U.S. v. Youngman

• Decision Date: 02 April 2007
• Docket Number: No. 06-2333.,06-2333.
• Citation: 481 F.3d 1015
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Darren YOUNGMAN, also known as Tote Youngman, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

481 F.3d 1015

UNITED STATES of America, Plaintiff-Appellee, v. Darren YOUNGMAN, also known as Tote Youngman, Defendant-Appellant.

No. 06-2333.

United States Court of Appeals, Eighth Circuit.

Submitted: December 13, 2006.

Filed: April 2, 2007.

Al J. Arendt, argued, Arendt Law Office, Pierre, SD, for appellant.

Mark E. Salter, argued, Asst. U.S. Atty., Sioux Falls, SD (Randolph J. Seiler, Asst. U.S. Atty., Pierre, SD, also appeared), for appellee.

Before BYE, COLLOTON, and BENTON, Circuit Judges.

BENTON, Circuit Judge.

Darren Ray Youngman was convicted of two counts of aggravated sexual abuse, in violation of 18 U.S.C. §§ 1153, 2241(a), 2246(2), and five counts of assault with a dangerous weapon, in violation of 18 U.S.C. §§ 113(a)(3),1153, all on the Rosebud Sioux Indian Reservation. Youngman appeals. Having jurisdiction under 18 U.S.C. § 1291, this court affirms.¹

I.

After indicting Youngman on multiple counts, the government dismissed six during trial. The jury acquitted on three counts, convicting Youngman on nine. The district court then granted judgments of acquittal on two counts.

Youngman appeals the remaining seven convictions, claiming the district court erred in (1) denying his motion for writs of habeas corpus ad testificandum, (2) commenting about a government witness, (3) declining a proposed jury instruction, and (4) denying a judgment of acquittal on five counts.

A.

Youngman first argues that the district court erred in denying writs of habeas corpus ad testificandum. This court reviews for abuse of discretion and does not reverse "unless the exceptional circumstances of the case indicate that the defendant's right to a complete, adequate and fair trial is jeopardized." United States v. LeAmous, 754 F.2d 795, 798 (8th Cir.1985).

Four days before trial, Youngman requested the production of three federal prisoners as witnesses. Youngman did not provide any indication of the necessity of the witnesses for an adequate defense. The court denied the motion stating it was "extremely unlikely" that the witnesses could be delivered by the time of trial. The court also noted that Youngman had "not informed the Court exactly where [the] three individuals were located" and had failed to supply writs for the Court's signature. Youngman asserts he was denied compulsory process under Article VI of the Constitution.

The right to compulsory process is not absolute, and is left to the discretion of the trial judge. See LeAmous, 754 F.2d at 798. Rule 17(b) requires a defendant to show "the necessity of the witness's presence for an adequate defense." Fed R.Crim. P. 17(b). A defendant bears the burden of demonstrating that the "testimony of the witness is both material and favorable to the defense." United States v. Mejia-Uribe, 75 F.3d 395, 399 (8th Cir. 1996).

"Mere allegations of materiality and necessity are not sufficient to establish that a witness is necessary to an adequate defense." LeAmous, 754 F.2d 795 at 798. A "conclusory statement" that a witness is needed for a defense does not satisfy the burden under Rule 17(b). See United States v. Oates, 173 F.3d 651, 659 (8th Cir.1999) (statement that witness is needed to "introduce testimony at trial for his defense" does not satisfy Rule 17(b)).

At no time before or during trial did Youngman even attempt to show that the requested witnesses were necessary for an adequate defense. Youngman fails to meet his burden of demonstrating that his right to a complete, adequate, and fair trial was jeopardized.

B.

Youngman contends that the court erred in stating, "It's a difficult witness, and I'll give him [the prosecutor] some latitude. But eventually it may be that you can't help people that don't want to be helped." The court made this statement after Youngman objected to the prosecutor's commentary that he knew it was difficult for the witness to testify and apologized for making her do it. Youngman did not object to the court's statement at trial. He now argues that it "insinuates that this is a victim who needs help, and that if she refuses help, there is nothing the jury or the judge can do for her." The government ultimately dismissed all five counts relating to the witness.

Since Youngman did not object to the district court's statement, this court reviews for plain error. United States v. Bustos-Torres, 396 F.3d 935, 947 (8th Cir. 2005); United States v. Harper, 466 F.3d 634, 644 (8th Cir.2006). Youngman bears the burden of showing that the comment was an error, the error was plain, and it affected his substantial rights. Id. This court will only correct errors serious enough to affect the "fairness, integrity or public reputation of judicial proceedings, such as circumstances in which a miscarriage of justice would otherwise result." Id., quoting United States v. Olano, 507 U.S. 725, 735-36, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).

During trial, a judge must be "especially cautious," because a judge's influence on a jury is great and any word "may prove controlling." Harper, 466 F.3d at 646, quoting Rush v. Smith, 56 F.3d 918, 921-22 (8th Cir.1995) (en banc). However, even if the judge's comment here were error, Youngman must also establish that the comment violated his substantial rights and that "there is a reasonable probability that the outcome of his trial would have been different had the court not made the statements" Harper, 466 F.3d at 646. In determining the prejudicial effect of the comments, this court reviews the context in which the comments were made, the trial as a whole, and the court's subsequent instructions to the jury. Id.

Here, the witness was extremely reluctant to testify. She admitted that her reluctance stemmed from her fear of Youngman and because his father was her boss. Out of the presence of the jury, the government moved to dismiss the five charges relating to her due to her unwillingness to testify. After granting the motion, the judge told the jury that "we explored options of what to do with a young woman who was just distraught for whatever reason, and determined that this is the best option." Later, during the instructions to the jury, the court told the jury to "not assume that I hold any opinion on matters to which my questions may have related," "not take anything I may say or do during trial as indicating what I think of the evidence or what I think your verdict should be," and "statements arguments, questions, and comments made by lawyers, or myself are not evidence."

Examining the context of the judge's initial statement, the trial as a whole, and the subsequent instructions, any prejudice against Youngman was remedied when the district court dismissed the charges relating to the witness and provided multiple clarifying instructions. This is not a case where the judge "had actively injected himself into the entire trial proceedings and had made extremely prejudicial comments that pervaded the overall fairness of the trial and which tended to accentuate and emphasize the government's case." See Alidani v. Dooley, 365 F.3d 635, 640 (8th Cir.2004). See also id. at 643 (dissenting opinion of Richard S. Arnold, J.) (agreeing reversal is not required if the witness has her testimony stricken or is on the stand only briefly and gives inconsequential testimony). As Youngman has not established that the judge's statement affected his substantial rights, he is not entitled to relief.

C.

Youngman believes that the court erred in failing to provide the following instruction to the jury:

The indictment charges that the offense was committed "on or about between" certain dates. The proof needs establish with certainty the exact date of the alleged offense. It is insufficient if the evidence in the case established beyond a reasonable doubt that the offense was committed on a date reasonably near the dates alleged It is the governments [sic] burden to provide evidence which established the exact date they assert the offense occurred on.

The dates in question stem from his convictions on three counts against one victim. The indictment alleged that these offenses occurred "on or about between January 1, 2001, and May 31, 2003," (one count of sexual abuse, and one count of assault) and "on or about between January 1, 2001 and January 31, 2003" (assault). The court instructed the jury: "proof need not establish with certainty the exact date of the alleged offense. It is sufficient if the evidence in the case establishes beyond a reasonable doubt that the offense was committed on a date reasonably near the alleged date." See United States v. Turner, 189 F.3d 712, 722 (8th Cir.1999) (approving identical instruction). Youngman argues that it is "all but impossible" for him to provide a defense if exact dates of offenses are not proven.

This court reviews jury instructions for abuse of discretion. United States v. Katz, 445 F.3d 1023, 1030 (8th Cir.2006). Jury instructions are adequate if "taken as a whole, [they] adequately advise the jury of the essential elements of the offenses charged and the burden of proof required of the government." United States v. Rice, 449 F.3d 887, 895 (8th Cir.2006).

The use of "on or about in an indictment relieves the government of proving that the crime charged occurred on a specific date, so long as it occurred within a reasonable...