Submitted: May 17, 2018
from United States District Court for the District of
Nebraska - Omaha
SMITH, Chief Judge, BEAM and COLLOTON, Circuit Judges.
Hawkghost, an enrolled member of the Rosebud Sioux Tribe,
appeals his conviction for three counts of abusive sexual
contact with A.W., a minor and enrolled member of the Ponca
Tribe of Nebraska. Hawkghost argues the district
court made erroneous evidentiary rulings. We
is married to A.W.'s grandmother, Marlene, and A.W. lived
in close proximity to Hawkghost and Marlene on the Santee
Sioux reservation between 2013 and 2014, when A.W. was 12
then turned 13 and in the sixth grade. In December 2015
interviews with an FBI investigator and a representative from
the Child Advocacy Center (CAC), A.W. alleged that in January
2014, while in a bathroom at Marlene's house, Hawkghost
rubbed her buttocks and genital area, over her clothing. This
was the only allegation A.W. made at that particular point in
time, and during these two interviews A.W. stated that this
was the entire extent of what Hawkghost had done to her.
Based upon this report, on September 21, 2016, Hawkghost was
charged in a single indictment with sexual contact with a
minor. In November 2016, as the charge was pending, A.W. was
again interviewed, but by a different CAC
interviewer. During that interview, A.W. indicated that
other incidents, previously undisclosed, had been perpetrated
by Hawkghost during the time she lived near Hawkghost (all
when she was in the sixth grade). She stated that Hawkghost
took her hand and pressed it against his penis, skin to skin.
In another incident, A.W. indicated that Hawkghost began
kissing A.W. on a bed and he began rubbing his erect penis,
through clothing, against A.W.'s genital area. During
this same incident, he fondled her breasts, skin to skin. In
December 2016, based upon this new information, the grand
jury returned a superseding indictment, adding three
additional counts of abusive sexual contact with a minor.
counsel wanted to pursue a defense that because Kitto and
Sheridan had abused A.W. between the time she made the
December 2015 and November 2016 allegations against
Hawkghost, she was transferring her trauma from the other
assaults and placing it on Hawkghost. Hawkghost argues this
transfer theory is bolstered by the fact that during the
November 2016 CAC interview, A.W. did not disclose the
contemporaneous abuse by Sheridan she had recently endured.
At a pretrial hearing, the government moved to exclude the
evidence of the other two assualts under Federal Rule of
Evidence 412. After a hearing, the district court ruled in
limine under both Rule 412 and Rule 403 that Hawkghost was
prohibited from cross-examining A.W. about the abuse
perpetrated by Sheridan, and the CAC and FBI interviewers
about Kitto and Sheridan. The court reserved further ruling for
trial, and then at trial the court upheld its previous ruling
that Hawkghost was prohibited from raising the issue of the
unrelated assaults on A.W. On May 10, 2017, the jury returned
a guilty verdict on three of the four counts in the
indictment, and in September 2017, Hawkghost was sentenced to
fifteen months on each count, to be served consecutively.
Hawkghost appeals, challenging the Rules 403 and 412 rulings.
review the district court's evidentiary rulings for an
abuse of discretion, and its rulings on the constitutional
right of the defendant to present a complete defense de novo.
United States v. Pumpkin Seed, 572 F.3d 552, 558
(8th Cir. 2009). On appeal, Hawkghost argues that the
evidence is admissible under the exception in Rule
412(b)(1)(C),  and additionally cites United States
v. Bear Stops, 997 F.2d 451 (8th Cir. 1993), in support
of his arguments that he should be allowed to explore
evidence of A.W.'s other sexual abuse. Hawkghost further
contends that the district court abused its discretion in
applying Rule 403 (excluding evidence when its probative
value is substantially outweighed by the danger of unfair
prejudice, confusing the issues and misleading the jury).
412, known colloquially as the "rape shield" rule,
states in pertinent part:
(a) Prohibited Uses. The following evidence is not admissible
in a civil or criminal proceeding involving alleged sexual
misconduct: (1) evidence offered to prove that a victim
engaged in other sexual behavior; or (2) evidence offered to
prove a victim's sexual predisposition. (b) Exceptions.
(1) Criminal Cases. The court may admit the following
evidence in a criminal case: . . . (C) evidence whose
exclusion would violate the defendant's constitutional
Fed. R. Evid. 412.
recently applied Rule 412 to exclude similar evidence. In
United States v. Never Misses a Shot, 781 F.3d 1017
(8th Cir. 2015), the defendant in a child molestation case
wanted to introduce evidence that the victim was also
molested by another adult, for the purpose of supporting the
defendant's theory that another actor caused the
victim's "sexual knowledge, experience, and trauma,
and as a result, [the victim] was projecting false
allegations of sexual abuse onto [the defendant]."
Id. at1028. The Never Misses a Shot
defendant wanted the evidence admitted under the exception in