Rouse v. United States, CIV 06-4008

CourtUnited States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
Writing for the CourtLawrence L. Piersol United States District Judge
PartiesDESMOND ROUSE and JESSE ROUSE, Petitioners, v. UNITED STATES OF AMERICA, Respondent.
Docket NumberCIV 06-4008
Decision Date18 March 2020

DESMOND ROUSE and JESSE ROUSE, Petitioners,
v.
UNITED STATES OF AMERICA, Respondent.

CIV 06-4008

UNITED STATES DISTRICT COURT DISTRICT OF SOUTH DAKOTA SOUTHERN DIVISION

March 18, 2020


MEMORANDUM OPINION AND ORDER

This matter is before the Court on Petitioners Desmond Rouse and Jesse Rouse's motion for a new trial. (Doc. 13.) At the request of Petitioners, their motions for new trial were consolidated with all further filings to be made in CIV 06-4008. (Doc. 42.) The United States opposes Petitioners' motion for new trial. (Doc. 30.)

Petitioners seek an order granting them a new trial or, in the alternative, granting a hearing on the merits of their motion and an order allowing them to interview the trial jurors in their criminal case. (Doc. 13.) They seek this relief under Federal Rule of Civil Procedure 60(b)(6). (Doc. 18.) The Government notes that this is one of many substantive post-conviction pleadings filed by Petitioners, and the Government argues that this motion should be dismissed because it amounts to an unauthorized successive 28 U.S.C. § 2255 motion and because Petitioners' claims lack merit.

After careful consideration, the Court denies Petitioners' motion for new trial.

BACKGROUND

Following a three-week jury trial in this Court, Petitioners were convicted on several counts of aggravated sexual abuse in violation of 18 U.S.C. § 2241(c). Petitioners are Native American men. Another Native American man was acquitted.

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After trial, the Clerk's Office received a call from a co-worker of juror Patricia Pickard. The co-worker, Verna Boyd (then Severson), said that Patricia Pickard was prejudiced against Native Americans. This Court notified counsel for Petitioners and held four separate hearings on the alleged juror misconduct. See CR 94-40015, Doc. 323-1. Pursuant to Federal Rule of Evidence 606(b), the Court instructed the attorneys not to contact any of the jurors, and the jurors were not allowed to testify about any statement made or incident that occurred during deliberations. In addition to hearing the testimony of Boyd and Pickard, the Court heard testimony from the jury foreperson, the alternate juror, and multiple co-workers of Pickard. The Court ultimately concluded that juror Pickard had "responded honestly and accurately" during voir dire and had not concealed "any racially prejudiced attitudes, beliefs, or opinions" about Native Americans. Doc. 323 at 11. The Court found that "as between juror Pickard and Ms. [Boyd], juror Pickard [was] the more credible witness." Id. The Court further found that the jury foreman and an alternate juror testified credibly "that they did not hear juror Pickard or any other juror make racially disparaging remarks about the defendants or about Native American people during the trial," id. at 14, and "that no improper outside influence affected the jury." Id. at 5. Petitioners' motion for a new trial was denied. Id.

On direct appeal, a divided panel of the Eighth Circuit initially reversed and remanded for a new trial, holding that his Court erred in rejecting expert testimony that the children's testimony regarding sexual abuse had been coerced by the adults in the case. See United States v. Rouse, 100 F.3d 560, 566 (8th Cir. 1996). However, the Eighth Circuit panel granted rehearing and affirmed the exclusion of the proposed expert testimony, and it affirmed this Court's denial of the motion for new trial which was based upon co-worker Boyd's testimony. United States v. Rouse, 111 F.3d 561, 573 (8th Cir. 1997) (holding in part that this Court's findings on the motion for new trial established that no new trial was warranted because of juror Pickard's responses during voir dire).

The facts underlying Petitioners' convictions are described in the Eighth Circuit's opinion affirming the convictions after rehearing. Petitioners, who are brothers, and their two cousins were convicted of sexually abusing young female relatives on the Yankton Sioux Indian Reservation:

The victims are granddaughters of Rosemary Rouse. During the summer and fall of 1993, defendants lived at Rosemary's home on the Yankton Sioux Reservation. The victims also lived or spent a great deal of time at this home. In October 1993, five-year-old R.R. was placed with Donna Jordan, an experienced foster parent, due to neglect and malnutrition.

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R.R. disclosed apparent sexual abuse to Jordan, who reported to the Tribe's Department of Social Services ("DSS") (as Jordan was required to do) that R.R. said she had been sexually abused. On January 10, 1994, DSS told Jordan to take R.R. to therapist Ellen Kelson. After an initial interview, Kelson reported to DSS (as Kelson was required to do) that R.R. had reported acts of sexual abuse against herself and other children in the Rouse home. On January 11, DSS removed thirteen children living in the Rouse home and placed them in Jordan's foster home. Of the four who disclosed sexual abuse by their uncles, T.R. was seven years old, L.R. was six, R.R. was five, and J.R. was four and one-half. The fifth victim of the alleged offenses, F.R., was a twenty-month-old infant.

Rouse, 111 F.3d at 565.

The children were examined by two physicians, Richard Kaplan and Robert Ferrell, who found physical injuries consistent with sexual abuse. The evidence at trial included the testimony of the four oldest children and another child who witnessed acts of abuse, medical evidence, medical experts for the government and for the defense, and the testimony of an FBI agent and a BIA criminal investigator, both who interviewed the children. Id. at 566. Petitioners also presented numerous lay witnesses in support of their defense at trial.

In 1999, Petitioners filed a second motion for a new trial pursuant to Rule 33(b)(1) of the Federal Rules of Criminal Procedure based on recantations of the victims.1 See CR 94-40015, Doc. 428. This Court held a four-day evidentiary hearing in 2001. See United States v. Rouse, 329 F. Supp.2d 1077 (D.S.D. 2004). Jessica, Thrista, Lucritia and Rosemary Rouse testified that the abuse did not occur. Experts and several other witnesses testified. This Court concluded that the recantations were not credible. Id. The Eighth Circuit affirmed that finding:

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 testified on the defendants' behalf at trial. The children knew their grandmother and mothers missed the defendants. The children saw letters written by the uncles from prison and spoke to the men by telephone. Family members drove the children to interviews by Dr. Underwager, whose stated purpose was to free their uncles from lengthy prison sentences. The district court's finding that the recantations were the product of family pressure and therefore not credible is overwhelmingly supported by this record. Combined with the defendants' failure to refute the powerful medical evidence of abuse at trial, this finding fully justified the court's conclusion "that there is no reasonable probability that the recantations would

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produce an acquittal if a new trial were held." Accordingly, the district court did not abuse its discretion in denying the defendants' joint motion for a new trial.

United States v. Rouse, 410 F.3d 1005, 1009 (8th Cir. 2005).

On November 24, 1998, Jesse Rouse filed his first motion to vacate, set aside or correct his sentence pursuant to 28 U.S.C. § 2255, arguing ineffective assistance of trial counsel. See CIV 98-4213, Doc. 1. The motion was denied as untimely. Id. at Doc. 17.

In 2006, Desmond Rouse filed his first pro se motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255. (Doc. 1.) Desmond Rouse alleged that he is innocent, but he did not identify the constitutional grounds for his motion. That motion was filed more than seven years after the deadline, and it was denied as untimely. (Doc. 8.)

Petitioners filed the pending motion for new trial on March 7, 2018. The Court held argument on the motion on October 31, 2018. Pre-hearing and post-hearing briefs were filed by the parties. The motion is now ready for a ruling.

CLAIMS PRESENTED

The current 60(b)(6) motion lists two grounds for relief. Petitioners first rely on the United States Supreme Court's decision in Peña-Rodriguez v. Colorado, - U.S. - , 137 S. Ct. 855 (2017). There, the Supreme Court held that the "no impeachment" evidence rule for jurors must yield to the Sixth Amendment when a juror makes a clear statement that indicates he or she relied on racial stereotypies or animus to convict. See 137 S.Ct. at 869. The trial court may then examine the evidence and any resulting denial of the Sixth Amendment jury trial right. See id. In their motion for new trial, Petitioners again seek to develop evidence in support of their claim that the jury may have relied on racial prejudice to convict them.

Petitioners' second ground for relief is that new evidence makes them "actually innocent" and exonerates them from their convictions and sentence. First, there is evidence that the victims, who are now adults, are recanting their trial testimony. Second, Petitioners rely on experts who submitted affidavits opining that significant changes in the field of sexual abuse in children show that the forensic medical evidence of sexual abuse that was presented at trial was inaccurate, misleading and potentially false. Petitioners' experts criticize the physical examinations conducted by Dr. Ferrell and Dr. Kaplan. Citing Schlup v. Delo, 513 U.S. 298 (1995), Petitioners argue that

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no reasonable unbiased juror hearing this new evidence would convict Petitioners and,...

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