The HONORABLE JOHN C. GODBOLD, United States Senior Circuit *

Judge for the Eleventh Circuit, sitting by designation.

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

_____________

No. 98-1227

_____________

UNITED STATES OF AMERICA, *

*

Plaintiff-Appellee *

* Appeal from the United States

v. * District Court for the District

* Of South Dakota

WENDELL PAUL WHITE MAGPIE * [UNPUBLISHED]

*

Defendant-Appellant *

____________

Submitted: June 8, 1998

 Filed: July 28, 1998

____________

Before LOKEN, Circuit Judge, GODBOLD, and HEANEY, Senior Circuit *

Judges.

____________

PER CURIAM:

The defendant was convicted by a jury of three counts of aggravated sexual

abuse of a child and one count of abusive sexual contact with a child, in violation of

18 U.S.C. § 2241(c) and 2244(a)(1). The victims were the defendant’s six year old
2

daughter (Count III), five year old son (Count I & II), and four year old daughter

(Count IV). 

The defendant appeals the judgment. He contends that the evidence was

insufficient to support his conviction, that his Confrontation Clause rights were

violated and that his sentence is so excessive as to violate the Eighth Amendment. 

The court did not err in denying defendant’s motion for judgment of acquittal

based on alleged insufficiency of the evidence to convince the jury beyond a

reasonable doubt that the defendant was guilty. Medical testimony tended to show

injury to the genital area of one child and the rectal area of another child. The sixyear-old testified that she had been touched by her father in a manner that hurt her.

She marked diagrams of a female and male body with X’s to show where she had

been touched and by what part of her father’s body. 

Moreover, in a handwritten confession the defendant graphically admitted

sexually abusing the children. There was no objection to the admission of the

confession into evidence. Also testimony described blankets lying on the floor of the

basement, the site of one of the abusive incidents, and having on them human blood.

Defendant’s confession referred to the basement as the scene of the occurrences and

to the blankets. This evidence is not made less than sufficient by evidence that on a

single occasion, some six months before the trial during a medical examination of the
3

children, their mother made a single remark that might tend to indicate that she was

prompting one of the children in what to say. 

The defendant suggests that the Confrontation Clause may have been violated

by permitting hearsay statements made by one or more of the children. The alleged

statements are not specifically identified. In any event two of the children took the

stand and submitted to cross-examination, which made the Confrontation Clause no

obstacle. See California v. Green, 399 U.S. 149, 153 (1970); U.S. v. Spotted War

Bonnet, 933 F.2d 1471, 1473 (8 Cir. 1991)( “The confrontation clause presents an th

obstacle to admitting hearsay statements only when the child does not testify in the

state's case either because of unavailability or by choice of the prosecution.”).

The government placed the name of the mother on its witness list. During trial

government counsel concluded that her testimony would be unreliable and

cumulative, therefore he decided not to call her as witness. The defendant contends

that the Confrontation Clause was violated because notice was too short for him to

subpoena her. The court considered this issue when raised by defendant’s motion for

new trial. It denied the motion on the ground that defense counsel was bound to

anticipate the possibility that a listed witness might not be called and should have

timely requested a subpoena as to all witnesses considered to be important. The

district court also noted that defense counsel made no request for a continuance in
4

order to secure the mother’s presence. The court did not err or abuse its discretion

Defendant was sentenced to 236 months on Counts I, II, and III, concurrent

with 120 months on Count IV, followed by five years of supervised release. He will

be approximately 75 years old when released. The sentence is within statutory limits

of 18 U.S.C. § 2241, which allows any term of years up to life imprisonment. The

sentence is severe, but we cannot say that it violates the Eighth Amendment

proscription against cruel and unusual punishment. Bearing in mind the repeated

offenses, and the fact that the victims were defendant’s own children of tender years,

we cannot say that the sentence was grossly disproportionate. See Neal v. Grammar,

975 F.2d 463, 465 (8 Cir. 1992) (“[T]he Eighth Circuit narrowly reviews a sentence th

to determine whether the sentence ‘is grossly 'disproportioned' to the crime.’”). Nor

does the fact that the sentence may exceed defendant’s life expectancy violate the

Eighth Amendment. See U.S. v. Mendoza, 876 F.2d 639, 640 (8 Cir. 1989)(holding th

that as long as a sentence is within the range provided by statute it is not reviewable

by an appellate court even where it exceeds a defendant’s life expectancy). 

The conviction and the sentence must be, and are, AFFIRMED.

 A TRUE COPY.

 ATTEST:

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