U.S. v. Pumpkin Seed, No. 08-2399.

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtGruender
Citation572 F.3d 552
PartiesUNITED STATES of America, Appellee, v. Jason Adam PUMPKIN SEED, Appellant.
Decision Date16 July 2009
Docket NumberNo. 08-2399.
572 F.3d 552
UNITED STATES of America, Appellee,
v.
Jason Adam PUMPKIN SEED, Appellant.
No. 08-2399.
United States Court of Appeals, Eighth Circuit.
Submitted: February 10, 2009.
Filed: July 16, 2009.

[572 F.3d 554]

Mark Falk, AFPD, argued, George E. Grassby, AFPD, on the brief, Rapid City, SD, for appellant.

Mark E. Salter, AUSA, argued, Sioux Falls, SD, for appellee.

Before BYE, JOHN R. GIBSON and GRUENDER, Circuit Judges.

GRUENDER, Circuit Judge.


A jury found Jason Adam Pumpkin Seed guilty of the sole count of an indictment charging him with aggravated sexual abuse and attempted aggravated sexual abuse, violations of 18 U.S.C. §§ 2241(a) and 1153. The district court1 sentenced him to 200 months' imprisonment. Pumpkin Seed now appeals several adverse rulings, including: (1) the denial of his motion to dismiss the indictment; (2) the exclusion of evidence under Federal Rule of Evidence 412; and (3) the inclusion of a jury instruction on attempted aggravated

572 F.3d 555

sexual abuse. For the reasons discussed below, we affirm.

I. BACKGROUND

On the evening of September 29, 2006, Jason Adam Pumpkin Seed, Heather Red Cloud and others met at Red Cloud's aunt's home in Wounded Knee, South Dakota, for a social gathering. Around 10:00 p.m., Pumpkin Seed and Red Cloud left the gathering, though not together. From this point their accounts of the evening's events differ significantly.

According to Red Cloud, after the two left the gathering, Pumpkin Seed grabbed and attacked her behind her aunt's home. Red Cloud attempted to flee his grasp by removing her jacket, but Pumpkin Seed forced her to her knees and eventually onto the ground. While on the ground, Pumpkin Seed covered Red Cloud's mouth with his hand, pulled down his pants, forced her jeans down to her ankles, and began to have vaginal intercourse with her. During this struggle, Red Cloud was eventually able to scream for help and attract the attention of three boys who were walking along a nearby bike path. Two of the boys approached and pushed Pumpkin Seed off of Red Cloud. Red Cloud, now free, pulled her jeans back up, began crying hysterically, hit Pumpkin Seed, and then ran back into her aunt's home.

According to Pumpkin Seed, after the two left the gathering, Red Cloud took Pumpkin Seed by the arm and they began kissing. Red Cloud took off her jacket and the two embraced on the ground, continuing to kiss. Pumpkin Seed unbuttoned his pants and her jeans, but he did not engage in any additional sexual advances after Red Cloud asked him not to go any further. Instead, the two continued to kiss until Red Cloud observed three boys approaching. Red Cloud got nervous and yelled "stop," prompting Pumpkin Seed to stand up. The boys then came over, recognizing Pumpkin Seed and Red Cloud, and Pumpkin Seed told them to go away because he was "trying to get some." Red Cloud began to curse at Pumpkin Seed, claiming that he had raped her. Pumpkin Seed then called Red Cloud a "minor bunner"2 in front of the boys, and Red Cloud responded by hitting him and becoming hysterical. Thereafter, Richard Little Moon came out of Red Cloud's aunt's home, observed the argument, ushered Red Cloud into the home, and told Pumpkin Seed to leave.

Once inside, Red Cloud told her aunt that Pumpkin Seed had raped her. Red Cloud's aunt called the police, and Red Cloud was transported to a hospital. Bethany Berry, a nurse midwife, examined Red Cloud and administered a rape kit. Berry observed a number of injuries on Red Cloud, including abrasions to her back and left knee, a cut lip, and scrapes and scratches on her neck and elbow, but no apparent injuries to her vaginal area. Berry also noticed grass stains on Red Cloud's jeans, dirt on the back of her shirt, and grass and debris in her hair. When Berry asked Red Cloud whether she had consensual intercourse within the last seventy-two hours, Red Cloud answered "no." Berry then took vaginal and cervical swabs and sent the samples to the South Dakota State Forensics Laboratory, which subsequently found the presence of semen and foreign pubic hair. The South Dakota laboratory forwarded the samples to the FBI, along with DNA samples from Pumpkin Seed, for donor identification.

During the evening of the alleged rape, Bureau of Indian Affairs Special Agent Carl Martinez interviewed Red Cloud

572 F.3d 556

about the incident. Red Cloud told Martinez that Pumpkin Seed had raped her and had ejaculated, either in her or on her. On May 22, 2007, Martinez presented the results of his investigation into the rape allegations to a federal grand jury. He recounted his interview with Red Cloud, including her statement that Pumpkin Seed had ejaculated in her or on her, and he discussed the South Dakota laboratory's findings of semen and foreign pubic hair. The grand jury returned a one-count indictment charging Pumpkin Seed with aggravated sexual abuse and attempted aggravated sexual abuse. Pumpkin Seed pled not guilty.

In August 2007, the Government received the FBI laboratory's results. The FBI determined that Pumpkin Seed was not the source of either the semen or foreign pubic hair samples from the rape kit and that the two samples did not share a common donor. Thereafter, Red Cloud admitted to having consensual sexual relations with another man a day and a half before the incident. Red Cloud explained that she had lied about her recent sexual history during the rape kit interview to protect the identity of her married sexual partner.3 The Government informed Pumpkin Seed's counsel of this information.

Before trial, Pumpkin Seed filed a motion under Federal Rule of Evidence 412 to admit evidence of Red Cloud's sexual history, of past sexual relations between Red Cloud and him, of the semen, foreign pubic hair and extragenital injuries discovered during Red Cloud's rape kit procedure, and of Red Cloud's false answer to the rape-kit interview question concerning her recent sexual activity. The district court held an in camera hearing on the motion as required by Rule 412(c)(2) and granted the motion in part and denied it in part. The district court granted the motion as to any evidence of specific past sexual relations between Red Cloud and Pumpkin Seed under Rule 412(b)(1)(B), but it denied the motion as to all of the other proffered evidence, unless the Government opened the door to any of those subjects at trial. Pumpkin Seed also moved to dismiss the indictment, claiming that it was secured by Special Agent Martinez's testimony, which misled the grand jury into believing that the semen and pubic hair discovered on the rape kit samples belonged to Pumpkin Seed. The district court denied the motion to dismiss the indictment, finding that Martinez's testimony accurately communicated to the grand jury all of the evidence then known.

Before the case was submitted to the jury, Pumpkin Seed objected to the submission of a jury instruction defining attempted aggravated sexual abuse. Pumpkin Seed argued that the Government's evidence supported only an instruction for the completed offense of aggravated sexual abuse, not an attempt to commit the offense. The court overruled the objection. The jury returned a general verdict of guilty that did not distinguish between aggravated sexual abuse and attempted aggravated sexual abuse.

II. DISCUSSION

A. Motion to Dismiss the Indictment

Pumpkin Seed argues that the district court should have granted his motion to dismiss the indictment because Special Agent Martinez's grand jury testimony— that Red Cloud told him in an interview

572 F.3d 557

that Pumpkin Seed ejaculated in her or on her and that the South Dakota laboratory found the presence of semen and foreign pubic hair on the rape-kit samples—purposefully deceived the grand jury into believing that Pumpkin Seed was the source of the semen and pubic hair. According to Pumpkin Seed, this testimony improperly influenced the grand jury's decision to indict.

In reviewing the district court's denial of a motion to dismiss the indictment for alleged government misconduct, "we review the district court's factual findings for clear error and its legal conclusions de novo." United States v. Nieman, 520 F.3d 834, 838 (8th Cir.2008); see also United States v. Kouba, 822 F.2d 768, 774 (8th Cir.1987) (reviewing for clear error the district court's denial of a motion to dismiss based on alleged prosecutorial misconduct). Here, we find no reversible error in the district court's refusal to dismiss the indictment, because "even assuming that there were errors in the charging decision that may have followed from the conduct of the prosecution, the petit jury's guilty verdict rendered those errors harmless." United States v. Wilson, 565 F.3d 1059, 1070 (8th Cir.2009) (alterations omitted) (quoting Kouba, 822 F.2d at 774); see United States v. Taken Alive, 513 F.3d 899, 903-04 (8th Cir.2008) (holding that a petit jury's guilty verdict renders grand jury error harmless because it results in no prejudice to the defendant).4

B. Exclusion of Evidence of Red Cloud's Past Sexual Behavior Under Federal Rule of Evidence 412

Pumpkin Seed also appeals the district court's exclusion of certain evidence under Federal Rule of Evidence 412. First, Pumpkin Seed argues that the district court abused its discretion under Rule 412(b)(1)(A) by excluding evidence of specific instances of Red Cloud's sexual behavior, which he offered to prove that one of her alleged consensual sexual partners—not Pumpkin Seed—was the source of the injuries to her back, knee, lip, neck and elbow. Second, he contends that the district court improperly excluded evidence of Red Cloud's consensual sexual relationship with a married man and her false answer to the rape-kit interview question concerning her recent sexual activity, which she allegedly gave to conceal that relationship. According to Pumpkin Seed, this evidence was admissible under Rule 412(b)(1)(C) to prove that Red Cloud had a...

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43 practice notes
  • United States v. Louper-Morris, Nos. 10–3345
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • April 9, 2012
    ...we review the district court's factual findings for clear error and its legal conclusions de novo.” United States v. Pumpkin Seed, 572 F.3d 552, 557 (8th Cir.2009) (internal citations and quotations omitted). Approximately two months after the deadline for filing pretrial motions, Appellant......
  • State v. Marks, No. 20090199–CA.
    • United States
    • Court of Appeals of Utah
    • August 11, 2011
    ...details of the incident supports a motive to fabricate a story about being sexually abused by Marks. See United States v. Pumpkin Seed, 572 F.3d 552, 560–61 (8th Cir.2009) (concluding that the defendant's confrontation rights had not been violated where the “evidence of [the complainant's] ......
  • Montgomery v. Commonwealth Of Ky., No. 2007-SC-000852-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • March 18, 2010
    ...and discussing what the Fourth Circuit has referred to as the “ Rock-Lucas principle”). See also, e.g., United States v. Pumpkin Seed, 572 F.3d 552 (8th Cir.2009); Ferensic v. Birkett, 501 F.3d 469 (6th Cir.2007); White v. Coplan, 399 F.3d 18 (1st Cir.2005); LaJoie v. Thompson, 217 F.3d 663......
  • Standring v. U.S., Civil No. 10–321–B–H.
    • United States
    • United States District Courts. 1st Circuit. United States District Court (Maine)
    • October 27, 2010
    ...the competing factors. Williams, 529 U.S. at 412–13[, 120 S.Ct. 1495]. 302 F.3d at 12. See also cf. United States v. Pumpkin Seed, 572 F.3d 552, 561–62 (8th Cir.2009); Hammer v. Karlen, 342 F.3d 807, 811–12 (7th Cir.2003); United States v. McCann, No. 05 C 5692, 2009 WL 367502, *7–8 (N.D.Il......
  • Request a trial to view additional results
42 cases
  • United States v. Louper-Morris, Nos. 10–3345
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • April 9, 2012
    ...we review the district court's factual findings for clear error and its legal conclusions de novo.” United States v. Pumpkin Seed, 572 F.3d 552, 557 (8th Cir.2009) (internal citations and quotations omitted). Approximately two months after the deadline for filing pretrial motions, Appellant......
  • State v. Marks, No. 20090199–CA.
    • United States
    • Court of Appeals of Utah
    • August 11, 2011
    ...details of the incident supports a motive to fabricate a story about being sexually abused by Marks. See United States v. Pumpkin Seed, 572 F.3d 552, 560–61 (8th Cir.2009) (concluding that the defendant's confrontation rights had not been violated where the “evidence of [the complainant's] ......
  • Montgomery v. Commonwealth Of Ky., No. 2007-SC-000852-MR.
    • United States
    • United States State Supreme Court (Kentucky)
    • March 18, 2010
    ...and discussing what the Fourth Circuit has referred to as the “ Rock-Lucas principle”). See also, e.g., United States v. Pumpkin Seed, 572 F.3d 552 (8th Cir.2009); Ferensic v. Birkett, 501 F.3d 469 (6th Cir.2007); White v. Coplan, 399 F.3d 18 (1st Cir.2005); LaJoie v. Thompson, 217 F.3d 663......
  • Standring v. U.S., Civil No. 10–321–B–H.
    • United States
    • United States District Courts. 1st Circuit. United States District Court (Maine)
    • October 27, 2010
    ...the competing factors. Williams, 529 U.S. at 412–13[, 120 S.Ct. 1495]. 302 F.3d at 12. See also cf. United States v. Pumpkin Seed, 572 F.3d 552, 561–62 (8th Cir.2009); Hammer v. Karlen, 342 F.3d 807, 811–12 (7th Cir.2003); United States v. McCann, No. 05 C 5692, 2009 WL 367502, *7–8 (N.D.Il......
  • Request a trial to view additional results
1 books & journal articles
  • Character, Credibility, and Rape Shield Rules
    • United States
    • The Georgetown Journal of Law & Public Policy Nbr. 19-1, January 2021
    • January 1, 2021
    ...predisposition of the complainant. See United States v. Brown, 2020 WL 2538889 at *3 (10th Cir. 2020); United States v. Pumpkin Seed, 572 F.3d 552, 558–59 (8th Cir. 2009); United States v. Begay, 937 F.2d 515, 521–22 (10th Cir. 1991). 24. Of course, if evidence is constitutionally required ......

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