United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 05-4332

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United States of America, *

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* District of South Dakota.

Robert Raymond Tail, *

*

Appellant. *

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Submitted: April 19, 2006

Filed: August 17, 2006

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Before ARNOLD, LAY, and COLLOTON, Circuit Judges.

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COLLOTON, Circuit Judge.

Robert Raymond Tail was convicted by a jury of two counts of sexual abuse

and two counts of sexual abuse of a minor in violation of 18 U.S.C. §§ 2242(1) and

2243. He appeals, and we affirm.

I.

J.H. and M.H. were foster children who were placed with Robert Tail and Tail’s

wife, Vanessa, in early 2003. J.H., then fifteen years old, and M.H., then thirteen, are

first cousins to Vanessa. At trial, the government presented evidence that Tail entered
1

The Honorable Karen E. Schreier, United States District Judge for the District

of South Dakota.

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a bedroom and sexually abused J.H. in March 2003. M.H. similarly testified that

sometime after the incident with J.H., around April 2003, Tail entered a room where

M.H. was sleeping and abused her as well, threatening to “do it again” if she told

anyone about the abuse. The girls’ grandfather, Percy White Plume, testified that he

had confronted Tail about the abuse and Tail responded, “I’m sorry I did that. . . . I’m

sorry I did that to them.” (T. Tr. at 292). J.H. also testified that on May 24, 2003, on

a trip to Rapid City, she awoke to find Tail raping her. J.H. reported the incident to

her high school counselor, and Tail was subsequently arrested on federal sexual abuse

charges. Tail was charged in South Dakota state court with raping J.H. in May, and

he was convicted. He was later indicted in federal court for two counts of sexual

abuse and two counts of sexual abuse of a minor arising out of the March and April

incidents with J.H. and M.H. 

On April 7, 2004, while in custody, Tail was transported from the Pine Ridge

Jail to the Rapid City federal courthouse by Special Agent Richard Lauck of the FBI.

During the almost two-hour drive, Tail and Lauck engaged in conversation. During

the conversation, Tail commented that he hoped his family would wait for him while

he was in prison, and that he wanted Agent Lauck to visit him while he was in prison.

Tail later moved to suppress the statements, arguing that they were the product of an

interrogation by Agent Lauck that was not preceded by warnings as required by

Miranda v. Arizona, 384 U.S. 436 (1966). The district court1

 denied the motion.

Prior to trial, Tail also sought an order permitting him to introduce evidence that

J.H. and M.H. had made prior allegations of sexual abuse against others, and

additional evidence that J.H. had tested positive for Hepatitis B while Tail had tested

negative for the disease. Both of these motions were denied. The district court found

that the prior allegations were not demonstrably false, and that admission of the
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evidence was therefore not required by the Confrontation Clause and was inadmissible

under Federal Rule of Evidence 412, which bars admission of a victim’s prior sexual

acts under most circumstances, and under Federal Rule of Evidence 403. As for the

Hepatitis B diagnosis, the court found that this was also evidence of sexual behavior

properly excluded under Rule 412. The government subsequently moved in limine

to exclude any reference to the Hepatitis B diagnosis, and at a hearing, a pediatrician

testified that it was likely that J.H. acquired the disease when she was under the age

of five, and also fairly unlikely that a chronic carrier such as J.H. would pass the

disease to another person through sexual contact. Based on this information, the court

determined that the evidence had minimal probative value that was outweighed by the

danger of unfair prejudice.

Tail also filed a motion in limine asking the court to exclude any references to

his prior state court conviction for the second degree rape of J.H., arguing that the

conviction was irrelevant and extremely prejudicial. The district court denied this

motion, finding that the evidence was admissible as a prior sexual assault offense

under Federal Rule of Evidence 413. The court thought the evidence was highly

probative and that it should not be excluded under Rule 403, but gave a cautionary

instruction to the jury at trial.

The jury found Tail guilty of all four charged offenses. For each of the two

charges of sexual abuse of a minor, the district court sentenced Tail to 240 months’

imprisonment, with the sentences to run concurrently. Tail was sentenced to an

additional 120 months for each of the sexual abuse charges, with those sentences

running concurrently with each other but consecutive to the sentences imposed for

sexual abuse of a minor.
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II.

On appeal, Tail renews his challenge to the district court’s denial of his motion

to suppress the statements that he made during a car ride with Agent Lauck. His

argument is based on the requirement that an officer give Miranda warnings when a

suspect is interrogated while in custody. Rhode Island v. Innis, 446 U.S. 291, 300

(1980). There is no dispute here that Tail was in custody, but the district court

concluded that Tail was not under interrogation when the statements were made. We

review the district court’s factual findings for clear error and its legal conclusions de

novo. United States v. Londondio, 420 F.3d 777, 783 (8th Cir. 2005).

“Voluntary statements that are not in response to interrogation are admissible

with or without the giving of Miranda warnings.” Id. “Interrogation” includes

express questioning, and it also extends to “words or actions on the part of the police

(other than those normally attendant to arrest and custody) that the police should know

are reasonably likely to elicit an incriminating response from the suspect.” Innis, 446

U.S. at 301 (footnote omitted). Tail argues that Agent Lauck intentionally “gained

Tail’s trust” and “engage[d] [Tail] in friendly conversation,” knowing that Tail was

“especially vulnerable,” and then “took advantage of Tail’s vulnerability” by

recording his statements on a piece of paper that he kept in the van. (Appellant’s Br.

at 14-15). 

The district court found Agent Lauck’s account of the car ride, which involved

“minimal, but polite conversation,” to be credible, and we see no clear error in that

determination. There is no suggestion that Agent Lauck asked Tail any questions or

steered the conversation toward potentially incriminating topics. To the contrary,

Lauck testified that he intentionally avoided questioning Tail and kept his own

answers to Tail’s questions short. Polite conversation is not the functional equivalent

of interrogation. Londondio, 420 F.3d at 783; United States v. Fleck, 413 F.3d 883,

893 (8th Cir. 2005). Tail also makes something of the fact that Agent Lauck kept a
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clipboard in the van to record his incriminating statements. Lauck testified that he

kept the clipboard for a variety of purposes, including recording his mileage and other

data about his trip, but even if he kept the clipboard for the sole purpose of recording

Tail’s statements, that would not transform the encounter into an interrogation. We

therefore conclude that the district court properly denied the motion to suppress.

III.

Tail also challenges three of the district court’s evidentiary rulings. He argues

that the district court abused its discretion in admitting evidence of his prior state court

conviction for second degree rape. He also contends that the court erred in excluding

evidence that J.H. had tested positive for Hepatitis B and that she and M.H. had

previously made false allegations of abuse. 

A.

Tail concedes that his conviction for second degree rape qualifies as an “offense

of sexual assault” under Rule 413(d)(2), which provides that evidence of such crimes

is admissible in sexual assault trials and may be considered “for its bearing on any

matter to which it is relevant.” Fed. R. Evid. 413(a). Tail argues that the evidence

should nonetheless have been excluded under Rule 403, because its probative value

was substantially outweighed by the danger of unfair prejudice, and under Rule

404(b), because it was impermissible character evidence.

We give “great deference to the district court’s balancing of the probative value

and the prejudicial impact,” United States v. Looking Cloud, 419 F.3d 781, 785 (8th

Cir. 2005), and we see no abuse of the court’s discretion in this case. The conviction

was probative because it involved the same victim and an act that occurred close in

time and under circumstances similar to the crime charged in this case. See United

States v. Medicine Horn, 447 F.3d 620, 623 (8th Cir. 2006). The evidence was
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“prejudicial” in the sense that it tended to suggest that Tail had a propensity to commit

sexual assaults, but this does not constitute unfair prejudice. Id. To require the

exclusion of this evidence based on the asserted “inflammatory nature” of sexual

offenses would be at odds with the “strong legislative judgment” in favor of admitting

such evidence that Congress expressed in adopting Rule 413. Id.; see also United

States v. LeCompte, 131 F.3d 767, 770 (8th Cir. 1997). 

Tail also argues that Rule 404(b) requires exclusion of the conviction, but the

policy articulated in Rule 413, unique to cases involving sexual assaults, renders the

general prohibition on propensity evidence in Rule 404(b) inapposite. See United

States v. Mound, 149 F.3d 799, 802 (8th Cir. 1998). In addition, in this case the

district court issued an instruction advising the jury that the evidence was received for

“a limited purpose only,” and that the prior conviction “does not mean that he is guilty

of the charges of sexual abuse and sexual abuse of a minor as to which he has pleaded

not guilty in this case.” (R. Doc. 167, Jury Instruction No. 8). Such cautionary

instructions decrease any danger of unfair prejudice. United States v. Crawford, 413

F.3d 873, 876 (8th Cir. 2005). Under these circumstances, we do not believe the

district court abused its discretion in admitting the evidence of Tail’s prior conviction.

B.

Tail also contends that the district court abused its discretion in excluding

evidence that J.H. had tested positive for Hepatitis B. Because Hepatitis B is

sometimes acquired through sexual contact, Tail urged the district court to admit

this evidence to impeach J.H.’s testimony that she had no other sexual partners. 

Tail also proffered evidence that he had tested negative for Hepatitis B, and argued

that his negative test results tended to rebut an inference that he was the source of

any sexual injuries or physical evidence. Tail now concedes that the evidence was

inadmissible for impeachment purposes, see Fed. R. Evid. 412; see also United

States v. White Buffalo, 84 F.3d 1052, 1053-54 (8th Cir. 1996), but contends that
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the evidence was nonetheless admissible as substantive evidence to prove that “a

person other than the accused was the source of semen, injury, or other physical

evidence.” Fed. R. Evid. 412(b)(1)(A). The physical evidence to which Tail

believes his test results are relevant is the testimony of a midwife who examined

J.H. in May 2003 and found bruising and lacerations.

The exception to the general prohibition on admission of a victim’s past

sexual behavior permits only the introduction of “specific instances of sexual

behavior,” and Tail has not offered any such “specific instance” to show an

alternative source of physical evidence. See Fed. R. Evid. 412. Even if he had,

however, the evidence is not relevant in the way that he suggests. The government

did not introduce evidence of J.H.’s Hepatitis B, so Tail’s negative test results

cannot rebut an inference that he was the cause of her disease. Tail’s alternative

contention that the test results prove that another man caused the “physical

evidence” gathered from J.H.’s body relies on an inference that J.H. must have

contracted the disease from other sexual contact, and that this other sexual contact

could also have been the cause of bruising and lacerations on her body. But the

evidence produced at the pre-trial hearing did not support the assumption that

J.H.’s Hepatitis B was acquired through another recent sexual encounter. Instead,

the uncontroverted testimony of a pediatrician, Dr. Lori Strong, was that Hepatitis

B can be contracted from non-sexual sources, and that because J.H. was in a

chronic carrier stage of the disease, it was most likely that she contracted the

disease before the age of five. Tail did not rebut this evidence, and the district

court did not abuse its discretion by finding that the Hepatitis B results were not

sufficiently probative to be admissible.

C.

Tail’s final evidentiary challenge is to the exclusion of evidence that he believes

would demonstrate that J.H. and M.H. previously made false allegations concerning
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sexual abuse. Although impeaching a witness’s character for truthfulness is not a

recognized exception to Rule 412’s general prohibition on evidence of sexual history,

United States v. Withorn, 204 F.3d 790, 795 (8th Cir. 2000), Tail argues that false

allegations do not constitute “evidence of a victim’s past sexual behavior” that is

barred by Rule 412. Alternatively, he contends that Rule 412 must give way to the

protections of the Confrontation Clause of the Constitution, and that exclusion of the

evidence violated his rights under the Sixth Amendment. See Fed. R. Evid.

412(b)(1)(C). The district court refrained from deciding whether the evidence would

constitute protected sexual history under Rule 412, observing that the Confrontation

Clause analysis would be the same in either event. The court concluded that none of

the allegations cited by Tail was demonstrably false, and that the allegations therefore

had minimal probative value that was outweighed by other concerns.

A primary interest secured by the Confrontation Clause is the right of crossexamination. The opportunity to expose “possible biases, prejudices, or ulterior

motives” of a witness, as “they may relate directly to the issues or personalities in the

case at hand,” is one important function of the right to confront witnesses. Davis v.

Alaska, 415 U.S. 308, 316 (1974). Thus, the Confrontation Clause may require the

admission of certain evidence otherwise excluded by the rules of evidence, but it is

clear that not all evidence that is “the least bit probative of credibility” must be

admitted. United States v. Bartlett, 856 F.2d 1071, 1088 (8th Cir. 1988); see also

Davis, 415 U.S. at 321 (Stewart, J., concurring). As pertinent here, we have held that

in a sexual abuse case, evidence alleging that the accuser made prior false accusations

may be excluded if the evidence has minimal probative value. Bartlett, 856 F.2d at

1089; White Buffalo, 84 F.3d at 1054. And the propriety of excluding such evidence

is strengthened where the prior incident is unrelated to the charged conduct, and where

the defendant intends to use the evidence as part of an attack on the “general

credibility” of the witness. Bartlett, 856 F.2d at 1088.
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Tail sought to introduce evidence of prior allegations of abuse that he claimed

were made falsely by J.H. The first allegation was purportedly directed toward an

individual named Darwin Apple, whom Tail claimed had been accused of sexual

abuse in 2003. Tail substantiated this claim by producing a statement of Vanessa Tail

that conveyed the girls’ assertions that Apple’s wife had physically mistreated them,

and that Apple had pushed M.H. off the couch and hit her with a pillow. Tail did not

produce evidence that the girls made allegations of sexual abuse, or that the report of

physical abuse resulted in any investigation or charges. He presented no evidence of

a denial by Apple. The evidence thus did not support Tail’s claim that J.H. and M.H.

even accused Apple of sexually abusing the girls, much less the assertion that the

witnesses made false accusations. The Confrontation Clause did not require

admission of this evidence.

Tail’s other allegations of prior false accusations were based on a report of

J.H.’s grandmother, Mary Johnson. According to a report of an interview with

Johnson conducted by Tail’s investigator, Johnson said that J.H. accused Johnson’s

son, Frank, and Johnson’s boyfriend, Jesse Fabian Ortega, of molesting J.H. To

support the latter allegation, Tail offered a report of an interview of J.H. at a child

advocacy center in May 2002, in which J.H. was reported as saying that Ortega had

pulled down her underwear and touched her inappropriately. Tail also presented a

one-page excerpt from a transcript of a state court proceeding in which J.H.

acknowledged that she had “some problem” with Ortega, and contacted law

enforcement about it. In an effort to show that J.H. made accusations that were false,

Tail pointed to the fact that Johnson reportedly said she “was always around and knew

nothing had happened” with Ortega or Frank Johnson. Tail also presented testimony

from his investigator that Ortega, when approached by the investigator, had denied

touching J.H. inappropriately. 

The district court concluded that the allegations concerning Ortega and Frank

Johnson had minimal probative value, and that the danger for unfair prejudice,
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confusion of the issues, and misleading the jury substantially outweighs the minimal

probative value of the evidence. The court reasoned that Ortega had a motive to lie,

because agreement with J.H.’s allegation would have constituted an admission that he

committed a federal crime. The court accurately observed that “we are left with bare

allegations from both sides and no firm proof of the falsity of J.H.’s allegation.” (R.

Doc. 127, at 8). As for Frank Johnson, Tail did not even offer proof that Johnson

himself ever denied the proffered allegation. 

We agree with the district court that the Confrontation Clause does not mandate

the admission of this evidence, because it had only limited probative value. The

evidence of falsity is weak, and there is no substantial showing that J.H.’s allegations

against Tail are part of a broader scheme involving contrived allegations against

Ortega and Frank Johnson, or that they shared a common motivation. Cf. United

States v. Stamper, 766 F. Supp. 1396, 1402-03 (W.D.N.C. 1991), aff’d sub nom. In re

One Female Juvenile Victim, No. 91-5334, 1992 WL 63334 (4th Cir. Apr. 1, 1992)

(unpublished). Admission of this evidence would have triggered mini-trials

concerning allegations unrelated to Tail’s case, and thus increased the danger of jury

confusion and speculation. See Withorn, 204 F.3d at 795; see also Fed. R. Evid. 403.

The district court’s ruling was consistent with our guidance in Bartlett, 856 F.2d at

1089, and White Buffalo, 84 F.3d at 1054, and we discern no error.

IV.

Finally, Tail argues that his Fifth Amendment rights were violated by his

conviction under two different statutes for the same conduct. Tail was convicted of

both sexual abuse, 18 U.S.C. § 2242(1), and sexual abuse of a minor, 18 U.S.C.

§ 2243(a), with respect to each victim. He argues that because all four convictions

arose out of the same two acts, punishment under both statutes violates his right to be

free from double jeopardy.
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We conclude that there was no violation of the Double Jeopardy Clause.

“[M]ultiple punishments are permitted for separate convictions when each requires an

element of proof that the other does not.” United States v. Beltz, 385 F.3d 1158, 1161

(8th Cir. 2004); see also Blockburger v. United States, 284 U.S. 299, 304 (1932). The

offense of sexual abuse has as an element the act of “threatening or placing . . . [a]

person in fear,” 18 U.S.C. § 2242(1), which is not shared by sexual abuse of a minor.

Sexual abuse of a minor also has a distinct element, because it requires proof that the

victim was at least 12 but not yet 16 years old and was at least four years younger than

the perpetrator. 18 U.S.C. § 2243(a). Thus, Tail’s double jeopardy rights were not

infringed by his punishment for the violation of both statutes.

Our court has rejected Tail’s argument that a single course of conduct can lead

to only one conviction, United States v. Boykins, 966 F.2d 1240, 1245 (8th Cir. 1992),

and Tail’s reliance on United States v. Chipps, 410 F.3d 438 (8th Cir. 2005), does not

call for a different conclusion here. Chipps involved a defendant who was convicted

on two counts of violating one statute. In finding the defendant’s convictions to be

multiplicitous, we considered whether his offenses had arisen from the same

“impulse,” because Congress had not specified a different unit of prosecution that

would otherwise make the two convictions distinct. Id. at 449. Here, by contrast,

Congress has made clear that “sexual abuse” and “sexual abuse of a minor” are

distinct crimes with separate punishments by defining them to include different

elements of proof. 

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The judgment of the district court is affirmed.

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