## United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 97-4081SD

_____________ United States of America, * * Appellee, * * On Appeal from the United v. * States District Court * for the District of * of South Dakota. Merlin J. Bruguier, Sr., * * Appellant. *

___________ Submitted: May 11, 1998 Filed: December 1, 1998

___________ Before RICHARD S. ARNOLD, JOHN R. GIBSON, and FAGG, Circuit Judges.

___________ RICHARD S. ARNOLD, Circuit Judge. Merlin J. Bruguier , Sr., was charged with aggravated sexual abuse, in violation of 18 U.S.C. §§ 1153, 2241(c), and 2246(2)(A). He was convicted by the jury an d sentenced to 25 years and 10 months (262 months) in prison, to be followed by fiv e years of supervised release. The defendant was also fined $4,500.00 and ordered to pay a special assessment of $100.00. This appeal followed. The defendant contends, among other things, that the District Court erred in allowing testimony about various-2-

uncomplimentary aspects of his past life. We affirm, finding no error sufficientl y serious to justify reversal. In some instances, the record is not properly preserved; in others, we agree with the District Court's rulings; and, in still others, we believe that the error, if any, was harmless. Centr al to our conclusion is the fact that the defendant put his own character in issue.

I. We briefly state the background facts, reserving more deta iled statements for the portions of this opinion in which we discuss the individual po ints of error argued by the def endant. The case arises out of an incident in which M.M.B., Bruguier's 17-month old daughter, suffered injuries in August of 1996. The baby's thigh bone and one leg
were i njured, and her perineum, the area between the vagina and the anus, wa s seriously torn. The defendant contends that the injuries occurred when the family car accidentally rolled over M.M.B. The case was hotly contested at trial and could have gone either way, but there was unquestionably evidence from which a reasonable jury
cou ld find the defendant guilty beyond a reasonable doubt. Among other things , defens e witnesses had told conflicting stories about what happened, most of th e medical testimony at trial was to the eff ect that it was extremely unlikely that all of the baby's in juries could have been caused by the car, and at least one sperm cell wa s found in material taken from M.M.B.'s person. In addition, defendant mad e a statement duri ng an interview with an FBI agent in which he admitted "inappropriate sexua l contact" between himself and the child.

II. Th e issues we have found most difficult have to do with defendant's claim that the Distri ct Court allowed a number of irrelevant and prejudicial items of evidence to be introduced against him. We address in turn the specific e videntiary points that seem to us substantial.-3-

Bruguier ’s mother-in-law, Colette Iron Hawk, testified for the defense tha t Bruguier was a good father and that she had never known him to discipline the children phy sically or to abuse them sexually. On cross-examination the government aske d about prior findings that the Bruguiers had neglected their children:

Q: You say the defendant has been a good father?
A: Yes, he has. Q: Can y ou explain why in January 1990 he an d Rhene were found neglectful by th e Department of Social Service?
A: When is this? Q: Neglect of their children in 1990?
A: I don’t recall that. Q: You are not aware they were?
Defense: Objection, Your Ho nor. I object to this. First of all, I have

never been provided this information. Secondly, it’ s irrelevant unless we have some kind of identification other than his unsupported allegation.
The Court: Are you in a position to establish what yo u’re talking about?
Government: Yes.
The Court: Overruled. If she does n’t know anything about it, that ends

it.
A: I don’t know.There was no objection to this line of qu estioning of Ms. Good Bear. (Counsel 1 handling this case on appeal did not try the case.) Thus, our review of the issue, insofar as the cross-examination of Ms. Good Bear is concerned, is for plain error only. -4- Government: Wer e you aware that they were -- for two years they wer e

supervised by Child Protection Services?
A: No, I was not aware. Trial Transcript 529-30. Violet Good Bear, a community health representative, also testified t hat Bruguier was a good father. She explained that she had observed Bruguier interacting well with his child ren hundreds of times during her home visits with the Bruguiers. On cross

examinatio n, the government asked her: “In 1990 there was a finding of substantia l neglect b y the Bruguiers. Were you aware of that, by the tribal social services? ” Ms. Good Bear responded that she was unaware of such a finding. The government continued, “Were you aware that for two years they were supervised by tribal social services?” Again, the witness responded “no.” Trial Transcript 577. 1
We hold that the District Court did not err in allowing this testimony. Under Rule 404(a)(1), evidence of a person's character or a trait of character is generally no t admissible for the purpose of proving action in conformity therewith on a previou s occasion. An accused, however, may offer evidence of a pertinent trait of characte r (here, that he was a good father), and, if he does, the prosecution may offer evidence in rebut tal. Further, under Rule 405(a), if evidence of character or a trait of character i s admissible, "proof may be made by testimony as to reputation or by testimony in th e form of an opinion." Here, Ms. Iron Hawk and Ms. Good Bear testified in the form of an opinio n. They gave their opinion that the defendant was a good father. We think it was proper cross-examination for the government to explore the witnesses' basis for-5-

holding such an opinion. If, for example, a finding of child neglect had been made with respect to Mr. Bruguier, and if the witnesses knew that, any grounds for their believing that Mr. Bruguier was a good father would be undermined. And if, on the other hand, the witnesses were not aware of such a finding, a jury might believe that thei r acquaintance with the defendant was not thorough enough to justify their opinion.

So we think the fact inquired about –– whether the witnesses knew of a finding that the defendant and his wife had neglected their children — was relevant. The real difficulty with the government's conduct here is that it was allowed to state, in th e presence of the jury, that such a finding had in fact been made, or, at least, that there was a reasonable basis for the government's belief that it had been made. This was not the procedure that should have been followed, and government counsel ought to have known it. When this sort of "did you know" question is asked, and the fact inquired abou t would be injurious to defendant's character and is not ot herwise in evidence, preliminary proc eedings outside the presence of the jury should be conducted first. At thes e proceedings, either in camera or at the bench, the government could privately state its evidence that a finding of

neglect had been made, defense counsel could argue with the
ev idence or attempt to rebut it in some way, and the Court could satisfy itself that th e governmen t

had a reasonable, good-faith basis for asking its question. That did no t happen here. What we said in United States v. Krapp , 815 F.2d 1183 (8th Cir.), cert. denied , 484 U.S. 860 (1987), fits the present case.

However, we admonis h the Assistant United States Attorney fo r asking Krapp’s character witness about the Krapps’ ta x returns in front of the jury without firs t raising the matter with the trial judge. Before an attempt at impeachment of a character witness with "did you know" type questions such as this , the trial judge should have the opportunity, out of th e hearing of the jury, to rule on the propriety of the questions. By failing to raise the matter first with the trial judge, the-6- Assistant United States Attorney created the risk of mistria l after substantial time had been invested in the trial.

Id . at 1186 (citations omitted). In Krapp , defense counsel, i n addition to objecting to the quest ion, made a motion for mistrial, which the trial court denied. On appeal, we held that the question was improper, but that it was not an abuse of discretion to deny th e mistrial. We took the viewthat "the question did not have a substantial adverse impact on the verdict." Ibid

. In the present case, defense counsel duly objected to th e question when it was put to Ms. Iron Hawk. He stated that the information about a finding of neglect would be "irrelev ant

unless we have some kind of identification other than his unsupporte d allegation." Tr. 529. Counsel was making the point that the government ought not to be allowed to ask such a question unless it had some support for the claim that defendant had been found to have neglected his children. It wa s then that the Court asked whether the gover nment was in a position to establish what it was talking about, to whic h question c ounsel for the government answered yes. The Court then overruled th e objection. Defense co unsel did not ask that the matter be taken up in chambers; he did not move for a mistrial; and he did not a sk for an instruction that would tell the jury that governme nt

counsel's statement could not itself be regarded as evidence. The Court couldwell have instructed counsel, on its own motion, to repair to chambers so th e matter could be explored in the proper fashion, and indeed, we believe that it shoul d have do ne so. Absent a more specific objection from counsel, however, and in th e particular c ircumstances of this case, we are not persuaded that the error worked an y substantial prejudice. If a chambers conference on the matter had been held, we have
no reason to think that government counsel could not have backed up his assertion. If he had done so, it would then have been proper for the proceedings to have returned to the presence of the jury, and for the witnesses to be allowed to answer the question.-7-

Bruguier also c ites United States v. Monteleone , 77 F.3d 1086 (8th Cir. 1996). There, Monteleone, a

veteran of the Kansas City, Missouri, fire department, was convicted of disposing of a firearm to a convicted felon. At trial, Monteleone presented evidence of his repu tation for truthfulness and lawfulness in the community. During cross

examination, over defense objections, the prosecutor asked a character witness whether he had heard that Monteleone had lied to a grand jury many years before. The defendant
wa s convicted the same day. We reversed, holding that the manner in which th e "specific act" cross-examination was conducted was prejudicial error. There are important distinctions between Monteleone and the present case. In the firs t place, the character witness in Monteleone was a reputation witness. He testified about the defendant's reputation in the community for truthf ulness and lawfulness. Here, the char acter witnesses were opinion witnesses. They gave their own opinion as to a specific trait of character, namely that Bruguier was a good father. One of the reasons for our reversing the conviction in Monteleone was that the government had no goodfai thbasis for "believing that Monteleone's conduct before a federal grand jury wa s likely to hav e been known in the relevant community." 77 F.3d at 1090. When th e prosecution cross-examines a reputation character witness it "must do more than simply establis h a 'good faith belief that the incidents to which the questions alluded actuall y occurred.' In addition, the prosecutor must possess a g ood faith belief that the described events are of a type 'likely to have become a matter of general knowledge, currency or reputation in the co mmunity.' " Id . at 1090 (citations omitted). Otherwise, the specific acts inquired about would have no relevance to a defendant's reputation, and, thus, no releva nce to the witness's knowledge of that reputation. Where, as in the present trial, the wit ness gives her own opinion about a trait of character, as opposed to her opinion about general reputation in the community, t he case is otherwise. A specific instance of misconduct, even if not of the kind generally known in the community, wou ld be relevant to the witness's own opinion, for re asons we have explained. The reason for reversal in Monteleon e was that "the Government did not demonstrate a good faith basis fo r believing that Monteleone'sAccordin g to the presentence report, which was not denied in this respect, the 2 defendant had in fact be en arrested on 89 previous occasions. PSR p. 6, at ¶ 31. The figure36 appears to represent not arrests, but actual convictions of the defendant for m inor offenses in a tribal court. Ibid . The District Court did not ask the government if it had a reasonable basis for believing t hat defendant had been arrested 36 times, but -8- all egedperjury was likely to have been a topic of discussion in the relevan t community . . .." Id . at 1090. This rationale does not apply here. In addition, the fact inqu iredabout in the present case — whether a public agency had made a specifi c finding — can easily be verified. The same is not true about the acc usation that a certain person lied to a grand jury, where there has been no independent judicial inspection of whether a lie was told, and where the person accu sed of lying was never indicted for his allegedly perjurious conduct. Id. at 1090 n.2.
On the whole, we are convince d that what occurred here did not adversely affect Bruguie r's substantial rights. The procedure that was followed left something to b e desired, for reasons we have tried to explain, but we see no reversible error. Defendant also objects to a question asked by t he government about his record of arrests. Rhene Bruguier, the defen dant's wife, testified for the defense that her husband
was a good father. On cross-examination, the government asked, "do you think it is a good fat her to be arrested 36 times?" Tr. 495-96. The defense objected, the Cour t sust ainedthe objection, and no further mention of the issue was made. We think th e qu estion was improper. We reject the government's contention that arrests prov e anything. An arrest shows only that the arresting officer thought th e person apprehended had committed a crime, assuming tha t the officer acted in good faith, which will usually but not always be the case. An arrest does not show that a crime in fact has bee n committed, or even that there is probable cause for believing that a crime has bee n co mmitted. The question, accordingly, should not have been asked. However, th e Distric t Court immediately sustained the objection, and the question was neve r answered. Nor was any evidence of the "36 arrests" put before the jury. We see 2it seems pretty clear that it did. -9-

no error here. Possibly the jurymay have gotten the impression, from the government's question alone, that defendant had an extensive prior arrest record, but no motion was made for an instruction telling the jury to disrega rd the question, nor was a motion made for a mistrial. We repeat, as we hav e already said in the course of our discussion of the
cross- examinationwith respect to a finding of child neglect, that this sort of questio n (even if it had been relevant) should not have been asked, in the first instance, in th e presen ce of the jury. Here, however, as we have said, the District Court promptl y br anded the question as objectionable, and defense counsel asked for no further relief. Bruguieralso argues that he was unduly prejudiced when FBI Agent Pritchar d testified about st atements the defendant allegedly made in his interview with Pritchard. On direct examination, Pritchard testified, "I inquired abo ut the nature of his relationship with his wife and his drinking habits." (Pritchard's theory, ap parently, was that appellant
was not satis fied with his sexual relationship with his wife, and that, when he wa s drinking, his frustrations would increase, and his inhibitions decrease, so as to mak e improper sexual contact with a child more probable.) When the government asked what Bruguierhad told Pritchard, Pritchard responded, "that he used to drink; he smoke d marijuana when it was available." An objection was then sustained. The government next asked "what else did [Bruguier] indicate in regard to his re lationship with his wife?" Pritchard answered, "he described somewhat an abusive relationship, indicating he has beat or hit her in the past." Again, an objection was sustained. Tr. 208-09.

We t hink the evidence was relevant. Agent Pritchard's theory of a possibl e re lationship between defendant's drinking and the likelihood of sexual abuse was a tenab le one. The fact that defendant had, in the past, abused his wife was relevant t o show that Mr s. Bruguier had reason to be afraid of her husband, and, therefore, reason-10-

to testify in his favor. At the same time, this evidence had a strong potential to b e unf airly prejudicial. The issue in the case was what, if anything, Bruguier had done to M.M.B., and questions of his drinking or spousal abuse were not directly related to the main issue. This danger of unfair prejudice, we are sure, explai ns why the District Court sustained the defense objections. We think the Court did all it could to avoid the danger of unfair prejudice. The objections were not made until after the questions had already been answered, an d the Court's action in sustaining them was prompt and unequivocal. Counsel asked for no further relief. We see no error here.
Next, Bruguier challenges the testimony of Paddy Aungie, a social worker with the Cheyenne River Sioux Tribe. Ms. Aungie had filed a petitio n for custody of M.M.B. while she was still in the hospital. Government c ounsel asked her, "was there a concern that the parents were going to take this child ou t of medical — providing medical care?" Over objecti on, Ms. Aungie was permitted to answer, "yes." Tr. 336-37. The witness
was asked on voir dire whether, in answering this question, she was going to rely o n what somebody else had told her. The witness answer, "yes, because it was from th e Doctor." Defense counsel then objected on the basis of hearsay. The objection wa s overruled, and the witness was then permitted to answer that she had fil ed a petition with the tribe to get custody of the c hild because she was concerned that the child would not get any medical care if she remained in the custody of her parents. According to Ms

. Iron Hawk, the defendant's mother-in-law, the defendant and his wife in fact wer e planning to take M.M.B . out of the hospital, but it was their intention to place the child at Indian Health Services. Tr. 532. So there was evidence properly before the jury , entirely apar t from any hearsay, that M.M.B.'s parents wanted to take her out of th e hospital. The only objection made to this line of questioning was a hearsay objection. It may have been unfairly prejudicial for the Court to admit evidence indicating that some official person believed that it would be dangerous to leave M.M.B. in her parents' custody, but this was not the basis of the objection made at trial, and, in any event, the entire matter was mentioned only briefly and only once. We do not think it could have had much influence on the jury's verdict.-11- III.

Defendant

argues that his conviction should be reversed for a number of othe r reasons. We shall address them in turn.

1. It is said that defendant's admissions, summarized above during ou r statement of the case, should have been suppressed, because they were not preceded by Miranda warnings, and because they were not voluntary. As to Miranda , we ar e s atisfied that warnings were not required, because defendant was not in custody at the time of the interview by Agent Pritchard. Defendant had not been arrested, and th e interview took place in a room at St. Mary's Hospital. Mr. Bruguier was free to leave at any time, and after the interview wa s over, he was not arrested. The interview ended at once when defendant asked to speak with his attorney.

As to whether the statements were voluntary, we have no doubt that they were. Possibly, as defendant contends, he did not know English well enough to understan d some of the words that were used, including "inappropri ate." (Recall that defendant had answered "yes" when asked if he had had "inappropriate contact o f a sexual nature" with M.M .B.) Defendant also nodded his head up and down, a motion normally taken t o mean "yes," when asked a number of other incrimi nating questions. He now argues that he did not understand the questions, and that his nods meant only that he heard what the agent said, not that he understood it or agreed with it. We do not think that any of these questions go to voluntariness, as properly understood. Instead, they concern th e meaning of defendant's statement, or the weight to be given various parts of it, and these
were ques tions for the jury. There is no substantial evidence that Agent Pritchar d coerced the defendant, or that his will was overborne. We therefore reject thes e arguments.

2. Defendant

claims that it was error to admit the testimony of Stac y Anderson, a technician with the South Dakota Crime Laboratory. Ms. Anderson-12-

rec eivedfecal material taken from the person of M.M.B. and subjected it to variou s tests. She stated her opinion that she obs erved seven sperm heads on this material. We
see no error in the District Court's decision to admit this evidence. Ms. Anderson had had substantial practical experience in the identification of sperm, and such experience is o ften worth as much as formal academic training. In addition, two other qualifie d serologis ts with undoubted credentials agreed with Ms. Anderson as to at least on e sperm cell.

3. Mr. Bruguier argues that the District Court should have instructed the jury
on the issue of the voluntariness of defendant's admissions. No such instruction wa s requeste d, and we see no plain error. See United States v. Houle , 620 F.2d 164, 16 6 (8th Cir. 1980). Defense counsel argued vigorously to the jury tha t the admission should be dis counted for all of the reasons we have described, and it was for the jury to make this decision.

4. Defend ant

claims that the jury's verdict was coerced. After deliberatin g about four hours, the jury sent the judge a note indicating that they were deadlocked

. After discussing the matter with co unsel, the Court brought the jury into open court and inquired whether further deliberat ion would be fruitful. The jury foreperson said, "[w]e were in a position as we were called here in a new mode of negotiating so we might be ableto do something within the next hour." Tr. 702. The Court told the jury that they could ei ther stay and deliberate further, or come back tomorrow, if they needed mor e time to think the case over. The foreperson said that the jury wou ld consider what to do. The jury then retired and, within about an hour, returned with a verdict of guilty. There is absolutely n o evidence of coercion here. The trial court did not give the Alleno r "dynamite" charge. It did not tel l the jury that they would have to stay until a particular time that nigh t. It did nothing whatever except to leave to the jury both whether t o deliberate further, and on what day. This is the opposite of coercion. IV.-13-

Defendant presents two arguments with respect to the sentence that was imposed on him.

1. The sente ncing hearing was conducted, and sentence was imposed, by a judge other than the judge

who presided over the trial. Rule 25(b) of the Federal Rules of Criminal Procedure provides, in pertinent part, as follow:

If by reason of absence, death, sickness or othe r disability the judge before whom the de fendant has been tried is unable to perform the duties to be performed by the court after a verdict or finding of guilt, any other judge regularl y si tting in or assigned to the court may perform those duties .

. .. Defendant's brief asserts that the judge who tried the case was not absent, dead, sick, or disabl ed. Thus, he claims, there was no justification for another judge to impos e sentence.

The difficulty with this argument is that no objection whatever was made in the Court below to the substitution of judges. For that reason, we do not know why th e substitution was made, and cannot determine whether the reason for it complied with Rule 25(b). Certainly, such substitutions should not be made lightly, or for the mer e convenience of one of the judges. We think it wo uld be a good idea, when substitutions of this kind o ccur, for the sentencing judge to put on the record the reason for th e procedure. But

we are not willing to reverse this sentence in the absence of a properly made objec tion below. There is no showing of error at all, let alone plain error. Th e sentencing judge did indicate that he was at some disadvantage because of not having he ard the evidence at trial, but he had read the transcript, and we have no reason t o believe that he was unable to perform his duty at sentencing.-14-

2. Finally, defendant contests the findings made in connection with th e de terminationof his sentence. It is agreed that the base offense level for aggravate d sexual abuse is 27. See U.S.S.G. § 2A3.1. To this base level 12 points were added for specific offense char acteristics, as follows: four points because force was used against the victim, see U .S.S.G. § 2A3.1(b)(1); four points because the victim had not attained the age of 12 years, see U.S.S.G. § 2A3.1(b)(2)(A); two points because the victim was in the custody and care of the defendant, see U.S.S.G. § 2A3.1(b)(3)(A); and two points be cause the victim sustained serious bodily injury, see U.S.S.G. § 2A3.1(b)(4)(B)

. Defendant contests the two points added for the use of force and the two points fo r caus ing serious bodily injury. At the sentencing hearing, defendant called an expert witness who h ad not testified at trial. This expert gave what appears to us to b e pe rsuasive testimony indicating that the child's injuries, and the force exerted on he r body, were likely caused by an automobile accident, as defendant had testified at trial. The District Court, however, was not persuaded by this witness. It found the tria l testimony of t hree other experts more convincing. This is the kind of decision that i s properly left to the trier of fact. The findings that the child suffered serious bodily injury at the hands of the defendant, and that the defendant used force against the child during the offense, are not clearly erroneous.

V.

We have read the en tire transcript of the trial and of the sentencing hearing. We have pond ered the issues with some care. As the case went to the jury, both sides had strong points. The jury might have been left with a reasonab le doubt, but it was not, and it is not our b usiness to interfere with the verdict in such an instance. Accordingly, the judgment of conviction and the sentence imposed on defendant are

Affirmed.-15-

A true copy.

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