U.S. v. Rouse, Nos. 95-1554

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtBefore McMILLIAN, BRIGHT, and LOKEN; LOKEN; McMILLIAN; BRIGHT
Citation111 F.3d 561
Parties46 Fed. R. Evid. Serv. 559 UNITED STATES of America, Plaintiff--Appellee, v. Desmond ROUSE, Defendant--Appellant. UNITED STATES of America, Plaintiff--Appellee, v. Jesse ROUSE, Defendant--Appellant. UNITED STATES of America, Plaintiff--Appellee, v. Garfield FEATHER, Defendant--Appellant. UNITED STATES of America, Plaintiff--Appellee, v. Russell HUBBELING, Defendant--Appellant.
Decision Date29 May 1997
Docket Number95-1556,Nos. 95-1554,95-1559,95-1558

Page 561

111 F.3d 561
46 Fed. R. Evid. Serv. 559
UNITED STATES of America, Plaintiff--Appellee,
v.
Desmond ROUSE, Defendant--Appellant.
UNITED STATES of America, Plaintiff--Appellee,
v.
Jesse ROUSE, Defendant--Appellant.
UNITED STATES of America, Plaintiff--Appellee,
v.
Garfield FEATHER, Defendant--Appellant.
UNITED STATES of America, Plaintiff--Appellee,
v.
Russell HUBBELING, Defendant--Appellant.
Nos. 95-1554, 95-1559, 95-1556, 95-1558.
United States Court of Appeals,
Eighth Circuit.
Submitted March 3, 1997.
Decided April 11, 1997.
Rehearing and Suggestion for Rehearing En Banc Denied May 29, 1997.

Page 564

John Wilka, Sioux Falls, SD, for Desmond Rouse.

Steven R. Binger, Sioux Falls, SD, for Jesse Rouse.

Robert C. Heege, Sioux Falls, SD, for Garfield Feather.

Steven G. Haugaard, Sioux Falls, SD, for Russell Hubbeling.

Karen E. Schreier, U.S. Attorney, Michelle G. Tapken, Assistant U.S. Attorney, Sioux Falls, SD, for U.S.

Page 565

Before McMILLIAN, BRIGHT, and LOKEN, Circuit Judges.

LOKEN, Circuit Judge.

Brothers Desmond and Jesse Rouse, and their cousins, Garfield Feather and Russell Hubbeling, appeal convictions for sexual abuse of young children on the Yankton Sioux Indian Reservation, raising numerous issues. A divided panel reversed and remanded for a new trial on grounds that the district court erred in excluding certain expert opinion testimony and in denying defendants' motion for independent pretrial psychological examinations of the abused children. See United States v. Rouse, 100 F.3d 560 (8th Cir.1996). After the court granted the government's suggestion for rehearing en banc and vacated the panel opinions, the panel granted the government's petition for rehearing, and the court denied rehearing en banc as moot. Having further considered the parties' contentions on appeal, we now affirm.

I. Background.

The victims are granddaughters of Rosemary Rouse. During the summer and fall of 1993, defendants lived at Rosemary's home on the Yankton Sioux Reservation. The victims also lived or spent a great deal of time at this home. In October 1993, five-year-old R.R. was placed with Donna Jordan, an experienced foster parent, due to neglect and malnutrition. R.R. disclosed apparent sexual abuse to Jordan, who reported to the Tribe's Department of Social Services ("DSS") (as Jordan was required to do) that R.R. said she had been sexually abused. On January 10, 1994, DSS told Jordan to take R.R. to therapist Ellen Kelson. After an initial interview, Kelson reported to DSS (as Kelson was required to do) that R.R. had reported acts of sexual abuse against herself and other children in the Rouse home. On January 11, DSS removed thirteen children living in the Rouse home and placed them in Jordan's foster home. Of the four who disclosed sexual abuse by their uncles, T.R. was seven years old, L.R. was six, R.R. was five, and J.R. was four and one-half. The fifth victim of the alleged offenses, F. R., was a twenty-month-old infant.

Four days later, pediatrician Richard Kaplan examined the children. Dr. Kaplan reported to DSS his medical findings and what the children had said about sexual abuse. J.R. told Dr. Kaplan, "Uncle Jess hurt me," pointing to her left labia; Dr. Kaplan found a recent bruise or contusion consistent with that kind of abuse. L.R. had "a fairly acute injury" on the right side of her labia majora which "really hurt her." R.R. told Dr. Kaplan, "I have a bruise where my uncle put his private spot," and Dr. Kaplan found a sagging vagina and a scar on her anus. Dr. Kaplan found that T.R. had "obvious trauma and contusion ... and very, very much tenderness" on her labia majora; T.R. told him, "Uncle Jess hurt me there." On January 19 and 21, 1994, FBI Special Agent William Van Roe and BIA Criminal Investigator Daniel Hudspeth interviewed J. R., T. R., R. R., and L.R. The children again reported sexual abuse by their uncles. The children were also seen by a psychiatrist, who referred them to Kelson for therapy. Kelson first saw the children in a group on January 22.

On February 11, Dr. Robert Ferrell conducted a colposcopic examination of the five victims. Dr. Ferrell found "very significant" damage to R. R.'s hymenal ring and tearing in her anal area consistent with anal intercourse. He noted a "whole constellation of findings" indicating L.R. had been abused--damage to her hymenal area, furrowing on either side of her vagina, chronic irritation or trauma, and "clue cells" that are "known to be sexually transmitted." To Dr. Ferrell, a scar on J. R.'s hymen where a tear had healed was an "important finding," while T. R.'s "hymenal ring was essentially gone," the entire area was irritated, and she had furrows in her vagina. Infant F.R. had "tearing and scarring of the anal mucosa."

Defendants' medical expert, Dr. Fay, admitted that the reported hymenal scarring on L. R., R. R., and J.R. "certainly ... leads you to think about sexual abuse," and that "a labial injury ... is a very significant finding" of abuse. In its rebuttal, the government called Dr. Randall Alexander, a member of the Board of Governors of the National Committee to Prevent Child Abuse. Dr. Alexander

Page 566

testified that it takes considerable force to inflict labial injuries like those exhibited by three of the victims. "It's rare to see one [in young girls] and to see three of them show up is just ... rareness to the third power."

On March 24, 1994, a grand jury indicted Feather, Hubbeling, Duane Rouse, Desmond Rouse, and Jesse Rouse on twenty-three counts of aggravated sexual abuse in violation of 18 U.S.C. § 2241(c). After a three week trial, the jury acquitted Duane Rouse. It convicted Desmond Rouse on three counts, Jesse Rouse on two counts, Feather on four counts, and Hubbeling on two counts. They received long prison sentences but raise no sentencing issues on appeal. We consolidated their four appeals.

II. Issues Concerning the Victims' Trial Testimony.

The government's case consisted primarily of testimony by the two physicians, the four oldest victims, another child who witnessed acts of sexual abuse, and FBI Agent Van Roe. On appeal, defendants raise numerous issues regarding the district court's 1 handling of the critical child victim testimony.

A. Denial of Defense Access to the Children.

Prior to trial, the victims lived with foster parents in the legal custody of DSS. Defendants argue they were denied their Sixth Amendment right to effective cross-examination and their Fifth Amendment right to due process because DSS refused to permit defense counsel interviews of the victims before trial. Defendants also argue that the district court erred in refusing to order additional medical examinations of the victims prior to or during the trial, and lengthy pretrial psychological interviews by a defense expert.

1. When a child witness is in the legal custody of a social services agency, that agency as custodian may refuse requests for pretrial interviews. See Thornton v. State, 264 Ga. 563, 449 S.E.2d 98, 109-10 (1994); Hewlett v. State, 520 So.2d 200, 203-04, (Ala.Crim.App.1987); see also State ex rel. O'Leary v. Lowe, 307 Or. 395, 769 P.2d 188, 192-93 (1989) (en banc). In this case, defense counsel never complained to the district court that DSS denied them pretrial access to the child witnesses, so this issue was not preserved for appeal. 2 Defendants admit that DSS made the decision to deny access; they do not point to evidence that the prosecution interfered. Cf. United States v. Murdock, 826 F.2d 771, 773-74 (8th Cir.1987). In these circumstances, there was no error, much less plain error.

2. Defendants did file motions to compel additional medical examinations and psychological interviews. The evidence at a pretrial evidentiary hearing revealed that the victims received two medical examinations. Dr. Kaplan found physical evidence consistent with sexual abuse but did not perform thorough examinations. Instead, he referred the children to Dr. Ferrell, an obstetrician/gynecologist, who examined the anesthetized children using a colposcope instrument for magnified viewing of the genital area. Dr. Ferrell reported tearing and scarring of infant F. R.'s anal mucosa, and evidence of significant trauma to the other victims' hymenal areas. He testified that this evidence as a whole indicated abuse.

Defendants argued that another examination was necessary because Dr. Kaplan's examinations were not sufficiently thorough and Dr. Ferrell was not experienced in pediatric sexual abuse examinations. The victims' guardian ad litem opposed additional medical examinations. The district court denied the motion for further examinations because the detailed reports of Drs. Kaplan and Ferrell were available to defendants, and no good cause had been shown "that it is necessary to the adequate defense of these cases for the alleged victims to again, for a third time, undergo these invasive procedures at the hands of strangers."

Page 567

Regarding the request for psychological interviews, the hearing evidence revealed that social worker Kelson had counseled the victims but took no part in investigating the alleged abuse. Her focus was therapy, and her detailed reports were available to the defense. Defendants argued that their expert, psychologist Ralph C. Underwager, needed to interview the victims to demonstrate that suggestive interviewing and environmental pressures made the children's testimony unreliable. The government advised that it would request interviews by its expert if defense interviews were allowed. The victims' guardian ad litem opposed psychological examinations, particularly by adversarial experts. The district court denied defendants' motion for interviews by Underwager because there "has not been good cause shown as to why this additional intrusion into the alleged victims already troubled lives should be ordered."

We agree with the district court that defendants' showing of need for...

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86 practice notes
  • State v. Harrison, No. 513578-5
    • United States
    • California Court of Appeals
    • October 1, 2001
    ...as to the gist of Dr. Underwager's testimony based on other cases in which he has been involved (see, e.g., U.S. v. Rouse (8th Cir. 1997) 111 F.3d 561, 570-572 ["'learned'" or "'implanted'" memories]; Kavanagh v. Berge (7th Cir. 1996) 73 F.3d 733, 736 [correct and incorrect questioning tech......
  • U.S. v. Vega-Santiago, No. 06-1558.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • October 31, 2007
    ...began, and Vega articulates no way in which its admission either disrupted or prejudiced the proceedings. See United States v. Rouse, 111 F.3d 561, 573 (8th Cir.1997) (finding no abuse of discretion where the trial court allowed the government to reopen its case to establish a jurisdictiona......
  • U.S. v. Yates, No. 02-13654.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • February 13, 2006
    ...States v. Moses, 137 F.3d 894, 897-98 (6th Cir.1998); United States v. Weekley, 130 F.3d 747 (6th Cir.1997); United States v. Rouse, 111 F.3d 561, 568 (8th Cir.1997); United States v. Quintero, 21 F.3d 885, 892 (9th Cir. 1994); United States v. Carrier, 9 F.3d 867 (10th Cir.1993); United St......
  • United States v. Cotto-Flores, No. 18-2013
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • August 10, 2020
    ...presence. Craig, 497 U.S. at 856, 110 S.Ct. 3157. But that's where expert testimony (while not required, United States v. Rouse, 111 F.3d 561, 569 (8th Cir. 1997) ) can help fill in the gaps. See Craig, 497 U.S. at 842, 110 S.Ct. 3157 (noting that "expert testimony" had "suggested that each......
  • Request a trial to view additional results
86 cases
  • State v. Harrison, No. 513578-5
    • United States
    • California Court of Appeals
    • October 1, 2001
    ...as to the gist of Dr. Underwager's testimony based on other cases in which he has been involved (see, e.g., U.S. v. Rouse (8th Cir. 1997) 111 F.3d 561, 570-572 ["'learned'" or "'implanted'" memories]; Kavanagh v. Berge (7th Cir. 1996) 73 F.3d 733, 736 [correct and incorrect questioning tech......
  • U.S. v. Vega-Santiago, No. 06-1558.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • October 31, 2007
    ...began, and Vega articulates no way in which its admission either disrupted or prejudiced the proceedings. See United States v. Rouse, 111 F.3d 561, 573 (8th Cir.1997) (finding no abuse of discretion where the trial court allowed the government to reopen its case to establish a jurisdictiona......
  • U.S. v. Yates, No. 02-13654.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • February 13, 2006
    ...States v. Moses, 137 F.3d 894, 897-98 (6th Cir.1998); United States v. Weekley, 130 F.3d 747 (6th Cir.1997); United States v. Rouse, 111 F.3d 561, 568 (8th Cir.1997); United States v. Quintero, 21 F.3d 885, 892 (9th Cir. 1994); United States v. Carrier, 9 F.3d 867 (10th Cir.1993); United St......
  • United States v. Cotto-Flores, No. 18-2013
    • United States
    • United States Courts of Appeals. United States Court of Appeals (1st Circuit)
    • August 10, 2020
    ...presence. Craig, 497 U.S. at 856, 110 S.Ct. 3157. But that's where expert testimony (while not required, United States v. Rouse, 111 F.3d 561, 569 (8th Cir. 1997) ) can help fill in the gaps. See Craig, 497 U.S. at 842, 110 S.Ct. 3157 (noting that "expert testimony" had "suggested that each......
  • Request a trial to view additional results

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