U.S. v. Tail, 05-4332.

• Decision Date: 17 August 2006
• Docket Number: No. 05-4332.,05-4332.
• Citation: 459 F.3d 854
• Parties: UNITED STATES of America, Appellee, v. Robert Raymond TAIL, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 854

459 F.3d 854

UNITED STATES of America, Appellee, v. Robert Raymond TAIL, Appellant.

No. 05-4332.

United States Court of Appeals, Eighth Circuit.

Submitted: April 19, 2006.

Filed: August 17, 2006.

COPYRIGHT MATERIAL OMITTED

George E. Grassby, argued, Rapid City, SD, for appellant.

Carolyn G. Royce, argued, Asst. U.S. Atty., Rapid City, SD, for appellee.

Before ARNOLD, LAY, and COLLOTON, Circuit Judges.

COLLOTON, Circuit Judge.

Robert Raymond Tail was convicted by a jury of two counts of sexual abuse and two counts of sexual abuse of a minor in violation of 18 U.S.C. §§ 2242(1) and 2243. He appeals, and we affirm.

I.

J.H. and M.H. were foster children who were placed with Robert Tail and Tail's wife, Vanessa, in early 2003. J.H., then fifteen years old, and M.H., then thirteen, are first cousins to Vanessa. At trial, the government presented evidence that Tail entered a bedroom and sexually abused J.H. in March 2003. M.H. similarly testified that sometime after the incident with J.H., around April 2003, Tail entered a room where M.H. was sleeping and abused her as well, threatening to "do it again" if she told anyone about the abuse. The girls' grandfather, Percy White Plume, testified that he had confronted Tail about the abuse and Tail responded, "I'm sorry I did that.... I'm sorry I did that to them." (T. Tr. at 292). J.H. also testified that on May 24, 2003, on a trip to Rapid City, she awoke to find Tail raping her. J.H. reported the incident to her high school counselor, and Tail was subsequently arrested on federal sexual abuse charges. Tail was charged in South Dakota state court with raping J.H. in May, and he was convicted. He was later indicted in federal court for two counts of sexual abuse and two counts of sexual abuse of a minor arising out of the March and April incidents with J.H. and M.H.

On April 7, 2004, while in custody, Tail was transported from the Pine Ridge Jail to the Rapid City federal courthouse by Special Agent Richard Lauck of the FBI. During the almost two-hour drive, Tail and Lauck engaged in conversation. During the conversation, Tail commented that he hoped his family would wait for him while he was in prison, and that he wanted Agent Lauck to visit him while he was in prison. Tail later moved to suppress the statements, arguing that they were the product of an interrogation by Agent Lauck that was not preceded by warnings as required by Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The district court¹ denied the motion.

Prior to trial, Tail also sought an order permitting him to introduce evidence that J.H. and M.H. had made prior allegations of sexual abuse against others, and additional evidence that J.H. had tested positive for Hepatitis B while Tail had tested negative for the disease. Both of these motions were denied. The district court found that the prior allegations were not demonstrably false, and that admission of the evidence was therefore not required by the Confrontation Clause and was inadmissible under Federal Rule of Evidence 412, which bars admission of a victim's prior sexual acts under most circumstances, and under Federal Rule of Evidence 403. As for the Hepatitis B diagnosis, the court found that this was also evidence of sexual behavior properly excluded under Rule 412. The government subsequently moved in limine to exclude any reference to the Hepatitis B diagnosis, and at a hearing, a pediatrician testified that it was likely that J.H. acquired the disease when she was under the age of five, and also fairly unlikely that a chronic carrier such as J.H. would pass the disease to another person through sexual contact. Based on this information, the court determined that the evidence had minimal probative value that was outweighed by the danger of unfair prejudice.

Tail also filed a motion in limine asking the court to exclude any references to his prior state court conviction for the second degree rape of J.H., arguing that the conviction was irrelevant and extremely prejudicial. The district court denied this motion, finding that the evidence was admissible as a prior sexual assault offense under Federal Rule of Evidence 413. The court thought the evidence was highly probative and that it should not be excluded under Rule 403, but gave a cautionary instruction to the jury at trial.

The jury found Tail guilty of all four charged offenses. For each of the two charges of sexual abuse of a minor, the district court sentenced Tail to 240 months' imprisonment, with the sentences to run concurrently. Tail was sentenced to an additional 120 months for each of the sexual abuse charges, with those sentences running concurrently with each other but consecutive to the sentences imposed for sexual abuse of a minor.

II.

On appeal, Tail renews his challenge to the district court's denial of his motion to suppress the statements that he made during a car ride with Agent Lauck. His argument is based on the requirement that an officer give Miranda warnings when a suspect is interrogated while in custody. Rhode Island v. Innis, 446 U.S. 291, 300, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980). There is no dispute here that Tail was in custody, but the district court concluded that Tail was not under interrogation when the statements were made. We review the district court's factual findings for clear error and its legal conclusions de novo. United States v. Londondio, 420 F.3d 777, 783 (8th Cir.2005).

"Voluntary statements that are not in response to interrogation are admissible with or without the giving of Miranda warnings." Id. "Interrogation" includes express questioning, and it also extends to "words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect." Innis, 446 U.S. at 301, 100 S.Ct. 1682 (footnote omitted). Tail argues that Agent Lauck intentionally "gained Tail's trust" and "engage[d] [Tail] in friendly conversation," knowing that Tail was "especially vulnerable," and then "took advantage of Tail's vulnerability" by recording his statements on a piece of paper that he kept in the van. (Appellant's Br. at 14-15).

The district court found Agent Lauck's account of the car ride, which involved "minimal, but polite conversation," to be credible, and we see no clear error in that determination. There is no suggestion that Agent Lauck asked Tail any questions or steered the conversation toward potentially incriminating topics. To the contrary, Lauck testified that he intentionally avoided questioning Tail and kept his own answers to Tail's questions short. Polite conversation is not the functional equivalent of interrogation. Londondio, 420 F.3d at 783; United States v. Fleck, 413 F.3d 883, 893 (8th Cir.2005). Tail also makes something of the fact that Agent Lauck kept a clipboard in the van to record his incriminating statements. Lauck testified that he kept the clipboard for a variety of purposes, including recording his mileage and other data about his trip, but even if he kept the clipboard for the sole purpose of recording Tail's statements, that would not transform the encounter into an interrogation. We therefore conclude that the district court properly denied the motion to suppress.

III.

Tail also challenges three of the district court's evidentiary rulings. He argues that the district court abused its discretion in admitting evidence of his prior state court conviction for second degree rape. He also contends that the court erred in excluding evidence that J.H. had tested positive for Hepatitis B and that she and M.H. had previously made false allegations of abuse.

A.

Tail concedes that his conviction for second degree rape qualifies as an "offense of sexual assault" under Rule 413(d)(2), which provides that evidence of such crimes is admissible in sexual assault trials and may be considered "for its bearing on any matter to which it is relevant." Fed. R.Evid. 413(a). Tail argues that the evidence should nonetheless have been excluded under Rule 403, because its probative value was substantially outweighed by the danger of unfair prejudice, and under Rule 404(b), because it was impermissible character evidence.

We give "great deference to the district court's balancing of the probative value and the prejudicial impact," United States v. Looking Cloud, 419 F.3d 781, 785 (8th Cir.2005), and we see no abuse of the court's discretion in this case. The conviction was probative because it involved the same victim and an act that occurred close in time and under circumstances similar to the crime charged in this case. See United States v. Medicine Horn, 447 F.3d 620, 623 (8th Cir.2006). The evidence was "prejudicial" in the sense that it tended to suggest that Tail had a propensity to commit sexual assaults, but this does not constitute unfair prejudice. Id. To require the exclusion of this evidence based on the asserted "inflammatory nature" of sexual offenses would be at odds with the "strong legislative judgment" in favor of admitting such evidence that Congress expressed in adopting Rule 413. Id.; see also United States v. LeCompte, 131 F.3d 767, 770 (8th Cir.1997).

Tail also argues that Rule 404(b) requires exclusion of the conviction, but the policy articulated in Rule 413, unique to cases involving sexual assaults, renders the general prohibition on propensity evidence in Rule 404(b) inapposite. See United States v. Mound, 149 F.3d 799, 802 (8th Cir.1998). In addition, in this case the district court issued an instruction advising the jury that the evidence was received for "a limited purpose only," and that the prior conviction "does not mean that he is guilty of the charges of sexual abuse and sexual abuse of a minor as to which he has pleaded not guilty in this case." (R. Doc. 167, Jury Instruction No. 8). Such cautionary instructions decrease any danger of...