U.S. v. Waters, 99-1442
| Decision Date | 18 June 1999 |
| Docket Number | No. 99-1442,99-1442 |
| Citation | 194 F.3d 926 |
| Parties | (8th Cir. 1999) United States of America, Appellee, v. Clifton Waters, Appellant. Submitted: |
| Court | U.S. Court of Appeals — Eighth Circuit |
Page 926
v.
Clifton Waters, Appellant.
Decided: October 5, 1999
Appeal from the United States District Court for the District of South Dakota.
Page 927
Page 928
Before LOKEN, BRIGHT and ROSS, Circuit Judges
ROSS, Circuit Judge.
Clifton Waters appeals his conviction for aggravated sexual abuse of a child in violation of 18 U.S.C. 2241(c) and 1153. He asserts that the district court 1 erred in certain evidentiary rulings, in refusing to instruct the jury on a lesser included offense, and in denying his motion for a new trial. We affirm.
BACKGROUND.
Before indictment, at the government's request, Waters took a polygraph examination conducted by a special agent of the Federal Bureau of Investigation (FBI). Among other things, the agent asked Waters whether he had placed his fingers in the child's vagina or touched her "private areas in a sexual way." He answered "no" to both questions and the agent believed that the answers were not indicative of deception. In April 1998, a grand jury indicted Waters with one count of aggravated sexual abuse of a child in violation of 18 U.S.C. 2241(c), which, in relevant part, makes it unlawful for a person to engage in a "sexual act" with a child under the age of 12 in a territorial jurisdiction. "Sexual act" is defined, in relevant part, as "penetration, however slight, of the anal or genital opening of another by a hand or finger" or "intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16" with an improper intent. 18 U.S.C. 2246(2)(C) and (D).
Before trial, Waters sought to admit the results of the polygraph examination and
Page 929
requested a Daubert 2 hearing in order to establish the examination's scientific reliability. In response, the government moved to exclude all evidence relating to the examination and opposed the request for a Daubert hearing, relying on United States v. Scheffer, 523 U.S. 303 (1998). In Scheffer, the Supreme Court held that a per se exclusion of polygraph evidence under Military Rule of Evidence 707 was constitutional. Id. at 305. The district court conditionally granted the government's motion to exclude, subject to further ruling at trial.
At the September 1998 trial, the victim, who was then nine years old, testified that in December 1996 Waters took her to a house in Manderson, South Dakota (Indian country), and while they were sitting on a couch, he told her to take off her pants. She further testified that after she took off her underpants, Waters touched her "butt" and her "middle," which she described as the place "you go to the bathroom,'' with his hands. She also testified Waters had touched her "in my private places" and had done the "same thing" to her at her house.
On cross-examination, Waters' counsel asked the victim about prior statements she had given to an FBI agent. The victim testified that she had met with the agent several times and first told the agent that Waters had touched her "private areas over the top of [her] clothing," but on another occasion told the agent that Waters had put his "entire" hand inside her, and yet on another occasion said he had put three fingers "up inside" of her. The victim also admitted that she had not told the agent about the touching incident at her house. On re-direct examination, the victim explained that she did not tell the agent everything because she was scared.
On re-cross examination, Waters' counsel asked the victim "you didn't tell the truth when you told [the agent] that [Waters] touched you over the top of your jeans, did you?" She said "no." She also said "no" when counsel asked "[y]ou didn't tell the truth when you told [the agent] that there was another incident where he put three fingers into you, did you?" However, she answered "yes" when counsel asked "you didn't [tell] the truth when you told [the agent] that he put his whole hand up inside of you, did you?" Counsel then asked "[y]ou did tell the truth then?" She replied "no."
The government also presented the testimony of a pediatrician, who had examined the victim in October and December 1997. The pediatrician testified that the victim had no hymenal tissue, which was highly unusual in a child of that age and was consistent with repeated penetration of the vagina.
Waters testified in his defense. After he denied he had touched the victim in a sexual way either over or under her clothes, his counsel renewed the request for a Daubert hearing regarding admissibility of the polygraph examination. However, he admitted he had no evidence concerning the reliability of the test. Although the district court observed that in Scheffer, 523 U.S. at 309, the Supreme Court noted the lack of scientific consensus on the reliability of polygraph examinations, the court held that it would "simply" exclude any evidence relating to the polygraph examination under Fed. R. Evid. 403.
In rebuttal, the government presented the testimony of a clinical social worker who specialized in child sexual abuse. The social worker testified that children "rarely tell you everything about an abuse the first time they are asked" and that "more
Page 930
information may come over a period of time." She also testified that children often leave out details of abuse because they are embarrassed.
At the conference on jury instructions, Waters withdrew previously submitted proposed instructions and handed the court a second set of proposed instructions, including an instruction on the lesser included offense of abusive sexual contact under 18 U.S.C. 2244(a), which, as relevant here, requires evidence of "intentional touching, either directly or through the clothing, of the genitalia, anus, . . . or buttocks" of another person with an improper purpose. 18 U.S.C. 2246(3). The court "invited counsel to outline the fact scenario" that would permit the jury to find Waters guilty of abusive sexual contact, yet acquit him of aggravated sexual abuse. Waters' counsel argued if the jury believed "the direct testimony from the alleged victim," it could find no evidence of "penetration of any kind" and could only return a verdict on abusive sexual contact. The government disagreed, noting that the victim testified Waters had touched her unclothed "middle" and that the jury could also consider the pediatrician's testimony of an injury consistent with penetration. The court agreed with the government and denied Waters' request, noting he had professed complete innocence. Waters' counsel again objected, asserting based on the victim's "testimony on direct examination" there was no evidence of aggravated sexual abuse. The court then asked if he was moving for a judgment of acquittal. Counsel indicated he was, and the court denied the motion.
About two months after the jury returned a guilty verdict, Waters filed a motion for a new trial based on newly discovered evidence, relying on a sworn statement in which the victim recanted her testimony that Waters had touched her. The court denied the motion, finding that in the circumstances of the case the recantation was not credible.
Waters first argues that the district court erred in denying his request for a Daubert hearing. He concedes he has no evidence which establishes the reliability of polygraph examinations, but argues his ability to gather the necessary evidence was hampered by the government's failure to comply with his discovery requests. We need not address any Daubert or discovery issues. The district court independently excluded the evidence under Fed. R. Evid. 403, which provides for exclusion of evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time . . .." Here, the court stated it would not admit the evidence because it would go to a collateral matter and cause confusion as to the weight of the evidence. The court did not abuse its discretion. In Scheffer, the Supreme Court noted the legitimate "risk that juries will give excessive weight to the opinions of a...
To continue reading
Request your trial
-
Lee v. Martinez, 27,915.
... ... While Rule 1-053(E)(2) appears to require us to adopt an extremely deferential standard of review, Petitioners argue that the findings of fact ... Waters, 194 F.3d 926 (8th Cir.1999) ( Daubert hearing unnecessary where 403 not met despite defendant ... ...
-
Nelson v. American Home Products Corp., 98-0909-CV-W-01.
... ... See e.g. U.S. v. Waters, 194 F.3d 926, 936 (8th Cir.1999) (holding that district court had sufficient information to ... ...
- Carter v. Kelley
- Ramsey v. B[e]RTSCH
-
Presenting Your Expert at Trial and Arbitration
...scientifically valid and of whether that reason or methodology can be properly applied to the facts in issue. In United States v. Waters 194 F.3d 926, 931 (8th Cir. 1999) the defendant suggested on appeal that the testimony of the social worker expert for the prosecution should not §345 Qua......
-
Presenting Your Expert at Trial and Arbitration
...of his own and others, and his physical examination of the plaintiff. CHALLENGE TO EXPERT TESTIMONY WAS UNTIMELY United States v. Waters, 194 F.3d 926, 931 (8th Cir. 1999) underscored the importance of timely challenges to expert testimony. The defendant suggested on appeal that the testimo......
-
Presenting Your Expert at Trial and Arbitration
...scientifically valid and of whether that reason or methodology can be properly applied to the facts in issue. In United States v. Waters 194 F.3d 926, 931 (8th Cir. 1999) the defendant suggested on appeal that the testimony of the social worker expert for the prosecution should not have bee......
-
Table of Cases
...v. Wade, 388 U.S. 218, 228 (1967), §603.1 United States v. Wanoskia , 800 F.2d 235 (l0th Cir. 1986), §332.6 United States v. Waters, 194 F.3d 926, 931 (8th Cir. 1999), §345.3 United States v. Western Pacific Railroad Co. , 352 U.S. 59, 64, 1 L.Ed. 2d 126, 77 S.Ct. 161 (1956), §181 Universal......