U.S. v. NB

• Decision Date: 08 September 1995
• Docket Number: No. 94-3668,94-3668
• Citation: 59 F.3d 771
• Parties: 42 Fed. R. Evid. Serv. 871 UNITED STATES of America, Appellee, v. Juvenile NB, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 771

59 F.3d 771

42 Fed. R. Evid. Serv. 871

UNITED STATES of America, Appellee, v. Juvenile NB, Appellant.

No. 94-3668.

United States Court of Appeals Eighth Circuit.

Submitted March 14, 1995.

Decided July 14, 1995.

Rehearing and Suggestion for Rehearing En Banc Denied Sept.

8, 1995. ^*

Richard L. Bode, Rapid City, SD, argued, for appellant.

Diana Ryan, Asst. U.S. Atty., Rapid City, SD, argued, for appellee.

Before MAGILL, Circuit Judge, HEANEY, Senior Circuit Judge, and MORRIS SHEPPARD ARNOLD, Circuit Judge.

MAGILL, Circuit Judge.

N.B., a juvenile, appeals from his conviction of two counts of sexual abuse of a child in violation of 18 U.S.C. Sec. 1153 and Sec. 2241(c), arguing that: the court ¹ erroneously admitted the testimony of social workers as to hearsay declarations of the children; the court abused its discretion when it limited the scope of his cross-examination of one of the children's mothers; and the evidence was insufficient to support a conviction. Because the court did not err in admitting the hearsay testimony and did not abuse its discretion in limiting cross-examination, and because the evidence was sufficient, we affirm the district court's judgment of conviction.

I. BACKGROUND

N.B., a resident of the Pine Ridge Indian Reservation, was charged by information with six counts of sexual abuse of four of his young nieces and nephews, three of them also residents of the reservation.

In November 1989, A.B. and her brothers Q.B. and C.B. moved in with their grandparents and their uncle, defendant N.B. About a year later, the defendant's older sister, M.B., also moved into the same house.

At trial, M.B. testified that one night she saw A.B. in N.B.'s bedroom lying on the bed with N.B. and crying. N.B. was shirtless, the rest of him invisible under the covers, and A.B.'s nightgown had been pushed up. M.B. reported this incident both to A.B.'s grandmother and to A.B.'s mother. A.B.'s mother then reported the incident to social services, who referred the case to child protection social worker Lineeta Fawcett. Fawcett interviewed A.B. over the first few days of May 1992. A.B. stated that N.B. had done "nasty" things to her and to two of her cousins, and identified her vagina on a drawing as one place where N.B. had touched her. Ellen Cuny, supervisor of the Martin, South Dakota, Social Service Office, interviewed A.B. on May 8, 1992. A.B. repeated the information she had given Fawcett, and further stated that N.B. had put both his fingers and his penis inside her. She stated that N.B. had done nasty things to her twice, and that he also did them to her cousins, including S.B., a cousin who lived in a different household, but visited from time to time. A.B. also expressed concern about her brothers, Q.B. and C.B., who were also interviewed a few days later.

An additional social worker, Carol Traversie, was notified of A.B.'s statement that N.B. had also abused her cousins, including S.B. Traversie informed S.B.'s parents of the allegations, and S.B.'s mother told Traversie of her suspicions regarding an incident that took place at the household on the Pine Ridge Indian Reservation during March 1992, and of her having seen a discharge on S.B.'s underwear after visiting the Pine Ridge house. Traversie interviewed S.B., who stated that N.B. had touched her in her crotch. When Traversie asked if N.B. had put anything into her crotch, S.B. began to cry and would not answer. Traversie interviewed S.B. again the next day, when S.B. pointed out the crotch and rear areas on a drawing as places where N.B. had touched her.

Following this series of interviews, N.B. was charged with sexual abuse of A.B., Q.B., C.B. and S.B., and a court trial was held.

At trial, A.B., eight years old, testified that N.B. had come into her room, pulled her nightgown up and her underwear down, and got on top of her. He then touched her vagina with his hands and put his penis inside her. She testified that "it hurted," that she was five years old and in kindergarten when it happened, and that that was the only time N.B. did that to her. A.B. stated that N.B. had also done this to her cousin, S.B., but that she had never seen him do it to any other children.

S.B., also about eight years old, testified that she was in the basement of the Pine Ridge house when N.B. told her to pull down her pants. When she did not, he pulled them down and got on top of her. A.B. saw them and told S.B.'s father and mother, who were upstairs. Her father came down, and N.B. got off then. She testified that when N.B. was on top of her, he placed his "private" inside her "crotch," and that it felt ugly. She further stated that this was the only time it happened to her, and that she had seen N.B. do similar things to A.B.

Q.B. and C.B. also testified at trial regarding the alleged incidents of abuse concerning them. ² The three interviewing social workers testified as to all four children's statements about these incidents.

The court found N.B. not guilty of count II, charging sexual abuse of Q.B., and ordered judgments of acquittal on counts III, charging sexual abuse of C.B., and counts IV and VI, charging sexual abuse of A.B. in December 1991 and March 1992. He found N.B. guilty of counts I and V, charging sexual abuse of A.B. during the fall of 1990 and S.B. in March 1992. This appeal followed.

II. DISCUSSION

Defendant presents three claims in this appeal: first, that the court erred in admitting the hearsay declarations of the children, testified to by three social workers who had interviewed the children; second, that the court abused its discretion in limiting the scope of cross-examination of Mrs. Brown, one of the children's mother; and third, that the evidence was insufficient to convict N.B. on counts I and V of the information. We address each issue in turn.

A. Admission of Hearsay Testimony

1. Standard of Review

N.B. failed to make any objection to the admission of the three social workers' testimony at any time during the proceedings. We therefore examine the admission of this evidence for plain error only. United States v. Balfany, 965 F.2d 575, 579 (8th Cir.1992). We have authority to reverse the decision of the district court only if: there is an error; it is "plain," synonymous with "clear" or "obvious"; and it affected substantial rights. United States v. Olano, --- U.S. ----, ---- - ----, 113 S.Ct. 1770, 1777-78, 123 L.Ed.2d 508 (1993). Only after we find that the error meets this standard do we have discretion to reverse, basing our decision on whether the error resulted in a miscarriage of justice. Id. at ---- - ----, 113 S.Ct. at 1778-79. We find that there was no error by the district court in admitting this evidence, and, even if we assume error, that the error was not plain.

2. Confrontation Clause

Defendant cites Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990), which sets out the Confrontation Clause test in cases of children's hearsay testimony, in support of his contention that the social workers' testimony was not admissible. Wright, however, does not apply to this case. In United States v. Spotted War Bonnet, 933 F.2d 1471 (8th Cir.1991), cert. denied, 502 U.S. 1101, 112 S.Ct. 1187, 117 L.Ed.2d 429 (1992), this Court reexamined a recent case in light of the Supreme Court's holding in Wright, and determined that "[t]he [Confrontation] Clause is satisfied when the hearsay declarants, here the alleged child victims, actually appear in court and testify in person." Id. at 1473; see Dolny v. Erickson, 32 F.3d 381, 385 (8th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 902, 130 L.Ed.2d 786 (1995). We further elucidated the requirements of the Confrontation Clause in cases of children's hearsay:

To be sure, simply putting a child on the stand, regardless of her mental maturity, is not sufficient to eliminate all Confrontation Clause concerns. If, for example, a child is so young that she cannot be cross-examined at all, or if she is 'simply too young and too frightened to be subjected to a thorough direct or cross-examination[,]' the fact that she is physically present in the courtroom should not, in and of itself, satisfy the demands of the Clause. Under [United States v.] Owens [484 U.S. 554, 108 S.Ct. 838, 98 L.Ed.2d 951 (1988) ], however, a perfectly satisfactory cross-examination is not required by the Clause, and a witness who cannot remember the details of statements she has made in the past can still be sufficiently available for cross-examination to satisfy the constitutional requirement.

Spotted War Bonnet, 933 F.2d at 1474 (quoting United States v. Dorian, 803 F.2d 1439, 1446 (8th Cir.1986)). In sum, when the child whose hearsay testimony is admitted also testifies himself or herself, the only Confrontation Clause issue is whether "the trial provided an opportunity for effective cross-examination." ³ Dolny, 32 F.3d at 385 (citing Spotted War Bonnet, 933 F.2d at 1474-75).

Both A.B. and S.B. testified and were cross-examined. While the transcript reveals that they were both very embarrassed, and perhaps frightened, it is clear that effective cross-examination was conducted. Examining the children, defense counsel was able to elicit testimony regarding timing of the alleged abuse, when and to whom the child reported the abuse, and the child's contact with social workers. The children answered the questions asked by both counsel and by the court. The court insisted that foundation for capacity be established by the prosecuting counsel, and, although there was some confusion concerning details during portions of the cross-examination, we find that it was effective, and that the Confrontation Clause was satisfied.

3. Hearsay Exception Rule 803(24)

When there are no Confrontation Clause implications, we analyze children's hearsay testimony for admissibility under Federal Rule of Evidence 803(24), the "catchall" exception to the hearsay rule. ⁴ Our analysis of this question...