U.S. v. Rossbach, 81-2150

• Decision Date: 04 March 1983
• Docket Number: No. 81-2150,81-2150
• Parties: 12 Fed. R. Evid. Serv. 865 UNITED STATES of America, Appellee, v. Donald Preston ROSSBACH, Jr., Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 713

701 F.2d 713

12 Fed. R. Evid. Serv. 865

UNITED STATES of America, Appellee, v. Donald Preston ROSSBACH, Jr., Appellant.

No. 81-2150.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 13, 1982.

Decided March 4, 1983.

Lynnel L. Jones, Minneapolis, Minn., for appellant.

James M. Rosenbaum, U.S. Atty., Janice M. Symchych, Asst. U.S. Atty., D. Minn., Minneapolis, Minn., for appellee.

Before LAY, Chief Judge, and BRIGHT and JOHN R. GIBSON, Circuit Judges.

LAY, Chief Judge.

A federal court jury found Donald Preston Rossbach, Jr., guilty of two counts of rape in violation of 18 U.S.C. Secs. 2031 and 1153 and one count of assault in violation of 18 U.S.C. Secs. 113(f) and 1153. He was sentenced to concurrent terms of imprisonment of thirty years on each rape count and ten years on the assault count. He appeals.

Rossbach urges the trial court committed reversible error on seven grounds: (1) refusal to dismiss the indictment for grand jury abuse; (2) inadequate voir dire; (3) denial of defendant's motion to disqualify the prosecutor; (4) allowing a public defender to represent defendant when another defender from the same office had been involved in defendant's prior prosecution; (5) permitting leading questions in direct examination; (6) failure to sever the assault count from the rape counts; and (7) admission of evidence of defendant's flight. We find no prejudicial error. We affirm the judgment of conviction.

Facts.

On February 27, 1981, Lianne Lussier and Janet Sumner, ages seventeen and fifteen respectively, spent the evening drinking beer and whiskey with friends at a house party on the Red Lake Indian Reservation west of Bemidji, Minnesota. Around 1:00 a.m. Rossbach and Arlan Desjarlait, who had earlier purchased a case of beer, picked up Janet and Lianne, and all four set out to drink beer in Rossbach's pickup truck.

The four went to another party where they continued to drink beer and smoke marijuana for approximately one hour. They left the party and drove Desjarlait home. After dropping off Desjarlait, Rossbach proceeded on Highway 89 toward Bemidji. He pulled off the main road onto an old right-of-way before reaching the Reservation border. He parked the truck in a wooded area, climbed over Lianne and positioned himself between her and Janet.

Rossbach began to strike Janet about the face and forced her out the passenger door. He ordered her to undress; she refused and the struggle continued. Lianne saw a knife in Rossbach's hand, and Janet testified she felt a stabbing pain in her abdomen and discovered blood oozing from the wound. Janet pulled a knife from her jacket pocket and stabbed Rossbach with it. She then felt a stab in her left side. Rossbach stated that he liked the sight of blood and was accomplished at "carving." Janet then threw her knife to Lianne.

Rossbach approached Lianne and took the knife from her. Holding both knives, Rossbach ordered Lianne to undress, face the pickup and bend over, which she did. Rossbach engaged in sexual intercourse with Lianne. Rossbach then ordered Janet to undress and bend over, and he had sexual intercourse with her in a similar fashion. Lianne then told Rossbach to take them home; instead he drove them to another wooded area, stopped the truck and told them to get out, stating that he wanted to "do it again." Janet looked ill and drowsy and stayed in the truck. Lianne got out and submitted once again to Rossbach's demands.

Rossbach let the women go near the Sumner residence at about 5:30 a.m. They told Donna Sumner, Janet's mother, that Rossbach had stabbed Janet. Donna Sumner took Janet and Lianne to the Red Lake Hospital, where Donna Sumner reported the stabbing and the Red Lake police were called. Officer Dwight Bellanger arrived at the hospital at about 6:00 a.m. and encountered Lianne crying in a hallway. She then first revealed that Rossbach had raped her and Janet.

Officer Bellanger and another officer went to the scene of the assault, took pictures, and collected physical evidence. They observed a single set of tire tracks, collected three Miller beer cans, found a leather knife sheath bearing the inscription "Mr. Big," ¹ and collected samples of apparent body fluids including blood and semen. At approximately 7:00 a.m., Special Agent Joseph Ryan of the FBI was informed of the incident. He conducted a preliminary investigation, interviewed Lianne, and conducted further investigation at both sites. Lianne underwent a sexual assault examination at about 11:00 a.m.

Earlier that morning, shortly before 9:00 a.m., Rossbach's father observed his son sleeping at the family home, where Rossbach had resided since the fall of 1980. Rossbach left home about 9:00 a.m. without telling anyone where he was going. He and his cousin left Red Lake that same day or shortly thereafter in Rossbach's truck and went to San Diego, California. His family did not learn of his whereabouts until sometime after his arrest in San Diego on April 23, 1981.

A. The Indictment.

Rossbach first contends that the indictment should have been dismissed because the government deliberately presented only the hearsay testimony of an FBI agent to the grand jury when the complaining witnesses could have been called. This practice prevented the grand jury from viewing the two alleged victims and their alleged inability to express themselves concerning the events of February 27 and 28. The grand jury instead heard only the coherent narrative of the FBI agent. We find this contention without merit. It has long been recognized there is no constitutional preclusion of the use of hearsay testimony in grand jury proceedings. Costello v. United States, 350 U.S. 359, 76 S.Ct. 406, 100 L.Ed. 397 (1956); United States v. Gaskill, 491 F.2d 981, 985 (8th Cir.1974); United States v. Powers, 482 F.2d 941, 943 (8th Cir.1973), cert. denied, 415 U.S. 923, 94 S.Ct. 1426, 38 L.Ed.2d 479 (1974).

Nevertheless, Rossbach urges us to adopt the rule of United States v. Estepa, 471 F.2d 1132, 1136-37 (2d Cir.1972). In Estepa a conviction was reversed where the hearsay testimony of a police officer made it appear to the grand jury that he was an actual eyewitness. Because the grand jury was misled, the indictment was dismissed. As we noted in Powers, 482 F.2d at 943, whatever the merits of the Estepa rule it is not applicable here. Upon review of Agent Ryan's testimony before the grand jury, we find no deceit in his summarization of the case. He never purported to be an eyewitness to the events. He made it clear at the outset that his testimony was based on information he gathered from his investigation. The fact that his testimony was based on hearsay was readily apparent; he identified all the sources of his information. There is no claim and no evidence in the record to suggest that the grand jury was misled into believing that the agent had first-hand knowledge of all that he related. On this basis, we find no merit to the attack on the indictment.

B. Voir dire.

Rossbach claims that the trial court abused its discretion in failing to conduct an adequate voir dire. Rossbach submitted 68 proposed voir dire questions covering racial prejudice, personal backgrounds, prior jury service, the criminal justice system in general, and matters of law, including the burden of proof and the presumption of innocence. The trial court denied Rossbach's motion to allow his attorney to conduct the voir dire and conducted the entire voir dire from the bench.

This court has long recognized that "[a] searching voir dire is a necessary incident to the right to an impartial jury. However, it is fundamental that the trial court has broad discretion in deciding what questions to ask and that its rulings will not be reversed absent an abuse of discretion." United States v. Bear Runner, 502 F.2d 908, 911 (8th Cir.1974) (citations and footnote omitted). Under our decisions the trial court acted within the scope of its discretion in questioning the jurors and giving them preliminary instructions. See United States v. Hall, 588 F.2d 613, 615 (8th Cir.1978); United States v. Brown, 540 F.2d 364, 378-79 (8th Cir.1976); Fed.R.Crim.P. 24(a). ² We find neither an abuse of discretion nor that Rossbach was prejudiced from the manner in which the court conducted voir dire.

C. Disqualification of counsel.

Rossbach next contends the trial court erred in denying his motion to disqualify the assistant United States Attorney who prosecuted his case. He complains that the prosecutor gained an unfair advantage by trying the government's case after she had participated in his guilty plea hearing and plea withdrawal hearing. On the day set for trial, July 13, 1981, Rossbach had informed the court that he wanted to enter a plea of guilty to one count of rape. The court conditionally accepted the plea pursuant to rule 11 of the Federal Rules of Criminal Procedure. The next day, Rossbach wrote a letter to the judge in which he stated that his attorney had been unprepared for trial, and that he wished to withdraw the guilty plea and go to trial. The court treated the letter as a motion to withdraw the guilty plea pursuant to rule 32(d) of the Federal Rules of Criminal Procedure.

On August 17, the court appointed Scott Tilsen to be Rossbach's new attorney. Tilsen advised Rossbach that he would have to waive the attorney-client privilege with respect to his prior counsel if he wanted to withdraw his guilty plea. Rossbach agreed and proceeded with the plea withdrawal motion. At the same hearing the assistant United States Attorney agreed not to review the defense file to prepare for the withdrawal hearing, and also agreed not to meet with Rossbach's prior attorney unless Tilsen was present to protect against an overly broad waiver of the attorney-client privilege.

The plea withdrawal hearing was held on August 20 and 21, and the motion to withdraw the guilty plea was granted. Rossbach moved to disqualify the assistant...