Case Information
*1 Before WOLLMAN, BYE, and BENTON, Circuit Judges.
____________
PER CURIAM.
*2 Gilbert Oliver Crow Eagle, Jr. was convicted on two counts of aggravated sexual abuse of a child and two counts of abusive sexual contact, in violation of 18 U.S.C. §§ 1153, 2244(a)(1), 2246(2)(A), 2246(2)(C), 2246(3), and 2241(c). Crow Eagle appeals, claiming the district court abused its discretion in admitting evidence [1]
of prior sexual assaults, and excluding evidence of past sexual allegations by the victims and a witness. He also attacks the sentence. Having jurisdiction under 28 U.S.C. § 1291, this court affirms.
I.
Crow Eagle’s victims are two of his nieces, Shannon and Dusti Oliver. At trial, Shannon testified that one night – sometime in the 1991 to 1993 timeframe, when she was eight to nine years old – he rubbed Shannon’s vaginal area over her clothing. Dusti testified that from 1998 to 1999, when she was six to seven years old, Crow Eagle rubbed her vaginal area over her clothing on numerous occasions. The abuse escalated to sexual intercourse, followed by intimidation to keep Dusti silent.
Carlene Oliver, Jerilee Oliver, and Jamie Oliver testified about similar abuse by Crow Eagle. His younger sister, Carlene, testified that he began sexually abusing her when she was six or seven. It occurred more times than she could remember until she turned 18. Jerilee, Crow Eagle’s niece, stated that he sexually abused her on more than 20 occasions beginning when she was seven years old. Jamie, yet another niece, testified that he tried to sexually assault her when she was 11.
Over Crow Eagle’s objection, the district court admitted this testimony. The court also prohibited him from introducing evidence of alleged prior false sexual- assault accusations from Shannon, Dusti, and Jerilee. The jury found Crow Eagle guilty. The district court sentenced Crow Eagle to 192 months’ imprisonment. [2]
II.
Crow Eagle contends that the district court abused its discretion by allowing
evidence of prior sexual assaults against other family members. “In a criminal case
in which a defendant is accused of a sexual assault, the court may admit evidence that
the defendant committed any other sexual assault.” Fed. R. Evid. 413(a). “In a
criminal case in which the defendant is accused of child molestation, the court may
admit evidence that the defendant committed any other child molestation.” Fed. R.
Evid. 414(a). The purpose of this evidence is to show the defendant’s propensity to
commit a similar act of sexual assault.
United States v. Hollow Horn
,
Propensity evidence is admissible if the defendant’s conduct is similar to the charged conduct, as long as the evidence is not unfairly prejudicial. Id. The district court must first determine if the prior sexual assault is relevant and then whether it would be more probative than prejudicial under Rule 403. United States v. Gabe , 237 F.3d 954, 959 (8th Cir. 2001); Fed. R. Evid. 403.
A.
This propensity evidence “may be considered on any matter to which it is
relevant.” Fed. R. Evid. 413(a), 414(a). “A relevant sexual assault is one committed
in a manner similar to the charged offense.”
United States v. Rodriguez
, 581 F.3d
775, 796 (8th Cir. 2009). There is no time limit on the admission of prior-sexual-
assault evidence.
Hollow Horn
,
Here, the district court correctly ruled that the testimony of Carlene, Jamie, and
Jerilee Oliver is relevant due to the similarity of the sexual abuse. When allegedly
abused, each was a younger family member of Crow Eagle between six and eleven
years old. Moreover, the methods of assault were similar, all involving inappropriate
*4
touching.
See Gabe
,
B.
The district court properly ruled this testimony to be more probative than
prejudicial. Rule 403 is designed to exclude instances of
unfair
prejudice (evidence
suggesting a decision on an improper basis), keeping in mind that the purpose of
Rules 413 and 414 is to permit propensity evidence.
Gabe
,
The district court limited the number of Rule 413 and Rule 414 witnesses and
included cautionary jury instructions with respect to the testimony from Carlene,
Jerilee, and Jamie Oliver. Only testimony from victims who were children when
abused was admitted; testimony from adult victims was barred due to dissimilarity
from the charges here (the district court judge remarking that “at some point it does
seem enough is enough”). This limitation and the cautionary jury instructions
indicate that the district court properly balanced the probative value of the evidence
with the risk of unfair prejudice.
United States v. Carter
,
The district court did not abuse its discretion by admitting the testimony of Carlene, Jamie, and Jerilee Oliver.
III.
Crow Eagle sought to introduce evidence of prior (allegedly false) sexual-
assault allegations from Shannon, Dusti, and Jerilee Oliver. He argues that the
district court abused its discretion by excluding this evidence under Rule 412. Rule
412 prohibits the admission of evidence intended to “prove that a victim engaged in
other sexual behavior” or “prove a victim’s sexual predisposition” in cases involving
sexual-assault charges. Fed. R. Evid. 412(a)(1), (2). “In the absence of an applicable
exception, Rule 412 ‘specifically bars admission of evidence of the past sexual
behavior of an alleged rape victim.’”
United States v. White Buffalo
,
There are several exceptions to this rule of exclusion. Fed. R. Evid.
412(b). Relevant here is “evidence whose exclusion would violate the defendant’s
constitutional rights.” Fed. R. Evid. 412(b)(1)(C). Crow Eagle contends that the
exclusion of the prior allegations violates his Sixth Amendment right of
confrontation. The right of confrontation, however, does not permit the impeachment
of a victim with (alleged) prior false allegations if their probative value is weak.
United States v. Tail
,
The district court correctly noted that Crow Eagle offers no evidence of the
falsity of Dusti, Shannon, and Jerilee Oliver’s allegations of sexual assault by other
men. He relies on the long time span between the alleged assaults and reports, as well
as the lack of prosecution. “A conclusion that [the] unadjudicated accusation[s] . . .
[were] untrue, however, would have required the jury to rely on sheer speculation.”
*6
United States v. Withorn
,
Crow Eagle’s claim that he had no opportunity to question Dusti, Shannon, and Jerilee Oliver’s credibility about the allegations of sexual abuse by others is not supported by the record. Crow Eagle’s attorney questioned them in pretrial hearings, asking about other incidents of abuse.
The district court did not abuse its discretion or violate Crow Eagle’s Sixth Amendment rights by excluding witnesses’ prior sexual-assault allegations.
IV.
Crow Eagle asserts that the district court abused its discretion by imposing a
192-month sentence, within the advisory sentencing guideline range of 188 to 235
months. “[W]hen a district court is aware of its discretion to depart downward and
elects not to exercise this discretion, then that decision is unreviewable.”
United
States v. Watson
,
Crow Eagle requested a downward departure or variance from the guideline
range due to his age, 58, and health concerns. The district court demonstrated
awareness of its discretion to depart downward by recognizing that the guidelines are
*7
advisory, not mandatory. The decision to not depart is unreviewable.
Watson
,
* * * * * * *
The judgment of the district court is affirmed.
______________________________
Notes
[1] The Honorable Roberto A. Lange, United States District Judge for the District of South Dakota.
[2] Crow Eagle was acquitted on Count 5 – an alleged sexual assault of Britney Sharpfish.