U.S. v. Provost

• Decision Date: 10 August 1992
• Docket Number: No. 91-3423,91-3423
• Citation: 969 F.2d 617
• Parties: UNITED STATES of America, Appellee, v. Terrance Kenneth PROVOST, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 617

969 F.2d 617

UNITED STATES of America, Appellee, v. Terrance Kenneth PROVOST, Appellant.

No. 91-3423.

United States Court of Appeals Eighth Circuit.

Submitted March 13, 1992.

Decided July 2, 1992.

Rehearing and Rehearing En Banc Denied Aug. 10, 1992.

Robert C. Riter, Jr., Pierre, S.D., argued, for appellant.

Mikal G. Hanson, Asst. U.S. Atty., Pierre, S.D., argued, for appellee.

Before HANSEN, Circuit Judge, HEANEY, Senior Circuit Judge, and ROSENBAUM, ^* District Judge.

HANSEN, Circuit Judge.

Terrance Kenneth Provost appeals the district court's ¹ denial of both his motion for a new trial under Rule 33 of the Federal Rules of Criminal Procedure and his request for an evidentiary hearing on that motion, 777 F.Supp. 774. We affirm.

I. Background

This is Provost's third appeal relating to his conviction for aggravated sexual abuse of his then ten-year-old half-sister, L.S., in violation of 18 U.S.C. §§ 1153, 2241(c), and 2245(2)(A). This court previously affirmed his conviction on direct appeal, United States v. Provost, 875 F.2d 172 (8th Cir.1989), and affirmed the district court's denial of his first motion for a new trial under Rule 33. United States v. Provost, 921 F.2d 163 (8th Cir.1990). The facts underlying his conviction were discussed fully in the opinion affirming his conviction and will be recounted here only where necessary.

On June 26, 1987, Provost was convicted of sexually assaulting L.S. after a four-day jury trial. L.S. testified at the trial that Provost sexually assaulted her. Shirley Marvin, the natural mother of both Provost and L.S., testified on Provost's behalf at trial. During the trial, L.S. lived with her father. During the summer of 1990, custody of L.S. was awarded to Marvin, after allegations of sexual molestation were made against L.S.'s father. L.S. continues to live with Marvin.

After she started living with Marvin, L.S. began to see Dr. Frank Buzzetta, a clinical psychologist in Rapid City, South Dakota. Dr. Buzzetta filed an affidavit in support of Provost's second motion for a new trial. In his affidavit, Dr. Buzzetta indicates that on June 25, 1991, L.S. completely recanted her allegation that Provost had sexually assaulted her and told Dr. Buzzetta that her stepbrother had sexually abused her. Dr. Buzzetta said he encouraged her to tell her mother about the prior accusation being untrue. Dr. Buzzetta concluded that this recantation was truthful because L.S. had been open and honest with him in the past. Dr. Buzzetta further indicated that he believed it was easier for L.S. to accuse Provost than it was to accuse her stepbrother because of the fear of repercussions from accusing her stepbrother.

Marvin also filed an affidavit in support of Provost's second motion for a new trial. Marvin states that L.S. said she had lied about Provost sexually assaulting her. Marvin says L.S. said that she did not want to talk to Provost's lawyer but that she wanted to write to Provost instead.

Marvin filed a second affidavit in support of Provost's second motion for a new trial to disclose that L.S. had written letters to Provost to explain that she had lied and to apologize. Marvin included copies of the alleged letters with her second affidavit. The letters again focused the blame for the sexual assault on her stepbrother. The letters also noted how L.S. was aware of the stress on her mother and that she had observed the worry on her mother's face. One letter ended with a "P.S.--Mother wanted me to send both letters. So I shall."

After reviewing the affidavits and the letters, the district court denied the motion for a new trial without a hearing. The district court found that no exceptional circumstances existed which would warrant a hearing and that the decision could be made on the affidavits and the court's previous observation of the witnesses and familiarity with the record. The district court denied the motion for a new trial after finding that the recantation was not credible.

Provost argues on appeal that, at a minimum, the district court should have conducted an evidentiary hearing on his new trial motion because exceptional circumstances are present. Provost further argues that even if a hearing is not required the district erred in concluding that he was not entitled to a new trial under Rule 33 on the basis of the recanted testimony.

II. Discussion

A.

Provost first argues that the district court improperly denied his request for an evidentiary hearing under Rule 33. In denying the request, the district court correctly noted the well-settled standards for determining the need for a hearing on a new trial motion based on newly discovered evidence. As we observed in denying Provost's first motion for a new trial, "[o]rdinarily, a motion for a new trial based on new evidence may be decided without a hearing resorting only to affidavits." United States v. Provost, 921 F.2d at 164 (citing United States v. Bednar, 776 F.2d 236, 239 (8th Cir.1985)). The district court has broad discretion in deciding whether an evidentiary hearing is necessary. Provost, 921 F.2d at 164. However, there may be exceptional circumstances which require a hearing. United States v. Ward, 544 F.2d 975, 976 (8th Cir.1976).

We find that the district court did not abuse its discretion in concluding there were no exceptional circumstances and in denying the request for a hearing. We previously have recognized that the need for a hearing is diminished for claims of recanted testimony where the trial judge observed the demeanor and credibility of the witnesses at trial, Ward, 544 F.2d at 976, or is otherwise thoroughly familiar with the record of the case. Bednar, 776 F.2d at 239.

Here, the district court was thoroughly familiar with the entire record of Provost's case. The same district court judge presided at the trial and decided the first motion for a new trial. He observed the original testimony of L.S. and Marvin. The only witness the trial judge did not previously observe testifying is Dr. Buzzetta. Provost argues that the fact the trial judge has not previously observed Dr. Buzzetta constitutes an exceptional circumstance warranting a hearing. We disagree.

As the district court observed, the material part of Dr. Buzzetta's affidavit testimony seeks only to bolster the credibility of L.S.'s alleged recantation and little would be gained by receiving his oral testimony at a hearing. Moreover, the district court noted such testimony likely would be inadmissable expert testimony. See United States v. Azure, 801 F.2d 336 (8th Cir.1986) (finding expert testimony inadmissable where its purpose is to put "stamp of believability" on a child witness' testimony).

Provost also argues that the recantation itself presents exceptional circumstances requiring a hearing. Provost asserts that the district court needed to see and hear L.S.'s recantation in order to determine whether it was credible, which is ultimately at issue in this matter. While this argument finds some support in case law from the Tenth Circuit, United States v. Page, 828 F.2d 1476, 1478 (10th Cir.), cert. denied, 484 U.S. 989, 108 S.Ct. 510, 98 L.Ed.2d 508 (1987) (finding "the trial court ordinarily must conduct an evidentiary hearing to evaluate both the credibility and impact of a recantation") (citing United States v. Ramsey, 726 F.2d 601, 605 (10th Cir.1984), cert. denied, 474 U.S. 1082, 106 S.Ct. 851, 88 L.Ed.2d 892 (1986)), it is at odds with our cases and the cases from the majority of other circuits.

In Ward, we found no exceptional circumstances existed in spite of the fact that the appellant moved for a new trial alleging the recantation of trial testimony by a prosecution witness. Ward, 544 F.2d at 976. In reaching that conclusion, we observed both that "courts look upon recantation with suspicion" and that the need for a hearing is diminished where the district court already has heard the original testimony of the witness who seeks to recant that testimony. Id. Likewise, in Bednar we found that a recantation of testimony did not constitute exceptional circumstances where the district court was familiar with the record of the case. 776 F.2d at 239.

The majority of the other circuits which have addressed this question, likewise, have found that it is within the district court's discretion to decide new trial motions based on recanted testimony without a hearing. See, e.g., United States v. MMR Corp., 954 F.2d 1040, 1046 (5th Cir.1992); United States v. Carbone, 880 F.2d 1500, 1502 (1st Cir.), cert. denied, 493 U.S. 1078, 110 S.Ct. 1131, 107 L.Ed.2d 1037 (1989); United States v. Di Paolo, 835 F.2d 46, 51 (2nd Cir.1987). Hence, these circuits, like our circuit, recognize that a recantation of testimony, in and of itself, does not constitute exceptional circumstances which require a hearing. The Fifth Circuit has specifically observed very recently that while there are "certain unique situations" which normally call for hearings under Rule 33 ² a new trial motion based on recanted testimony does not present such a "unique situation." MMR Corp., 954 F.2d at 1046. The Fifth Circuit concluded, as we did in Ward, that where the district court presided over the trial and observed the recanting witness's original testimony, the Rule 33 motion was "particularly suitable for ruling without a hearing." Id. (citing United States v. Hamilton, 559 F.2d 1370, 1373 (5th Cir.1977)).

Based on the foregoing authority, we conclude that the recanted testimony in this case is not an exceptional circumstance which required the district court to hold a hearing under Rule 33. The district court viewed L.S.'s testimony at trial, had the text of her alleged recantation, and was thoroughly familiar with the entire record of Provost's case. Hence, we find that the district court did not abuse its discretion in denying the request for a hearing because it had an adequate basis for reaching its conclusion that the recantation was not...