Appeal from the United States District Court for the District of South Dakota.
The opinion of the court was delivered by: Shepherd, Circuit Judge.
Submitted: December 16, 2011
Before LOKEN, BRIGHT, and SHEPHERD, Circuit Judges.
Following a jury trial, Appellant Thomas William Frederick was convicted of one count of aggravated sexual abuse of a minor, one count of sexual contact with a minor, and one count of tampering with a witness.*fn1 The district court sentenced Frederick to 145 months in prison. Frederick now appeals, challenging two separate rulings made at trial. We affirm.
On March 9, 2010, an indictment was filed against Frederick, charging him with four separate counts: Count 1, aggravated sexual abuse of a minor, in violation of 18 U.S.C. §§ 1153, 2241(c), and 2246(2)(D); Count 2, sexual contact with a minor, in violation of 18 U.S.C. §§ 1153, 2244(a)(3), and 2246(3); Count 3, attempted sexual abuse of a minor, in violation of 18 U.S.C. §§ 1153, 2243(a), and 2246(2)(A); and Count 4, tampering with a witness, in violation of 18 U.S.C. § 1512(b)(3).*fn2 The first three counts stemmed from allegations that Frederick had sexually abused W.F. and J.F., the adopted daughters of his biological sister Kathleen Frederick, at the family ranch on the Rosebud Sioux Indian Reservation. The last count was based on Frederick's instruction to J.F. to lie to investigators about his conduct toward her. After a five day trial, the jury found Frederick guilty as to Counts 1, 2, and 4. On appeal, Frederick challenges two separate rulings made by the district court. We address each in turn.
Frederick first argues that his rights under the Confrontation Clause of the Sixth Amendment were violated when he was prevented from (1) asking W.F. if she made a false accusation of sexual abuse against her bus driver and (2) asking J.F. if she made a false accusation of sexual abuse against a school teacher. "We review evidentiary rulings regarding the scope of cross-examination for an abuse of discretion, except where the Sixth Amendment confrontation clause is implicated, and then our review is de novo." United States v. Jewell, 614 F.3d 911, 920 (8th Cir. 2010), cert. denied, 131 S. Ct. 1677 (2011).
During his cross-examination of W.F., Frederick's counsel*fn3 began to ask W.F. if she knew of a bus driver named Harry DuBray. The government objected immediately, and a side-bar followed. Defense counsel represented that in the past W.F. made a false accusation of sexual abuse against DuBray after DuBray disciplined her for getting angry and acting out on the bus. Defense counsel submitted that the intended line of questioning was probative because it would show that W.F. was "a girl that will make allegations against anybody that she doesn't like." The government countered that any previous allegations of abuse against DuBray were inadmissible under the rape shield, Federal Rule of Evidence 412.*fn4 The district court sustained the government's objection and noted its reliance not only on Rule 412, but also on Rules 403 and 404. During recross-examination of W.F., defense counsel asked W.F. if she "ever lied about sexual abuse." W.F. responded in the negative.
The court took up Frederick's intended line of questioning outside the presence of the jury two more times before the conclusion of trial, allowing Frederick to make an offer of proof as to the alleged previous false reports. Defense counsel represented that W.F. had accused DuBray of "asking her to kiss him, having her sit on his lap, touching her improperly, and that this was an ongoing thing." Defense counsel argued that, like her allegation against DuBray, W.F. only accused Frederick of sexual abuse after he punished her for stealing his granddaughter's iPad. Counsel stated that an investigation had been initiated into the allegation against DuBray but that it was his understanding that a final report was still outstanding.
During the offer of proof, defense counsel also addressed an intended line of questioning as to J.F. Defense counsel represented that J.F. made a false allegation of sexual abuse against a teacher, Mr. Miles, allegedly accusing Miles of touching her buttocks, her breasts, and between her thighs. Counsel stated that the allegation against Miles was "fully investigated," including reports to "mandatory reporters" and to J.F.'s therapist. Counsel then represented that J.F. "simply retracted the allegation . . . as the investigation was winding up, and . . . then the allegation went away." Counsel stated that she would be able to call the principal of the school who received the report of abuse and oversaw the investigation as well as the student aide in the room who would be able to testify "that the actions just simply could not have happened." Counsel did not represent that J.F.'s allegations against Frederick or her teacher resulted from any sort of disciplinary action. Instead, at a sidebar during the cross-examination of J.F., defense counsel represented that part of J.F.'s motive was to "manipulate the system" and that J.F. made the allegations against Frederick based on her belief that doing so would allow her to move from the family ranch into town to be closer to her friends.
In response, the government maintained that the evidence relating to DuBray and Miles was inadmissible under Rule 412 and that Frederick could not show that any of the previous allegations were false. The Assistant United States Attorney also noted that he did not recall anything in the exhibits submitted by Frederick that debunked the investigation into the Miles allegation but noted his recollection that the allegation by J.F. against Miles was that Miles "was too close behind her."
After allowing Frederick to make his offer of proof, the court upheld its original decision to disallow Frederick from asking W.F. and J.F. about other allegations of sexual abuse. The court noted Frederick's arguments that the allegations were not within the ambit of Rule 412, but ultimately concluded that Eighth Circuit precedent held to the contrary. In excluding the evidence, the court noted its reliance not only on Rule 412, but also on Rule 403 and Rule 608(b). The court did not prevent defense counsel from asking W.F. about her specific motive for bringing a claim against Frederick, including whether she blamed Frederick for being sent to a home for troubled teens.
Frederick contends that the court's reliance on Rule 412 was misplaced because "a lie about engaging in sexual abuse does not become an actual act of sexual abuse under Rule 412." Frederick argues that his intended line of questioning would have demonstrated each girl's retaliatory motive to make false claims of sexual abuse when she felt wronged by an authority figure.*fn5 Therefore his line of questioning was not aimed at ...