U.S. v. Renville

Citation779 F.2d 430
Decision Date11 December 1985
Docket NumberNo. 85-1003,85-1003
Parties, 19 Fed. R. Evid. Serv. 465 UNITED STATES of America, Appellee, v. Harvey M. RENVILLE, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

Daniel R. Moen, Aberdeen, S.D., for appellant.

Bonnie P. Ulrich, Asst. U.S. Atty., Sioux Falls, S.D., for appellee.

Before LAY, Chief Judge, JOHN R. GIBSON, Circuit Judge, and PHILLIPS, * Senior Circuit Judge.

JOHN R. GIBSON, Circuit Judge.

Harvey Renville was convicted by a jury of two counts of sexual abuse of his eleven year old stepdaughter under 18 U.S.C. Secs. 13, 1152 (1982), and S.D. Codified Laws Ann. Sec. 22-22-1(5) (1979 & Supp.1983) (amended 1984). Renville raises three contentions on appeal: first, that the acts for which he was convicted, one act each of cunnilingus and anal intercourse with his stepdaughter, are penalized by federal law, 18 U.S.C. Sec. 1153 (1982) (amended 1984), and therefore the Assimilated Crimes Act, 18 U.S.C. Sec. 13, which incorporates the South Dakota rape statute prohibiting these specific acts, is inapplicable; second, that the district court erred in permitting a physician to testify to statements of the victim during an examination identifying Renville as her abuser, under Federal Rule of Evidence 803(4); and third, that the district court erred in permitting a deputy sheriff to testify to statements of the victim during an interview identifying Renville as her abuser, under Federal Rule of Evidence 803(24). We affirm the judgment of the district court. 1

Renville, an Indian, resided with his family on the Sisseton Indian Reservation in South Dakota. At the time of the offense, Renville was employed as a tribal police officer. In March 1982, a detention hearing was held in South Dakota concerning the victim's half-brother, Joe. At the hearing, Joe testified that the victim had admitted to him that she had been sexually abused by Renville. These allegations eventually were referred to Roberts County Deputy Sheriff Holly Butrum, who interviewed the victim to determine whether, as an emergency measure, she should be removed from her home. Deputy Sheriff Butrum testified at trial, over Renville's objection, that during the interview the victim stated that Renville had engaged in anal intercourse with her on several occasions over the past year, and had threatened to harm her if she related the incidents to anyone.

A few weeks later, while in the care of foster parents, the victim was examined by Dr. Clark Likness, a physician specializing in family practice medicine. Dr. Likness testified at trial, again over Renville's objection, that during the examination the victim recounted acts of anal intercourse and cunnilingus performed by Renville.

At trial, the victim recanted her earlier accusations against Renville, and denied having told anyone except Deputy Sheriff Butrum that he was the individual who had abused her. The jury found Renville guilty on both counts. He was sentenced to two concurrent fifteen year terms.

I.

Renville's principal contention is that the district court lacked subject matter jurisdiction to convict him under the Assimilated Crimes Act (ACA), 18 U.S.C. Sec. 13, which confers jurisdiction only when there is no applicable federal law. He argues that his conduct was punishable under 18 U.S.C. Sec. 1153, which specifically prohibits incest.

The ACA punishes as a federal offense any act or omission which is punished under state law if committed within the state's jurisdiction, as long as the act or omission is "not made punishable by any act of Congress." 18 U.S.C. Sec. 13. 2 The district court held that the ACA incorporated provisions in the South Dakota rape law specifically prohibiting Renville's conduct, and carrying a maximum penalty of fifteen (15) years for each violation. 3 Renville argues that the ACA, and consequently the state rape statute, was inapplicable because his conduct was made punishable by an act of Congress, specifically the Indian Major Crimes Act (IMCA), 18 U.S.C. Sec. 1153, which prohibits incest by an Indian in Indian territory. The IMCA, in turn, defines the crime of incest and sets the punishment for the act by reference to the statutes of the state where the offense was committed. The South Dakota incest statute provides for a maximum sentence of five (5) years for each violation. The issue, therefore, is whether Renville's conduct is punishable under the ACA, through the adoption of the state rape law (with a corresponding fifteen-year sentence), or under the IMCA, through the adoption of the state incest law (with a corresponding five-year maximum sentence).

The IMCA specifically provides that "[I]ncest shall be defined and punished in accordance with the laws of the State in which such offense was committed as are in force at the time of such offense." 18 U.S.C. Sec. 1153. 4 At the time of the offense, the South Dakota incest statute prohibited an individual fifteen years or older from engaging in "sexual contact" with a person under twenty-one within a specified degree of consanguinity, S.D. Codified Laws Ann. Sec. 22-22-19.1 (Supp.1983); 5 and sexual intercourse between unmarried individuals within a specified degree of consanguinity, S.D. Codified Laws Ann. Sec. 22-22-19 (1979) (repealed 1984). 6 The Code defines the term "sexual contact" to include "any touching" of certain parts of the body with intent to arouse or gratify either party, but explicitly limits the scope of the statute to "touching, not amounting to rape." S.D. Codified Laws Ann. Sec. 22-22-7.1 (1979 & Supp.1983). 7 The state rape statute prohibits acts of "sexual penetration" committed under a variety of circumstances, including, at the time, where the victim is less than fifteen years of age. Sec. 22-22-1(5). Renville's actions--anal intercourse and cunnilingus--fall squarely and precisely within the Code definition of sexual penetration. 8 Since his stepdaughter was less than fifteen years old at the time, Renville's actions constitute rape.

In light of this statutory scheme, we must reject the defendant's contention that his conduct is punishable as incest under federal law. The state incest statute specifically excludes conduct "amounting to rape": Renville's conduct, acts of sexual penetration, is punishable under the state rape statute. Therefore, his conduct falls outside the state definition of incest adopted in the IMCA, and thus is not made punishable by federal law, 9 and the ACA applies.

To avoid the plain language of the statute, Renville relies on language in Williams v. United States, 327 U.S. 711, 66 S.Ct. 778, 90 L.Ed. 962 (1946). In Williams, the defendant, a married white man, had consensual sexual intercourse with an Indian woman over sixteen but under eighteen years of age. The Court held that the defendant could not be prosecuted under the ACA for violating a state statutory rape law, which prohibited sexual intercourse with a woman under eighteen, where a federal law prohibited carnal knowledge of a woman, defined as sexual intercourse with a woman under the age of sixteen. Id. at 717, 66 S.Ct. at 781.

Renville argues that the Court held the phrase "any act or thing which is not made [punishable] by any law of Congress" should not be interpreted so narrowly as to refer only to "individual acts of parties," but instead should be read "in a generic sense as referring to acts of a general type or kind." Id. at 722, 66 S.Ct. at 783. Thus, he argues, the IMCA provision adopting the state definition of incest reflects Congress' intent to regulate acts of this "general type or kind," a category within which Renville claims his acts fall. Under this construction he is liable, if at all, only under the South Dakota incest statute.

This argument fails for a number of reasons. The Court in Williams began by holding that the ACA did not apply because "the precise acts upon which the [defendant's] conviction depend[ed]" had been made penal by federal law (adultery), id. at 717, 66 S.Ct. at 781. (emphasis added), and the state offense of which the defendant was convicted under the ACA (statutory rape of a woman under eighteen) had a specific counterpart in the federal criminal code which defined the offense differently (carnal knowledge of a woman under sixteen). Id. Once Congress has defined an offense, the Court stated, a state may not enlarge the scope of liability for that offense by applying its own more expansive definition. Id. at 723, 66 S.Ct. at 784. In the present case, the precise acts of cunnilingus and anal intercourse which form the basis for Renville's conviction are not prohibited by any federal law, and there is no specific federal statutory counterpart to the provisions in the state rape statute penalizing this conduct. The federal crimes of rape and carnal knowledge of a female are limited to acts of common law sexual intercourse. 10 See United States v. Smith, 574 F.2d 988, 990 (9th Cir.1978); United States v. Bear Ribs, 562 F.2d 563, 564 n. 2 (8th Cir.1977), cert. denied, 434 U.S. 974, 98 S.Ct. 531, 54 L.Ed.2d 465 (1977); see also 65 Am.Jur.2d Rape Sec. 3 (1972); 75 C.J.S. Rape Sec. 8(b) (1952); see generally R. Perkins, Criminal Law 154-56 (2d ed. 1969). There is no present concern, therefore, that the state is attempting to redefine and enlarge an offense already punished under federal law.

Moreover, we believe that Renville has misconstrued the meaning of the Court's statement that the ACA must be interpreted as referring "in a generic sense * * * to acts of a general type and kind." The language appears in the Court's discussion of a 1909 amendment to the ACA's exception clause changing the phrase "[any] offense" which was not prohibited or punished by federal law, to "any act or omission" not penalized by federal law. Id. 327 U.S. at 722-23, 66 S.Ct. at 783-84. The word "offense" was changed, the Court concluded, because it inappropriately suggested that...

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