US v. McHorse, 98-2123.

• Decision Date: 03 June 1999
• Docket Number: No. 98-2123.,98-2123.
• Citation: 179 F.3d 889
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. John Carl McHORSE, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

179 F.3d 889

UNITED STATES of America, Plaintiff-Appellee, v. John Carl McHORSE, Defendant-Appellant.

No. 98-2123.

United States Court of Appeals, Tenth Circuit.

June 3, 1999.

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Norman C. Bay, Assistant United States Attorney (John J. Kelly, United States Attorney, with him on the brief), Albuquerque, New Mexico, for Plaintiff-Appellee.

Michael C. Gross, San Antonio, Texas, for Defendant-Appellant.

Before SEYMOUR, Chief Judge, BALDOCK, and BRISCOE, Circuit Judges.

BALDOCK, Circuit Judge.

Defendant John Carl McHorse is a forty-five year old resident of Taos Pueblo, New Mexico. A jury convicted him on four counts of aggravated sexual abuse of a child less than twelve years of age, in violation of 18 U.S.C. § 2241(c), and one count of abusive sexual contact with a child less than twelve years of age, in violation of 18 U.S.C. § 2244(a)(1). The district court sentenced Defendant to 310 months imprisonment. Defendant appeals his convictions, raising nine points of trial error. Seven of Defendant's arguments relate to the district court's admission of uncharged acts of child molestation into evidence. Specifically, Defendant argues that this evidence (1) deprived him of his Fifth Amendment right to due process; (2) deprived him of his Fifth Amendment right to equal protection of the laws; (3) was inadmissible under Fed.R.Evid. 414(a) as too dissimilar from the charged offenses; (4) was inadmissible under Fed.R.Evid. 403 as unduly prejudicial; (5) was inadmissible under the Sixth Amendment's Confrontation Clause and Fed.R.Evid. 802 as hearsay; and (6) was inadmissible under Fed.R.Evid. 608(b) as improper impeachment. Defendant further argues that the district court's limiting instruction to the jury regarding the Rule 414(a) evidence was inadequate. Finally, Defendant argues that the district court erred in denying his motion for a mistrial based on juror misconduct, and his motion for a continuance presented the morning of trial. Our jurisdiction arises under 28 U.S.C. § 1291. We affirm.

I.

Defendant is the uncle of the victims named in the indictment. The indictment refers to the victims as Jane Doe A, Jane Doe B, and Jane Doe C. The victims' father is the brother of Defendant's common law wife. The indictment alleged that between 1992 and 1994, Defendant engaged in sexual acts with the three victims, all of whom were under twelve years of age at the time.

Jane Doe A, fourteen years of age at the time of trial, testified that she was eight years old when Defendant began sexually abusing her. The abuse occurred on weekends when she and her half-sister, Jane Doe B, visited their aunt and Defendant. Defendant played games like strip poker with the girls, showed them "porno" movies, and gave them alcoholic beverages to drink. The abuse continued through Jane Doe A's eleventh birthday. According to Jane Doe A, Defendant fondled her on numerous occasions, and eventually raped her with his wife's assistance.

Jane Doe B was thirteen years old at the time of trial. She corroborated Jane Doe A's testimony. Jane Doe B testified that she and her half-sister frequently visited her aunt and Defendant at their home in Taos Pueblo. She stated that Defendant began sexually abusing her when she was "seven or eight." Like Jane Doe A, Jane Doe B testified that Defendant fondled her on numerous occasions and told her "whatever goes on in this house stays in this house."

Jane Doe C, the youngest sister, was nine years old at the time of trial. She visited her aunt and Defendant less frequently than her sisters. She testified that she did not like going to Defendant's house because he touched her underneath her clothing and "did stuff to me." When asked where Defendant touched her, Jane Doe C circled the genital region of a human drawing. She stated she didn't tell anyone because "if I told anyone, he'd kill my mom and dad." She further stated that she did not like the taste of licorice because Defendant would give her licorice after he touched her.

In addition to the testimony of the three victims named in the indictment, the government introduced the testimony of two other alleged victims, Jane Doe D and Jane Doe E, pursuant to Fed.R.Evid. 414(a). A first cousin of Jane Does A, B, and C, and also a niece of Defendant, Jane Doe E was seven years old at the time of trial. She was four when Defendant allegedly abused her. When asked whether Defendant ever did "anything to you," she responded "yeah." She stated, however, that she could not remember what Defendant did to her. Jane Doe D, ten years old at the time of trial, testified that she lived next door to Defendant. Jane Doe D stated that when she was in the third or fourth grade, she was at Defendant's house playing with his son Angelo, and Defendant "made me touch his—his—the front" on the outside of his clothing. She also stated that Defendant "touched my butt" on the outside of her clothing.

As part of its case-in-chief, the government also introduced the testimony of six additional individuals. Three of those witnesses testified to facts relating to Jane Does A, B, and C. Alisha Jordan, Jane Doe B's older cousin, testified that during the period of abuse, Jane Doe B confided in her, but made her promise not to tell anyone. Psychotherapist Jorna Rory White, assistant clinical director of the Taos Child Sexual Abuse Program, began counseling Jane Does A, B, and C in the fall of 1997. During counseling, each victim related to White the sexual abuse that occurred at Defendant's home, to which White testified in detail. Pediatrician Renee Ornelas of the University of New Mexico physically examined Jane Does A and B in the spring of 1997. Doctor Ornelas testified that neither girl showed signs of sexual abuse. She further testified, however, that because of young girls' propensity to heal quickly, her findings were not inconsistent with sexual abuse that occurred more than two years earlier.

Three other witnesses testified to facts relating to the uncharged, Rule 414(a) evidence against Defendant. Edith Martinez is the grandmother of Jane Doe D. Martinez testified that when her granddaughter was four years old, she came to her in a frightened and excited state from Defendant's home. Jane Doe D told her grandmother that Defendant had exposed himself to her and said "look, kiss it." Jane Doe D did not recall the incident. Doctor Dolores Endres, a family practitioner, testified that during a routine physical exam for the Head Start program in August 1994, Jane Doe E "reported that John touched her in her private parts." Doctor Endres referred the matter to social services. Doctor Dorothy Kethler, a psychotherapist, testified that she began counseling Jane Doe E in 1995. Over a year later, Jane Doe E described Defendant's sexual abuse to Kethler in detail.

Defendant's sole defense was fabrication. Defendant's twenty-three year old son, Justin McHorse, first testified on his father's behalf. On cross-examination, Justin stated that his father would never sexually abuse a child. Ruling that Justin had become a character witness for Defendant, the district court allowed the government to ask about additional instances of Defendant's alleged sexual misconduct. Specifically, the government asked Justin if he was aware that Defendant's daughter, Jennifer McHorse, and Defendant's younger half-sister, Catherine Glerup, had accused Defendant of sexually abusing them.

After two long-time acquaintances of Defendant from Taos Pueblo, Ethel Lujan and Ruby Archuleta, testified for Defendant, he testified on his own behalf. Defendant categorically denied having sexually abused anyone. He stated that a long-standing feud with his wife's family was likely the reason for the allegations against him. When asked on cross-examination if he was good to his nieces, Defendant responded "I'm good to everyone." Over objection, the district court then allowed the government to ask a series of leading questions relating to Defendant's alleged sexual abuse of his younger half-sister. Defendant denied sexually abusing his half-sister.

At this point, the district court permitted the government to call Defendant's half-sister, Catherine Glerup. Glerup testified that when she was five or six and Defendant was a teenager, he began sexually molesting her at least once a week. She further testified that when she was around eighteen, Defendant had sexual intercourse with her. Following Glerup's testimony, both parties rested. The jury returned verdicts of guilty on all counts of the indictment.

II.

Fed.R.Evid. 414(a) provides: "In a criminal case in which the defendant is accused of an offense of child molestation, evidence of the defendant's commission of another offense or offenses of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant." According to its principal Senate and House sponsors, Rule 414(a)—

supercedes in sex offense cases the restrictive aspects of Federal Rule of Evidence 404(b). In contrast to Rule 404(b)'s general prohibition of evidence of character or propensity, the new rules for sex offense cases authorize admission and consideration of evidence of an uncharged offense for its bearing "on any matter to which it is relevant." This includes the defendant's propensity to commit sexual assault or child molestation offenses, and assessment of the probability or improbability that the defendant has been falsely or mistakenly accused of such an offense.

140 Cong. Rec. S12990-02 at S12990 (daily ed. Sept. 30, 1994) (statement of Sen. Dole); 140 Cong Rec. H8968-01 at H8991 (daily ed. August 21, 1994) (statement of Cong. Molinari).

A.

Defendant proffers five arguments why the district court erred in admitting evidence of his alleged sexual abuse of Jane Does D and E, pursuant to Fed. R.Evid. 414(a). First, Defendant argues that this evidence was so...