The Honorable Rodney S. Webb, Chief United States District Judge for the 1

District of North Dakota, sitting by designation.

The Honorable Charles B. Kornmann, United States District Judge for the 2

District of South Dakota.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 97-1657

___________

United States of America, *

*

Plaintiff-Appellee, *

* Appeal from the United States

v. * District Court for the District of

* South Dakota

Wallace J. Eagle, Jr. *

*

Defendant-Appellees. *

___________

Submitted: October 22, 1997

 Filed: January 7, 1998 

___________

Before BEAM and FLOYD R. GIBSON, Circuit Judges, and WEBB, Chief District 1

Judge.

___________

WEBB, Chief District Judge.

Wallace J. Eagle, Jr. appeals his jury conviction for aggravated

sexual assault, 18 U.S.C. §§ 2241(a)(1), and 1153. Eagle contends (1)

there was insufficient evidence to support his conviction, (2) the district

court erred by admitting the testimony of Dr. 2
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Likness concerning an exam of the victim performed three months after the

assault, (3) the district court erroneously applied a two point

enhancement for obstruction of justice, and (4) a downward departure was

required due to the defendant's poor health. We affirm. 

I. Background

Wallace Eagle, Jr. lived with his father near Waubay, South Dakota.

 Their next door neighbor would often send her granddaughter over with

meals. On February 23, 1996, the granddaughter took a meal to the Eagle

household. During this visit, Eagle showed the girl magazines and videos

depicting sexual acts. He then pushed her down on the bed and took off her

clothes. According to the victim, Eagle penetrated her vagina with his

fingers, a rubber object, and his penis.

 

At the time of the assault, the victim was 13 years old and had the

mental ability of a 7 year old. Eagle knew the victim from the time she

was born and knew that she was mentally handicapped. 

The day after the incident, the victim was examined by Dr. Bloom.

However, Dr. Bloom did not use a rape kit, and did not examine the

interior of the vagina. Three months after the incident, the victim was

examined by Dr. Likness who found “remnants or tags of the hymenal

membrane,” and that the hymen “was easily distensible” or “stretchable.”

 He testified at trial that this was consistent with the history given by

the victim concerning the sexual assault. 

II. Discussion.

Eagle first argues that there was insufficient evidence to support

the conviction on the force element of the offense. “The verdict must be

upheld if there is an interpretation of the evidence that would allow a

reasonable jury to conclude guilt
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beyond a reasonable doubt. Decisions regarding credibility of witnesses

are to be resolved in favor of the jury’s verdict.” United States v.

Goodlow, 105 F.3d 1203, 1206 (8th Cir. 1997) (citations omitted). “We will

reverse the jury’s verdict only if the evidence . . . is such that a

reasonable minded jury must have entertained a reasonable doubt as to the

government’s proof of one of the essential elements of the offense.” United

States v. Suppenbach, 1 F.3d 679, 682 (8th Cir. 1993) (citations omitted).

The essential elements of aggravated sexual abuse under 18 U.S.C. §§

2241(a)(1) and 1153 are: (1) defendant is an Indian; (2) defendant caused

another to engage in a sexual act; (3) defendant used force or the threat

of force to cause an individual to engage in a sexual act; and (4) the

events occurred on Indian land. See Goodlow, 105 F. 3d at 1206. The

defense claims that there was insufficient evidence to support a conviction

for the third element -- use of force. Sufficient force exists if the

defendant overcomes, restrains, or injures the victim or if the defendant

uses a threat of harm sufficient to coerce or compel submission. See United

States v. Fire Thunder, 908 F.2d 272, 274 (8th Cir. 1990).

Eagle argues that the only evidence of force before the jury was the

victim's testimony that Eagle pushed her. This is not the case. The

victim testified that the contact Eagle had with her was painful. Dr.

Likness and Dr. Bloom both testified about conversations with the victim

where she reported that the acts Eagle had performed on her hurt. She told

Dr. Likness that she had been “raped”, and that Eagle had pushed her on the

bed. From this evidence, a jury could reasonably conclude that the victim had been forced to engage in a sexual

act.

The jury also viewed the victim's demeanor and body language while testifying. The district court in

denying the motion for new trial stated that the “court also personally observed the victim’s obvious fear of the

defendant, at least three times during her testimony.” This comment by the judge is not evidence, and can not be

used to prove an element of the offense. However, the judge observed the same testimony
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as the jury, and his comment illustrates how the credibility of the victim as a witness may have been viewed by

a reasonable jury.

Next, Eagle argues that the testimony of Dr. Likness should have been barred under Rules 401 and 403

of the Federal Rules of Evidence as being remote in time, irrelevant, and more

prejudicial than probative. Eagle moved to exclude this testimony before

trial and the motion was denied. 

“The admission or exclusion of evidence is committed to the sound

discretion of the district court and will not be disturbed unless there has

been a clear abuse of discretion.” United States v. Turner, 104 F.3d 217,

221 (8th Cir. 1997). The jury was made aware of the timing of Dr. Likness’

exam, and the defense presented two doctors to contradict Dr. Likness'

findings. The first was Dr. Bloom, the doctor who examined the defendant

the day following the assault, and the second was Dr. Born, who testified

that Dr. Likness’ theory of the case was flawed.

The testimony of Dr. Likness was more corroborative than direct. His

testimony was relevant in that it showed the medical status of the girl at

a particular moment in time. He testified as to what he found in the exam

and related that these findings would be consistent with the events related

by the victim. The jury was made aware of the flaws inherent in Dr.

Likness’ exam. The jury was able to weigh the merits of competing medical

evidence and come to a decision.

This evidence was not so remote, nor so removed from the case, that

it became irrelevant. Neither was the evidence so prejudicial that we can

say the district court judge abused his discretion in allowing Dr. Likness

to testify. 

 

Eagle also challenges two decisions made by the district court during

the sentencing phase. First, he objects to a two point enhancement for

obstruction of justice under U.S.S.G. § 3C1.1. Our review of whether the

defendant's conduct
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warrants an obstruction of justice enhancement is de novo as this is a

legal interpretation of a guideline term. See United States v. Walcott,

61 F.3d 635, 639 (8th Cir. 1995), cert. denied, 116 S.Ct. 953 (1996). 

A two point enhancement is warranted where the defendant “willfully

obstructed or impeded, or attempted to obstruct or impede, the

administration of justice during the investigation, prosecution, or

sentencing of the instant offense.” Walcott, 61 F.3d at 639 (quoting

U.S.S.G. § 3C1.1). Comment 3(e) to U.S.S.G. § 3C1.1 explains that the

enhancement applies to instances of “willfully failing to appear, as

ordered, for a judicial proceeding.” 

Eagle was initially arrested near Eagle Butte, South Dakota. He was

transported to Aberdeen, South Dakota, and there he was taken to the

hospital by authorities. Eagle told the authorities that he would check

himself into the hospital, and come to court the next morning. He did not

check into the hospital, nor did he appear in court the next day. Instead,

Eagle went to Waubay, South Dakota. He was rearrested four days later in

Eagle Butte. Eagle knew he was to be in court and decided not to appear.

Clearly, Eagle “willfully” failed to appear at the judicial proceeding and

therefore, the district court properly applied a two point sentencing

enhancement for obstruction of justice.

Defendant, presently 42 years of age, has numerous physical

limitations including glaucoma, septic arthritis, uncontrolled

hypertension, possible avascular necrosis, degenerative arthritis in both

hips and requires a total hip replacement. Because of these impairments,

Eagle asserts that the district court should have departed downward under

U.S.S.G. § 5H1.4, which states:

Physical condition or appearance, including physique, is not ordinarily relevant in determining

whether a sentence should be outside the applicable guideline range. However, an extraordinary

physical impairment may be a reason to impose a sentence below the applicable guideline range;

e.g., in the case of a seriously infirm defendant, home
A few days before this case was scheduled for hearing before this court, 3

Eagle sent two handwritten letters to this court. Eagle also sent a letter after the

hearing and while the case was under advisement. The letters chronicled the

defendant's life and explained how he could not have committed the crime. These

letters were an improper communication with the court. There are proper

procedures for bringing matters before the court, and this is not one of them. As

such, these letters were not considered in this decision. 

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detention may be as efficient as, and less costly than, imprisonment.

The trial court found that Eagle had serious health problems, but specifically found “there is no evidence that the

defendant’s disability prevents him from being managed in prison.” The district court's refusal to depart

downward was an exercise of discretion. “We have repeatedly held that a district court's discretionary refusal to

depart downward is not reviewable.” United States v. Kessler, 48 F.3d 1064, 1065 (8th Cir. 1995). As such we

do not reach this issue.

For the foregoing reasons, we affirm the jury conviction and the sentence of the district court.3

A true copy.

Attest:

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