Arcoren v. U.S.

• Decision Date: 05 June 1991
• Docket Number: No. 90-5277,90-5277
• Parties: , 32 Fed. R. Evid. Serv. 769 Timothy Duane ARCOREN, Defendant/Appellant, v. UNITED STATES of America, Plaintiff/Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 1235

929 F.2d 1235

59 USLW 2652, 32 Fed. R. Evid. Serv. 769

Timothy Duane ARCOREN, Defendant/Appellant, v. UNITED STATES of America, Plaintiff/Appellee.

No. 90-5277.

United States Court of Appeals,

Eighth Circuit.

Submitted Dec. 12, 1990.

Filed April 8, 1991.

Rehearing Denied June 5, 1991.

Stanley Whiting, Winner, S.D., for defendant-appellant.

David Zuercher, Asst. U.S. Atty., Pierre, S.D., for plaintiff-appellee.

Before LAY, Chief Judge, HEANEY and FRIEDMAN, ^* Senior Circuit Judges.

FRIEDMAN, Senior Circuit Judge.

In this appeal from the United States District Court for the District of South Dakota (Porter, C.J.), the appellant (Arcoren) challenges his convictions of two counts of aggravated sexual abuse, 18 U.S.C. Secs. 1153 & 2241(a)(1) (1988), one count of abusive sexual contact, 18 U.S.C. Secs. 1153 & 2244, and one count of sexual abuse of a minor, 18 U.S.C. Secs. 1153 & 2243. Arcoren also challenges his sentence as not in compliance with the sentencing guidelines. We affirm the convictions of aggravated sexual abuse and abusive sexual contact, and the sentences imposed for those offenses. We vacate the conviction of sexual abuse of a minor, and remand for a new trial on that count.

I.

A. Arcoren's convictions stem from events occurring on September 17, 1989 at his apartment in St. Francis, South Dakota, which is on the Rosebud Indian Reservation. Viewing the facts most favorably to the government, which is the standard on appeal from criminal convictions, see Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 469, 86 L.Ed. 680 (1942); United States v. Bonadonna, 775 F.2d 949, 950 (8th Cir.1985), there was evidence from which the jury could have found the following:

After attending a dance and doing some drinking, Arcoren, an American Indian, returned to his apartment around 3:00 a.m., accompanied by his nephew, brother, and four young girls--including Charlene Bordeaux (Bordeaux), Arcoren's wife's fifteen-year-old niece. Arcoren's pregnant wife, Brenda Brave Bird (Brave Bird), from whom he had separated two days before, was not in the apartment. Arcoren and Bordeaux went into the bedroom while the others remained in the living room, where they drank beer and played the stereo.

At approximately 5:00 a.m., Brave Bird arrived at the apartment and, after a brief argument with Arcoren, left. Arcoren returned to the bedroom and had consensual sexual intercourse with Bordeaux. Brave Bird later returned to the apartment, discovering Arcoren and Bordeaux in the bedroom. Arcoren forcefully pulled Brave Bird into the bedroom; verbally and physically abused her; prevented Brave Bird and Bordeaux from leaving the bedroom; and, for the next several hours, forced both women to have sexual intercourse with him.

Later in the morning, while Arcoren slept, Brave Bird left the apartment in Arcoren's car, flagged down a police officer, John Two Eagle, and reported the assaults. At his instruction, Brave Bird then went to the hospital for medical treatment, where she told a nurse and attending physician about the beatings and rapes. At the hospital, Brave Bird also described the assaults to Phillip Charles, a criminal investigator with the Bureau of Indian Affairs.

Three days later, Brave Bird testified before a South Dakota federal grand jury, describing in detail Arcoren's violent sexual and physical assaults of both herself and Bordeaux.

Arcoren was indicted on four counts of aggravated sexual abuse by use of force, 18 U.S.C. Secs. 1153 & 2241(a)(1), and one count of sexual abuse of a minor, 18 U.S.C. Secs. 1153 & 2243. Counts I and II charged Arcoren with aggravated sexual abuse of Brave Bird; Counts III and IV charged Arcoren with aggravated sexual abuse of Bordeaux; and Count V charged Arcoren with sexual abuse of a minor by knowingly engaging in a sexual act with Bordeaux.

After trial, the jury convicted Arcoren of aggravated sexual abuse of Brave Bird (Count I) and Bordeaux (Count III), of the lesser included offense of abusive sexual conduct toward Brave Bird on Count II, and of sexual abuse of a minor (Count V). It acquitted him of the aggravated sexual abuse of Bordeaux charged in Count IV. The court sentenced Arcoren to 400 months imprisonment on each of Counts I and III, 120 months on Count II, and 60 months on Count V, the sentences to run concurrently, and imposed a special assessment of $200.00.

B. At trial, Bordeaux testified that she and Arcoren had voluntary intercourse; that after Brave Bird arrived, Arcoren verbally abused and beat Brave Bird, and then forced both herself and Brave Bird to have sexual intercourse with him as the other watched. John Two Eagle, the police officer, testified that when Brave Bird stopped him on the morning of September 17th, she had a swollen face with a cut on the bridge of her nose, blood on her clothing, and was "really upset." According to Two Eagle, Brave Bird stated that Arcoren "had assaulted her most of the night, forced her to stay at the apartment there on the east side of town and raped her and that there was another girl there that was being forced to stay at the apartment by [Arcoren] and that he raped her, too."

Carol Edwards, the receiving nurse at the hospital emergency room, testified that upon arrival, Brave Bird was "crying and upset" and told her that she had been "beaten up twice and she had been raped twice...." Dr. Teresa Mareska, the treating physician at the hospital, testified that Brave Bird reported being "assaulted by an individual named Tim" and "forced in some sexual activities." Phillip Charles, the Bureau of Indian Affairs criminal investigator who interviewed Brave Bird at the emergency room, testified in great detail about Brave Bird's account of the violent physical and sexual assaults by Arcoren upon Brave Bird and Bordeaux.

When the government called Brave Bird as a witness, she recanted her prior grand jury testimony and denied that Arcoren had beaten and raped her. We discuss her recantation in Part II.A. of this opinion.

After using Brave Bird's grand jury testimony to impeach her trial testimony, the government introduced portions of the grand jury testimony, which were read aloud to the jury by the court reporter, as "substantive evidence." In this appeal, Arcoren has not challenged the introduction of that evidence.

Finally, Arcoren testified on his own behalf. He stated that although he had argued that night with Brave Bird over Bordeaux--during which time Brave Bird's nose was accidentally bloodied--they later made up and then had voluntary intercourse while Bordeaux was asleep. He also testified that the two women were free to leave at any time, and that he "did not make any sexual contact with Charlene [Bordeaux] whatsoever."

II.

A. As noted, at trial Brave Bird recanted her grand jury testimony. She denied Arcoren raped her, denied that she had seen Arcoren and Bordeaux have sexual intercourse, and stated that the cuts and bruises on her body resulted from an earlier motorbike wreck. When the government confronted her with her contradictory grand jury testimony, Brave Bird stated that she could not remember making the statements or that, where she did recall making them, they were incorrect. She stated that when she made the statements on September 17th accusing Arcoren of raping her, she was angry with Arcoren because "he was with another woman" and not "because he raped [her]."

The government then called an expert witness, Carol Maicky, to testify regarding "battered woman syndrome." She was a psychologist who had worked with battered women for 10 years and with rape victims for 14 years. The government gave the following reasons for offering the evidence:

Your Honor, there are certain facts which the jury has before it from the testimony which we contend will go unnoticed by a lay jury unless put into a perspective by an expert. We're offering her opinion under Rule 702 to show that these particular facts, while [they] may seem insignificant by themselves when put together against a battered women syndrome would allow the jury to determine the credibility of her in court testimony ... and help them determine which of the two diametrically opposed sworn statements of Brenda Brave Bird to believe.

After hearing Maicky's proffered testimony in chambers, the court, over defense counsel's objection, admitted the evidence. The court ruled that the evidence was admissible under Rule 702 of the Federal Rules of Evidence because it was "scientific, technical or other specialized knowledge [that] will assist the [jury] to understand the evidence or to determine a fact in issue" and that "the evidence would be more probative than prejudicial." The court, however, warned that Maicky could not "testify as to the ultimate fact that a particular party in this case, not the defendant, the party actually suffers from battered women syndrome. This determination must be left to the trier of fact."

In her testimony before the jury, Maicky generally described the battered woman syndrome. According to her testimony, which was based on her knowledge of the literature dealing with the subject and her professional experience, a "battered woman" is one who assumes responsibility for a cycle of violence occurring in a relationship, where the abuser (a husband or boyfriend) has told her that the first violent episode was her fault. Maicky described the syndrome's general characteristics to include (1) the belief that violence to the woman is her fault; (2) an inability to place responsibility for the violence elsewhere; (3) a fear for her life and the lives of her children; and (4) an irrational belief that the abuser is omnipresent and omniscient. According to Ms. Maicky, a battered woman develops coping mechanisms to deal with the ever-present violence, believing that by doing just one more thing she can stop the violence.

In accordance with the court's direction, Maicky expressed no opinion whether Brave...