U.S. v. Fesler, 85-1227

• Decision Date: 21 January 1986
• Docket Number: No. 85-1227,85-1227
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Richard Lee FESLER, Jr. and Deborah Ruth Fesler, Defendants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 384

781 F.2d 384

UNITED STATES of America, Plaintiff-Appellee, v. Richard Lee FESLER, Jr. and Deborah Ruth Fesler,

Defendants-Appellants.

No. 85-1227.

United States Court of Appeals, Fifth Circuit.

Jan. 21, 1986.

Rehearing and Rehearing En Banc Denied Feb. 20, 1986.

W.V. Dunnam, Jr., Waco, Tex., for defendants-appellants.

Helen M. Eversberg, U.S. Atty., and Michael Hardy, Asst. U.S. Atty., San Antonio, Tex., for plaintiff-appellee.

Appeals from the United States District Court for the Western District of Texas.

Before THORNBERRY, RUBIN and JOLLY, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

In 1982, Laurie Fesler, the infant daughter of the appellants, died from scalding. Her two and one-half year old brother, Carl, was beaten in the face. Their parents, appellants Richard and Deborah Fesler were convicted for these acts, committed in violation of 18 U.S.C. Sec. 1112 (involuntary manslaughter) and the Texas Penal Code Ann. Sec. 22.04 (Texas child abuse statute) (Vernon Supp.1985), made applicable in this case through 18 U.S.C. Sec. 13 (the Assimilative Crimes Act) (ACA), because the crime was committed at Fort Hood, Texas, a federal enclave. ¹ On appeal, the Feslers raise twenty-five objections to their convictions and sentencing, most of which we reject as meritless. However, because we find that the district court erred in instructing the jury on the involuntary manslaughter count, we vacate the Feslers' convictions on count two and remand for further proceedings on that count.

I

A.

Many of the facts in this case were in sharp dispute at trial. Since, however, the jury returned guilty verdicts, we are required to review the evidence in the light most favorable to the prosecution. See United States v. Bell, 678 F.2d 547, 549 (5th Cir.1982) (en banc), aff'd, 462 U.S. 356, 103 S.Ct. 2398, 76 L.Ed.2d 638 (1983). Applying this standard, we find that the following facts were adduced at trial.

Richard Fesler and his wife Deborah, the appellants, are the parents of Laurie (aged ten months at her death), and Carl (two-and-a-half at the time of Laurie's death). The family lived at Fort Hood, Texas, where Richard was a sergeant in the Army. The evidence showed that in the fall of 1982, Deborah Fesler told her neighbor Vicky Smith that she had been having problems disciplining Carl. On October 12, Smith noticed "awful looking" marks on the boy. Following a child abuse referral from the Department of Human Resources (DHR), a social worker examined Carl, saw bruises on his legs, and photographed them. Deborah told the social worker that the bruises could have come from a spanking since both parents used a dog leash when punishing Carl. Deborah also spoke of her husband's short temper. In November, the Feslers completed DHR-required professional counseling sessions on how to properly discipline their children.

On December 21, Richard Fesler took Laurie to the emergency room of Fort Hood's Darnall Army Community Hospital. Second-degree burns covered approximately forty percent of the infant's body. Laurie was treated by Dr. David Strauss, a senior resident, who was Board-certified in emergency cases. The characteristics and distribution of Laurie's burns and the history supplied by Richard Fesler prompted Dr. Strauss immediately to suspect that Laurie's injuries were the result of a classic type of child abuse. Laurie's injuries were so serious that she was evacuated by helicopter the same day to the burn treatment facility at Brooke Army Medical Center at Ft. Sam Houston. Laurie died as a result of her injuries sixteen days later. Dr. Linda Norton, a Board-certified pathologist and expert in child abuse, performed the autopsy and concurred with Dr. Strauss' diagnosis of child abuse. The autopsy report stated that Laurie died of burns "sustained when she was deliberately dipped in scalding water."

The evidence showed that on the day of the scalding, before leaving the hospital to be with her seriously injured daughter, Deborah let out the water from the bathtub and straightened up the bathroom. She asked neighbor Louis Oglesby to baby-sit with Carl, but Oglesby refused and insisted instead on taking the boy to the emergency room for treatment because Carl's face was puffy and because he had red marks on his neck, cheek, and forehead. To Oglesby, Carl looked as if he had been held by the neck and scratched with fingernails. Deborah told Oglesby that "Richard got mad" at Carl. She further said that her husband had asked Carl whether he turned on the hot water, and, when Carl answered "Yes," Richard hit the boy two or three times in the face with his closed fist before she intervened to stop the beating. Deborah, appearing calm, told Oglesby that she did not want Carl to be seen at the hospital because a social worker might investigate his bruises. Once at the hospital, Deborah asked the doctor no questions about Laurie's condition, treatment, or prognosis, inquiring only if her husband was flying to San Antonio with Laurie and, if so, whether he would be returning by helicopter the same day. Deborah told the social worker that she did not want to see Laurie before the infant was flown to San Antonio.

Dr. Strauss testified that Richard Fesler was not only calm but that he laughed inappropriately during their interview. Richard did not seem upset to the social worker either. Rather, he appeared less interested in his daughter's condition than in getting candy bars for a warrant officer who was in the emergency room. Richard did not remain long with his critically injured daughter.

Dr. Strauss further testified at trial that, in his opinion, the characteristics and distribution of Laurie's burns indicated child abuse. Dr. Norton, who performed Laurie's autopsy, agreed with Dr. Strauss. Dr. Norton testified at trial that in her opinion, Laurie died as a result of being deliberately dipped in scalding water.

The evidence showed that Richard later explained to Dr. Strauss, the social worker, and his commander that he had knocked Carl aside and out of the bathtub as he was snatching Laurie from the hot water. The morning after the scalding, Richard reported to his commander that he was watching television in the bedroom when he heard the water suddenly come on; the Feslers, however, had no television in their home at that time. According to Fesler's commanding officer, Fesler further told him that he ran into the bathroom when Laurie screamed, and that he saw his daughter standing with hot water streaming down her. Fesler also suggested that he had assisted his wife in dousing Laurie with cold water and in wrapping the child in towels.

At trial, Fesler testified that he was reading the Farmer's Almanac when the scalding occurred, but that he recalled little or nothing from the time he went into the bathroom until he spoke with the warrant officer at the hospital. Nevertheless, he remembered walking into the bathroom, seeing his daughter under the faucet, asking Carl if he had turned on the hot water, and hearing Carl's affirmative reply. He said he had no recollection of whether he had hit his son.

Deborah testified that she had been giving Laurie and Carl a bath when she stepped out of the bathroom to speak with Richard in the bedroom. According to her, Laurie cried after Deborah had been out of the bathroom for just a moment and that when she reentered the bathroom, Laurie was under the faucet with water streaming down her body. Deborah steadfastly maintained that she picked Laurie up from the hot water and that her husband thereafter repeatedly hit Carl in the face.

B.

Richard and Deborah Fesler were indicted on October 19, 1984, charged with conspiracy to assault, maim, and/or murder their children, Laurie and Carl, in violation of 18 U.S.C. Secs. 371, 113, 114, 1111 (count one), and the murder of Laurie in violation of 18 U.S.C. Secs. 1111, 2 (count two). A superseding indictment added the charges of causing serious bodily injury to Laurie (count three) and bodily injury to Carl (count four), in violation of both 18 U.S.C. Sec. 13 (the Assimilative Crimes Act (ACA), and Tex.Penal Code Ann. Sec. 22.04 (Texas child abuse statute) (Vernon Supp.1985). ²

The district court granted the Feslers' motions for judgment of acquittal on counts one (conspiracy) and two (murder) except for the lesser-included offense of involuntary manslaughter on count two. The jury found the Feslers guilty of involuntary manslaughter (counts two), recklessly causing serious bodily injury to Laurie (count three), and recklessly causing bodily injury to Carl (count four). Both parents received a ten-year sentence on count three (abuse of Laurie), a concurrent three-year prison term on count two (manslaughter), and five years supervised probation on count four (abuse of Carl). As a special condition of probation, the Feslers were required to undergo therapy for child abuse. The Feslers filed timely notices of appeal, challenging only their convictions on counts two and three.

II

On appeal, Richard Fesler has raised twenty-five objections to his conviction and Deborah Fesler has raised twenty-four of the same twenty-five objections. Almost half of these issues are meritless and are summarily dismissed. ³ The remaining issues can be grouped into six distinct categories. First, Richard Fesler contends that the record contains no evidence that he knew that Laurie was in the bathtub or that he aided or encouraged his wife in leaving his daughter in the bathtub. Second, the Feslers contend that they cannot be tried, convicted, and sentenced under both federal law and state law on the same acts through application of the ACA. Next, the Feslers contend that the indictment was unconstitutionally vague and hence invalid. Fourth, the Feslers contend that the district court committed reversible error by beginning trial before thirty days had elapsed from the return of the superseding indictment in violation of the Speedy Trial Act. ...