964 F.3d 678
8th Cir.2020Background
- Indictment charged Calvin Delorme with aggravated sexual abuse (Count One) and abusive sexual contact (Count Two); trial occurred over two days because the judge had a flight the next morning.
- Victim (12 at trial) testified Delorme began abusing her at age 6–7; she described oral-genital contact and was instructed not to tell her mother.
- Wyatt Azure (Delorme’s brother) testified he also abused the victim and admitted Delorme had sexually abused him as a child; Azure testified Delorme bribed him to deflate the victim’s mother’s tires.
- BIA Special Agent John Rogers investigated, interviewed Delorme, and testified about his investigative and interview experience and findings.
- After two days the Government dismissed Count Two; jury convicted Delorme on Count One and the district court sentenced him to 360 months’ imprisonment.
- On appeal Delorme challenged the judge’s refusal to recuse (alleging bias/timing pressure) and several evidentiary rulings (lay/expert testimony, exclusion of a white pickup incident, alleged opinion testimony of guilt, refusal to play interview video, and Rule 414 notice).
Issues
| Issue | Delorme's Argument | Government's Argument | Held |
|---|---|---|---|
| Judicial recusal under 28 U.S.C. § 455 | Judge Moody’s insistence on finishing in two days and his courtroom remarks showed hostility and bias, warranting recusal | No reasonable person would question impartiality; defense counsel agreed trial could finish in two days and did not timely move to recuse | No plain error; judge’s remarks and scheduling pressure did not require recusal |
| Whether Agent Rogers testified as an expert rather than a lay witness (Rule 701) | Rogers lacked specialized training and thus could not opine about forensic-interview questioning patterns | Rogers could describe interviews based on his lay perception and experience attending interviews | No abuse of discretion to admit Rogers’s lay testimony about interview practice |
| Exclusion of evidence regarding a white pickup / stabbing of Clifford Peltier | Evidence showed Azure acted in connection with a stabbing, not tire-slashing, and was relevant to impeach Azure’s motive/credibility | The white-pickup/stabbing theory was speculative and not probative of whether Azure slashed tires or Delorme bribed him | No abuse of discretion; judge properly excluded irrelevant/speculative evidence |
| Alleged opinion testimony that Delorme was guilty from Rogers’s interview | Rogers (or the court) allowed testimony indicating Rogers believed the victim, amounting to an opinion on guilt | Rogers’s testimony described his belief in the victim’s account but did not opine on legal guilt; defense questioned this at trial | No plain error; record shows Rogers described his belief in the victim’s story but did not state Delorme was guilty |
| Failure to play video of Rogers’s three-hour interview (Rule 1002) | Rule 1002 required admission of the original recording to prove interview content | The Government did not attempt to prove the interview’s content via the recording; it used Rogers’s testimony to recount the interview | Rule 1002 not implicated; no plain error where the recording was not offered to prove content and defense did not press to play it |
| Admission of Rule 414 evidence (prior molestation of Azure) and notice sufficiency | Government’s Rule 414 notice was untimely (provided ~1 week before trial, not 15 days) | Rule 414 does not require notice of intent to use; only the evidence itself must be disclosed, and that disclosure occurred months earlier | No plain error; notice-to-use argument fails because the substantive evidence was disclosed well before trial |
Key Cases Cited
- United States v. Oaks, 606 F.3d 530 (8th Cir. 2010) (recusal standard; objective reasonable-person test)
- Fletcher v. Conoco Pipe Line Co., 323 F.3d 661 (8th Cir. 2003) (timeliness and plain-error standard for late recusal claims)
- United States v. Melton, 738 F.3d 903 (8th Cir. 2013) (expressions of impatience/anger do not mandate recusal)
- Liteky v. United States, 510 U.S. 540 (1994) (judicial rulings ordinarily do not constitute bias)
- United States v. White Bull, 646 F.3d 1082 (8th Cir. 2011) (review of evidentiary rulings and plain-error standard)
- United States v. Smith, 591 F.3d 974 (8th Cir. 2010) (lay-witness testimony about forensic-interview behavior permissible based on experience)
- United States v. Wilkens, 742 F.3d 354 (8th Cir. 2014) (district court’s broad discretion to exclude irrelevant or speculative evidence)
- United States v. Benais, 460 F.3d 1059 (8th Cir. 2006) (Rule 413/414 notice principles regarding disclosure of evidence itself)
- United States v. Griffith, 301 F.3d 880 (8th Cir. 2002) (invited error doctrine; opening the door to testimony can preclude reversal)