U.S. v. White Horse

• Decision Date: 15 January 2003
• Docket Number: No. 02-1199.,02-1199.
• Parties: UNITED STATES of America, Appellee, v. Guy Randy WHITE HORSE, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

316 F.3d 769

UNITED STATES of America, Appellee, v. Guy Randy WHITE HORSE, Appellant.

No. 02-1199.

United States Court of Appeals, Eighth Circuit.

Submitted: October 8, 2002.

Filed: January 15, 2003.

Rehearing and Rehearing En Banc Denied February 20, 2003.

COPYRIGHT MATERIAL OMITTED

Gary G. Colbath, argued, Asst. Fed. Public Defender, Rapid City, SD, for appellant.

Gregg S. Peterman, argued, Asst. U.S. Atty., Rapid City, SD (Jeannine Huber, Asst. U.S. Atty., Sioux Falls, SD, on the brief), for appellee.

Before HANSEN, Chief Judge, and HEANEY and MORRIS SHEPPARD ARNOLD, Circuit Judges.

MORRIS SHEPPARD ARNOLD, Circuit Judge.

Guy Randy White Horse appeals his conviction in federal district court¹ for sexually molesting his six-year-old son. For the reasons explained below, we affirm.

I.

Mr. White Horse maintains first that his indictment was so fatally flawed as to deprive the district court that tried him of jurisdiction. Mr. White Horse was indicted for aggravated sexual abuse under 18 U.S.C. §§ 2241(c) and 1152. The first statute defines aggravated sexual abuse, and the latter statute provides that "the general laws of the United States as to the punishment of offenses ... shall extend to the Indian country [but][t]his section shall not extend to offenses committed by one Indian against the person or property of another Indian." Mr. White Horse contends that § 1152 creates federal jurisdiction over all federal crimes by non-Indians against Indians in Indian country but excludes jurisdiction over crimes by one Indian against another. He asserts that he is in fact an Indian and argues that the district court therefore had no jurisdiction over his case.

Contrary to Mr. White Horse's argument, the fact, if it is one, that Mr. White Horse is an Indian would not deprive the district court of jurisdiction to try him for a violation of § 1152. It might have been a relevant matter at trial, but the trial court had the power to try the case whatever Mr. White Horse's status was. As the Supreme Court has recently made clear, the matter of jurisdiction has to do only with "`the court's statutory or constitutional power to adjudicate the case,'" United States v. Cotton, 535 U.S. 625, 122 S.Ct. 1781, 1785, 152 L.Ed.2d 860 (2002) (quoting Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 89, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998)). As Judge Easterbrook succinctly observed, "[s]ubject-matter jurisdiction in every federal criminal prosecution comes from 18 U.S.C. § 3231 ... That's the beginning and the end of the `jurisdictional' inquiry." Hugi v. United States, 164 F.3d 378, 380 (7th Cir.1999). Mr. White Horse's assertion that he is an Indian is relevant to the matter of proof but irrelevant on the matter of jurisdiction.

II.

Although he did not raise his Indian status at the trial court level, Mr. White Horse now argues that the government's proof was insufficient because non-Indian status is an element of the offense under § 1152, and the government never proved that he was not an Indian. The government, on the other hand, maintains that Indian status is an affirmative defense to a charge under § 1152 and that Mr. White Horse did not produce any evidence at trial that he qualifies as an Indian under the principles outlined in Rogers v. United States, 45 U.S. (4 How.) 567, 572-73, 11 L.Ed. 1105 (1846). Even if one were to assume his Indian status, the government contends that the error was not prejudicial because 18 U.S.C. § 1153 criminalizes the very acts charged in the indictment in any event: That statute provides that "[a]ny Indian who commits against the person or property of another Indian ... any of the following offenses, [including incest and an assault against an individual who has not attained the age of 16 years] ... shall be subject to the same law and penalties as all other persons." 18 U.S.C. § 1153(a).

If non-Indian status is an element of the offense of § 1152, we would proceed to analyze Mr. White Horse's conviction under §§ 2241(c) and 1152 for plain error, and we would notice an error not raised at trial only if it is plain, "affect[s] substantial rights [and] seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings." Cotton, 122 S.Ct. at 1786 (internal quotations omitted). If, however, Indian status is an affirmative defense to a charge under § 1152, Mr. White Horse cannot prevail because he did not raise the defense in the trial court. Cf. Clark v. Martinez, 295 F.3d 809, 815 (8th Cir.2002).

Even if a defendant's Indian status is an element of the offense under § 1152, we conclude that Mr. White Horse is not entitled to plain error relief because of the complementary nature of § 1152 and § 1153. There is no contention that the evidence was insufficient to establish that Mr. White Horse committed the physical acts charged in the indictment, and regardless of which statute applied (one of them certainly did) Mr. White Horse was guilty of a federal crime because he, like everyone else, is either an Indian or he is not. Between them, the statutes apply to all defendants whatever their race or ethnicity. In other words, we believe that the situation here is the same as it would be if we were dealing not with two statutes but with a single one that provided that it applied whether or not the defendant was an Indian. Indeed, as they pertain to the crime of aggravated sexual abuse, the two relevant sections could have been codified as one to render ethnic or racial status altogether irrelevant. In the circumstances, therefore, we cannot say that Mr. White Horse's conviction seriously affected the fairness, integrity, or public reputation of judicial proceedings.

Furthermore, Mr. White Horse has not indicated that his strategy at trial would have changed if he had been charged under § 1153. Because he has suffered no prejudice from the fact that he might have been charged and convicted under the wrong statutory section, he cannot be entitled to plain error relief. See United States v. Vallie, 284 F.3d 917, 921 (8th Cir.2002).

III.

Mr. White Horse next maintains that the district court abused its discretion in failing to compel the government to provide him with a copy of a forensic report prepared by a social worker and with a copy of videotaped interviews involving the social worker and his son. We review rulings on pretrial motions for production for an abuse of discretion, and we will reverse "only on a showing that the error was prejudicial to the substantial rights of the defendant." See United States v. Woosley, 761 F.2d 445, 448 (8th Cir.1985).

The district court denied Mr. White Horse's motion to compel production of these copies on the grounds that a forensic examination did not constitute a "physical or mental examination[]" under Fed.R.Crim.P. 16(a)(1)(D) and because the government did not intend to call the social worker as an expert at trial. The district court noted, however, that both the report and videotaped interview were covered by the Jencks Act, 18 U.S.C. § 3500: Thus, if either the son or the social worker testified, production of the videotape would be required after the testimony; and if the social worker was called as an expert, production of the report would be required thereafter as well. The district court also advised Mr. White Horse to file a motion in limine should he wish to raise any issue about the particulars of any statement that the government might seek to introduce under the residual hearsay exception, see Fed.R.Evid. 807.

We detect no prejudice here even if the court's ruling was erroneous. The record indicates that Mr. White Horse and his counsel were allowed to see a copy of the videotaped interviews in a private area of the jail where Mr. White Horse was detained, and Mr. White Horse obtained a copy of the social worker's report from a source other than the government at least a month prior to trial. Thus the failure to compel production of copies did not affect his substantial rights.

Mr. White Horse cites United States v. Davis, 244 F.3d 666 (8th Cir.2001), for the proposition that "[d]elayed disclosure is inconsistent with the discovery obligations set forth in Rule 16," which are designed in part to "`provid[e] the defendant with sufficient information upon which to base'" a litigation strategy. Id. at 673 n. 4 (quoting Fed.R.Crim.P. 16 advisory committee's note). Davis, however, materially differs from the instant case. In that case, the district court excluded the government's use of DNA evidence as a discovery sanction because the "government waited until almost a month after the discovery deadline to request expedited testing and did not notify the district court or the defense about the DNA testing or the possibility of a delay until two days before trial was scheduled to begin." Id. at 673. That clearly is not the situation here, since defense counsel had access to the requisite materials well in advance of trial.

Mr. White Horse also argues that his failure to obtain a copy of the report and videotape violated his confrontation clause rights. Although his son testified at trial, he argues that his ability to cross-examine his son and the social worker was rendered ineffective because he was not provided with the particulars of statements by his son that were introduced under Rule 807 during the social worker's testimony. We disagree. As noted before, Mr. White Horse had obtained a copy of the report and had witnessed the videotaped interviews. Because he knew the particulars of his son's statements, he had the opportunity to cross-examine both his son and the social worker effectively. Cf. United States v. Wilson, 102 F.3d 968, 971-72 (8th Cir.1996).

IV.

Mr. White Horse next argues that his trial rights under the Speedy Trial Act (18 U.S.C. § 3161) and under the Sixth Amendment were violated because his trial occurred about nine and one-half months after the date of his arraignment. We disag...