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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 aggravated

sexual abuse of a child in violation of 18 U.S.C. §

2241(c) and § 1153. He argues that there was

insufficient evidence to support the jury’s verdict and

also that he should be entitled to a new trial because of

the improper admission of hearsay statements and of a

prior conviction for a sexual offense involving a minor

and the exclusion of certain favorable evidence. We

affirm.
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The charge in the indictment alleged that Eagle

sexually abused K.W., an 8 year old Indian girl during

the summer or fall of 1996. The evidence at trial showed

that Eagle was living in Peever, South Dakota with his

common law wife Sherrie Bretzke when her niece K.W. came

to live in the household in 1994. Some time towards the

end of October or early November in 1996, Mary

Christopherson who was K.W.’s teacher observed that the

girl had become withdrawn and her performance in school

had begun to slip. Christopherson attempted to get K.W.

to talk about what was bothering her, but she was

unsuccessful until one day K.W. was missing from the

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 uncle

(Eagle) was mean to her. Christopherson then recommended

that K.W. receive counseling.

K.W. met with Linda Crawford, a social worker who

specializes in child abuse, physical abuse, and neglect

matters. Crawford testified that during an interview

K.W. said that her uncle had touched her. Dr. Patrick

James Duey, a pediatrician, than examined K.W. and found

that she had physical features which could be attributed

to contact or trauma to the vaginal and anal regions,

including a scar which he testified was caused by an

external source. Dr. Duey testified that the medical

evidence was consistent with K.W.’s allegations of sexual

abuse. 

K.W. testified at trial and was subject to cross

examination by Eagle. She told about incidents where he

instructed her to come into Bretzke’s bedroom and lie
Linda Crawford testified at trial that "ch’na” is a Lakota word meaning vagina. 1

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down on the bed with him. He touched her “ch’na” with

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his finger several times and attempted to take off her

clothes. She also testified that while they were on the

bed he laid his stomach across her “ch’na.” She stated

that she did not like being touched there and that it

made her feel weird. K.W. circled the vaginal area on an

anatomically correct picture of a naked girl when asked

to mark the area where Eagle had touched
The Honorable Charles B. Kornman, United States District Judge for the

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District of South Dakota.

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her. She also identified the genital area on a picture

of a man when asked what part of Eagle’s body she saw,

and she said that part was “big” when the touchings

occurred. K.W. said that Eagle told her not to tell

anyone about what happened. 

K.W. gave a physical description of Eagle and

referred to him by name during her testimony, but she did

not point him out when asked to identify him in the

courtroom. She acknowledged on redirect examination that

she was afraid of seeing “John” and that she was afraid

to say whether she saw him in court. She also testified

that she feared Eagle would do the same thing to her

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 obvious fear of the defendant while she was

testifying. 

The jury heard Gilbert Kohl, a criminal investigator

for the Bureau of Indian Affairs, testify that Eagle had

pleaded guilty in May of 1987 to a federal crime of

“carnal knowledge,” or “engaging in sex with a child

under sixteen.” 18 U.S.C. § 2032 (repealed 1986). The

victim of 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 abuse

of K.W., and the court sentenced him to 182 months

imprisonment. Eagle claims on appeal that the court

erred in denying his motions for a judgment of acquittal
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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

sister that could have caused the physical conditions

observed by Dr. Duey. This evidence was excluded by the

trial court because of Eagle’s failure to comply with the

notice requirements of Fed. R. Evid. 412(c). Eagle also

claims that the court erred by admitting hearsay

statements by Linda Crawford and
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Katie Boley from their interviews with K.W. as well as

evidence that he had been convicted in 1987 of a sex

crime involving a minor. 

Eagle claims that the district court erred in denying

his motion for dismissal because of insufficiency of the

evidence. Fed. R. Crim. P. 29. A violation of 18 U.S.C.

§ 2241(c) is established when an individual “knowingly

engages in a sexual act with another person who has not

attained the age of 12 years . . . or attempts to do so

. . . .” 18 U.S.C. 2246(2) defines “sexual act,” in

pertinent part, for the purposes of §2241 as: 

(A) the penetration, however slight, of the anal

or genital opening of another by hand or finger

or by any object, with an intent to abuse,

humiliate harass, degrade or arouse or gratify

the sexual desire of any person; or 

(B) the intentional touching, not through the

clothing, of the genitalia of another person who

has not attained the age of 16 years with an

intent to abuse, humiliate, harass, degrade, or

arouse or gratify the sexual desire of any

person.

Eagle claims that the evidence at trial was

insufficient to convict because K.W.’s testimony did not

establish that a “sexual act” within the meaning of the

statute was committed against her and she did not

adequately identify him as the perpetrator of the abuse.

When reviewing the denial of a motion to overturn the

verdict based on sufficiency of the evidence, the court

“views the evidence in the light most favorable to the

government, . . . and accept[s] all reasonable inferences

drawn from the evidence that support the jury’s verdict.”
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United States v. Scott, 64 F.3d 377, 380 (8th Cir. 1995)

(citing United States v. Erdman, 953 F.2d 387, 389 (8th

Cir. 1992). The verdict is upheld if supported by

substantial evidence “irrespective of any countervailing

testimony that may have been introduced.” United States

v. Lincoln, 630 F.2d 1313, 1316-17 (8th Cir. 1980); see

United States v. Snelling, 862 F.2d 150, 153 (8th Cir.

1988).
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The evidence at trial supports a finding that K.W.

was the victim of a “sexual act” under the statutory

definition. Dr. Duey testified that K.W. had injuries

that were consistent with sexual abuse, and there was

evidence that these injuries were not present before she

moved in with her aunt. K.W. herself testified that

Eagle told her to come into the bedroom where she found

him naked. He then started to remove her clothes and

touched her on her “ch’na.” She said that Eagle was

“big” when this happened and that it hurt. K.W. circled

the female genital area to point out where she had been

touched, and the male genital area to point out what part

of the defendant she saw. This was sufficient to

establish that she was the victim of a “sexual act” which

the statute defines as intentional touching of the

unclothed genitalia. 18 U.S.C. § 2246(2)(D). See United

States v. St. John, 851 F.2d 1096, 1099 (8th Cir. 1988)

(conviction for incest by sexual intercourse under 18

U.S.C. § 1153 upheld after ten year old victim testified

to “the bad touch,” “hump[ing],” and “secret” acts, and

marked an anatomically correct diagram; victim’s

courtroom confusion and unresponsiveness was attributable

to the intimidating courtroom environment). Cf. United

States v. Plenty Arrows, 946 F.2d 62, 65 (8th Cir. 1991)

(victim’s testimony did not have the degree of

specificity to establish penetration, as the statute then

required).

There was also substantial evidence to establish that

Eagle was the abuser of K.W. There was testimony from

one specialist in interviewing child victims of sexual

abuse that K.W. had identified Eagle as the perpetrator.

While K.W. did not point out Eagle at trial, she
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testified that “John” was the perpetrator and that he

touched her vagina with his finger, and Linda Crawford

testified that K.W. had told her that her uncle was the

person who had touched her. K.W. also described Eagle in

some detail from the stand, and in denying the post trial

motion the district court noted that she exhibited an

“obvious fear of the defendant during her testimony”.

The trial court and the jury had an opportunity to

evaluate K.W.’s demeanor and credibility, and based on

the strength of the evidence against Eagle, the court did

not err by denying the motion for acquittal based on

sufficiency of the evidence. See St. John, 851 F.2d at

1099.
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Eagle argues alternatively that the district court

abused its discretion in denying his motion for a new

trial in the interest of justice. Fed. R. Crim. P. 33;

see United States v. Hiveley, 61 F.3d 1358, 1361 (8th

Cir. 1995). The court should “balance the alleged errors

against the record as a whole and evaluate the fairness

of the trial” to determine whether a new trial is

appropriate. United States v. McBride, 862 F.2d 1316,

1319 (8th Cir. 1988). The district court properly

reviewed the evidence and considered the fairness of the

trial, and did not abuse its discretion in denying

Eagle’s Rule 33 motion. 

Eagle contends that the district court erred by

excluding the testimony of K.W.’s cousin who said she had

seen K.W. and her sister digitally penetrate each

another. Eagle argues that this evidence was essential

to his defense because it shows an alternative source for

injuries to K.W. The rules of evidence for a criminal

case involving sexual misconduct require advance notice

before sexual information about the alleged victim can be

offered. Under Rule 412 evidence of “specific instances

of sexual behavior by the alleged victim offered to prove

that a person other than the accused was the source of .

. . injury or other physical evidence” is admissible,

provided that the offering party complies with the

procedures set out in the rule. Fed. R. Evid.

412(b)(1)(A) and 412(c). A party seeking to offer such

evidence must:

(A) file a written motion at least 14 days

before trial specifically describing the

evidence and stating the purpose for which it is

offered unless the court, for good cause
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requires a different time for filing or permits

filing during trial; and

(B) serve the motion on all parties and

notify the 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 to
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notify K.W. of his intent to use the evidence at trial or

to seek assistance from the government or the court in

order to provide notice. The district court denied the

motion before trial, but offered to review any further

filings if Eagle attempted to comply with the rule. It

also gave him an opportunity to show cause why he should

have been excused from filing a timely motion. The

government offered to serve notice of the evidence on

K.W., and the court left open the possibility of an in

camera hearing under the rule. Eagle nevertheless made

no further attempt to show why he should be able to

introduce the evidence or to move for a continuance so he

could comply with the rule. 

Eagle now contends that he had good cause for his

failure to comply with the notice requirements because he

had not become aware of the evidence until the week

before he filed his motion and it would have taken him

several more days to develop the testimony because the

declarant is a minor and difficult to contact. He

further argues that the court should have deemed K.W.

notified by his notice to the prosecutor who he claims

represents her interests and that he was unaware of her

whereabouts.

The record reveals that Eagle filed his motion well

beyond the rule’s 14 day deadline, and the failure to

comply with the time limits would be sufficient grounds

to uphold the district court’s decision. See United

States v. Rouse, 111 F.3d 561, 569 (8th Cir. 1997);

United States v. Eagle Thunder, 893 F.2d 950, 954 (8th

Cir. 1990); United States v. Provost, 875 F.2d 172, 177

(8th Cir. 1989). Eagle’s contention that compliance with
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the rule was 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 before his motion and by the court’s finding that

Bretzke disclosed the information to a criminal

investigator two months prior to that. The district

court did not abuse its discretion in concluding that

Eagle’s failure to act on the information did not excuse

his non-compliance with the deadlines in Rule 412(c).

Moreover, the court gave him additional opportunity to

try to introduce the evidence, and he failed to take

advantage of it. He has not shown that the court erred

in
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excluding the evidence or that it violated his

constitutional rights. See Eagle Thunder, 893 F.2d 950,

954 (8th Cir. 1990); Rouse, 111 F.3d at 569. 

Eagle also argues that the court erred by allowing

Linda Crawford and Katie Boley to testify under Fed. R.

Evid. 803(24) to hearsay statements made by K.W. during

interviews. Such evidence was admissible under the

circumstances in this case, see St. John, 851 F.2d at

1097-98, if the government complied with the procedural

requirements of Rule 803(24). Eagle argues that it did

not because it did not notify him about the particulars

of the hearsay statements, including the name and address

of the declarants. See Fed. R. Evid. 803(24). Because

Eagle failed to object at trial to the content of the

notice, he has waived review of its sufficiency except

for plain error and there was none here. United States

v. Belfany, 965 F.2d 575, 579 (8th Cir. 1992). 

The government’s Rule 803(24) notice indicated its

intent to offer “the substance of statements made by the

victim during the respective witnesses’ interviews with

[the victim].” It claims that the written statements it

provided to Eagle in discovery contain the substance of

K.W.’s statements and that the notice adequately pointed

him to those materials. The notice was served on the

defendant one month before trial, and the defense had

ample opportunity to request more information from the

government or to move for more detailed notice. Even

though the government notice was “admittedly slim on the

particulars” and it would have been preferable to have

given more detailed information concerning the

statements, it was not plain error for the district court
The record indicates that the 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.

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to find the government’s notice sufficient. 

Eagle protests the introduction of evidence of his

prior conviction for the federal crime of carnal

knowledge, which involves sexual abuse of a minor. The

district court ruled the evidence admissible under Fed.

R. Evid. 413 and 414, and determined that 3
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its probative value did not substantially outweigh any

unfair prejudice to Eagle. Fed. R. Evid. 403(b). Eagle

argues this was an abuse of discretion because the

probative value was outweighed by the danger the jury

would draw an improper inference that he had a propensity

to commit sex crimes against minors. He also says the

conviction’s probative value was minimal because the

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 sexual

assault, Rule 414 provides that evidence of prior child

molestation crimes is admissible and Rule 413 permits

evidence of prior sexual assaults. Under both rules the

court must conduct a Rule 403 balancing test prior to

admitting the evidence. See United States v. Enjady, 96-

2285, 1998 WL 17344, *4 (10th Cir. Jan. 20, 1998) (Rule

413); United States v. LeCompte, 97-1820, 1997 WL 781217

*3 (8th Cir. December 22, 1997) (Rule 414); United States

v. Sumner, 119 F.3d 658 (8th Cir. 1997) (Rule 414); see

also United States v. Larson, 112 F.3d 600, 604 (2d Cir.

1997). The district court conducted a balancing test

when the testimony was offered, and its decision to admit

the conviction was not an abuse of discretion. Cf.

Sumner, 119 F.3d at 661-62 (failure to conduct Rule 403

balancing). Sherrie Bretzke testified at trial on

Eagle’s behalf, explaining that she is now his common law

wife, and this gave the jury the opportunity to discount

prejudice the information might otherwise have caused.

Moreover, Rule 414 allows evidence of such a crime “for

its bearing on any matter to which it is relevant.” Fed.

R. Evid. 414; see LeCompte, 1997 WL 781217 at *3.

Lastly, Eagle’s claim that the conviction had little
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probative value because it occurred ten years before is

seriously weakened by the fact that he had spent six of

those years incarcerated for that crime. See LeCompte,

1997 WL 781217 at *2. 

Eagle’s citation to United States v. LeCompte, 99

F.3d 274 (8th Cir. 1996) for the proposition that

evidence offered under Rule 414 must also comply with

Rule 404
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(prior bad acts evidence) is incorrect. In LeCompte the

court analyzed evidence of prior acts of child sexual

assaults by the defendant under Rule 404 because the

government had failed to file a timely Rule 414 motion,

not because such evidence is only admissible if it

fulfills the 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 instant case,

the district court properly held that the evidence of

Eagle’s prior sexual misconduct crime was admissible.

See id. at *2.

For the reasons already discussed, we affirm the

judgment of the district court in all respects.

A true copy.

Attest:

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