U.S. v. Bahe

• Decision Date: 25 November 1998
• Docket Number: No. 95-421-MV.,95-421-MV.
• Citation: 40 F.Supp.2d 1302
• Parties: UNITED STATES of America, Plaintiff, v. James BAHE, Sr., Defendant.
• Court: U.S. District Court — District of New Mexico

40 F.Supp.2d 1302

UNITED STATES of America, Plaintiff, v. James BAHE, Sr., Defendant.

No. 95-421-MV.

United States District Court, D. New Mexico.

November 25, 1998.

Ann Steinmetz, John V. Butcher, Federal Public Defender's Office, Albuquerque, NM, for Defendant.

Tara C. Neda, Kathleen Bliss, U.S. Attorney's Office, Albuquerque, NM, for Plaintiff.

MEMORANDUM OPINION AND ORDER

VAZQUEZ, District Judge.

THIS MATTER is before the Court on Defendant's Motion for Judgment of Acquittal, Pursuant to Rule 29(c), or, In the Alternative, Motion for New Trial [Doc. No. 73]. Following an evidentiary hearing, this Court previously granted Defendant's motion for a new trial for the reasons set forth in its Memorandum Opinion and Order of November 2, 1998 [Doc. No. 96]. The Court, having considered the moving papers, relevant law, and being otherwise fully informed, now finds that Defendant's motion for judgment of acquittal is well taken and will be GRANTED. Accordingly, the previous Order of the Court granting a new trial will be modified by this opinion, as explained below.

BACKGROUND

James Bahe, Sr. was charged by indictment with aggravated sexual abuse of a child who had not attained the age of twelve years, in violation of 18 U.S.C. § 2241(c), said offense alleged to have been committed in Indian Country, in violation of 18 U.S.C. § 1153. Specifically, Bahe was charged with penetration by hand or finger of a genital opening of his niece Leandra N. with intent to abuse, humiliate, harass and degrade, or to arouse and gratify his sexual desire.

At trial, the prosecution's case in chief consisted of three witnesses: (1) Dr. Lisa Sampson-Fang, (2) FBI Agent Gregory Calles, and (3) Arica Charley. Dr. Sampson-Fang testified that she examined Leandra N. on July 6, 1994, at the Crownpoint Indian Health Services clinic. Pursuant to Federal Rule of Evidence 803(4), Dr. Sampson-Fang testified to statements made to her by Leandra. Leandra, age 11, told Dr. Sampson-Fang that she had been in bed the previous evening when she was awakened by someone walking on the floor. She heard a flashlight click off, felt a hand go down the front of her clothing to her vagina and then felt a finger "go inside." Leandra identified Bahe as the perpetrator and stated that he had done this before though she did not know when. Dr. Sampson-Fang also conducted a physical exam of Leandra which failed to reveal anything unusual, although Dr. Sampson-Fang testified that the act described would not necessarily leave any physical traces.

Special Agent Calles testified to certain admission made to him by Bahe. In regards to the night at issue, Bahe told Calles that he had in fact entered the room where Leandra and several other family members were sleeping with a flashlight. Bahe stated that he twice entered the room to care for his baby grandson and on a third occasion entered the room to find his mouthwash or his medication. He further stated that he had "fumbled" around the bed where Leandra was sleeping in search of the baby's bottle, and admitted that he may have accidentally touched Leandra in an unknown location, but he adamantly denied touching her in a sexual manner at any time. Pursuant to Federal Rule of Evidence 414, Agent Calles also testified that on further questioning, Bahe admitted that he digitally penetrated another niece, Arica Charley, on another occasion, attempting to blame that incident on the young girl.

Again pursuant to Federal Rule of Evidence 414, Arica Charley testified to the incident of sexual molestation involving her which was not charged in the indictment and was never prosecuted.

Defendant presented several witnesses on his behalf, key among them Leandra N. Leandra testified that she had told Dr. Sampson-Fang and the FBI that Bahe had sexually molested her. However, at trial and under oath, she recanted those statements, testifying that Bahe had not touched her in a sexual manner. Leandra explained that she had been pressured by her aunt, Lolita Bahe, wife of James Bahe, to make the false allegations.

The defense also called as witnesses Matilda Bahe, Leandra's mother, Zelda Cadman Monongye, Leandra's aunt, Lisa Charley, Leandra's sister, and Bobby Negale, another of Leandra's uncles. Each testified that Leandra had never shared the allegations of sexual abuse with them, either before or after July 6th, the date that the accusation was made. On the other hand, several family members testified that Leandra had told them that the accusations were false at various times throughout 1994 and 1995. Each family member also testified that Leandra had never expressed any fear of James Bahe.

In rebuttal, the Government called two witnesses, Genova Nakai, employed by Social Services, and Agent Calles. Nakai testified that she had spoken with Matilda Bahe, Leandra's mother, on July 8, 1994, and that Matilda Bahe was aware at the time that in order for her daughter to return home Nakai would have to make a favorable finding in her investigation of the alleged abuse. Nakai testified that in her opinion Leandra had a close, supportive family. Although not qualified as an expert, Nakai further testified to common characteristics of abused children, including the fact that allegations of abuse are frequently recanted. Next, Agent Calles testified to the prior inconsistent statements of Leandra made to him regarding the July 6th incident, though this evidence was stricken on objection by defense counsel. Based on statements made to him by Leandra and pursuant to Federal Rule of Evidence 414, Agent Calles then testified to a 1991 incident in which Bahe allegedly molested Leandra, an incident which was also not charged in the indictment and never prosecuted.

At the close of the Government's case in chief, Defendant moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29. The Court denied the motion. Defendant again moved for judgment of acquittal at the close of evidence. The Court took the motion under advisement and submitted the case to the jury. The jury convicted Defendant as charged on May 7, 1998. The Court subsequently denied Defendant's motion for judgment of acquittal and entered judgment against Defendant. In the motion presently before the Court, Defendant once again renews his motion for judgment of acquittal or, in the alternative for a new trial based on newly discovered evidence. Following a hearing on October 8, 1998, the Court did in fact grant Defendant's motion for a new trial based on newly discovered evidence, as explained in the Court's Memorandum Opinion and Order of November 2, 1998 [Doc. No. 96]. Still pending before the is Defendant's renewed motion for judgment of acquittal.¹

STANDARD OF REVIEW

In considering a motion for judgment of acquittal under Federal Rule of Criminal Procedure 29, the Court must "view the evidence, both direct and circumstantial, in the light most favorable to the government, and without weighing conflicting evidence or considering the credibility of witnesses, determine whether that evidence, if believed, would establish each element of the crime." United States v. Johnson, et al., 12 F.3d 1540, 1545 (10th Cir.1993) (citing United States v. White, 673 F.2d 299, 301-302 (10th Cir.1982)). "[T]he relevant question is whether ... any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); United States v. Hollis, 971 F.2d 1441, 1447 (10th Cir.1992). "The evidence supporting a jury's verdict must be substantial ... raising more than a mere suspicion of guilt." United States v. Yoakam, 116 F.3d 1346, 1349 (10th Cir. 1997).

When reviewing a motion for judgment of acquittal after a jury verdict, the trial court applies the same standard of review as an appellate court reviewing the sufficiency of the evidence, taking into consideration all of the evidence presented at trial. Wright & Miller, Federal Practice and Procedure, § 467. A trial court "has power to reconsider a timely motion for judgment of acquittal premised on insufficiency of the evidence when the court, which still retains jurisdiction of the case, decides, in considering another of defendant's motions, that its earlier denial of the Rule 29 motion was erroneous." Arizona v. Manypenny, 672 F.2d 761, 765-66 (9th Cir.1982).

ANALYSIS

In the present case, the only substantive evidence of the sexual abuse charged in the indictment was a prior, inconsistent out-of-court statement, recanted at trial by the complaining witness. To this, the prosecution added Defendant's own statements — which merely established the opportunity for him to commit the acts alleged — testimony of a social services worker that abused children frequently recant their accusations, and evidence of prior, uncharged acts of sexual abuse by Defendant. Although the prosecution argued that the complaining witness had been pressured to recant her accusations by a "close" family, the government failed to present any actual evidence of such pressure. Defendant's conviction, thus, is based solely on a single prior, inconsistent out-of-court statement, the fact that he had the opportunity to commit the acts alleged, uncontroverted evidence that he sexually molested another niece in the past, and testimony that children often recant allegations of abuse.

This court has reviewed well over 100 cases challenging the sufficiency of the evidence for a conviction of child sexual abuse and has been unable to find a single case in which a conviction was sustained with as little evidence of the crime charged as in the case at bar. In the overwhelming majority of cases, the complaining witness actually testified to the sexual acts at trial. See Tome v. United States, 513 U.S. 150, 153, 115 S.Ct. 696, 130 L.Ed.2d 574 (1995) (rev'd for improper admission of prior consistent statement); United States v. Castillo, ...