United States v. Frederick

Decision Date06 August 2012
Docket NumberNo. 11–1546.,11–1546.
PartiesUNITED STATES of America, Appellee, v. Thomas William FREDERICK, Appellant.
CourtU.S. Court of Appeals — Eighth Circuit

OPINION TEXT STARTS HERE

Stanley E. Whiting, argued, Winner, SD, for appellant.

Timothy M. Maher, AUSA, argued, Pierre, SD, for appellee.

Before LOKEN, BRIGHT, and SHEPHERD, Circuit Judges.

SHEPHERD, Circuit Judge.

Following a jury trial, Appellant Thomas William Frederick was convicted of one count of aggravated sexual abuse of a minor, one count of sexual contact with a minor, and one count of tampering with a witness. The district court 1 sentenced Frederick to 145 months in prison. Frederick now appeals, challenging two separate rulings made at trial. We affirm.

I.

On March 9, 2010, an indictment was filed against Frederick, charging him with four separate counts: Count 1, aggravated sexual abuse of a minor, in violation of 18 U.S.C. §§ 1153, 2241(c), and 2246(2)(D); Count 2, sexual contact with a minor, in violation of 18 U.S.C. §§ 1153, 2244(a)(3), and 2246(3); Count 3, attempted sexual abuse of a minor, in violation of 18 U.S.C. §§ 1153, 2243(a), and 2246(2)(A); and Count 4, tampering with a witness, in violation of 18 U.S.C. § 1512(b)(3).2 The first three counts stemmed from allegations that Frederick had sexually abused W.F. and J.F., the adopted daughters of his biological sister Kathleen Frederick, at the family ranch on the Rosebud Sioux Indian Reservation. The last count was based on Frederick's instruction to J.F. to lie to investigators about his conduct toward her. After a five day trial, the jury found Frederick guilty as to Counts 1, 2, and 4. On appeal, Frederick challenges two separate rulings made by the district court. We address each in turn.

A.

Frederick first argues that his rights under the Confrontation Clause of the Sixth Amendment were violated when he was prevented from (1) asking W.F. if she made a false accusation of sexual abuse against her bus driver and (2) askingJ.F. if she made a false accusation of sexual abuse against a school teacher. We review evidentiary rulings regarding the scope of cross-examination for an abuse of discretion, except where the Sixth Amendment confrontation clause is implicated, and then our review is de novo.” United States v. Jewell, 614 F.3d 911, 920 (8th Cir.2010), cert. denied,––– U.S. ––––, 131 S.Ct. 1677, 179 L.Ed.2d 621 (2011).

During his cross-examination of W.F., Frederick's counsel 3 began to ask W.F. if she knew of a bus driver named Harry DuBray. The government objected immediately, and a side-bar followed. Defense counsel represented that in the past W.F. made a false accusation of sexual abuse against DuBray after DuBray disciplined her for getting angry and acting out on the bus. Defense counsel submitted that the intended line of questioning was probative because it would show that W.F. was “a girl that will make allegations against anybody that she doesn't like.” The government countered that any previous allegations of abuse against DuBray were inadmissible under the rape shield, Federal Rule of Evidence 412.4 The district court sustained the government's objection and noted its reliance not only on Rule 412, but also on Rules 403 and 404. During recross-examination of W.F., defense counsel asked W.F. if she “ever lied about sexual abuse.” W.F. responded in the negative.

The court took up Frederick's intended line of questioning outside the presence of the jury two more times before the conclusion of trial, allowing Frederick to make an offer of proof as to the alleged previous false reports. Defense counsel represented that W.F. had accused DuBray of “asking her to kiss him, having her sit on his lap, touching her improperly, and that this was an ongoing thing.” Defense counsel argued that, like her allegation against DuBray, W.F. only accused Frederick of sexual abuse after he punished her for stealing his granddaughter's iPad. Counsel stated that an investigation had been initiated into the allegation against DuBray but that it was his understanding that a final report was still outstanding.

During the offer of proof, defense counsel also addressed an intended line of questioning as to J.F. Defense counsel represented that J.F. made a false allegation of sexual abuse against a teacher, Mr. Miles, allegedly accusing Miles of touching her buttocks, her breasts, and between her thighs. Counsel stated that the allegation against Miles was “fully investigated,” including reports to “mandatory reporters” and to J.F.'s therapist. Counsel then represented that J.F. “simply retracted the allegation ... as the investigation was winding up, and ... then the allegation went away.” Counsel stated that she would be able to call the principal of the school who received the report of abuse and oversaw the investigation as well as the student aide in the room who would be able to testify “that the actions just simply could not have happened.” Counsel did not represent that J.F.'s allegations against Frederick or her teacher resulted from any sort of disciplinary action. Instead,at a sidebar during the cross-examination of J.F., defense counsel represented that part of J.F.'s motive was to “manipulate the system” and that J.F. made the allegations against Frederick based on her belief that doing so would allow her to move from the family ranch into town to be closer to her friends.

In response, the government maintained that the evidence relating to DuBray and Miles was inadmissible under Rule 412 and that Frederick could not show that any of the previous allegations were false. The Assistant United States Attorney also noted that he did not recall anything in the exhibits submitted by Frederick that debunked the investigation into the Miles allegation but noted his recollection that the allegation by J.F. against Miles was that Miles “was too close behind her.”

After allowing Frederick to make his offer of proof, the court upheld its original decision to disallow Frederick from asking W.F. and J.F. about other allegations of sexual abuse. The court noted Frederick's arguments that the allegations were not within the ambit of Rule 412, but ultimately concluded that Eighth Circuit precedent held to the contrary. In excluding the evidence, the court noted its reliance not only on Rule 412, but also on Rule 403 and Rule 608(b). The court did not prevent defense counsel from asking W.F. about her specific motive for bringing a claim against Frederick, including whether she blamed Frederick for being sent to a home for troubled teens.

Frederick contends that the court's reliance on Rule 412 was misplaced because “a lie about engaging in sexual abuse does not become an actual act of sexual abuse under Rule 412.” Frederick argues that his intended line of questioning would have demonstrated each girl's retaliatory motive to make false claims of sexual abuse when she felt wronged by an authority figure.5 Therefore his line of questioning was not aimed at showing that either girl engaged in other sexual behavior; instead, it would show that no sexual contact took place.

We have previously contemplated whether a false accusation of sexual abuse falls within the protective ambit of Rule 412, yet we have declined to make a determinative ruling on the issue. For example, in United States v. Bartlett, 856 F.2d 1071, 1088 (8th Cir.1988), we noted that “there is a question whether Rule 412 reaches the use of a prior false accusation of rape for impeachment purposes” and that it had been suggested by legal commentators that such evidence was “more properly analyzed under Rule 608(b).” We declined to address the issue, however, because [u]nder either rule, the Sixth Amendment to the Constitution guarantees the right of an accused in a criminal prosecution to be confronted with the witnesses against him.” Id. (citation and internal marks omitted). Likewise, in United States v. Tail, 459 F.3d 854, 859–60 (8th Cir.2006), we affirmed a district court that refrained from ruling whether evidence of false allegations of sexual abuse was barred by Rule 412 and instead applied its analysis under the Confrontation Clause and Rule 403.

As in Bartlett and Tail, our analysis of whether Frederick's constitutional rights were violated by the exclusion of the evidence is ultimately governed by the Confrontation Clause. As we explained in Tail:

A primary interest secured by the Confrontation Clause is the right of cross-examination. The opportunity to expose “possible biases, prejudices, or ulterior motives” of a witness, as they may relate directly to the issues or personalities in the case at hand,” is one important function of the right to confront witnesses. Thus, the Confrontation Clause may require the admission of certain evidence otherwise excluded by the rules of evidence, but it is clear that not all evidence that is “the least bit probative of credibility” must be admitted. As pertinent here, we have held that in a sexual abuse case, evidence alleging that the accuser made prior false accusations may be excluded if the evidence has minimal probative value. And the propriety of excluding such evidence is strengthened where the prior incident is unrelated to the charged conduct, and where the defendant intends to use the evidence as part of an attack on the “general credibility” of the witness.

Tail, 459 F.3d at 860 (internal citations omitted). In Tail, we affirmed a district court's decision preventing the defendant from cross-examining his victims regarding alleged past false accusations of sexual abuse. We found no violation of the Confrontation Clause because the defendant failed to support his claim that the previous accusations of abuse were false and therefore the evidence “had only limited probative value.” Id. at 860–61.

The present case is distinguishable from Tail and Bartlett in that Frederick has linked W.F.'s accusations against Frederick...

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