1 United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 97-2831

___________ United States of America, * Plaintiff - Appellee *

v. * Appeal from the United John M . Eagle, * the District of South Appellant * *

*

* States District Court for

* Dakota.

*

___________ Submitted: December 9, 1997 Filed: February 18, 1998

___________ Before McMILLIAN, MAGILL, and MURPHY, Circuit Judges.

___________ MURPHY, Circuit Judge.

John M. Eagle appeals his conviction for aggravate d
sexua l abuse of a child in violation of 18 U.S.C. § 2241(c ) and § 1153. He argues that there wa s insu fficient evidence to support the jury’s verdict an d also that he should be entitled to a new tria l because of the imp roper admission of hearsay statements and of a prior conviction for a sexual offense involving a mino r an d the exclusion of certain favorable evidence. W e affirm.2

The charge in the indictment alleged that Eagl e sexual lyabused K.W., an 8 year old Indian girl durin g the summer or fall of 1996. The evidence at trial showed that E agle was living in Peever, South Dakota with hi s common lawwife Sherrie Bretzke when her niece K.W. came to live inthe household in 1994. Some time towards the end of October or early November in 1996, Mar y Chri stophersonwho was K.W.’s teacher observed that th e girl had become withdrawn and her performance in schoo l had begun to slip. Christopherson attempted to get K.W. to talk about what was bothering her, but she wa s un successful until one day K.W. was missing from th e school bus she regularly took home. When Christopherson learned K. W. had gone to her grandmother’s home instead, she asked why and the girl responded that her uncl e (Eagle) was mean to her. Christopherson thenrecommended that K.W. receive counseling.

K.W. met with Linda Crawford, a social worker wh o spec ializes in child abuse, physical abuse, and neglec t matt ers. Crawford testified that during an intervie w K.W. said that her uncle had touched her. Dr. Patric k James Duey , a pediatrician, than examined K.W. and found that she h ad physical features which could be attributed to co ntact or trauma to the vaginal and anal regions , incl uding a scar which he testified was caused by a n externa l source. Dr. Duey testified that the medica l evidence was consistent with K.W.’s allegatio ns of sexual abuse.

K.W. testified at trial and was subject to cros s examinatio n by Eagle. She told about incidents where he instruc ted her to come into Bretzke’s bedroom and li eLinda Crawford testified at tri al that "ch’na” is a Lakota word meaning vagina. 1
3 down on the bed with him. He touched her “ch’na” wit h 1 his fi nger several times and attempted to take off he r clothes. She also testified that while they were on the bed h e laid his stomach across her “ch’na.” She state d that she did not like being touched there and that i t made her feel weird. K.W. circled the vagina l area on an anatomically correct picture of a naked girl when aske d to mark the area where Eagle had touchedThe H onorable Charles B. Kornman, United States District Judge for th e 2 District of South Dakota.
4 her. She also identified the genital area on a pictur e of a man when asked what part of Eagle’s body she saw , and she said that part was “big” when the touching s occurred. K.W. said that Eagle told her not to tel l anyone about what happened.

K.W. gave a physical description of Eagle an d referred to him by name during her testimony, but she did not p oint him out when asked to identify him in th e courtroom. She acknowledged on redirect exam ination that she w as afraid of seeing “John” and that she was afrai d to say whe ther she saw him in court. She also testified that she feared Eagle would do the same thing to he r again. The district court made a finding in its denial 2 of Eagle’s Rule 29(b) and 33 motions that K.W. exhibited
an o bvious fear of the defendant while she wa s testifying.
The jury heard Gilbe rt Kohl, a criminal investigator for the Bu reau of Indian Affairs, testify that Eagle had plead ed guilty in May of 1987 to a federal crime o f “c arnal knowledge,” or “engaging in sex with a chil d under sixteen.” 18 U.S.C. § 2032 (repealed 1986). Th e vict imof that crime was K.W.’s aunt, Sherrie Bretzke , who was 14 years old in 1987 while Eagle was then 40.

The jury convicted Eagle of aggravated sexual abus e of K.W., and the court sentenced him to 182 month s imprisonment. Eagle claims on appeal that the cour t erred in d enying his motions for a judgment of acquittal5

based on sufficiency of the evidence and for a new trial. Fed. R. Crim. P. 29(b) and 33. He argues the court erred in refusing to allow D.E., the cousin of K.W. , to testify that she knew about activities engaged in by K.W. and her sist er that could have caused the physical condition s observed by Dr. Duey. This evidence was excluded by the trial court because of Eagle’s failure to com ply with the notice requirements of Fed. R. Evid. 412(c). Eagle also clai ms that the court erred by admitting hearsa y statements by Linda Crawford and6

Katie Boley from their interviews with K.W. as well a s evidence that he had been convicted in 1987 of a se x crime involving a minor.
Eagle claims that the district court erred in denyin g his motionfor dismissal because of insufficiency of the evidence. Fed. R. Crim. P. 29. A violation of 18 U.S.C. § 22 41(c) is established when an individual “knowingl y engag es in a sexual act with another person who has no t attained the age of 12 years . . . or attempts to do s o

. . . .” 18 U.S.C. 2246(2) defines “sexual act,” i n pertinent part, for the purposes of §2241 as: (A) the penetration, however s light, of the anal or genital opening of another by hand or finger or b y any object, with an intent to abuse , humi liate harass, degrade or arouse or gratif y the sexual desire of any person; or
(B) the intentional touching, not through th e clothing, of the genitalia of another person who ha s not attained the age of 16 years with a n intent to abuse, humiliate, harass, degrade, or arous e or gratify the sexual desire of an y person. Eagle claims that the evidence at trial wa s insufficient to convict because K.W.’s testi mony did not establi shthat a “sexual act” within the meaning of th e sta tute was committed against her and she did no t adequately

identify him as the perpetrator of the abuse. When reviewing the denial of a motion to overturn th e verdict based on sufficiency of the evidence, the cour t “views the evidence in the light most favorable to th e government, . . . and accept[s] all reasonabl e inferences drawn from the evidence that support the jury ’s verdict.”7

United Sta tes v. Scott , 64 F.3d 377, 380 (8th Cir. 1995) (citing United States v. Erdman , 953 F.2d 387, 389 (8t h Ci r. 1992). The verdict is upheld if supported b y substantia l evidence “irrespective of any countervailing testimony that may have been introduced.” United States
v. Linc oln , 630 F.2d 1313, 1316-17 (8th Cir. 1980); se e United States v. Snelling , 862 F.2d 150, 153 (8th Cir

. 1988).8

Th e evidence at trial supports a finding that K.W

. was the victim of a “sexual act” under the statutor y defi nition. Dr. Duey testified that K.W. had injurie s that we re consistent with sexual abuse, and there wa s evidence t hat these injuries were not present before she
move d in with her aunt. K.W. herself testified tha t Eagle told her to come into the bedroom where she foun d himn aked. He then started to remove her clothes an d touched her on her “ch’na.” She said that Eagle wa s “big” whenthis happened and that it hurt. K.W. circled the f emale genital area to point out where she had bee n touched, and the male genital area to point o ut what part of the defendant she saw. This was sufficient t o establish that she was the victim of a “sexua l act” which the statute defines as intentional touching of th e unclothed genitalia. 18 U.S.C. § 2246(2)(D). See United State s v. St. John , 851 F.2d 1096, 1099 (8th Cir. 1988 ) (con viction for incest by sexual intercourse under 1 8 U.S.C. § 1 153 upheld after ten year old victim testified to “the bad touch,” “hump[ing],” and “secret” acts, an d marked an anatomically correct diagram; victim’ s courtroom confusion and unresponsiveness was attributable to t he intimidating courtroom environment). Cf. Unite d States v. Plenty Arrows , 946 F.2d 62, 65 (8th Cir. 1991) (vic tim’s testimony did not have the degree o f specificity to establish penetration, as the statute then required).

There was also substantial evidence to establish tha t Eag le was the abuser of K.W. There was testimony fro m one specialist in interviewing child victims of sexua l abuse that K.W. had identified Eagle as the perpetrator. While K.W. did not point out Eagle at trial, sh e9

testifi ed that “John” was the perpetrator and that h e touc hed her vagina with his finger, and Linda Crawfor d testi fied that K.W. had told her that her uncle was th e person who had touched her. K.W. also descri bed Eagle in some detail from the stand, and in denying th e post trial motion the district court noted that she exhibited a n “obv ious fear of the defendant during her testimony”

. Th e trial court and the jury had an opportunity t o eval uate K.W.’s demeanor and credibility, and based o n the strength of the evidence against Eagle, t he court did not err by denying the motion for acquittal based o n suffi ciencyof the evidence. See St. John , 851 F.2d a t 1099.10

Ea gle argues alternatively that the district cour t abuse d its discretion in denying his motion for a ne w tri al in the interest of justice. Fed. R. Crim. P. 33 ;
see U nited States v. Hiveley , 61 F.3d 1358, 1361 (8t h Cir. 1995). The court should “balance the al leged errors against the record as a whole and evaluate the fairnes s of the trial” to determine whether a new trial i s appr opriate. United States v. McBride , 862 F.2d 1316 , 1319 (8th Cir. 1988). The district court properl y reviewed t he evidence and considered the fairness of the trial, and did not abuse its discretion in denyin g Eagle’s Rule 33 motion.
Eagle contends that the district court erred b y excluding the testimony of K.W.’s cousin who said she had
seen K.W. and her sister digitally penetrate eac h another. Eagle argues that this evidence was essentia l to his defense because it shows an alternativ e source for injuries to K.W. The rules of evidence for a crimina l
case involving sexual misconduct require advance notic e before sexual information about the alleged v ictim can be offered. Under Rule 412 evidence of “specific instances of sexual behavior by the alleged victim offe red to prove that a per son other than the accused was the source of .

. . inj ury or other physical evidence” is admissible , prov ided that the offering party complies with th e procedu res set out in the rule. Fed. R. Evid

. 412(b)( 1)(A) and 412(c). A party seeking to offer suc h evidence must:

(A) fi le a written motion at least 14 day s be fore trial specifically describing th e evidence and stating the purpo se for which it is offe red unless the court, for good caus e11

requires a different time for filing or permits filing during trial; and
(B ) serve the motion on all parties an d notifythe alleged victim or, when appropriate, the alleged victim’s guardian or representative.
Fed. R. Evid. 412(c)(1).
Eagle filed his Rule 412 motion only six days before trial and failed either to12

notify K.W. of his intent to use the evidence at trial or to see k assistance from the government or the court i n order t o provide notice. The district court denied th e moti on before trial, but offered to review any furthe r filin gs if Eagle attempted to comply with the rule. I t also gave him an opportunity to show cause why he should hav e been excused from filing a timely motion. Th e governm ent offered to serve notice of the evidence o n K.W., and the court left open the possibility of an i n camera hearing under the rule. Eagle nevertheless mad e no fu rther attempt to show why he should be able t o introduce the evidence or to move for a conti nuance so he could comply with the rule.
Eagl e now contends that he had good cause for hi s failure to comply with the notice requirement s because he had not become aware of the evidence until the wee k before he filed his motion and it would have taken hi m seve ral more days to develop the testimony because th e de clarant is a minor and difficult to contact. H e further argues that the court should have deemed K.W

. notifi ed by his notice to the prosecutor who he claim s represe nts her interests and that he was unaware of he r whereabouts.

The rec ord reveals that Eagle filed his motion wel l beyon d the rule’s 14 day deadline, and the failure t o comply with the time limits would be sufficient ground s to up hold the district court’s decision. See Unite d Sta tes v. Rouse , 111 F.3d 561, 569 (8th Cir. 1997) ; United States v. Eagle Thunder , 893 F.2d 950, 954 (8t h Cir. 19 90); United States v. Provost , 875 F.2d 172, 17 7 (8th Cir. 1989). Eagle’s contention that com pliance with13

the rule w as impossible because of his late discovery of the evidence is undercut by the fact that the information was contained in materials disclosed to Eagle almost five weeks b efore his motion and by the court’s finding tha t Bretz ke disclosed the information to a crimina l in vestigator two months prior to that. The distric t court d id not abuse its discretion in concluding tha t Eagle’s fa ilure to act on the information did not excuse his non-compliance with the deadlines in Rule 412(c)

. More over, the court gave him additional opportunity t o try to introduce the evidence, and he failed to tak e adv antage of it. He has not shown that the court erre d in14

excl uding the evidence or that it violated hi s constituti onal rights. See Eagle Thunder , 893 F.2d 950, 954 (8th Cir. 1990); Rouse , 111 F.3d at 569.

Ea gle also argues that the court erred by allowin g Linda C rawford and Katie Boley to testify under Fed. R

. Evid. 803(24) to hearsay statements made by K.W. durin g inte rviews. Such evidence was admissible under th e circu mstances in this case, see St. John , 851 F.2d a t 1097 -98, if the government complied with the procedura l require ments of Rule 803(24). Eagle argues that it di d not bec ause it did not notify him about the particular s of the hearsay statements, including the name and address of th e declarants. See Fed. R. Evid. 803(24). Becaus e Eagle failed to object at trial to the content of th e noti ce, he has waived review of its sufficiency excep t for p lain error and there was none here. United State s v. Belfany , 965 F.2d 575, 579 (8th Cir. 1992).

Th e government’s Rule 803(24) notice indicated it s intent to offer “the substance of statements made by the victim during the respective witnesses’ interviews wit h [the victi m].” It claims that the written statements it provided to Eagle in discovery contain the substance o f K.W.’s sta tements and that the notice adequately pointed himt o those materials. The notice was served on th e defenda nt one month before trial, and the defense ha d ampl e opportunity to request more information from th e gover nment or to move for more detailed notice. Eve n though the government notice was “admittedly slim on the part iculars” and it would have been preferable to hav e givenmore detailed information concerning th e statements, it was not plain error for the di strict courtThe record indicates that t he victim of Eagle’s earlier offense was 14 when the 3 conduct occurred. Rule 414 defines “child” as someone below the age of fourteen, but neither party has discussed the applicability of the rule in terms of the victim’s age.
15 to find the government’s notice sufficient.
Eagle protests the introduction of evidence of hi s prio r conviction for the federal crime of carna l knowled ge, which involves sexual abuse of a minor. Th e dist rict court ruled the evidence admissible under Fed

. R. Evid. 413 and 414, and determined that 316

its probative value did not substantially outweigh an y unfair pre judice to Eagle. Fed. R. Evid. 403(b). Eagle argues this was an abuse of discretion because th e probati ve value was outweighed by the danger the jur y would draw an improper inference that he had a propensity to commit sex crimes against minors. He also says th e conv iction’s probative value was minimal because th e crime had occurred 10 years before and involved sex with the individual now his common law wife.

When a defendant is accused of an offense of sexua l assault, Rule 414 provides that evidence of prior chil d mole station crimes is admissible and Rule 413 permit s evidence o f prior sexual assaults. Under both rules the court must conduct a Rule 403 balancing test prior t o admitting the evidence. See United States v. Enjady , 96- 2285, 1998 WL 17344, *4 (10th Cir. Jan. 20, 1998) (Rul e 413); Unit ed States v. LeCompte , 97-1820, 1997 WL 781217 *3 (8th Cir. December 22, 1997) (Rule 414); United States
v. Su mner , 119 F.3d 658 (8th Cir. 1997) (Rule 414); se e also Unite d States v. Larson , 112 F.3d 600, 604 (2d Cir. 1997). The district court conducted a balancing tes t when the testimony was offered, and its decis ion to admit the conviction was not an abuse of discretion. Cf

. Sumner , 119 F.3d at 661-62 (failure to conduct Rule 40 3 bala ncing). Sherrie Bretzke testified at trial o n Eagle’s behalf, explaining that she is now hi s common law wife, and this gave the jury the opportunity to discount prejudice the information might otherwise have caused

. Moreove r, Rule 414 allows evidence of such a crime “fo r its bearing on any matter to which it is rele vant.” Fed. R. Evid. 414; see LeCompte , 1997 WL 781217 at *3

. Last ly, Eagle’s claim that the conviction had littl e17

probative value because it occurred ten years before i s serio uslyweakened by the fact that he had spent six o f those years incarcerated for that crime. See LeCompte , 1997 WL 781217 at *2.
Eagle’s citation to United States v. LeCompte , 9 9 F.3 d 274 (8th Cir. 1996) for the proposition tha t evidenc e offered under Rule 414 must also comply wit h Rule 40418

(prior badacts evidence) is incorrect. In LeCompte the court a nalyzed evidence of prior acts of child sexua l
as saults by the defendant under Rule 404 because th e governm ent had failed to file a timely Rule 414 motion , not because such evidence is only admissible if i t fulfills t he requirements under both rules. Id. at 274. On remand the government filed a timely Rule 414 motion, and the evidence was held admissible under that rule

. See LeCompte , 1997 WL 781217 at *1. In the i nstant case, the dis trict court properly held that the evidence o f Eagle ’s prior sexual misconduct crime was admissible

. See id. at *2.

For the reasons already discussed, we affirm th e judgment of the district court in all respects.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.