U.S. v. Carter

• Decision Date: 09 June 2005
• Docket Number: No. 04-2592.,04-2592.
• Citation: 410 F.3d 1017
• Parties: UNITED STATES of America, Appellee, v. William T. CARTER, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

410 F.3d 1017

UNITED STATES of America, Appellee, v. William T. CARTER, Appellant.

No. 04-2592.

United States Court of Appeals, Eighth Circuit.

Submitted: December 16, 2004.

Filed: June 9, 2005.

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Jana M. Miner, argued, Pierre, SD, for appellant.

Mikal Hanson, Asst. U.S. Atty., argued, Pierre, SD, for appellee.

Before LOKEN, Chief Judge, and MORRIS SHEPPARD ARNOLD and RILEY, Circuit Judges.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

William Carter appeals from his conviction and sentence on four counts of abusive sexual contact, see 18 U.S.C. §§ 1153, 2244(a), 2246(3), two counts of sexual abuse of a minor, see 18 U.S.C. §§ 1153, 2243(a), 2246(2), and one count of incest, see 18 U.S.C. § 1153; S.D. Codified Laws §§ 22-22-1(6), 25-1-6. Mr. Carter argues that the district court erred in admitting certain evidence, in limiting the cross-examination of a prosecution witness, in denying his motion for a judgment of acquittal on two counts, and in sentencing him. Mr. Carter also contends that the prosecutor's closing argument denied him a fair trial. We affirm Mr. Carter's convictions, but we reverse his sentence and remand to the district court for resentencing.

I.

Mr. Carter was convicted of sexually abusing his stepdaughter, one of his granddaughters, and the granddaughter's friend. The record supports a finding beyond a reasonable doubt of the facts that follow.

When Mr. Carter's stepdaughter was sixteen or seventeen years old and living in Mr. Carter's home, she returned from a party, drank some alcohol that he provided, and went to bed fully clothed. She fell asleep and awoke to find Mr. Carter touching her breasts under her shirt but over her bra. After she awoke, he desisted and told her that she had a phone call. When she answered the phone, however, no one was on the line. For this incident, Mr. Carter was convicted of abusive sexual contact.

One of Mr. Carter's granddaughters lived with the Carters during November and December of 2001, at which time she was thirteen years old; earlier that fall she had stayed at the Carters' home on weekends. The first sexual incident involving Mr. Carter and his granddaughter occurred when Mr. Carter grabbed her breasts from behind while she was fully clothed and making a sandwich in the Carters' kitchen. At a later time, she became high on marijuana that Mr. Carter gave her and "blacked out." When she regained her senses, she was straddling Mr. Carter's lap; the two of them were kissing and moving their fully-clothed bodies as though they were having sex. Mr. Carter's granddaughter then went to her bedroom, and Mr. Carter followed. There he inserted his fingers into her vagina and performed cunnilingus while rubbing her breasts. For these actions, Mr. Carter was convicted on two counts of abusive sexual contact, two counts of sexual abuse of a minor, and one count of incest.

The third complaining witness became acquainted with Mr. Carter through his granddaughter, and, when she was thirteen, she would occasionally spend the night at the Carters' home. During one stay, she was in Mr. Carter's bedroom drinking alcohol and smoking marijuana that Mr. Carter had provided when he loaded a pornographic videotape into the bedroom's VCR. Mr. Carter then kissed her and touched her breasts over her clothes before she escaped to the bedroom of Mr. Carter's granddaughter. For this incident, Mr. Carter was convicted of abusive sexual contact.

II.

A.

At trial, in addition to admitting the testimony of the three complaining witnesses, the district court allowed three other female witnesses to testify for the prosecution under Federal Rules of Evidence 413 and 414. Taken together, Rules 413 and 414 permit the admission of evidence regarding offenses of sexual assault and child molestation that Mr. Carter allegedly committed in addition to those for which he was tried. Mr. Carter argues that admitting this testimony was an abuse of discretion because the testimony's unfair prejudice outweighed its probative value, in violation of Rule 403, and because the witnesses' allegations were not substantially similar to the charged offenses. We disagree.

One of the three additional witnesses testified that, when she was thirteen, Mr Carter gave her alcohol during an overnight stay at the Carters' home and that, during the night, she awoke to find Mr. Carter on top of her with his penis inside her vagina. Another witness testified that, when she was fourteen and spending the night at the Carters' home, she passed out after drinking alcohol that Mr. Carter provided and awoke to find her pants and underwear removed, her breasts exposed, and her private area sore. The third witness testified that, when she was thirteen and a babysitter for the children of Mr. Carter's daughter, she had a series of sexual encounters with Mr. Carter over a period of several months that began when Mr. Carter showed her a pornographic movie, and that during this period Mr. Carter gave her alcohol, marijuana, and cigarettes.

For several reasons, admitting this testimony was not an abuse of discretion. First, the district court weighed whether the testimony that was admissible under Rules 413 and 414 should be excluded as unduly prejudicial under Rule 403. The district court, moreover, decided to limit the number of witnesses that the government could offer and to give the jury a cautionary instruction with respect to how the witnesses' testimony should be used. Cf. United States v. Mound, 149 F.3d 799, 801-02 (8th Cir.1998), cert. denied, 525 U.S. 1089, 119 S.Ct. 842, 142 L.Ed.2d 697 (1999). In addition, the witnesses were young, teenaged girls when the incidents to which they testified occurred, the incidents involved sexual abuse by Mr. Carter, and Mr. Carter's methods for seducing them were consistent with the complaining witnesses' experiences. Given the similarities between the testimony of the witnesses to these earlier acts of sexual abuse and the testimony of the complaining witnesses to the charged conduct, the district court did not err in admitting the former testimony under Rules 413 and 414. See id. at 802.

B.

Mr. Carter also contends that the district court erred in admitting extrinsic evidence of inconsistent statements made by his wife, Tisa Carter. When the prosecution cross-examined Ms. Carter, who testified as a defense witness, the prosecution asked her whether she had warned a friend that Mr. Carter wanted to take that friend and the friend's daughter to bed and whether she had told one of Mr. Carter's daughters about her early-morning discovery of Mr. Carter masturbating while putting his fingers inside a naked adult female, who was lying on the floor in the Carters' home. Neither of these statements fell within the scope of Ms. Carter's testimony on direct examination, and Ms. Carter denied making them. On rebuttal, the prosecution offered testimony from Ms. Carter's friend and Ms. Carter's stepdaughter, both of whom said that Ms. Carter had made the respective statements that she earlier denied making.

We do not understand how Ms. Carter's testimony denying having made the statements about Mr. Carter was admissible in the first place, since the testimony was in response to the prosecution's attempt to elicit hearsay by asking her to confirm out-of-court statements in order to prove the truth of those statements. See Fed. R.Evid. 801, 802. Because Mr. Carter appeals only the admission of extrinsic evidence of Ms. Carter's prior inconsistent statements, however, we pass over the admission of Ms. Carter's response to the prosecution's cross-examination.

Although Federal Rule of Evidence 613(b) allows the introduction of extrinsic evidence of a witness's prior inconsistent statement in the circumstances present in this case, our case law adds a restriction not explicitly included in Rule 613 itself: Extrinsic evidence of a collateral matter is not admissible. United States v. Grooms, 978 F.2d 425, 428-29 (8th Cir.1992); United States v. McCrady, 774 F.2d 868, 873 (8th Cir.1985). Evidence that does not pertain "to the substantive issues of the trial" and that "could not be shown in evidence for any purpose independent of the contradiction" is collateral. United States v. Roulette, 75 F.3d 418, 423 (8th Cir.1996), cert. denied, 519 U.S. 853, 117 S.Ct. 147, 136 L.Ed.2d 93 (1996).

Even assuming that the extrinsic evidence of prior inconsistent statements was collateral, however, we conclude that any error resulting from the district court's admission of the evidence was harmless. Although Ms. Carter was the only defense witness in addition to Mr. Carter himself, the prosecution elicited other testimony from her on cross-examination that undermined her credibility. Further, the overall evidence of Mr. Carter's guilt, which included testimony from the three complaining witnesses and the three "other act" witnesses, was compelling. Cf. McCrady, 774 F.2d at 874. Therefore "no substantial rights of the defendant were affected." Id.

C.

Next, Mr. Carter objects to the district court's admission into evidence of a letter to him from his granddaughter, in which she expresses the anger and hurt that she felt after Mr. Carter abused her. At trial, Mr. Carter objected when the letter was admitted into the record, although he failed to specify the grounds for this objection. To justify admitting the letter, the district court cited to Federal Rule of Evidence 801(d)(1)(B), which excludes from the definition of hearsay prior statements of a declarant that are "consistent with the declarant's testimony" and that "rebut ... [a] charge against the declarant of recent fabrication or improper influence or motive." On appeal, Mr. Carter claims that he preserved a hearsay objection to the letter when he objected to its admission as evidence.

We are unable to see how the letter falls within the hearsay exclusion set forth in Rule 801(d)(1)(B), since the...