U.S. v. Begay

• Decision Date: 26 June 1991
• Docket Number: No. 90-2003,90-2003
• Citation: U.S. v. Begay, 937 F.2d 515 (10th Cir. 1991)
• Parties: 33 Fed. R. Evid. Serv. 895 UNITED STATES of America, Plaintiff-Appellee. v. Carl S. BEGAY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 515

937 F.2d 515

33 Fed. R. Evid. Serv. 895

UNITED STATES of America, Plaintiff-Appellee. v. Carl S. BEGAY, Defendant-Appellant.

No. 90-2003.

United States Court of Appeals Tenth Circuit.

June 26, 1991.

Thomas L. English, Asst. U.S. Atty., Albuquerque, N.M. (William L. Lutz, U.S. Atty., and Joe M. Romero, Jr., Asst. U.S. Atty., Albuquerque, N.M., were on the brief), for plaintiff-appellee.

George A. Harrison, Albuquerque, N.M., for defendant-appellant.

Before HOLLOWAY, Chief Judge, EBEL, Circuit Judge, and NOTTINGHAM, ^* District Judge.

HOLLOWAY, Chief Judge.

Defendant Begay, an Indian, appeals his conviction and sentence on one count of aggravated sexual abuse of an Indian child in Indian country in violation of 18 U.S.C. Secs. 1153 (offenses committed within Indian Country), ¹ 2241(c) (sexual acts with persons under twelve years of age), ² and 2245(2) (sexual act). ³ Begay was sentenced to imprisonment for 108 months and a supervised release term of five years.

Begay contends that the district court erroneously restricted his right to cross-examination in violation of the Confrontation Clause of the Sixth Amendment by excluding evidence of relevant incidents of the alleged victim's prior sexual activity under Federal Rules of Evidence 412(b)(2)(A) ⁴ and 403. ⁵ He also argues that the court erred in computing his sentence under the United States Sentencing Guidelines (Guidelines). We reverse and remand for a new trial and do not reach the claims of error relating to the sentence.

I

There was evidence tending to show the following:

At the time of the alleged assault in early December 1987, Begay lived in a three-room residence on an Indian reservation in New Mexico with his sister, Betty, his girlfriend, Anna R., and her eight year old daughter, D.R. (D.). ⁶ Begay, Anna and D. regularly slept together in the same bed, with Anna between Begay and D. On or about the evening of December 1, 1987, Begay was intoxicated and went to bed. Only D. was in Begay's bed as Anna had decided to sleep in a different bed in the same room because of her period.

After noticing some movement, Anna became concerned that Begay might be molesting her daughter. II R. at 73. Anna turned on the light, "threw the covers off of them," and saw Begay in his shorts and D.'s pants zipped down, with Begay "hugging [D.]." Id. at 73-74. Begay got dressed, "said he was going to kill himself and just took off" from the house. Id. at 76. Anna's and D.'s accounts of the incident are similar, although D. specifically testified at trial that Begay undressed her, laid on her, and put his penis in her, and went up and down. Id. at 64-65, 154.

On December 28, 1987, D.'s relatives reported the incident to Irene Poyer, a social worker with the Navajo Tribe. Id. at 125. Shortly thereafter during an interview at the Begay residence, D. informed Poyer that Begay had sexual intercourse with her. Id. at 132-33.

Following this early December 1987 incident, D. was examined for the first time on March 30, 1988, by Doctor Robert Wagner. The examination revealed an "unusually" large hymenal opening and a "streaky area that ... [Dr. Wagner] considered to be an abrasion of some sort." Id. at 83. During cross-examination by Begay's counsel, Dr. Wagner further testified that it was impossible to determine strictly on the basis of D.'s physical examination whether her symptoms reflected one violent sexual penetration or repeated penetrations over a period of time. Id. at 84. Moreover, after cross-examination, during an offer of proof by Begay (which was excluded), out of the hearing of the jury Dr. Wagner also testified that it was impossible to determine from the physical examination alone whether D.'s symptoms were caused by Begay or during earlier incidents with John Jim. In connection with this offer of proof D.'s brother, Aaron R., would have testified that he saw Jim assault D. on three separate occasions in the summer immediately preceding the Begay incident. Id. at 244-47. This offer was also excluded. Jim has pled guilty to aggravated sexual assault upon D. Id. at 175-78.

On April 18, 1988, Begay and Esther Keeswood, a juvenile presenting officer with the Navajo Tribe, both appeared before the Navajo children's court in a dependency case to review a petition to place D. in a different living environment. Id. at 140. Keeswood testified that when she questioned Begay during the hearing, Begay admitted having sexual intercourse with D. Id. at 140-41.

On May 24, 1988, criminal investigator Semans of the Bureau of Indian Affairs questioned Begay at the Shiprock Police Station about D.'s allegations that he had sexually abused her. III R. at 19, 21. Although Begay was not in custody when he arrived at the station with Anna R., nevertheless Semans informed Begay in English of his Miranda rights. II R. at 99. Furthermore, Officer Cowboy was present at the meeting and he likewise advised Begay in Navajo of "his rights." Begay indicated that he understood his rights and was more comfortable communicating in English. Id. at 100.

When confronted by the officers with allegations and medical findings of sexual abuse, Begay responded, "if D. said it was true, then that's what happened." Id. Later, he reiterated this response to the officers but said that he was too drunk on the evening of the incident to recall exactly what happened. After a brief period, Begay admitted in greater detail that he initially thought that D. was Anna until he touched her. Begay nevertheless, "inserted his penis inside of her vagina." Id. at 101. Begay subsequently signed a written statement reflecting his third admission after Semans reviewed it orally with him. Id. at 101-02.

On February 7, 1989, a federal grand jury returned a one-count indictment against Begay, charging him with "engag[ing] in a sexual act with ... an Indian female who had not yet attained the age of twelve (12) years." I R. at 1. Begay filed a motion to suppress the May 24, 1988 confession that he made to Officers Semans and Cowboy at the Shiprock Police Station. Begay claimed that his confession was involuntary because "he was scared" and because "he didn't know that [Jim] was being investigated for a prior act of penetration." Brief for Appellant at 5. The district court denied Begay's motion at a suppression hearing before trial.

Jerry Harris, an investigator for the Public Defender's Office, interviewed D. on March 24, 1989. He asked her if Begay "had put himself inside her or something to that effect, and she replied to me no." II R. 164. This was related in testimony before the jury at trial. In an offer of proof, rejected by the trial judge, Harris said he questioned D. about the Jim incident and contrasted it with the Begay incident. Harris said basically his question to D. was "did Carl Begay do the same thing to her that John Jim did, as far as--you know, getting inside her and that type thing, and she replied to me no." Id. at 183. This offer was rejected at trial. Id. at 184.

Before trial Begay filed a motion to offer evidence, pursuant to Rule 412, seeking to introduce proof which involved references to D.'s past sexual activity with Jim. The court denied the motion after a hearing. After a two-day trial, the jury found Begay guilty as charged by the indictment, the judgment of conviction and the sentence were entered, and this appeal followed.

II

Begay's primary claim of error is that the district court violated the Confrontation Clause of the Sixth Amendment by improperly excluding evidence under Rules 403 and 412, Fed.R.Evid. He says that admission of the evidence was "constitutionally required" and should have been allowed under Rule 412(b)(1). Begay argues that the trial judge's rulings erroneously denied him the opportunity to explain the physical evidence of D.'s condition, relied on heavily by the prosecution, by showing earlier sexual acts that could have caused the conditions; and that he was wrongly denied the right to cross-examine D. in a manner necessary to show the weakness of her testimony against Begay as to whether he was actually guilty of the sexual act with penetration as charged, all in violation of the Confrontation Clause. Reply Brief at 2.

Begay also argues that the evidence concerning the prior sexual conduct with Jim should have been admitted under the exception provided by Rule 412(b)(2)(A). Appellant's Brief at 24-25. The exception protects the defendant's right, inter alia, to show that past contacts with persons other than the accused were the source of semen "or injury." (Emphasis added). Since the prosecution relied heavily on Dr. Wagner's testimony about D.'s enlarged hymenal opening and also evidence of an area considered to be an abrasion (II R. at 83-84, trial testimony; II R. at 266, 270, 292, 293, prosecution's argument), the right to defend by cross-examination showing that the conditions could have resulted from earlier conduct with another person was crucial and protected by the Rule.

The Sixth Amendment's Confrontation Clause states: "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." The Clause provides two types of protections for defendants, the right physically to face those who testify against him and the right of cross-examination--"a primary interest of the [Clause]." Kentucky v. Stincer, 482 U.S. 730, 736, 107 S.Ct. 2658, 2662, 96 L.Ed.2d 631 (1987) (citing Douglas v. Alabama, 380 U.S. 415, 418, 85 S.Ct. 1074, 1076, 13 L.Ed.2d 934 (1965)). See Olden v. Kentucky, 488 U.S. 227, 231, 109 S.Ct. 480, 482, 102 L.Ed.2d 513 (1988); Pennsylvania v. Ritchie, 480 U.S. 39, 51, 107 S.Ct. 989, 998, 94 L.Ed.2d 40 (1987). See also Coy v. Iowa, 487 U.S. 1012, 1021, 108 S.Ct. 2798, 2803, 101 L.Ed.2d 857 (1988) (defendant's right to confrontation violated where screen prevented complaining witnesses from viewing him, allegedly justified by legislatively imposed presumption of...