U.S. v. Azure

Decision Date17 September 1986
Docket NumberNo. 85-5407,85-5407
Citation801 F.2d 336
Parties, 21 Fed. R. Evid. Serv. 801 UNITED STATES of America, Appellee, v. Anthony Damian AZURE, Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

Cameron Hayden, Grand Forks, N.D., for appellant.

Norman G. Anderson, Fargo, N.D., for appellee.

Before ARNOLD, Circuit Judge, HENLEY, Senior Circuit Judge, and LARSON, Senior District Judge. *

HENLEY, Senior Circuit Judge.

Anthony Damian Azure appeals his conviction by a jury in the United States District Court for the District of North Dakota for carnal knowledge of a female under the age of sixteen, in violation of 18 U.S.C. Secs. 1153 and 2032. For reversal Azure argues that no federal jurisdiction existed over this offense and that the trial court erred in admitting expert opinion testimony regarding the credibility of the victim, in admitting testimony by a social worker that the victim understood the difference between the truth and a lie, in admitting evidence of alleged past physical abuse of the victim, in admitting evidence of alleged past sexual abuse of other children in the household, and in admitting the out-of-court statement of the victim made to a social worker. Because we find that the trial court erred in allowing expert opinion evidence regarding the victim's credibility, we reverse Azure's conviction.

Azure and his common law wife Patricia Lozensky live together in a house near St. John, North Dakota. Living with them at the time of the alleged incident were Michelle Faine, age thirteen at the time of the trial on September 17 and 18, 1985, Wendy Lozensky, age eleven at the time of the trial, Melissa Lozensky, age ten at the time of the trial, Melony Azure, age five at the time of the trial, and Damian Azure, Jr., age three or four at the time of the trial. Melony and Damian, Jr. are the children of Damian Azure and Patricia. Michelle, Wendy and Melissa were born to Patricia prior to her present relationship with Azure. Appellant was charged with having had sexual intercourse with Wendy in his house on or about December 8, 1984, 1 and Patricia Lozensky was charged with misprison of a felony in violation of 18 U.S.C. Sec. 4. Following trial by jury, both were found guilty. Azure was sentenced to a prison term of twelve years. This appeal followed.

I.

We address first the jurisdictional issue. Section 1153 gives the federal courts exclusive jurisdiction over certain crimes committed by an Indian within Indian country. Unlawful carnal knowledge of a female under the age of sixteen, a violation of Sec. 2032, is one of the crimes included in Sec. 1153. Indian country is described in 18 U.S.C. Sec. 1151 as:

(a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.

The alleged incident of sexual abuse took place in Azure's residence, which is located about two miles from the boundary of the Turtle Mountain Indian Reservation. The house is located on land that is held in trust by the United States for the Reservation, and the tribe leases this trust land only to Indians. Azure is fifty percent Chippewa Indian.

In addressing the question of whether the alleged crime occurred in Indian country, Azure and the government focus on the location of Azure's house as being within or outside a dependent Indian community. We feel, however, that it is necessary to focus first on the question whether for purposes of criminal jurisdiction this Indian trust land should be considered a reservation. It is well established that the actions of the federal government in its treatment of Indian land can create a de facto reservation, even though the reservation was not created by a specific treaty, statute or executive order. See Mattz v. Arnett, 412 U.S. 481, 490, 93 S.Ct. 2245, 2250, 37 L.Ed.2d 92 (1973); Sac & Fox Tribe v. Licklider, 576 F.2d 145, 149-50 (8th Cir.), cert. denied, 439 U.S. 955, 99 S.Ct. 353, 58 L.Ed.2d 346 (1978); United States v. White, 508 F.2d 453, 456-57 (8th Cir.1974). Among the key factors in the finding of a de facto reservation in Sac & Fox Tribe were the actions of the BIA in expending funds and providing social services for the area. 576 F.2d at 149.

In United States v. John, 437 U.S. 634, 649, 98 S.Ct. 2541, 2549, 57 L.Ed.2d 489 (1978), the Supreme Court, in discussing land held in trust by the United States for the Mississippi Choctaw Indians, noted that "[t]here is no apparent reason why these lands, which had been purchased in previous years for the aid of those Indians, did not become a 'reservation,' at least for the purposes of federal criminal jurisdiction at that particular time." (Citation omitted.) See also Langley v. Ryder, 602 F.Supp. 335, 340-41 (W.D.La.), aff'd, 778 F.2d 1092 (5th Cir.1985). Similarly, it would appear here that the Indian trust land, although not within the boundaries of the Turtle Mountain Reservation, can be classified as a de facto reservation, at least for purposes of federal criminal jurisdiction.

Moreover, the township in which Azure lives can be considered a dependent Indian community. The four factors which enter into the consideration of whether a particular area is a dependent Indian community are:

(1) whether the United States has retained "title to the lands which it permits the Indians to occupy" and "authority to enact regulations and protective laws respecting this territory," (2) "the nature of the area in question, the relationship of the inhabitants of the area to Indian tribes and to the federal government, and the established practice of government agencies toward the area," (3) "whether there is an element of cohesiveness ... manifested either by economic pursuits in the area, common interests, or needs of the inhabitants as supplied by that locality," and (4) "whether such lands have been set apart for the use, occupancy and protection of dependent Indian peoples[.]"

United States v. South Dakota, 665 F.2d 837, 839 (8th Cir.1981), cert. denied, 459 U.S. 823, 103 S.Ct. 52, 74 L.Ed.2d 58 (1982) (citations omitted).

The township in which Azure's house is located is a rural area which is very sparsely populated. The government has retained title to the land for the benefit of the Turtle Mountain Indians, and through the Bureau of Indian Affairs it exercises certain criminal jurisdiction over the Indians in the area. The land in the area is leased by the tribe only to Indians, and the BIA services the roads in the area. While the sparse population of the area makes cohesiveness in the township somewhat difficult, the other factors are more than satisfied in this case.

It seems clear that the government recognizes the trust land surrounding Azure's house as being part of either a de facto reservation or a dependent Indian community. We therefore conclude that Azure's house is located in Indian country and that criminal jurisdiction in this case is soundly based on Sec. 1153.

II.

Although several issues are raised on this appeal, we are primarily concerned with the question whether a pediatrician may give his opinion as to the truth of the story of a victim of child sexual abuse, an issue of first impression in this circuit. At trial, Dr. Robert ten Bensel was called to testify on behalf of the government. Dr. ten Bensel is a pediatrician and an expert on child abuse. Over pretrial objections by Azure, Dr. ten Bensel was allowed to testify that Wendy was believable and that he could "see no reason why she would not be telling the truth in this matter...." The trial court ruled that Dr. ten Bensel's opinion of the believability of Wendy's story was admissible under Fed.R.Evid. 702 as an expert opinion.

Azure argues that Dr. ten Bensel was not qualified to give an opinion on the credibility of Wendy and that the challenged testimony invaded the exclusive province of the jury to determine the credibility of witnesses. We must agree. Rule 702 allows an expert to give an opinion when his specialized knowledge "will assist the trier of fact to understand the evidence or to determine a fact in issue...." The decision whether to permit expert testimony ordinarily lies within the discretion of the trial court and will not be reversed absent an abuse of discretion. United States v. Rose, 731 F.2d 1337, 1345 (8th Cir.), cert. denied, 469 U.S. 931, 105 S.Ct. 326, 83 L.Ed.2d 263 (1984).

Research has not revealed any federal cases addressing this particular issue, but some circuits have addressed the question of the admissibility of expert opinion testimony on credibility in general. In United States v. Barnard, 490 F.2d 907 (9th Cir.1973), cert. denied, 416 U.S. 959, 94 S.Ct. 1976, 40 L.Ed.2d 310 (1974), the defendants offered expert psychiatric testimony that a government witness was a sociopath who would lie in testifying. In upholding the trial court's rejection of this testimony, the court stated:

[C]ompetency is for the judge, not the jury. Credibility, however, is for the jury--the jury is the lie detector in the courtroom ... It is now suggested that psychiatrists and psychologists have more [expertise in weighing the veracity of a witness] than either judges or juries, and that their opinions can be of value to both judges and juries in determining [credibility]. Perhaps. The effect of receiving such testimony, however, may be two-fold: first, it may cause juries to surrender their own common sense in weighing testimony; second, it may produce a trial within a trial on what is a collateral...

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