her mother’s coaching

.

Kootswatewa also arg u es that K.C.’s prior statements to the o fficer were not “ consistent” with her in-court testimony
, as required u nder Rule 8 01(d)(1)(B ). See Chang Da Liu
, 538 F .3d at 1086. Kootswatewa contends that this r equirement

was n ot met because K.C.’s prio r statements differed from her testimony in court: K.C.’s s t a t e m e nts to the officer placed the abuse in the trai l er, whereas K .C.’s confusing incourt testimony (g iven in response to a series o f leading questions on cross-ex amination ) sug g e sted 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 g iven the nature of defense counsel’s attack. K

. C

. ’ s statements to the officer were offered to rebut th e charg e that K.C. h ad fabricated the entire e p isode of a buse by Kootswatewa. K.C.’s statements to t he officer tended to rebut that charg e because she told the officer shortly after the incident the same thing she said in court: that th e man who lived in the red house h ad touched her vag ina. To that ex tent, then, K .C.’s
statements to the officer were admissible as prior co n s i s t ent statements. T o the ex tent K.C.’s prior statement as to the location of the abuse d iffered from her trial testim o n y , any

error in admitting that statement was harmless. K .C.’s neig hbor and the nurse practitioner had already testified about th e s tatements K.C. made to them, a n d in both instances K.C.’s statements established th at the abuse occurred in theU N I T E D S T A T E S V

. K O O T S W A T E W A 16

trailer. Thus, the officer’s r eference to where the abuse occurred added nothing to the re c o r d t hat could have prejudiced Kootswatewa.

I V

F inally
, we address K o o tswatewa’s objections to the prosecutor’s closing a

r g ument. He contends th a t t h e prosecutor committed misconduct in two respects.

F irst, Kootswatewa a

rg ues that it was imprope r for the
p r osecutor to beg in her closing arg ument by quoting o r paraphrasing the key statements K.C. made to the neig hbor, the nurse practit i o n e r , and the law enforcement officer describing the abuse. F o r ex a mple, the prosecutor stated, “He tried to rape me. He took m e i n t o an abandoned trailer.

. . . P u t f ing ers inside. The man in the r ed house.” W hile th e s e 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 w e h a ve condemned as improper. Drayden v

. W hite
, 232 F

. 3d 704, 712 (9th Cir. 2000)

. The p rosecutor instead a ccurately recited the trial testimony recounting what K.C. told o thers about the abuse an d 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.” T he prosecutor’s statements, in total, filled less than six lines of the trial transcript. B riefly reciting the trial testimony c oncerning what K.C. told others about the offense—a ccurately and with p roper a ttribution—did not constitute misconduct.

Second, Kootswatewa arg ues that the prosecut o r misstated the record when she said that K .C. told the officer that K ootswatewa had “lured” h e r i n to the trailer. K.C.U N I T E D S T A T E S V

. K O O T S W A T E W A 17

actually told the officer that Kootswatewa “took” h er into the trailer, so the prosecutor did indeed err. Nonethe l e ss, this misstatement of the record amounted to harmless error. See U n i ted States v. W

ashington
, 462 F .3d 1 124, 1135 ( 9 th C i r. 2006). The evidence ag ainst Kootswatewa was compelling
, and none of the charg es turned o n wh e t h er he “lured” o r merely “took” K.C. into the abandoned trailer.

AF F IRMED.