U.S. v. Rouse, No. CR 94-40015.

CourtUnited States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
Writing for the CourtPiersol
Citation329 F.Supp.2d 1077
PartiesUNITED STATES of America, Plaintiff, v. Desmond ROUSE, Jesse Rouse, Garfield Feather, and Russell Hubbeling, Defendants.
Docket NumberNo. CR 94-40015.
Decision Date10 February 2004
329 F.Supp.2d 1077
UNITED STATES of America, Plaintiff,
v.
Desmond ROUSE, Jesse Rouse, Garfield Feather, and Russell Hubbeling, Defendants.
No. CR 94-40015.
United States District Court, D. South Dakota, Southern Division.
February 10, 2004.

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COPYRIGHT MATERIAL OMITTED

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Dennis Holmes, Michelle Tapken, Jan Holmgren, United States Attorney's Office, Sioux Falls, SD, for Plaintiff.

John M. Wilka, Wilka Law Firm, Sioux Falls, SD, for Defendant, Desmond Rouse.

Steven R. Binger, Binger Law Office, Sioux Falls, SD, for Defendant, Jessie Rouse.

David O. Carter, Attorney at Law, Sioux Falls, SD, for Defendant, Garfield Feather.

MEMORANDUM OPINION AND ORDER

PIERSOL, Chief Judge.


Pending before the Court is a Motion for New Trial pursuant to Rule 33 of the Federal Rules of Criminal Procedure. (Doc. 428.) The motion was filed by defendants Desmond Rouse, Jesse Rouse, Garfield Feather and Russell Hubbeling. For the following reasons, the motion will be denied.

BACKGROUND

In August of 1994, defendants were convicted by a jury on charges of aggravated sexual abuse involving five young girls in their extended family aged 20 month to seven years in violation of 18 U.S.C. § 2241(c). After the Court imposed sentence, the defendants appealed. A divided Eighth Circuit panel initially reversed the defendants' convictions, United States v. Rouse, 100 F.3d 560 (8th Cir.1996), but after the entire Eighth Circuit granted en banc review and vacated the panel opinion, United States v. Rouse, 107 F.3d 557 (8th Cir.1997), the panel, on rehearing, issued a new opinion affirming the convictions and en banc review was dismissed. United States v. Rouse, 111 F.3d 561 (8th Cir.), cert. denied, 522 U.S. 905, 118 S.Ct. 261, 139 L.Ed.2d 188 (1997). On May 3, 2002,

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another panel of the Eighth Circuit affirmed this Court's denial of defendant Hubbeling's 28 U.S.C. § 2255 motion to vacate his sentence. Hubbeling v. United States, 288 F.3d 363 (8th Cir.2002). The facts are fully set forth in the three opinions issued by the Eighth Circuit, and they will not be repeated here except as necessary to resolve this motion.

On June 11, 1999, the defendants filed this Motion for New Trial arguing that recantations by witnesses T.R., D.R., R.R., L.R. and J.R. constitute newly discovered evidence entitling the defendants to a new trial.1 In affidavits submitted with the motion, R.R. and T.R. deny being molested by the defendants and D.R. attests that he made up lies about what happened. An Affidavit of Ralph Underwager, a clinical psychologist who testified on behalf of the defendants at trial, was submitted with the motion. In his Affidavit, Dr. Underwager indicates that he interviewed T.R., D.R., R.R., L.R. and J.R. on January 30, 1999. He attests that T.R., D.R., J.R. and L.R. told him that the abuse testified to at the trial never happened. Dr. Underwager said he believes the recantations are credible.

The Court viewed Dr. Underwager's videotaped interviews of the children. In addition to the five interviews that occurred in 1999, the videotapes contain interviews of D.R. and T.R. that occurred in 1996. During the interviews, Dr. Underwager told the children that he was there to help the children get the defendants get out of prison and he talked about the length of the prison sentences imposed. R.R. did not recant her trial testimony during her interview with Dr. Underwager. In fact, R.R. responded affirmatively when Dr. Underwager asked if Jesse did things to her that were not right.

The Court heard oral argument on the Motion for New Trial on December 13, 2000. After hearing argument and reviewing the entire record, the Court granted the defendants' request for an evidentiary hearing. Several continuances were granted to allow defense counsel to prepare for the hearing. The evidentiary hearing was held for four days in September 2001.

At the evidentiary hearing, the defense presented testimony of Maggie Bruck, an associate professor in child psychiatry at Johns Hopkins University. Dr. Bruck has researched literature regarding recantation of child witnesses. She testified that published studies show the rate of recantation varies from 3% to 27% of children who have reported sexual abuse. Dr. Bruck was unaware of any scientific studies showing that recantations come about due to social and family pressure. She did not interview the child witnesses and her testimony was not specific to the facts of this case.

The defense also presented testimony from Kathleen Honomichl, a woman who worked for Tribal Social Services from June of 1995 through June of 1997. Ms. Honomichl is not a certified social worker. She has lived all of her life in the same community as the Rouse family. Her job included working with L.R., J.R., T.R and D.R. (not R.R.) to get them back into their homes. While Ms. Honomichl was working with the children, they were placed at Children's Home Society in Sioux Falls and they had weekend visits with their mothers and sometimes with their grandmother. On direct examination, Ms. Honomichl said she found the children's allegations of sexual abuse unbelievable from the first time she read the reports in their

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files. Her beliefs were reinforced when she received a report in February or March of 1996 indicating that J.R. stated in group therapy that the abuse had not occurred. Later, T.R., D.R. and R.R. were allowed for the first time to go home to the reservation for a weekend visit. During that weekend, T.R., D.R. and R.R. stopped in Ms. Honomichl's office on the reservation. T.R. said that her uncles did not abuse her. D.R. and R.R. listened to T.R. but said nothing.

L.R., J.R., T.R., D.R. and R.R. testified at the evidentiary hearing that the sexual abuse did not happen. They said that they lied about the abuse because they were pressured to do so and they thought they would be allowed to go home if they said that the abuse happened.

William Van Roe, the FBI case agent who investigated this case, testified that the children never recanted their allegations of sexual abuse. The prosecutor testified that the children never denied that their uncles sexually abused them. Eva Cheney, an attorney admitted to practice before this Court and the guardian ad litem for the children, testified that none of them recanted in her presence. Teryl Cadwell, the probation officer who conducted interviews to prepare the presentence investigation report, said that she interviewed some of the victims and none of them said the abuse had not occurred. Dr. Michaleen Muhovich (R.R.'s counselor from 1994 to 1997) and counselors at the Children's Home Society, Karla Harmon and Mary Weber, testified that the children continued to describe the acts of sexual abuse to them after the trial and before the children were returned home. The counselors and Kathleen Honomichl also said that the children's mothers never believed the abuse had occurred and neither did other family members. Julie Brown, the foster mother for J.R. and L.R. from August of 1996 to August of 1997, testified that both girls were afraid of their uncles and did not recant when they were staying with her.

One of the government's witnesses, Cheri Freidel, was a school counselor in Wagner, South Dakota who became acquainted with J.R., L.R. and R.R. in the fall of 1999, after the children were returned home. J.R. approached Ms. Freidel on December 6, 1999. J.R. told Ms. Freidel that she was afraid for Christmas because her uncles were coming home. J.R. explained to Ms. Freidel that her uncle had touched her private parts and she was afraid he would be coming home and be mad at her for telling. J.R. also told Ms. Freidel that during the summer of 1999 she and her sister had to tell a social worker that someone made up the stories about her uncles so that they could come home from prison. Before this meeting with J.R., Ms. Freidel was not even aware of the case or the allegations of sexual abuse. She contacted the FBI to find out if the uncles referred to by J.R. were coming home for Christmas. Ms. Freidel then met with J.R. to inform her that the uncles would not be coming home. During this second meeting, J.R. told Ms. Freidel that both her own mother and R.R. had told J.R. to lie to the social worker in the summer of 1999.

Dr. David Corwin, the medical director of Primary Children's Center for Safe and Healthy Families at the University of Utah School of Medicine, testified as an expert witness on behalf of the government. He is familiar with literature on child witness recantations and has clinical experience with child sexual abuse cases, including cases involving recantations. Dr. Corwin was asked hypothetical questions about sexually abused children being returned to non-supportive families where they may have been pressured to change

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their testimony, where they have had some contact with the abuser via telephone or letters, where they were made aware of lengthy prison sentences given the defendants, and where they lacked other outside support such as counseling or attending school. According to Dr. Corwin, the literature on child witness recantation indicates that all of these factors would make a child more likely to recant sexual abuse allegations.

While the Court was considering the evidence submitted by the parties at the evidentiary hearing, the defendants filed an "Addendum" to their motion in which they asked the Court to consider, as evidence in support of the Motion for New Trial, the results of a polygraph examination of one of the child witnesses. (Doc.530.) The Court advised the parties that it would hold a Daubert hearing both for the Court to determine the effect of the polygraph test on the motion for new trial, and to consider if the polygraph test would be admissible at trial if a new trial were granted. The Court indicated that consideration of the polygraph evidence for purposes of ruling on the motion for...

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8 practice notes
  • Rouse v. United States, 20-2007
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • September 16, 2021
    ...reasonable probability that the recantations would produce an acquittal if a new trial were held." United States v. Rouse, 329 F. Supp. 2d 1077, 1092 (D.S.D. 2004). We again affirmed. United States v. Rouse, 410 F.3d 1005, 1009 (8th Cir. 2005) (" Rouse II").In 1998, Hubbeling......
  • U.S. v. Dupris, No. CR 05-30024, 2006.
    • United States
    • U.S. District Court — District of South Dakota
    • February 3, 2006
    ...the Eighth Circuit and could potentially be admitted in the absence of a stipulation from the Government, see United States v. Rouse, 329 F.Supp.2d 1077, 1083 (D.S.D.2004), aff'd, 410 F.3d 1005, 1011 (8th Cir.2005), the Court believes that such evidence, if allowed, would be unduly prejudic......
  • Rouse v. United States, CIV 06-4008
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • March 18, 2020
    ...of the victims.1 See CR 94-40015, Doc. 428. This Court held a four-day evidentiary hearing in 2001. See United States v. Rouse, 329 F. Supp.2d 1077 (D.S.D. 2004). Jessica, Thrista, Lucritia and Rosemary Rouse testified that the abuse did not occur. Experts and several other witnesses testif......
  • Feather v. United States, 20-3371
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • November 22, 2021
    ...reasonable probability that the recantations would produce an acquittal if a new trial were held." United States v. Rouse, 329 F. Supp. 2d 1077, 1092 (D.S.D. 2004). We again affirmed. United States v. Rouse, 410 F.3d 1005, 1009 (8th Cir. 2005) (" Rouse II").18 F.4th 985 Rouse......
  • Request a trial to view additional results
8 cases
  • Rouse v. United States, 20-2007
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • September 16, 2021
    ...reasonable probability that the recantations would produce an acquittal if a new trial were held." United States v. Rouse, 329 F. Supp. 2d 1077, 1092 (D.S.D. 2004). We again affirmed. United States v. Rouse, 410 F.3d 1005, 1009 (8th Cir. 2005) (" Rouse II").In 1998, Hubbeling......
  • U.S. v. Dupris, No. CR 05-30024, 2006.
    • United States
    • U.S. District Court — District of South Dakota
    • February 3, 2006
    ...the Eighth Circuit and could potentially be admitted in the absence of a stipulation from the Government, see United States v. Rouse, 329 F.Supp.2d 1077, 1083 (D.S.D.2004), aff'd, 410 F.3d 1005, 1011 (8th Cir.2005), the Court believes that such evidence, if allowed, would be unduly prejudic......
  • Rouse v. United States, CIV 06-4008
    • United States
    • United States District Courts. 8th Circuit. United States District Courts. 8th Circuit. District of South Dakota
    • March 18, 2020
    ...of the victims.1 See CR 94-40015, Doc. 428. This Court held a four-day evidentiary hearing in 2001. See United States v. Rouse, 329 F. Supp.2d 1077 (D.S.D. 2004). Jessica, Thrista, Lucritia and Rosemary Rouse testified that the abuse did not occur. Experts and several other witnesses testif......
  • Feather v. United States, 20-3371
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • November 22, 2021
    ...reasonable probability that the recantations would produce an acquittal if a new trial were held." United States v. Rouse, 329 F. Supp. 2d 1077, 1092 (D.S.D. 2004). We again affirmed. United States v. Rouse, 410 F.3d 1005, 1009 (8th Cir. 2005) (" Rouse II").18 F.4th 985 Rouse......
  • Request a trial to view additional results

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