## 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, Circ uit Judges, and WEBB, Chief District 1 Judge.

___________ WEBB, Chief District Judge.

Wallace J. Eagle, Jr. appeals his jury conviction for aggravate d sexua l assault, 18 U.S.C. §§ 2241(a)(1), and 1153. Eagle contends (1 ) there was insufficient evidence to support his conviction, (2) the distric t court erred by admitting the testimony of Dr.

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Likness concerning anexam of the victim performed three months after the as sault, (3) the district court erroneously applied a two poin t enhancement for obstruction of justice, and (4) a downward departure was required due to the defendant's poor health. We affirm. I. Background
Wallace E agle, Jr. lived with his father near Waubay, South Dakota. Thei r next door neighbor would often send her granddaughter over wit h meals. On February 23, 1996, the granddaughter took a meal to the Eagle household. During th is visit, Eagle showed the girl magazines and videos depicting sexual acts. He then pushed her down on the bed and took off he r clothes. According to the victim, Eagle penetrated her vagina with hi s fingers, a rubber object, and his penis.
At the ti me 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 th e interior of the vagina. Three months after the incident, the victim was exa mined by Dr. Likness who found “remnants or tags of the hymena l membrane,” and that the hymen “was easily distensible” or “stretchable.” He testified at tria l 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 suppor t 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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bey ond a reasonable doubt. Decisions regarding credibility of witnesse s are to be resolved in favor of the jury’s verdict.” United States v
. Goodlow , 105 F.3d 1203, 1206 (8th Cir. 1997) (citations omit ted). “We will rev erse the jury’s verdict only if the evidence . . . is such that a reason able minded jury must have entertained a reasonable doubt as to the government’s proof of one of the essential elements of the o ffense.” United States v. Suppenbach , 1 F.3d 679, 682 (8th Cir. 1993) (citations omitted).
The essential element s of aggravated sexual abuse under 18 U.S.C. §§ 2241(a )(1) and 1153 are: (1) defendant is an Indian; (2) defendant caused anothe r to engage in a sexual act; (3) defendant used force or the threat of fo rce to cause an individual to engage in a sexual act; and (4) th e events occur red on Indian land. See Goodlow , 105 F. 3d at 1206. Th e defense claims that there was insufficient evidence to suppo rt a conviction for the th ird element -- use of force. Sufficient force exists if th e defend ant overcomes, restrains, or injures the victim or if the defendant uses a threat of harm sufficient to coerce or compel submiss ion. 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 te stimony that Eagle pushed her. This is not the case. Th e victimte stified that the contact Eagle had with her was painful. Dr
. Likness and Dr. Bloom both testified about conversations with the victi m 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 pu shed 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 i n den ying the motion for new trial stated that the “court also personally observed the victim’s obvious fear of the defendant, at least three tim es 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, irrelev ant, and more prejud icial 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 soun d discretion of the district court and will not be disturbed u nless 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 ' findin gs. The first was Dr. Bloom, the doctor who examined the defendant the da y 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 corroborat ive 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 wa s the evidence so prejudicial that we can say the district court judge abus ed 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 fo r obstru ction of justice under U.S.S.G. § 3C1.1. Our review of whether the defendant's conduct

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war rants an obstruction of justice enhancement is de novo as this is a legal inte rpretation of a guideline term. See United States v. Walcott , 61 F.3d 635, 639 (8th Cir. 1995), cert. denied , 116 S.Ct. 953 (1996).

Atwo point enhancement is warranted where the defendant “willfully obs tructedor impeded, or attempted to obstruct or impede, th e ad ministrationof justice during the investigation, prosecution, o r sentencin g of the instant offense.” Walcott , 61 F.3d at 639 (quotin g U.S .S.G. § 3C1.1). Comment 3(e) to U.S.S.G. § 3C1.1 explains that th e enh ancement applies to instances of “willfully failing to appear, a s ordered, for a judicial proceeding.” Eagle was initially a rrested near Eagle Butte, South Dakota. He was transpor tedto Aberdeen, South Dakota, and there he was taken to th e hospital b y authorities. Eagle told the authorities that he would chec k himself into the hospital, and co me 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” failedto appear at the judicial proceeding and the refore, the district court properly applied a two point sentencin g enhancement for obstruction of justice.
Defend ant, presently 42 years of age, has numerous physica l limitations including glaucoma, septic arthritis, uncontrolle d hypert ension, possible avascular necrosis, degenerative arthritis in both hips a nd 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: Phy sical condition or appearance, including physique, is not ordinarily relevant in determining whether a sentence should be outside t he applicable guideline range. However, an extraordinary physical impairment may be a reason to impos e 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. -6- 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 defend ant’s disability prevents him from being managed in prison.” The district court's refusal to depart downward was an exerci se of discretion. “We have repeatedly held that a district court's discretionary refusal to depart downward i s 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.