UNITED STATES оf America, Appellee, v. Clifton WATERS, Appellant.
No. 99-1442.
United States Court of Appeals, Eighth Circuit.
Submitted June 18, 1999. Decided Oct. 5, 1999.
Rehearing and Suggestion for Rehearing En Banc Denied Jan. 4, 2000.
194 F.3d 926
While these factors have been considered relevant in other cases, they do not compel the conclusion that the district court abused its discretion in denying KPERS‘s motion. The district court alluded to KPERS‘s course of cоnduct during this litigation, stating: “Only passing familiarity with the history of this case in this court and in the appellate courts would convince any fair-minded person that the time has come for this court to echo the Eighth Circuit Court of Appeals-this case is over.” Early in this case, KPERS obtained an ex parte severance from the Kansas state court in order to frustrate removal. KPERS v. Reimer & Koger Assoc., Inc., 4 F.3d 614 (8th Cir. 1993) (KPERS I), cert. denied, 511 U.S. 1126, 114 S.Ct. 2132, 128 L.Ed.2d 862 (1994). KPERS later filed parallel state court actions which were meant to subvert federal removal jurisdiction, KPERS v. Reimer & Koger Assoc., Inc., 77 F.3d 1063, 1070 (8th Cir.1996) (KPERS IV), cert. denied, 519 U.S. 948, 117 S.Ct. 359, 136 L.Ed.2d 250 (1996). The district court held the filing of those cases to be objectively unreasonable and done in bad faith, and we affirmed. See KPERS v. Reimer & Koger Assoc., Inc., 165 F.3d 627, 629 (8th Cir.1999) (KPERS VIII) (affirming award of attorney fees against KPERS for unreasonably and vexatiously multiplying proceedings). The district court may properly give weight to equitable considerations in exercising its discretion under
Marty J. Jackley, Rapid City, SD, argued (Donald P. Knudsen, on the brief), for Appellant.
Before LOKEN, BRIGHT and ROSS, Circuit Judges.
ROSS, Circuit Judge.
Clifton Waters appeals his conviction for aggravated sexual abuse of a child in violation of
BACKGROUND
Before indictment, at the government‘s request, Waters took a polygraph examination conducted by а special agent of the Federal Bureau of Investigation (FBI). Among other things, the agent asked Waters whether he had placed his fingers in the child‘s vagina or touched her “private areas in a sexual way.” He answered “no” to both questions and the agent believed that the answers were not indicative of deception. In April 1998, a grand jury indicted Waters with one count of aggravated sexual abuse of a child in violation of
Before trial, Waters sought to admit the results of the polygraph examination and requested a Daubert2 hearing in order to establish the examination‘s scientific reliability. In response, the government moved to exclude all evidence relating to the examination and opposed the request for a Daubert hearing, relying on United States v. Scheffer, 523 U.S. 303, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998). In Scheffer, the Supreme Court held that a per se exclusion of polygraph evidence under Military Rule of Evidence 707 was constitutional. Id. at 305. The district court conditionally granted the government‘s motion to exclude, subject to further ruling at trial.
On cross-examination, Waters’ counsel asked the victim about prior statements she had given to an FBI agent. The victim testified that she had met with the agent several times and first told the agent that Waters had touched her “private areas ovеr the top of [her] clothing,” but on another occasion told the agent that Waters had put his “entire” hand inside her, and yet on another occasion said he had put three fingers “up inside” of her. The victim also admitted that she had not told the agent about the touching incident at her house. On redirect examination, the victim explained that she did not tell the agent everything because she was scared.
On re-cross examination, Waters’ counsel asked the victim “you didn‘t tell the truth when you told [the agent] that [Waters] touched you over the top of your jeans, did you?” She said “no.” She also said “no” when counsel asked “[y]ou didn‘t tell the truth when you told [the agent] that there was another incident where he put three fingers into you, did you?” However, she answered “yes” when counsel asked “you didn‘t [tell] the truth when you told [the agent] that he put his whole hand up inside of you, did you?” Counsel then asked “[y]ou did tell the truth then?” She replied “no.”
The government also presented the testimony of a pediatrician, who had examined the victim in October and December 1997. The pediatrician testified that the victim had no hymenal tissue, which was highly unusual in a child of that age and was consistent with repeated penetration of the vagina.
Waters testified in his defense. After he denied he had touched the victim in a sexual way either over or under her clothes, his counsel renewed the request for a Daubert hearing regarding admissibility of the polygraph examination. However, he admitted he had no evidence concerning the reliability of the test. Although the district court observed that in Scheffer, 523 U.S. at 309, the Supreme Court noted the lack of scientific consensus on the reliability of polygraph examinations, the court held that it would “simply” exclude any evidence relating to the polygraph examination under
In rebuttal, the government presented the testimony of a clinical social worker who specialized in child sexual abuse. The social worker testified that children “rarely tell you everything about an abuse the first time they are asked” and the “more
At the conference on jury instructions, Waters withdrew previously submitted proposed instructions and handed the court a second set of proposed instructions, including an instruction on the lesser included offense of abusive sexual contact under
About two months after the jury returned a guilty verdict, Waters filed a motion for a new trial based on newly discovered evidence, relying on a sworn statement in which the victim recanted her testimony that Waters had touched her. The court denied the motion, finding that in the circumstances of the case the recantation was not credible.
DISCUSSION
Waters first argues that the district court erred in denying his request for a Daubert hearing. He concedes he has no evidence which establishes the reliability of polygraph examinations, but argues his ability to gather the necessary evidence was hampered by the government‘s failure to comply with his discovery requests. We need not address any Daubert or disсovery issues. The district court independently excluded the evidence under
Nor, contrary to Waters’ argument, did the court err in refusing to admit evidence of his responses to the examination. His reliance on Rothgeb v. United States, 789 F.2d 647 (8th Cir.1986) is misplaced. In Rothgeb, although the results of a polygraph examination were inadmissible, this court held that a district court had not abused its discretion in allowing the government, which did not mention the polygraph examination, to introduce evidence that during an interrogation the defendant had denied committing the charged offense, but held his breath, “pant[ed] like a dog” and “sweated pro-
Waters also argues the district court abused its discretion in admitting the social worker‘s testimony, asserting she improperly “opine[d] as to a child witness‘s credibility.” United States v. Rouse, 111 F.3d 561, 571 (8th Cir.), cert denied, 522 U.S. 905, 118 S.Ct. 261, 139 L.Ed.2d 188 (1997). We disagree. The social worker “never gave [her] opinion as to whether [the victim] was telling the truth.” United States v. Running Horse, 175 F.3d 635, 638 (8th Cir.1999). Rather, she merely “inform[ed] thе jury of characteristics in sexually abused children.” Id. (quoting United States v. Whitted, 11 F.3d 782, 785 (8th Cir.1993)); see also United States v. Johns, 15 F.3d 740, 743 (8th Cir.1994) (psychologist‘s testimony properly admitted because it “was circumscribed so as to educate rather than to usurp the role of the jury“). Although on appeal Waters suggests that the testimony did not meet the Daubert standard for reliability,3 because he did not raise this argument in the district court, we do not consider it.
We next address Waters’ argument that the district court erred in refusing his request for a lesser included offense instruction. A “prerequisite for a lesser included offense instruction [is] that the evidence at trial must be such that a jury could rationally find the defendant guilty of the lesser offense, yet acquit him of the greater.” United States v. Two Bulls, 940 F.2d 380, 381 (8th Cir.1991) (per curiam) (quoting Schmuck v. United States, 489 U.S. 705, 716 n. 8, 109 S.Ct. 1443, 103 L.Ed.2d 734 (1989), cert. denied, 502 U.S. 1065, 112 S.Ct. 953, 117 L.Ed.2d 121 (1992)). In this case, “[i]t is undisputed that abusive sexual contact is a lesser included offеnse of aggravated sexual abuse.” Id. (citing United States v. Demarrias, 876 F.2d 674, 676 (8th Cir.1989)). However, it is disputed whether “there is some evidence which would justify conviction of the lesser offense.” United States v. Parker, 32 F.3d 395, 400-01 (8th Cir. 1994) (emphasis and internal quotation omitted).
On appeal Waters primarily argues there is evidence to support a conviction of abusive sexual contact based on the victims‘s testimony on cross-examination that she had told an FBI agent that Waters touched her over her clothing. We do not believe Waters has properly preserved this argument for appeal. “We have repeatedly held that an objection ‘must call attention to the specific fact situation that would require giving the lesser included offense instruction.‘” United States v. Oakie, 12 F.3d 1436, 1442 (8th Cir.1993) (quoting United States v. Young, 875 F.2d 1357, 1360 (8th Cir.1989)). On the day of the jury conference Waters filed a memorandum in support of his request for a lesser included offense instruction which relied on the victim‘s testimony on cross-examination. However, when the district court asked counsel to set forth the evidence warranting the instruction, counsel based his argument solely on the victim‘s direct examination. “Because [Waters] failed to give the district court an opportunity to rule on th[e] theory [raised on
In any event, we find no error, much less plain error. Waters offered the victim‘s testimony concerning her prior statement that he had touched her over her clothes only for impeachment purposes, not as substantive evidence fоr the truth of the matter asserted. Indeed, the court instructed the jury that “[t]he credibility of a witness may be attacked by introducing evidence that on some former occasion the witness made a statement on a matter of fact or acted in a manner inconsistent with his or her testimony,” but cautioned the jury it “must not consider any such prior statement as establishing the truth of any fact contained in that statement.” At oral argument before this court, Waters suggested that the prior statement could be considered as substantive evidence because on re-cross examination, he asked the victim if the statement was true. We disagree. Waters’ closing argument to the jury makes clear that he was not asking the victim to аdopt the statement as true, but shows quite the opposite. Waters argued that the victim was not credible because “she admitted to you in her testimony that she had lied about what she had told the FBI agent in the past.” In particular, counsel pointed out that the victim “said she had lied to the agent about [Waters] touching her over her clothing.”
Waters also argues, as he did in the district court, that there was evidence to support an instruction on abusive sexual contact based on the victim‘s direct examination, relying on her testimony that Waters had touched her “butt.” We disagree. As the district court found, this testimony was isolated and when considered in the context of all the evidence, including the victim‘s testimony that in additiоn to touching her “butt,” Waters had touched her “in [her] private places,” and the doctor‘s testimony, we do not believe a rational jury could find the that all Waters did was touch the victim‘s buttocks. See United States v. Harrison, 55 F.3d 163, 167 (5th Cir.) (“This testimony, when considered in isolation, arguably might support a lesser-included offense instruction ... but, when considered in the context of the other evidence, it does not.“), cert. denied, 516 U.S. 924, 116 S.Ct. 324, 133 L.Ed.2d 225 (1995). This court has “never held ... that a defense [instruction] must be submitted to the jury even when it cannot be said that a reasonable person might conclude the evidence supports the defendant‘s position.” United States v. Kabat, 797 F.2d 580, 591 (8th Cir.1986) (internal quotation omitted), cert. denied, 481 U.S. 1030, 107 S.Ct. 1958, 95 L.Ed.2d 530 (1987). “‘[W]hile a judge cannot prevent a jury from rejecting the prosecution‘s entire case, he [or she] is not obligated to assist thе jury in coming to an irrational conclusion of partial acceptance and partial rejection of the prosecutor‘s case.‘” United States v. Mansaw, 714 F.2d 785, 792 (8th Cir.) (quoting United States v. Cady, 495 F.2d 742, 748 (8th Cir.1974)), cert. denied, 464 U.S. 964, 104 S.Ct. 403, 78 L.Ed.2d 343 (1983).4
CONCLUSION
Accordingly, we affirm the judgment.
BRIGHT, Circuit Judge, dissenting.
The majority of our panеl concludes that the district court properly refused to give a jury instruction for the lesser offense of abusive sexual contact and that the district court properly refused to grant a Daubert hearing on the admissibility of polygraph evidence supporting the defendant‘s professed innocence. The majority justifies its conclusion by ruling that the defendant did not properly preserve the jury instruction issue for appeal. The majority has further ruled that the polygraph evidence was inadmissible under
BACKGROUND
On September 23, 1998, a jury convicted Clifton Waters of the aggravated sexual abuse of his seven-year-old daughter, M.W., primarily on the basis of testimony about one December evening around Christmas 1996.5 Before indictment, the FBI administered a polygraph examination on Waters. During this exam, an FBI agent asked Waters whether he had committed elements of aggravated sexual abuse: the questions were specific, targeted at the essence of the crime, and highly relevant. The agent asked the following:
A. Did you ever place your fingers in [the victim‘s] vagina?
B. Did you ever touch [the victim‘s] private areas in a sexual way?
App. at 17.
Waters answered both questions in the negative. The examiner determined that his answers were nondeceptive. Before trial, defendant requested information about the polygraph test from the government.6 The government ignored the discovery request. Both before trial and during trial, the defense requested that the polygraph evidence be admitted. The district court ruled that the defense had not satisfied its burden of showing that a Daubert hearing was necessary; the court did not take notice of the federal government‘s abuse of the discovery process by refusing to turn over evidence in its possession concerning the polygraph exam taken at the governmеnt‘s behest. TT 144-45.
As the trial came to a close, the defendant requested a jury instruction for the lesser included offense of abusive sexual contact. The district judge denied the request, finding that no rational jury could convict the defendant of abusive sexual contact, and not convict on the aggravated sexual abuse charge.
Instruction on the Lesser Included Offense of Abusive Sexual Contact
As a procedural matter, the majority holds that the defendant did not properly preserve this issue for appeal because he failed to specify facts from the victim‘s direct examination that supported his request for an instruction. Such a holding misconstrues the meaning of the phrase “specific fact situation.” Under United States v. Oakie, 12 F.3d 1436 (8th Cir. 1993), a defense attorney must articulate to the presiding judge the “specific fact situation” thаt constitutes grounds for a lesser included instruction to the district judge. The defense must rely on that “fact situation” and the rationale stated at trial when arguing its case on appeal. See Oakie, 12 F.3d at 1442 (citing
In this case, Waters’ request for an instruction complied with the Oakie requirements. Although the defendant now broadens the number of references to the record, he has presented substantially the same facts on appeal that he did at trial to support the legal theory he used to make his original request. TT 164-69.7 The context of the conversation between the judge and defense counsel indicates that counsel was referring to the victim‘s entire testimony when pointing out facts that supported giving an instruction on the lessеr charge.8 Without a daily transcript, the trial court, which also has heard the evidence, should not require an enumeration of every statement of fact, only a general “fact situation.” In this case, the judge was aware of the inconsistencies in the victim‘s testimony but improperly relied on the weight of the evidence and also rejected portions of the testimony because the defendant testified that he was innocent.9
Abusive sexual contact is a lesser included offense of aggravated sexual abuse. United States v. Two Bulls, 940 F.2d 380, 381 (8th Cir.1991). The difference between the two crimes turns upon whether there is a forced “sexual act“-necessary for aggravated sexual abuse-or “sexual contact“-required for abusive sexual contact. To receive the instruction, the defendant must show that the proof is sufficiently in dispute that the jury could find the defendant innocent of the greater and guilty of the lesser included offense. United States v. Eagle Hawk, 815 F.2d 1213, 1215 (8th Cir.1987). Under federal law, a “sexual act” involves either penetration or touching the genitalia10 underneath the clothing of a person younger than sixteen years old; “sexual contact” involves only touching-either directly or over the clothes-of the genitalia and other specified body parts, such as the buttocks. See
M.W. testified on direct examination that Waters had penetrated her vaginal area with his fingers and, in fact, his whole hand. However, on cross-examination she testified that he had not penetrated her. TT 54. Most importantly, it was unclear from her testimony whether he had touched her underneath her clothing at all. TT at 40-43. If a rational jury could find that Waters had not penetrated M.W., nor had he touched her genitalia beneath her clothing but that he had engaged in sexual contact, then the defendant satisfied his burden. There existed a reasonable doubt about whether he committed aggravated sexual abuse. Failure to give the instruction amounted to an abuse of discretion because, in light of the victim‘s entire testimony and its inconsistencies, a rational jury could have found the lesser and not the greater offense. Where the single witness to the crime was a seven-year-old victim-confused and traumatized not only the abuse, but by the trial as well-who could not clearly and consistently articulate what had happened to her, a lesser included offense instruction, under the evidence in the case, should have been submitted to the jury.11
The Polygraph Evidence
Polygraph test results take on special importance when evidence is sparse and the primary witness‘s testimony is highly unreliable. In such situations, polygraph exams that are performed with the latest techniques and that inquire into the central elements of the crime charged become increasingly relevant because they add to the jury‘s otherwise minimal knowledge base. Polygraph test results should be treated as highly relevant, as in a case such as this one, when very little consistent evidence is presented to the jury.
The Polygraph Test and Rule 702
Although the Supreme Court has upheld per se exclusions of polygraph evidence in the military, see United States v. Scheffer, 523 U.S. 303, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998), per se exclusion of polygraph evidence is not the rule of the Eighth Circuit, nor in other circuits in a nonmilitary сontext. See, e.g., United States v. Williams, 95 F.3d 723 (8th Cir.1996). Polygraph test results may be admissible when the indices of reliability are present. Studies have shown that polygraph results can be accurate as much as 97.5% of the time, and even critics of the polygraph place its accuracy at 70%. The Supreme Court has articulated particular factors that affect polygraph reliability, such as: the examiner‘s integrity, independence, choice of questions, or training in the detection of deliberate attempts to provoke misleading physiological responses. See Scheffer, 118 S.Ct. at 1276 (Stevens, J., dissenting). Reliability of polygraph test results will also depend on the polygraph technique used; there are a number of different questioning tаctics that use different logical assumptions to detect lies. See United States v. Gilliard, 133 F.3d 809, 812-14 (11th Cir.1998). Another index of reliability, present in this case, is the type of result: exculpatory polygraphs are more reliable than inculpatory ones because the test tends to create false positives rather than false negatives. 118 S.Ct. at 1276.
Because the reliability of any polygraph exam must be assessed in a particularized inquiry, a Daubert hearing will generally be required to determine admissibility. The district court‘s failure to grant a hearing based on a generalized “lack of consensus” about the reliability of polygraph evidence creates a de facto per se exclusion, and as such, commits an error of law. TT 2, 144-47. The district court must enable the parties to develop the facts necessary to make a particularized determination of reliability. Such is the role of “gatekeeper” required by Daubert. See Kumho Tire v. Carmichael, 526 U.S. 137, 119 S.Ct. 1167, 1175, 143 L.Ed.2d 238 (1999) (citing Daubert, 509 U.S. at 591, 113 S.Ct. 2786).
Some statements in the record suggest that the district court may have denied the Daubert hearing because the defense did not establish sufficient foundation for the claim that this particular exam was reliable. If that were the court‘s rationale, then the district court erred in failing to require the prosecution to give the defense the information it requested under
This court cannot know whether the polygraph evidence was sufficiently reliable to warrant admission into trial because the government never revealed, and the district court never heard, the information necessary to determine such reliability. One wonders, however, why the government so often uses polygraph tests if it believes its results are unreliable. Justice Stevens notes this very point in his Scheffer dissent: “It is incongruous for the party that selected the examiner, the equipment, the testing procedures, and the questions asked of the defendant ... to challenge the competence of the procedures that it has developed and relied upon in hundreds оf thousands of cases.” 118 S.Ct. at 1278. The government cannot administer polygraph tests to whomever it chooses, and then, depending on the outcome, decide whether those results should be admitted at trial. It may be that, when the government administers the polygraph exam, the district court should employ a presumption of reliability of the polygraph results.
The rejection of polygraph evidence on the basis of
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
The polygraph test could be extremely relevant and under proper instructions, would not unfairly prejudice the government, confuse the issues, cause delay or waste time. Obviously the evidence would not be cumulative. However, the Rule 403 issue would need to await the results of the Daubert hearing.
CONCLUSION
The trial judge sentenced Waters to fourteen years imprisonment for a crime in which his guilt remains in serious question. Accordingly, I would grant him a new trial on the lesser included offense instruction issue and require the prosecution to provide discovery for a Daubert hearing on the admissibility of the polygraph evidence.
MYRON H. BRIGHT
UNITED STATES CIRCUIT JUDGE