U.S. v. Loudner
| Citation | 203 F.Supp.2d 1083 |
| Decision Date | 29 April 2002 |
| Docket Number | No. CR 92-30016.,No. CIV 00-3014.,CR 92-30016.,CIV 00-3014. |
| Parties | UNITED STATES of America, Plaintiff, v. Royce Gregory LOUDNER, Defendant. |
| Court | U.S. District Court — District of South Dakota |
Mikal G. Hanson, Assistant United States Attorney, Pierre, SD, for Plaintiff.
Patricia A. Leary Carlson, Pierre, SD, for Defendant.
This is a proceeding brought pursuant to 28 U.S.C. § 2255 by Royce Loudner ("petitioner"). The matter was referred to United States Magistrate Judge Mark Moreno pursuant to 28 U.S.C. § 636(b)(1)(B). Magistrate Moreno proceeded in all things as directed by the district court and issued a report and recommendations (Doc. 129) containing his findings and conclusions after having conducted an evidentiary hearing. We know, of course, that an evidentiary hearing need not be held in these cases. See Rule 8 of the Rules Governing Section 2255 Proceedings. The standard is similar to that of dealing with a motion for a new trial pursuant to Fed.R.Crim.P. § 33. In fact, only "exceptional circumstances" require an evidentiary hearing in connection with a motion for a new trial. United States v. Ward, 544 F.2d 975, 976 (8th Cir.1976). Having not taken office until May of 1995, I have no familiarity with the evidence received at trial or the demeanor and credibility of witnesses at the trial. Likewise, the magistrate had no such familiarity with the evidence or the witnesses. A recantation of testimony, in and of itself, does not require the court to conduct an evidentiary hearing in connection with a motion for a new trial. United States v. Provost, 969 F.2d 617, 619 (8th Cir.1992). All factors present here present a case where exceptional circumstances required a hearing and the magistrate acted correctly in conducting such a hearing.
Petitioner filed objections (Doc. 131) to the report and recommendations.
The magistrate recommended that the motion or petition under 28 U.S.C. § 2255 was timely filed. No objection has been filed by the government to this recommendation. That recommendation is accepted and adopted without objection.
I have reviewed the transcript of the sentencing hearing (27 pages). I have also reviewed the trial transcript. It consists of three volumes and is very lengthy (560 pages). The extent of the record is very frankly out of all proportion to what would be expected in a trial of this type. The trial judge, bless his soul, was obviously experiencing the initial onset of significant health problems which in later years became fully manifest. He struggled mightily with the legal issues, especially questions of evidence. Numerous bench conferences and numerous conferences in chambers were required. Possible rulings, probable rulings, offers of proof, and final rulings make it more complicated to follow what happened at the trial. I am convinced, however, that, in the final analysis, the petitioner received a fair trial.
I will first discuss some of the evidence. References to the trial transcript will be T followed by the page number. References to the transcript (Doc. 126) of the evidentiary hearing (which I have also read) conducted by the magistrate will be TR followed by the page number. Rev. Harold Blew was finally permitted to tell the jury that the victim had told him in late March or early April of 1992 (shortly after the alleged acts of sexual assault alleged in Counts 1 and 2 of the indictment to have occurred on January 27, 1992) that she had been assaulted in the weeds toward the Red Horse Lodge and that "somebody that she didn't know had assaulted her" sexually (T 519). Petitioner's trial attorney should not have been permitted to question Rev. Blew about these statements since the victim had not first been asked whether she had made any such statements. In other words, it was hearsay since there was nothing to impeach. Petitioner thus received more than that to which he was entitled under the Federal Rules of Evidence. The victim testified before the magistrate in the present matter that she made no such statements to Rev. Blew (TR 20).
Petitioner's ex-paramour Lynette Walking Eagle was also permitted to tell the jury that the victim, during the end of March of 1992, told her that petitioner had not assaulted her. "Lynette, it wasn't Royce, it was someone else." (T 343) The victim was asked whether she had made any such statement to Lynette; she denied it (T 92). She denied it again before the magistrate (TR 20).
Charity, an older sister of the victim, testified in connection with an offer of proof at the trial, indicating that two days after January 29, 1992, the victim told her that she had been attacked by some drunk who grabbed her, threw her down, and got on top of her. According to Charity, the victim also related that she had bitten the man and she escaped. The victim denied at trial having told Charity anything about this particular assault (T 91). The trial judge rejected this offer of proof and did not permit Charity to testify as to these matters, the rationale being that the testimony would not really have impeached the testimony of the victim other than as to collateral matters. Charity did not testify in the offer of proof (other than perhaps in response to a leading question) that the victim had stated that she did not know the person who had assaulted her. To further confuse matters, the victim testified at the evidentiary hearing before Magistrate Moreno that she had told Charity at the time of the trial that petitioner had not raped her (TR 20). Charity testified at the evidentiary hearing that the victim had told her she did not know who had sexually assaulted her and she was told this at the time of trial (TR 73, 74). Yet nothing was presented by way of an offer of proof at trial from Charity as to either of these versions. It is clear that, during the offer of proof, Charity was simply asked to answer the question as to what the victim had told her (T 321) and she answered the question. It is not true, as Charity testified before the magistrate (TR 74), that no one asked her "the question."
Lynette, Rev. Blew and others testified at trial that the victim had a reputation for being untruthful. Testimony was presented at trial that the victim showed no animosity toward petitioner after the alleged sexual assaults. Petitioner and others testified at trial at length as to an alibi that petitioner claimed to have.
Petitioner's family and friends feel strongly that he is innocent and should not have been convicted. The fact remains: only two people know directly and personally what happened, namely the victim and petitioner. This is a common fact in sexual assault cases, namely "she said, he said." The problem here, of course, is that she has said and written many things which are absolutely contradictory. The report and recommendations details this. We start with the letter written by the victim to her aunt in which she names petitioner. She identified to Dr. Jones, a very experienced medical expert who found evidence of rape trauma which had occurred a matter of days before he saw her, that petitioner had done it. She no longer recalls having talked with Dr. Jones (TR 41). She identified the petitioner as the perpetrator to Margaret Pier, an experienced mental health professional who interviewed the victim twice. She told AUSA Hanson during his first meeting with her that petitioner was the perpetrator and she told the same thing to two FBI agents who interviewed her. She identified petitioner as the perpetrator during the jury trial. She was crying during her testimony. The very detailed accounts of the assaults as given to health care providers and law enforcement officials were always consistent. She was eleven years old at the time of trial. She told her counselors and others in the various institutions that petitioner was the perpetrator.
She then, however, on January 17, 1997, recanted. About one hour later, she withdrew the recantation. The report and recommendation details the placements of the victim and her conflicting statements since January 17, 1997. She signed an affidavit of recantation without reading it (TR 43, 44). She had just gotten out of bed when petitioner's attorney came to see her. On October 11, 2002, the victim told two FBI agents that her testimony at trial had been truthful but testified at the evidentiary hearing that she lied to them (TR 46). The prosecutor noted on the record that her "eyes are down", "not looking up", and claimed her body language was to the effect that she was not testifying truthfully (TR 46). Before the hearing she told the prosecutor that she "didn't want to be there (in court) and if she had to go, she didn't know whether she could tell the truth" (TR 50). Three or four days before the hearing she again told the prosecutor and the victim witness advocate that her trial testimony had been true; she made this statement when she was not threatened or afraid of the prosecutor who told her to simply tell the truth (TR 51). She had no explanation why she claimed at the hearing to have lied three or four days previously. She testified the petitioner is innocent of the crimes. The prosecutor stated on the record that she took about four to five seconds to answer, that her head was down and her eyes were downcast; the magistrate agreed with these observations and stated he would take what he saw into account in making his credibility determination (TR 63).
The magistrate questioned the victim at length. When asked why she testified otherwise at trial, her response was "I don't know" (TR 66). When asked why she had later falsely accused Raynard Bad Moccasin of having been the perpetrator, she again stated she did not know. In short, she had no explanation for telling a claimed lie at trial and then later telling lies about who "did these things" (TR 66). She admitted telling lies about what happened "lots of...
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