United States v. Kermit Miner

tive, of an inmate’s edu- interruption during America, is not unusual. Appellee, incarceration

cation UNITED STATES of consequences thus conclude the collateral We depar- justify not incarceration do of Drew’s

ture. MINER, Appellant. court believed The district also No. 97-1918. prison. be vulnerable

Drew would jus Susceptibility to abuse fellow inmates Appeals, United States Court of only extraordinary cases. departure tifies Eighth Circuit. Kapitzke, 130 F.3d See United States Cir.1997). support departure for To Nov. Submitted 1997. extraordinary susceptibility, a court district 23, 1997. simply rely Decided Dec. on a defendant’s status cannot identify pornographer, a child but must exceptional

something about facts of id. than the nature

case. See Other offense, pointed the district court

Drew’s making him vulner

only to Drew’s naivete as Even if an prison. Drew is

able to abuse is no

inexperienced twenty-six-year-old, there exceedingly to believe Drew is vulner

reason given average size to victimization

able id.; good health. See cf. 1264, 1277 Long, departure on

(approving based defendant’s health); Lara,

frail (2d Cir.1990) (approving depar size, on diminutive

ture based defendant’s appearance,

immature orienta bisexual

tion). sup not conclude the record does We extraordinary sus

port departure based

ceptibility contends the district

The Government erroneously other relied two

court

grounds departure, for aberrant behavior produce not fact that Drew did

and the dis-

pornography. Drew asserts the Because rely grounds, did not

trict court they support de- not consider whether

need

parture in this ease. See United States

Wind, 128 F.3d

(rejecting commit more serious failure to and aberrant behavior

pornography offense grounds departure). sum, the court abused its discre- district sen- departing from the Guidelines

tion thus Drew’s sentence

tence. We vacate resentencing.

remand time Kermit Miner was

At the of years sixth-grade had thirty-two old and a wife, Audrey He education. lived with Miner, and their natural and foster eleven Cheyenne Horse on the children White Dakota. River Indian Reservation Additionally, many as as five other adults premises. The Miner household lived on houses, and a included the main house two house) small, auxiliary (log two-room house most, the main house. At located behind the main measured 36 feet two-level house 1,080 giving square it a of feet. feet total Similarly, log 23 feet house measured square it feet. giving 15 feet a total of 345 SD, Pierre, Eugene Duffy, Fort Bernard total, eighteen many residents argued, appellant. 1,425 square living space. feet of shared Hanson, Pierre, Atty., Mikal Asst. U.S. 1995, 11, On December (Karen Scheier, brief), SD, argued on E. Hawk, living of in the Miner one the adults appellee. household, Standing Rock went to Sioux Department and re- Tribal Social Services BRIGHT, LOKEN, and HEANEY Before ported suspicions her that Kermit Miner was Judges. Circuit abusing the in his home. In re- children Moran, sponse this a child report, to Aldina HEANEY, Judge. Circuit protection worker for the state of Da- appeals his Kermit Miner conviction kota, to Timber Lake went School minor, alleging with a abusive sexual contact December and interviewed several produced at trial insuf- that children household. from Miner ficient and that the victim recanted her testi- S.J., stepdaughter, who was mony. We affirm. time, at the told Ms. Moran that her fourteen stepfather sexually abused her on two subsequently occasions. S.J. removed I. mother, Audrey from the household and her 1996, 8,May On Kermit Miner was indict- Miner, supervised was allowed visits. counts of sexual contact two abusive S.J. testified that both instances abuse of minor. and one count sexual a sexual abuse occurred when Miner alleged separate The that on two indictment first inci- was absent. S.J. testified occasions, sexually step- Miner abused his 1995, 8, happened on November follow- dent alleged daughter The incident oc- Kermit trip to Lake ing a Timber where 8,1995, gave and curred on November rise volleyball. returning played After Miner II, sexual contact and Counts I and abusive night, Kermit made her home late Miner minor, respectively. a sexual abuse of log In the take a VCR TV to the house. alleged second incident occurred Decem- house, log Kermit Miner bedroom III, gave rise to ber Count pulled touching pants; down S.J.’s started abusive contact. Miner’s trial com- sexual area; her, vaginal and tried her breasts and 1996, 28, a menced after which on October vagina. during her She testified that kiss I jury acquitted him of and II and Counts crying time she was and she tried 21, him of Count III. On March convicted away. gave push testified that he him She twenty-four Miner was sentenced to her dollars. five incarceration, special a months of assess- ment, second incident oc- supervised On March S.J. stated that release. appeal on December when illness filed notice of to this curred Miner occasion, kept her from school. On this court. house, tially specter of pushed log raised again in the neck, Consequently, warning no that Aldi- around her rubbed S.J. had up and bra her shirt breasts, investigate that her breasts and told S.J. na Moran activities her would touching her stop him to told were soft. S.J. Miner household. Ms. Moran conducted an body, but Miner contin- that it was her provided extensive interview which S.J. younger and two until cousin ued S.J.’s description detailed of two incidents of sexual E.F.H., came back from school. brothers abuse, dates, times, including places. and cousin, nine-year-old testified that he S.J.’s interview, During was and the S.J. emotional bed, lying on a Kermit Miner and S.J. saw Finally, surrounding the sec- cried. details side, touching and Miner Miner was S.J.’s E.F.H., ond incident were corroborated (Tr. 145.) nasty” at “doing to S.J. nine-year-old cousin. S.J.’s challenges the appeal, Kermit Miner On Despite which make this S.J.’s recantations supporting his sufficiency of the evidence case, conclude that substantial a closer we First, points Miner on two bases. conviction supports evidence Miner’s conviction. S.J.’s testimony her that S.J. twice recanted out 29,' 1996 in first recantation occurred June allega- alleges that fabricated her S.J. private meeting a between and Kermit S.J. Second, Miner con- abuse. tions of sexual attorney. meeting signed Miner’s At the S.J. jury compromise a the reached tends attorney disavowing a note written factual dif- in that there are no real verdict allegations of sexual abuse which was her conduct for which he between the ferences admitted as Exhibit 7 at trial. Three later he was acquitted and that which note, signing after S.J. reaffirmed weeks sup- evidence Because substantial convicted. trial, however, At her recantation. S.J. conviction, affirm. ports his we allega- changed position her and renewed her sexually abused her. II. tions that Kermit Miner jury of the fact that The was aware S.J. sufficiency reviewing the abuse; initially reported sexual that she re- conviction, we view for a criminal evidence charges; reaffirmed canted these that S.J. light to in the most favorable the evidence recantation; at and that she testified her accept all government and as established original allegations. her trial consistent with supporting inferences the verdict. reasonable credibility light Having weighed S.J.’s Cloud, 1258, 101 F.3d States v. Black the other changed position as well as her (8th Cir.1996); also v. Unit see Glasser trial, jury convicted produced at evidence 457, 469, States, 315 U.S. S.Ct. Viewing in the Miner. the evidence (1942). Kermit “The need not L.Ed. 680 evidence government to the light most favorable every hypothesis of inno exclude reasonable support- accepting all reasonable inferences cence, simply be sufficient to convince but verdict, nothing find in the first ing that the jury beyond a reasonable doubt reversal. guilty.” is recantation that warrants defendant (8th Cir.1995) McGuire, 1177, omitted). (citation Furthermore, because affirm Miner’s convic Because we inherently pro evidence is as circumstantial recantation, light first tion S.J.’s evidence, as direct Holland bative only reversal recantation will warrant second

States, 75 S.Ct. 348 U.S. strong enough inference of if it a raises (1954), ap the same standard 99 L.Ed. 150 a trial on the to warrant new innocence entirely, part, plies verdicts based or to newly evidence under ground discovered circumstantial evidence. United Rules of Criminal Rule 33 of the Federal (8th Cir.1976). Carlson, upon look recantations Procedure. Courts Provost, 969 suspicion. United States with jury ample At evidence Cir.1992) (citation omit 619-20 Miner’s it could have concluded from which ted). recantations is es “[Scepticism about and detailed guilt. provided extensive S.J. in cases of child sexual pecially applicable of Keimit Miner’s recurring phe- S.J., a Hawk, recantation is ini- abuse where rather than order, family took from her are court Miner S.J. as “when members such nomenon” feelings guilt or placement child has with relatives social services involved Dakota, seek influence family Eagle, members to White Little back (cita- story.” at change her Id. Horse, day, Audrey Dakota. The next omitted). testimony expert tions took S.J. Fort Pierre to meet with very are common recantations revealed attorney point which in child sexual signed her recantation. Under circumstances, second we conclude that S.J.’s April recantation occurred on second sufficiently raise recantation does not signed an affidavit to the 1997. S.J. re- strong inference of innocence to warrant allegations of that her sexual abuse effect up versal. made were untrue that she them hated Miner. The affi- because she jury reached also contends that the that of- alleged Hawk davit no compromise in that there are verdict money charges of sex- fered fabricate S.J. alleged the real factual differences between the ual and that social services and abuse 8,1995 gave incident which rise November Attorney Mikal ma- Assistant Hanson U.S. II, acquitted, I and he Counts on which was providing testimony. nipulated into false S.J. alleged December 1995 incident and the suggests A review the record careful of III, giving rise to Count on which he was pressured Audrey Miner S.J. before tri- that jury argues that did convicted. Miner the al, may pressure and this have had an effect I guilty that was of not believe he Counts example, in her S.J.’s recantations. For and, was and II because there less S.J., Audrey ex- supervised visit with III, support his conviction should Count description in pressed disbelief S.J.’s II disagree. Counts I and not stand. We alleged supervised In another testimony supported by eyewitness were not January Audrey told a

visit by supported at III whereas Count that she did not believe S.J. social worker testimony. eyewitness E.F.H.’s During meeting, very upset this became S.J. Dueheneaux, the and cried. Deanne above, Incidentally, many noted as we Assistant Coordinator for Sacred Heart Ado- eighteen people inhabited the Miner eventually Program lescent where S.J. household, including eleven natural and fos- placed, Audrey frequently put that testified ter children of and Kermit Miner. pressure on trial. The be- S.J. before week why the De- This court cannot understand trial, Audrey fore called S.J. at Sacred Heart Interior, Tribe, partment of the the and oth- Adolescent Center and told S.J. that she permitted agencies er foster children to be away a heart attack and was minutes from placed already home. in this over-crowded dying. Audrey allegations told that her forty years the last at con- Over ten least upcoming of sexual abuse and the trial had the children or victions for sexual of upon Audrey. During aput lot of stress adults, Americans, in call, young involving Native phone got little sister on the same S.J.’s Dis- nothing District Court for the phone say “don’t the United States and said bad about (Tr. 394.) appealed to my daddy.” Finally, trict of Dakota have been on June number, twenty- Of at least apparently in violation of a tribal this court.1 Ponca, 94-3981, (8th Wright, WL 299168 1. See 119 F.3d 630 States v. No. 1995 United (affirmed) (familial); 18, 1995) curiam) (affirmed) (8th May (per United v. Cir. States 94-2077, (8th Cir.1997) (af (familial); Cournoyer, Young, United States v. No. 118 F.3d 1279 1994) Rouse, (non-familial); (8th firmed) (per WL 577466 Cir. Oct.21 United States v. 1994 curiam) (affirmed) (familial); (8th Cir.1997) (affirmed) (familial); v. United States 111 F.3d 561 (8th Goodlow, (8th Farmer, Cir.1994) (affirmed) United v. 105 F.3d 1203 369 States Saknikent, Cir.1997) (affirmed) (familial); (non-familial); United States States (8th Cir.1994) (affirmed) (non-famil (8th (reversed LeCompte, F.3d F.3d 1012 Whitted, Hale, (8th remanded) ial); (familial); 11 F.3d 782 United States v. (familial); 95-3113, Feb.2, 1993) (reversed remanded) No. 1996 WL 39628 Cir. Cir. Horse, 1996) curiam) (facts (affirmed) (per No 11 F.3d 104 unclear United States Has 1993) (reversed remanded) (non-famil familial); NB, F.3d Cir. whether (8th Cir.1995) (affirmed) (familial); ial); Knife, 9 United States v. government Indian has or represented in which reservations. five instances children $50,000 spend will well over in the criminal by a father or young or adults were abused prosecution and of Kermit Min- those, incarceration family member. Of re- another Although er. he will removed be from in Un- seven cases. versed the convictions family years, question I for about two wheth- cases, fortunately, examining in family er situation will be bettered recent appeals of in most five number improved pris- absence on his return or from approximately years so risen fifteen or has on. progress percent, indicating that little or no Depart- made the United States has been any- Child abuse on reservation or Interior, Tribe, any of or ment of is I suggest where a serious matter. agencies or that are involved reservation, federal state improvement in particular on the reducing the incidents of sexual abuse on housing conditions intensive education poverty-stricken Indian reservations. This parents problem and children about certainly suggests all interested might fact reduce incidence of sort pro- agencies agen- should consider alternative abuse that occurred here. All federal prevalence of that will reduce the grams cies interested the welfare Native crime on South Dakota Indian reservations. Dakota need to Americans focus

rehabilitation, housing and better education opportunities problem to alleviate the III. the reservation. supports Because substantial prosecu- interest and action of federal conviction, affirm. regard tors could well serve as a catalyst improvement living conditions BRIGHT, concurring Judge, Circuit Cheyenne River Indian Reservation separately. and other Indian reservations South Dako- colleague, my distinguished I commend and, thereby, ta reduce the incidence of child Heaney, pertinent Judge for his remarks may calling attention to what I believe be the on the South root cause child abuse crimes Reservation; is, the Indian de-

Dakota living conditions of families

graded Bulls, (8th Cir.1991) 1993) (affirmed) (familial); 940 F.2d 380 United States v. States v. Two Cir. Martinez, 1993) curiam) (affirmed) (non-familial); (8th (affirmed) (per v. Arcoren 3 1191 Cir. F.3d Cir.1991) States, (8th (af Shoulders, (non-familial); F.2d United 929 1235 United States v. No. Clown, firmed) 92-3591, (familial); (8th Aug. States v. 925 Cir. 27 United 1993 WL 326364 affirmed, (8th Cir.1991)(conviction 1993) curiam) (affirmed) (familial); but (per F.2d 270 United (familial); (8th 1993) resentencing) case Unit Stops, F.2d Cir. remanded v. Bear 997 451 States Bulls, (8th (affirmed F.2d 56 Cir. part, part v. Two 918 reversed and remand States (facts 1990) remanded) (vacated ed) (familial); unclear Eagleman, v. No. 92- States United familial; (8th 1993) with case than one whether different 1993 WL 41382 Cir. Feb. above); curiam) (familial); Eagle (affirmed) United States v. United States same case name Thunder, (per 1990) (af (8th (affirmed) (8th F.2d 950 Cir. Drapeau, 893 F.2d 1072 v. 978 fi Duran, familial); (non-familial); rmed) (facts F.2d 886 United States unclear whether United (8th Cir.1989) (affirmed) (familial); (8th 1992) United Claymore, Cir. 167 978 F.2d 421 States v. Bonnet, (8th (non-familial); (affirmed) Spotted War 882 F.2d 1360 States v. United States Bad remanded, Hair, 91-3704, (8th 1989), 497 U.S. 1021 WL 184103 Cir. vacated No. 1992 Yellow (facts (1990) (8th curiam) (affirmed) (Mem.), aff'g 1992) Cir. Aug. (per Cir. Moccasin, 1991) (familial); familial); Crane, United v. Iron States whether United States unclear (affirmed) (8th 1989) (familial); Cir.1992) (affirmed) (familial); (8th Cir. 878 F.2d 226 F.2d 586 965 Demarrias, (8th (8th F.2d Cir. 876 674 Balfany, United States States v. 965 F.2d 575 Cir. United Fawbush, 1989) (affirmed) (familial); 1992) (familial); v. Pro United States United States v. 946 1989) vost, (8th (affirmed) affirmed, (8th Cir.1991) (conviction Cir. F.2d 172 but F.2d 584 Feather, (familial);United (non-familial); F.2d resentencing) States v. Red remanded for case curiam) (affirmed) (fa 1989) Arrows, (8th (8th (per Plenty Cir. 946 F.2d 62 United States v. John, milial); remanded) Cir.1991) (reversed (familial); St (familial) 1988) (affirmed) Drapeau, 943 Cir. Cir. F.2d (af Pierre, 1991) (affirmed) (non-familial, v. St. different case fi rmed) (familial). above); one with case name than same

Case Details

Case Name: United States v. Kermit Miner

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Dec 23, 1997

Citation: 131 F.3d 1271

Docket Number: 97-1918

Court Abbreviation: 8th Cir.