U.S. v. Eagle

• Decision Date: 04 February 2008
• Docket Number: No. 07-1555.,07-1555.
• Citation: 515 F.3d 794
• Parties: UNITED STATES of America, Appellee, v. John Michael Jumping EAGLE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

515 F.3d 794

UNITED STATES of America, Appellee, v. John Michael Jumping EAGLE, Appellant.

No. 07-1555.

United States Court of Appeals, Eighth Circuit.

Submitted: December 11, 2007.

Filed: February 4, 2008.

Mark Falk, argued, Gary G. Colbath, Jr., on the brief, Rapid City, SD, for Appellant.

Mara M. Kohn, AUSA, argued, Rapid City, SD, for Appellee.

Before COLLOTON, BEAM, BENTON, Circuit Judges.

BEAM, Circuit Judge.

A jury convicted John Michael Jumping Eagle on two counts of aggravated sexual abuse, within Indian country, in violation of 18 U.S.C. §§ 2241(c), 2246(2)(A), 2246(2)(C), and 1153. The victim was Jumping Eagle's eight-year-old nephew, J.J. Jumping Eagle now appeals his conviction, raising numerous issues. For the reasons stated below, we reject Jumping Eagle's contentions and affirm the district court.¹

I. BACKGROUND

In 2002, Jumping Eagle lived in Manderson, South Dakota, with his parents. During the summer, Jumping Eagle's nephew, J.J., started regularly visiting his grandparents, Jumping Eagle's parents. On these visits, J.J. would help one of his aunts with her children as well as play games with Jumping Eagle. At night, J.J. slept on a couch in his grandparents' living room while Jumping Eagle slept on a different couch in the same room.

At trial, J.J. gave the following account. One night, while he was sleeping on the couch, he awoke to find his pants pulled down, and he felt "someone" (or "something")² inside of him. The feeling was painful. Jumping Eagle was on top of him, holding his mouth shut, preventing him from screaming. While Jumping Eagle held his hands, Jumping Eagle inserted "something" into his anus. He fought to get Jumping Eagle off of him, but to no avail. Finally, however, he was able to let out a scream. When he screamed, Jumping Eagle got off him and returned to his couch.

After the assaults,³ J.J. experienced mental, emotional, and physical problems. For instance, he began feeling sad and unhappy and also experienced encopresis, or involuntary defecation. J.J. eventually told his mother what Jumping Eagle had done, after which J.J.'s mother took him to a doctor and a social service worker called the police. Approximately two weeks after J.J. told his mother, he visited Black Hills Pediatrics, where Dr. Lori Strong evaluated him for signs of sexual assault. Before Dr. Strong examined J.J., Lora Hawkins, a forensic investigator, interviewed J.J. In this interview, J.J. stated that Jumping Eagle sexually assaulted him on several occasions while he was visiting his grandparents.

Soon after J.J. disclosed the sexual abuse to his mother, FBI Special Agent Richard Lauck interviewed Jumping Eagle in Manderson. Jumping Eagle initially denied J.J.'s allegations, but later confessed to digitally penetrating J.J.'s anus in the mistaken belief that J.J. was his girlfriend. At the conclusion of the interview, Jumping Eagle memorialized his confession in writing. Several weeks after Jumping Eagle confessed to Agent Lauck, FBI Special Agent Kelly Kenser interviewed Jumping Eagle. During this interview Jumping Eagle again admitted to digitally penetrating J.J.'s anus. Jumping Eagle also confessed to placing his penis on J.J.'s buttocks and inserting it into J.J.'s anus. At Agent Kenser's behest, Jumping Eagle agreed to repeat his confession while Agent Kenser tape recorded it. On tape, Jumping Eagle only admitted to placing his penis on J.J.'s buttocks.

Following the FBI's investigation, a grand jury indicted Jumping Eagle on two counts of aggravated sexual abuse. Jumping Eagle pled not guilty, and after a three-day trial, the petit jury convicted Jumping Eagle on both counts. Jumping Eagle now appeals his conviction, arguing the district court erred: (1) by abandoning its gatekeeping function and admitting expert testimony that speculated as to causation; (2) by admitting two different hearsay statements; (3) when it permitted the government to employ several improper impeachment techniques; (4) by permitting the government to make certain remarks during its closing argument, denying him a fair trial; and (5) when it denied his motion for judgment of acquittal. Because we find that the district court did not commit reversible error, we affirm.

II. DISCUSSION

A. Expert Witness

Jumping Eagle first challenges the district court's decision to admit Dr. Strong's expert testimony. He argues that the district court failed to require the government to establish an adequate foundation for Dr. Strong's testimony about the cause of J.J.'s encopresis. We disagree.

We review a district court's ruling admitting expert testimony under Federal Rule of Evidence 702 for an abuse of discretion. In re Air Crash at Little Rock, Ark. on June 1, 1999, 291 F.3d 503, 509 (8th Cir.2002). Rule 702 permits a district court to admit the testimony of a witness whose knowledge, skill, training, experience, or education will assist a trier of fact to understand the evidence or determine a fact in issue, if the testimony is both relevant and reliable. Fed.R.Evid. 702; Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 589-91, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). There is, however, no requirement that the district court always hold a Daubert hearing before qualifying an expert witness under Rule 702. United States v. Evans, 272 F.3d. 1069, 1094 (8th Cir.2001).

In child sexual abuse cases, "a qualified expert can inform the jury of characteristics in sexually abused children and describe the characteristics the alleged victim exhibits." United States v. Kirkie, 261 F.3d 761, 765-66 (8th Cir.2001) (internal quotations omitted). An expert can also summarize the medical evidence and express an opinion that the evidence is consistent or inconsistent with the victim's allegations of sexual abuse. Id. at 766. An expert, however, cannot express an opinion that sexual abuse has in fact occurred or vouch for the victim. Id.

In the instant case, the government designated Dr. Strong as its expert, and during a pre-trial conference, Jumping Eagle asked the district court to exclude her testimony regarding certain medical conditions suffered by J.J., such as whether the sexual abuse caused J.J.'s encopresis, or in the alternative, to hold a Daubert hearing to ascertain whether Dr. Strong's testimony regarding causation was supported by reasonable medical certainty. The district court denied both requests and allowed Dr. Strong to testify.

Dr. Strong testified that J.J. had no abnormalities in his penis area or in his anal area, but that this lack of abnormalities was not inconsistent with. J.J.'s statement that the last assault occurred nearly three months earlier. Dr. Strong also testified that encopresis is a nonspecific historical finding of abuse, meaning there are other reasons encopresis may occur. Dr. Strong further testified that when a child exhibits a litany of nonspecific findings of abuse, such as problems at school, fighting, encopresis, and uresis—all characteristics. J.J. exhibited—doctors become concerned that the underlying problem may be less dietary and more emotionally based or tied to abuse, Dr. Strong never stated that sexual abuse occurred in this case or that J.J.'s encopresis was caused by sexual assault; rather, she only provided testimony regarding characteristics of sexually abused children in general and how they compared with the characteristics exhibited by J.J. This is allowed under our precedent. See, e.g., Kirkie, 261 F.3d at 765; United States v. Whitted, 11 F.3d 782, 785 (8th Cir.1993). Accordingly, the district court did not abuse its discretion by admitting Dr. Strong's testimony.

B. Evidentiary Issues

Jumping Eagle also challenges several of the district court's other evidentiary rulings. A district court has broad discretion in the admission of evidence and we will overturn its decisions only if it abuses its discretion. United States v. Beason, 220 F.3d 964, 968 (8th Cir.2000). When, however, a defendant fails to object to the admission of evidence at trial, we review for plain error. United States v. Pirani, 406 F.3d 543, 550 (8th Cir.2005) (en banc). Under plain-error review, the defendant has the burden to prove that there was (1) error, (2) that was plain, and (3) that affected substantial rights. Id. (citing United States v. Olano, 507 U.S. 725, 732-36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). If all three conditions are met, we may then exercise our discretion to notice a forfeited error, but only if the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. Id.

1. Hearsay

Jumping Eagle's next evidentiary challenge relates to the district court's failure to exclude two hearsay statements, neither of which were objected to when offered. A hearsay statement is a statement "other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fed.R.Evid. 801(c). Unless a hearsay statement falls within an exception, it is generally inadmissible at trial. Thus, the unfettered admission of a hearsay statement is usually error. Nevertheless, it is fundamental that where a defendant "opens the door" or "invites error," there can be no reversible error. Beason, 220 F.3d at 968. Accordingly, we have allowed the use of otherwise inadmissible evidence, including hearsay statements, to clarify, rebut, or complete an issue opened up by defense counsel on cross-examination. Id.

The first hearsay statement involves an out-of-court conversation between J.J. and his mother, Mandy, during which J.J. told his mother about the sexual abuse. Jumping Eagle first brought up this conversation during Mandy's cross-examination, when he queried: "[J.J.] told you that this had happened over 20 times to him, didn't he?" During redirect of Mandy, the government asked her what J.J. had told her about the abuse. Jumping Eagle's inquiry of Mandy, opened the door, permitting...