United States v. Rouse, No. 95-1554

CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)
Writing for the CourtBefore McMILLIAN, BRIGHT, and LOKEN; BRIGHT; At trial, the children were asked almost exclusively leading questions over closed circuit television. Rather than asking the children if the abuse occurred, the government asked them whether they had told
Citation100 F.3d 560
Decision Date16 October 1995
Docket NumberNo. 95-1554,No. 95-1558,N
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Desmond ROUSE, Defendant-Appellant. UNITED STATES of America, the United States, Plaintiff-Appellee, v. Jesse ROUSE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Garfield FEATHER, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Russell HUBBELING, Defendant-Appellant. o. 95-1556,o. 95-1559 Submitted:

Page 560

100 F.3d 560
UNITED STATES of America, Plaintiff-Appellee,
v.
Desmond ROUSE, Defendant-Appellant.
UNITED STATES of America, the United States, Plaintiff-Appellee,
v.
Jesse ROUSE, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Garfield FEATHER, Defendant-Appellant.
UNITED STATES of America, Plaintiff-Appellee,
v.
Russell HUBBELING, Defendant-Appellant.
No. 95-1554, No. 95-1556, No. 95-1558, No. 95-1559
United States Circuit Court of Appeals,
Eighth Circuit
Submitted: October 16, 1995
Decided: November 12, 1996

Appeals from District Court for the District of South Dakota.

Page 561

John Wilka, argued, Sioux Falls, SD, for Desmond Rouse in No. 95-1554.

Steven R. Binger, argued, Sioux Falls, SD, for Jesse Rouse in No. 95-1156.

Robert C. Heege, argued, Sioux Falls, SD, for Garfield Geather in No. 95-1558.

Steven G. Haugaard, argued, Sioux Falls, SD, for Russell Hubbeling in No. 95-1559.

Karen E. Schreier, U.S. Atty., Michelle G. Tapken, Asst. U.S. Atty., Sioux Falls, SD, argued, for U.S.

Before McMILLIAN, BRIGHT, and LOKEN, Circuit Judges.

BRIGHT, Circuit Judge.

Four young Native American men face combined sentences of more than 120 years for alleged child abuse. These convictions rest upon testimony of young children, the alleged victims, with some support from findings on medical examinations of the children.

These defendants are Jesse Rouse, Desmond Rouse, Garfield Feather and Russell Hubbeling. They and a fifth defendant, Duane Rouse, who was acquitted by the jury, faced twenty-three counts of aggravated sexual abuse of children under the age of twelve years in violation of 18 U.S.C. Section(s) 2241(c).

Page 562

The events allegedly occurred at family residences on a South Dakota Indian Reservation.

The jury found Jesse Rouse guilty of two counts of sexual abuse; Desmond Rouse guilty of three counts; Garfield Feather guilty of four counts and Russell Hubbeling guilty of two counts. These counts related to alleged abuse of five young Native American children. The children are referred to by initials in the text of this opinion. The jury acquitted the defendants of the remaining charges.

The appellants raise twelve allegations of error in the trial of the case.1 We grant relief on two issues: (1) refusal to allow expert opinion testimony by a court appointed psychologist that the children's evidence and testimony became tainted by suggestive influences to which the children were subject in the investigation and trial, which influences included taking the children (the alleged victims and nine other children) from their families and from their residences and (2) denial by the trial court of the defendants' motion for independent psychological examination of the allegedly abused children -- in light of the circumstances of the case.

Accordingly, the appellants are entitled to a new trial on these grounds.

Sufficiency of the evidence is not an issue. However, an examination of the record establishes that the medical evidence was inconclusive as to abuse or abuse by the defendants and that the children's reports of abuse may have been tainted by the influence of social workers and law enforcement officials who investigated and prepared the government's case.

The crucial issue for determination by the jury was this -- did the young children testify from their own memory of events or was a false memory induced during investigation by the methods by which those children were interrogated? Some of the evidence presented in the case suggests that the children may have had induced memories that sexual abuse occurred. While that issue remained for the jury, the jury evaluated the children's evidence of abuse without the benefit of a qualified defense child abuse expert who would have assisted the jury by explaining that the children had been subjected by state investigators to "powerful and coercive influences."

We briefly address the merits of some of the other errors alleged by the defendants. This commentary may be helpful with respect to the retrial of this case. See United States v. Azure, 801 F.2d 336, 341 (8th Cir. 1986).

First, the trial court's discretionary ruling which denied defendants a further independent medical examination leaves inconclusive the abuse conclusions resting on medical findings. This uncertainty in the evidence is further accentuated because the physician did not document findings with photographs.

Second, in light of the background of this case, the district court's exclusion of testimony relating to inter-child sexual activity among the alleged victims and other children on the reservation deprived the defendants of important evidence indicating another possible

Page 563

source relating to any physical manifestations of abuse. This issue may arise in the new trial.

Third, because of the possible influences on the memories of the children by social services personnel and other investigators and the lack of access to the children, the district court prejudicially erred in refusing to authorize an independent psychological examination.

Fourth, although not reversible error, the allegations of one juror's racism and that juror's contention that racial jokes regarding Native Americans were told in the jury room are troubling.

With respect to conditions that can influence children's memories, we are mindful of a historical event of some three hundred years ago (the Salem, Massachusetts witch trials) where child witnesses ages five to sixteen (the "circle girls") claimed to see persons (the defendants) flying on broomsticks and other envisaged celestial apparitions. Based on this testimony, nineteen alleged witches were put to death and a dozen others avoided executions by testifying to witchery, that which was not.2

This case, of course, is not a Salem witch hunt, but that history must remind us that memory, particularly children's memory, may be falsely induced. Where that occurs, the testimony may be true in the child's mind, but false in fact.

I. BACKGROUND

Five-year-old R.R. lived with her grandmother Rosemary Rouse on the Yankton Sioux Reservation in Marty, South Dakota, during the summer and fall of 1994. R.R. had been taken from her mother and placed in her grandmother's custody. She had been unhappy about living with her grandmother and had wanted to stay with her mother. After R.R. told a teacher that her grandmother was mean to her and was not feeding her, the Yankton Sioux Tribe's Department of Social Services (Department) removed R.R. from Rosemary Rouse's home for possible neglect and malnutrition and placed her with foster mother Donna Jordan.3

After living with her foster mother for several months, R.R. told Jordan that she was having nightmares and that she had been sexually abused. Jordan scheduled an appointment with counselor Ellen Kelson. After interviewing R.R. -- an interview which she did not audio or video tape -- Kelson immediately contacted the Department and reported that a number of children at the Rouse residence had been sexually abused.

The next day, on January 11, 1994, apparently without any additional evidence or investigation, the Department removed approximately thirteen children from the Rouse home and a nearby home.4 According to the evidence, squad cars pulled up and the children were physically removed while they cried and clung to their uncles' and other adults' legs. Jean Brock, a social worker for the Department, transported the children to Jordan's foster home, and told the children it was their uncles' fault that they were being taken away because the uncles were doing "bad things" to them. On her initial intake sheet, Brock noted that "the children love the adults," but that the home was messy.

Brock and Jordan told the children they could not go home until they told the "truth" about their uncles. Both alleged victims and non-victim children testified that Brock and Jordan repeatedly told them that they were taken away from their homes because their uncles did bad things to them and that they could safely go home only after they told the "truth" about their uncles and all these bad things got fixed. In fact, T.R. remembered later telling Kelson "that to say the truth is to say that your uncles did things to you," and that "[i]f you tell the truth you get to go home." When the district court asked J.R.

Page 564

what it means to tell the truth at her in camera competency examination, J.R. responded, "[y]ou mean you can go home."

Despite this encouragement to accuse their uncles, many of the children repeatedly denied being abused, and approximately nine children who consistently and adamantly denied being abused were allowed to go home to their parents.5 Those children who claimed that abuse occurred were not allowed to see their parents until approximately six months later in July 1994 (just before trial), despite repeated requests by the children and parents and a tribal court order. T.R. testified that she did see her mother once during this time period after repeated requests to do so. Nevertheless, both Brock and Kelson sat in on the parent-child meeting and took notes.

Beginning in January 11, 1994, the children all lived in Jordan's home. Jordan told them this situation was not their fault; she told them their uncles were at fault and she got very specific about the "bad" things their uncles were doing to them.

Dr. Richard Kaplan, a pediatrician, initially examined the children in Jordan's presence on January 15, 1994. At that time, he could not diagnose any of the children as having been abused, and he arranged for a subsequent examination by Dr. Robert Ferrell, a woman's obstetrician and gynecologist, which examination took place a month later. That doctor reported findings consistent with sexual abuse.

After the January 15 examination and after the group of children spent over a week in Jordan's home, FBI agent William Van Roe...

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17 practice notes
  • State v. Kinney, No. 99-122.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • 13 Octubre 2000
    ...evidence because it does not involve hard science capable of reliability testing by the scientific method. See United States v. Rouse, 100 F.3d 560, 567-68 (8th Cir.1996), vacated en banc, 107 F.3d 557, rehearing denied, 111 F.3d 561, cert. denied, 522 U.S. 905, 118 S.Ct. 261, 139 L.Ed.2d 1......
  • Rouse v. United States, 20-2007
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 16 Septiembre 2021
    ...appeal, we affirmed the convictions and the denial of a new trial. United States v. Rouse, 111 F.3d 561, 565 (8th Cir.), reconsidering 100 F.3d 560 (8th Cir. 1996), cert. denied, 522 U.S. 905, 118 S.Ct. 261, 139 L.Ed.2d 188 (1997) (" Rouse I"). In 1999, defendants filed a second motion for ......
  • U.S. v. Rouse, Nos. 95-1554
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 29 Mayo 1997
    ...and in denying defendants' motion for independent pretrial psychological examinations of the abused children. See United States v. Rouse, 100 F.3d 560 (8th Cir.1996). After the court granted the government's suggestion for rehearing en banc and vacated the panel opinions, the panel granted ......
  • Com. v. Pare, No. 96-P-824
    • United States
    • Appeals Court of Massachusetts
    • 2 Octubre 1997
    ...(1996). In light of the well-established "reality of children's susceptibility to suggestive interview practices," United States v. Rouse, 100 F.3d 560, 572-574 (8th Cir.1996), and our explicit acknowledgment that "leading or coercive [or suggestive] questioning [and interview techniques] c......
  • Request a trial to view additional results
17 cases
  • State v. Kinney, No. 99-122.
    • United States
    • Vermont United States State Supreme Court of Vermont
    • 13 Octubre 2000
    ...evidence because it does not involve hard science capable of reliability testing by the scientific method. See United States v. Rouse, 100 F.3d 560, 567-68 (8th Cir.1996), vacated en banc, 107 F.3d 557, rehearing denied, 111 F.3d 561, cert. denied, 522 U.S. 905, 118 S.Ct. 261, 139 L.Ed.2d 1......
  • Rouse v. United States, 20-2007
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 16 Septiembre 2021
    ...appeal, we affirmed the convictions and the denial of a new trial. United States v. Rouse, 111 F.3d 561, 565 (8th Cir.), reconsidering 100 F.3d 560 (8th Cir. 1996), cert. denied, 522 U.S. 905, 118 S.Ct. 261, 139 L.Ed.2d 188 (1997) (" Rouse I"). In 1999, defendants filed a second m......
  • U.S. v. Rouse, Nos. 95-1554
    • United States
    • United States Courts of Appeals. United States Court of Appeals (8th Circuit)
    • 29 Mayo 1997
    ...and in denying defendants' motion for independent pretrial psychological examinations of the abused children. See United States v. Rouse, 100 F.3d 560 (8th Cir.1996). After the court granted the government's suggestion for rehearing en banc and vacated the panel opinions, the panel granted ......
  • Com. v. Pare, No. 96-P-824
    • United States
    • Appeals Court of Massachusetts
    • 2 Octubre 1997
    ...light of the well-established "reality of children's susceptibility to suggestive interview practices," United States v. Rouse, 100 F.3d 560, 572-574 (8th Cir.1996), and our explicit acknowledgment that "leading or coercive [or suggestive] questioning [and interview technique......
  • Request a trial to view additional results

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