U.S. v. Vallie, 01-2526.

• Decision Date: 27 March 2002
• Docket Number: No. 01-2526.,01-2526.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Keane VALLIE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

284 F.3d 917

UNITED STATES of America, Plaintiff-Appellee, v. Keane VALLIE, Defendant-Appellant.

No. 01-2526.

United States Court of Appeals, Eighth Circuit.

Submitted: December 12, 2001.

Filed: March 27, 2002.

COPYRIGHT MATERIAL OMITTED

Steven Balaban, argued, Bismark, ND, for appellant.

Janice M. Morley, Asst. U.S. Atty., Fargo, ND, argued, for appellee.

Before McMILLIAN, HEANEY, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

Keane Vallie was convicted by a jury of sexual abuse under 18 U.S.C. § 1153 and § 2242(2)(A) and incest under 18 U.S.C. § 1153 and North Dakota Century Code §§ 12.1-20-11, -32.01. He appeals his convictions, and we affirm.

On the evening of February 4, 2000, Vallie was at the home of his sister, Elma Martell, on the Turtle Mountain reservation. A number of people had congregated there to visit, listen to music, and drink alcohol. Martell went to bed at approximately 4:00 a.m. Shortly after she fell asleep, she was awakened by a man having sexual intercourse with her. The man was behind her and said nothing. Martell did not suspect that he was not her husband, and the man repeated the act approximately thirty minutes later. The man pulled up Martell's underwear and covered her when he was finished, which aroused her suspicions because this type of behavior was not like her husband. Martell spoke to the man as he was leaving the room, he turned, and she saw then that he was Vallie.

Martell cleared everyone out of her residence, and one of her sisters came over and gathered Martell's bedding and underwear into a bag and called the police. Officers sent the bag to the FBI laboratory for DNA analysis, along with rape kits obtained from Martell and Vallie. Analysis revealed that all DNA present on the vaginal swabs and underwear came from Martell and Vallie. Vallie was indicted for sexual abuse, under 18 U.S.C. § 2242(2)(A) and § 1153, and incest, under 18 U.S.C. § 1153 and North Dakota Century Code §§ 12.1-20-11,-32-01. The case was tried before a jury which convicted on both counts. The district court¹ denied Vallie's motion for a new trial and sentenced him to 70 months.

Vallie appeals his convictions, arguing that the district court erred by admitting the DNA evidence, undisclosed blood alcohol tests, and testimony from an investigator who gave inaccurate grand jury testimony. Vallie also contends that the court did not adequately sequester witnesses and that the prosecutor committed misconduct by asking him about a prior offense unrelated to sexual conduct and by vouching for the credibility of witnesses. Finally, he contends that 18 U.S.C. § 1153(b) violates his right to equal protection because it uses state criminal law to define federal offenses and thus imposes nonuniform standards of liability and punishment.

Vallie asserts that the district court erred by admitting the DNA evidence because it was obtained from items that were collected by Martell's sister and that lacked a proper chain of custody. Martell's bedding and underwear were potential sources of highly relevant evidence since she claimed she had been sexually assaulted. Physical evidence may be admitted if "a reasonable probability exists that the evidence has not been changed or altered," United States v. Cannon, 88 F.3d 1495, 1503 (8th Cir.1996). In order to establish a faulty chain of custody, the proponent needs to show "bad faith, ill will, or proof of tampering." Id. Vallie has made no such showing, and the district court did not abuse its discretion in admitting the physical evidence. Moreover, any defect in the collection of the DNA evidence would have gone more to its weight than its admissibility. See United States v. Beasley, 102 F.3d 1440, 1448 (8th Cir.1996); United States v. Chischilly, 30 F.3d 1144, 1154 (9th Cir.1994).

Vallie also renews his objection that the court erred by admitting the results of Martell's blood alcohol tests because they had not been previously disclosed to defense counsel. The government is under an obligation to disclose exculpatory evidence, Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). To prove a Brady violation a defendant must show that "the prosecution suppressed the evidence, the evidence was favorable to the accused, and the evidence was material to the issue of guilt or punishment." United States v. Duke, 50 F.3d 571, 577 (8th Cir.1995). The district court did not abuse its discretion in admitting the blood alcohol test results because there was no evidence that the prosecution had suppressed the test results and because Martell's intoxication was not a defense to the crimes with which Vallie was charged. Although Martell's level of intoxication was relevant to her credibility as a witness, the government introduced the test results the day before she testified, and Vallie had an opportunity to use them to attack her credibility.

Vallie argues that the district court erred by allowing an investigator to testify at trial after he erred in his testimony before the grand jury. Vallie points to the following inaccuracies in the investigator's testimony to the grand jury: the investigator said that DNA evidence was "found in the saliva — or vagina swabs and on the mattress" (the DNA came from the vaginal swabs and the underwear Martell wore to bed), that actual semen was found when it was not, and that Martell was awake when the man first came into her bedroom. Vallie brought out the inconsistencies in the testimony of the investigator on his cross examination at trial, but Vallie did not object during direct examination of the witness. Our review is therefore for plain error. United States v. McBride, 862 F.2d 1316, 1319 (8th Cir.1988). An indictment cannot be based on perjured testimony, United States v. Basurto, 497 F.2d 781, 785 (9th Cir.1974), and the government may not use perjured testimony at trial if there is a reasonable chance that it would affect the jury's judgment, United States v. Martin, 59 F.3d 767, 770 (8th Cir.1995). Testimony shown to be inconsistent with prior statements is not necessarily perjury, however, and not every contradiction is material. Id. Although the investigator's grand jury testimony was not completely accurate, it did not amount to perjury nor materially misrepresent the nature of the DNA evidence or eyewitness testimony possessed by the government. There was no prejudice to Vallie and no plain error in allowing the investigator to testify at trial.

Vallie argues that the district court erred by allowing courtroom spectators to communicate with sequestered witnesses and by calling sequestration "asinine." Sequestration of most witnesses is mandatory when requested, Fed.R.Evid. 615, but the district court is granted wide latitude in implementing sequestration orders and the standard of review is abuse of discretion. United States v. Kindle, 925 F.2d 272, 276 (8th Cir.1991). The purpose of sequestration is to prevent witnesses from tailoring their testimony to that of prior witnesses and to aid in detection of dishonesty. Geders v. United States, 425 U.S. 80, 87, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976). There is no evidence that any conversations between trial observers and sequestered witnesses resulted in tailored testimony or otherwise prejudiced Vallie in any way. See Kindle, 925 F.2d at 276. The rules permit sequestration and we do not endorse use of the term "asinine" in respect to it, but the court's remark was made outside the presence of the jury....