U.S. v. Rouse

• Decision Date: 08 June 2005
• Docket Number: No. 04-1470.,No. 04-1469.,No. 04-1468.,No. 04-1471.,04-1468.,04-1469.,04-1470.,04-1471.
• Citation: 410 F.3d 1005
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Desmond ROUSE, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Garfield Feather, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Russell Hubbeling, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Jesse Rouse, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

410 F.3d 1005

UNITED STATES of America, Plaintiff-Appellee, v. Desmond ROUSE, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Garfield Feather, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Russell Hubbeling, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Jesse Rouse, Defendant-Appellant.

No. 04-1468.

No. 04-1469.

No. 04-1470.

No. 04-1471.

United States Court of Appeals, Eighth Circuit.

Submitted: December 16, 2004.

Filed: June 8, 2005.

John M. Wilka, argued, Sioux Falls, South Dakota, for appellant Rouse.

David O. Carter, argued, Sioux Falls, South Dakota, for appellant Feather.

Steven G. Haugaard, argued, Sioux Falls, South Dakota, for appellant Feather.

Steven R. Binger, argued, Sioux Falls, South Dakota, for appellant Rouse.

Dennis Ray Holmes, Assistant U.S. Attorney, argued, Sioux Falls, South Dakota (James E. McMahon, on the brief), for appellee.

Before LOKEN, Chief Judge, MORRIS SHEPPARD ARNOLD and RILEY, Circuit Judges.

LOKEN, Chief Judge.

A jury convicted Desmond and Jesse Rouse and their cousins, Garfield Feather and Russell Hubbeling, of aggravated sexual abuse of five nieces, then ages twenty months to seven years. We affirmed the convictions on direct appeal, United States v. Rouse, 111 F.3d 561 (8th Cir.), cert. denied, 522 U.S. 905, 118 S.Ct. 261, 139 L.Ed.2d 188 (1997), reconsidering 100 F.3d 560 (8th Cir.1996), and subsequently affirmed the district court's¹ denial of Hubbeling's motion for relief under 28 U.S.C. § 2255, Hubbeling v. United States, 288 F.3d 363 (8th Cir.2002). On June 11, 1999, defendants filed this joint new trial motion under Rule 33(b)(1) of the Federal Rules of Criminal Procedure, citing as new evidence recantations by the four victims who testified at trial and by a male child witness. After a four-day evidentiary hearing and a second hearing to consider defendants' motion to submit the results of a polygraph examination, the district court denied the motion for a new trial, finding the recantations not credible. Defendants appeal. We affirm.

I. New Trial Based on Recantations

At the hearing, the four victims² denied that their uncles had sexually abused them, and the male witness denied seeing any abuse of his sisters and cousins. The children said they had lied during pretrial interviews by a BIA investigator, an FBI agent, and the prosecutor, and later at trial, because they believed that lying would enable them to return home. The defense also presented two witnesses who testified that the children had recanted beginning in 1996, and submitted videotapes of 1996 and 1999 interviews by a defense expert, Dr. Ralph Underwager, during which the children recanted.

In response, the government called nine witnesses who testified that the children had never denied that their uncles abused them. Foster parents Donna Jordan and Julie Brown testified that the children never recanted while in their care after the trial. Dr. Michaeleen Muhovich, R.R.'s counselor from 1994 to 1997, testified that R.R. described in detail her uncles' abuse of R.R. and her cousins, and never recanted those statements. Mary Weber, L.R.'s and T.R.'s therapist at the Children's Home Society, testified that both girls talked about being hurt by their uncles and never recanted those statements. Weber also said that the notes of J.R.'s therapist, now deceased, reflect that J.R. admitted recanting to another counselor because she did not want to talk about it and reaffirmed that the abuse actually occurred. Cheryl Fridel, the family services counselor at a school in Wagner the children attended, testified that J.R. asked for help in 1999 because she was afraid her uncles were coming home for Christmas. J.R. said she was afraid of her uncles, and described how Uncle Desmond would crawl into her bed and touch her private parts. Fridel had no prior knowledge of the case at the time J.R. asked for help. On a separate occasion, J.R. admitted to Fridel that R.R. had told J.R. and L.R. to lie to a social worker.

In its Memorandum Opinion and Order denying a new trial, the district court reviewed the hearing testimony in detail and found that the children's recantations were not credible. The children did not recant until they resumed having contacts with their mothers and grandmother, who did not believe the abuse occurred and told the children they missed the imprisoned men. In these circumstances, the court found, "the combination of the influence from the unsupportive families, contact with the defendants by telephone and letters, being made aware of the lengthy prison sentences given to their uncles and having no outside support [after returning to their homes], pressured the children to recant their truthful testimony about being sexually abused by their uncles." The court found the evidence from Dr. Underwager's interviews not credible. In 1996, D.R.'s mother accompanied T.R. and D.R to the interview with Dr. Underwager. The 1999 interviews took place after the children were returned to their homes. Instead of recanting, R.R. told Dr. Underwager that Uncle Jess did things to her that were not right. The district court found that Dr. Underwager used suggestive questioning and told the children he was there to help get their uncles out of prison. Finally, the court emphasized that the children's trial testimony "is supported by the medical evidence in the case, while their recantations are not." Our prior opinion summarized that powerful medical evidence and bears repeating:

Dr. Kaplan [the pediatrician who examined the children] reported to DSS his medical findings and what the children had said about sexual abuse. J.R. told Dr. Kaplan, "Uncle Jess hurt me," pointing to her left labia; Dr. Kaplan found a recent bruise or contusion consistent with that kind of abuse. L.R. had "a fairly acute injury" on the right side of her labia majora which "really hurt her." R.R. told Dr. Kaplan, "I have a bruise where my uncle put his private spot," and Dr. Kaplan found a sagging vagina and a scar on her anus. Dr. Kaplan found that T.R. had "obvious trauma and contusion ... and very, very much tenderness" on her labia majora; T.R. told him, "Uncle Jess hurt me there." ...

... Dr. Robert Ferrell conducted a colposcopic examination of the five victims. Dr. Ferrell found "very significant" damage to R. R.'s hymenal ring and tearing in her anal area consistent with anal intercourse. He noted a "whole constellation of findings" indicating L.R. had been abused—damage to her hymenal area, furrowing on either side of her vagina, chronic irritation or trauma, and "clue cells" that are "known to be sexually transmitted." To Dr. Ferrell, a scar on J. R.'s hymen where a tear had healed was an "important finding," while T.R.'s "hymenal ring was essentially gone," the entire area was irritated, and she had furrows in her vagina. Infant F.R. had "tearing and scarring of the anal mucosa."

Defendants' medical expert, Dr. Fay, admitted that the reported hymenal scarring on L. R., R. R., and J.R. "certainly ... leads you to think about sexual abuse," and that "a labial injury... is a very significant finding" of abuse. In its rebuttal, the government called Dr. Randall Alexander, a member of the Board of Governors of the National Committee to Prevent Child Abuse. Dr. Alexander testified that it takes considerable force to inflict labial injuries like those exhibited by three of the victims. "It's rare to see one [in young girls] and to see three of them show up is just ... rareness to the third power."

United States v. Rouse, 111 F.3d at 565-66. We rejected a prior attempt to blame these injuries on inter-child sexual activity. See Hubbeling, 288 F.3d at 367. Defendants' attempt at the hearing to explain away the injuries of T.R., J.R., and L.R. as the result of previously unreported sexual abuse by a twelve-year-old male cousin was equally unpersuasive.

We view with suspicion motions for new trial based on the recantation of a material witness because "[t]he stability and finality of verdicts would be greatly disturbed if courts were too ready to entertain testimony from witnesses who have changed their minds, or who claim to have lied at the trial." United States v. Grey Bear, 116 F.3d 349, 350 (8th Cir.1997). This skepticism "is especially applicable in cases of child sexual abuse where recantation is a recurring phenomenon," particularly "when family members are involved and the child has feelings of guilt or the family members seek to influence the child to change her story." United States v. Provost, 969 F.2d 617, 621 (8th Cir.1992), cert. denied, 506 U.S. 1056, 113 S.Ct. 986, 122 L.Ed.2d 139 (1993).

To receive a new trial, the movant must show that "the newly discovered evidence is of such a nature that, in a new trial, [it] would probably produce an acquittal." United States v. Papajohn, 212 F.3d 1112, 1118 (8th Cir.2000) (quotation omitted). When the claim of newly discovered evidence is based on a recantation, the district court must first determine whether the recantation is credible. In this regard, "the real question ... is not whether the district judge believed the recantation, but how likely the district judge thought a jury at a second trial would be to believe it." Grey Bear, 116 F.3d at 350. Our review of this credibility finding for clear error is extremely deferential. See Grey Bear, 116 F.3d at 351. We review the denial of the new trial motion for a clear abuse of discretion. See Papajohn, 212 F.3d at 1117-18.

After reviewing the record as a whole, we conclude that the district court's credibility findings are not clearly erroneous and the denial of the new trial motion was not a clear abuse of discretion. By the time of the evidentiary hearing, the children had been living with their mothers for at least two years, within walking distance of their grandmother's home. These women never believed the children's accusations, and...