U.S. v. Little Dog, 04-1834.
| Citation | 398 F.3d 1032 |
| Decision Date | 22 February 2005 |
| Docket Number | No. 04-1834.,04-1834. |
| Parties | UNITED STATES of America, Appellee, v. Emil Earl LITTLE DOG, Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Reed A. Rasmussen, argued, Aberdeen, SD, for appellant.
Mikal G. Hansen, Assistant U.S. Atty., argued, Pierre, SD, for appellee.
Before SMITH, BEAM, and BENTON Circuit Judges.
Emil Earl Little Dog was indicted on four counts of aggravated sexual abuse, two counts of sexual contact, and one count of obstruction of justice. Little Dog was found guilty on all but one of the sexual contact counts. He was sentenced1 to 360 months' imprisonment, three years of supervised release, and a special assessment of $600. Little Dog seeks reversal of his conviction based upon five alleged district court errors. We affirm.
Three minor females, siblings of Little Dog's wife, Justine Grindstone, made allegations of sexual abuse against Little Dog. Grindstone's mother, Patricia Red Legs, had twelve children. South Dakota social services removed the children from the Red Legs' custody due to the parents' chronic alcoholism. Tribal social services, for some period of time, placed the girls, nine-year old MRL, fourteen-year old LRL, and seven-year old KRL,2 with Little Dog and Grindstone at their home at Old Bear Soldier Housing.
MRL claimed that Little Dog sexually abused her "more times than she could count." According to MRL, the first penetration occurred in Little Dog's bedroom when she was about ten years old. She indicated other similar incidents followed, in the bedroom, in Little Dog's car and truck, and in remote, rural areas near the Messiah Church. MRL identified some of these areas with photographs provided by F.B.I. Special Agent Kelly Kenser.
MRL testified that the abuse occurred often and usually while Grindstone was away from home. The abuse did not cease after MRL moved to another relative's home because Little Dog would pick her up and continue to take her to remote areas. MRL was so traumatized by the abuse that she attempted suicide to escape from Little Dog. After her first interview with Kenser, MRL routinely wet the bed, something she had never done before. MRL also testified that while placed at New Beginnings adolescent treatment facility, she feared Little Dog would find and harm her so she began to sleep on the couch near the staff room. MRL ran away from New Beginnings to avoid having to testify in court when she learned Little Dog would be present.
Medical evidence in the case was inconclusive. Dr. Richard Kaplan, former Medical Director at the Center on Child Abuse at the Children's Hospital in Sioux Falls, South Dakota, testified that MRL's gynecological examination was normal. He indicated that a normal vaginal finding was not unusual in sexual assault cases.
The evidence regarding Little Dog's abuse of LRL came from two other of her sisters, VYB and MRL2. The girls recalled that the morning after a night of heavy drinking at Little Dog's residence, they observed Little Dog standing over LRL while her pants were pulled down to her knees. At the time, LRL was unconscious from excessive drinking. VYB claimed she saw Little Dog put his fingers inside of LRL's vagina or anus and move them. MRL2 recalled the events a bit differently but also described seeing Little Dog with his fingers inside LRL's vagina and recalled that LRL was unconscious at the time. LRL testified that she had no recollection of the event.
Little Dog was initially charged with three counts of aggravated sexual abuse and one count of sexual contact. A first superseding indictment was filed, adding an obstruction of justice charge based upon evidence that Little Dog attempted to influence the perception of MRL's allegations through a cellmate3 who had indirect contact with MRL. A second superseding indictment was later filed, adding an additional count of aggravated sexual abuse of a child and one count of sexual contact. Before trial, Little Dog made a motion to compel a gynecological exam of MRL. The trial court denied the motion.
On the morning of the second day of the trial, the district court discovered it had failed to swear in the jury. With counsel in chambers, the court said The district court, upon reviewing relevant case law, determined that it was error not to swear in the jury following voir dire. However, the court found that the error was harmless. The district court then informed counsel that it would swear in the jury. Little Dog moved for a mistrial, the motion was denied.
Little Dog filed a motion under Fed.R.Crim.P. 8(a) to sever the obstruction of justice charge from the sexually related charges.4 The district court denied this motion. Little Dog renewed this motion at the close of the government's case-in-chief and at the close of all the evidence, but each time it was denied. Little Dog was found guilty on all but one count of sexual contact involving KRL. He filed a motion for judgment of acquittal or, in the alternative, a motion for a new trial. The district court denied both motions. The district court sentenced Little Dog to 360 months' imprisonment, three years of supervised release, and a special assessment of $600.
On appeal, Little Dog argues that the district court committed five reversible errors including: (1) denying his motion for judgment of acquittal based on insufficient evidence; (2) failing to swear in the jury until after opening statements; (3) denying his motion to sever his obstruction of justice count from his sexual abuse counts; (4) refusing to permit his medical expert to conduct a gynecological examination; and (5) refusing to instruct the jury that the crime of obstruction of justice requires specific intent.
Little Dog contends that "this case is one of those rare ones where the evidence presented by the government with regard to sexual abuse and sexual contact was insufficient for a jury to conclude [Little Dog] was guilty beyond a reasonable doubt." Little Dog bases this contention upon various inconsistencies and credibility concerns with the girls' accounts. However, as we have often noted, it is properly the province of a jury to resolve matters of witness credibility. United States v. Cole, 380 F.3d 422, 425 (8th Cir.2004) (citing United States v. Enriquez, 201 F.3d 1072, 1074 (8th Cir.2000)). Our role is to determine whether a rational jury would have no choice but to reasonably doubt the existence of an element of a crime charged. United States v. Williams, 181 F.3d 945, 950 (8th Cir.1999). This is not such a case. The record facts indicate the jury properly considered and weighed the evidence and even acquitted Little Dog on one of the charges. MRL, LRL, VYB and MRL2 gave accounts that, if believed, would establish a sufficient factual basis for Little Dog's conviction. The inconsistencies pointed out by Little Dog do not make it unreasonable for a jury to find him guilty of the charges on the evidence presented.5
Little Dog contends that the failure to properly swear in the jury should result in a mistrial or, at the very least, striking the testimony of witnesses who testified prior to the swearing-in. This issue raises a question of law which we review de novo. Laws v. Armontrout, 863 F.2d 1377, 1381 (8th Cir.), cert. denied, 490 U.S. 1040, 109 S.Ct. 1944, 104 L.Ed.2d 415 (1989). We find no merit in Little Dog's argument.
As the district court acknowledged, it was error not to administer the oath to the jurors before the beginning of the trial. The swearing-in of a jury is important because at that point jeopardy attaches. Crist v. Bretz, 437 U.S. 28, 38, 98 S.Ct. 2156, 57 L.Ed.2d 24 (1978). In the absence of prejudice caused by the delay in administering the oath, the error is harmless. Cooper v. Campbell, 597 F.2d 628 (8th Cir.), cert. denied, 444 U.S. 852, 100 S.Ct. 106, 62 L.Ed.2d 69 (1979) (); United States v. Hopkins, 458 F.2d 1353, 1354 (5th Cir.1972) (); United States v. Martin, 740 F.2d 1352, 1358 (6th Cir.1984) (). Little Dog cites only unpersuasive, non-analogous state law cases to support his view that the district court was obligated to declare a mistrial. Little Dog fails to prove the district court's error prejudiced his defense.
Little Dog argues that joinder of the obstruction charge under Fed.R.Crim.P. 8(a) was improper because that charge was not based on the same act or transaction as the other counts, nor was it connected with, or part of a common scheme or plan. Alternatively, Little Dog indicates that even if joinder is proper, the district court should have severed because he established prejudice under Fed.R.Crim.P. 14. We review a decision to join counts de novo. United States v. Boyd, 180 F.3d 967, 981 (8th Cir.1999). Little Dog is incorrect.
Broad interpretation of Fed.R.Crim.P. 8(a) is encouraged for the efficient administration of justice. Haggard v. United States, 369 F.2d 968, 973 (8th Cir.1966) (). We have recognized that:
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