United States v. Charles Blue Bird

372 F.3d 989, 64 Fed. R. Serv. 654, 2004 U.S. App. LEXIS 12422, 2004 WL 1398827
CourtCourt of Appeals for the Eighth Circuit
DecidedJune 23, 2004
Docket03-2544
StatusPublished
Cited by71 cases

This text of 372 F.3d 989 (United States v. Charles Blue Bird) is published on Counsel Stack Legal Research, covering Court of Appeals for the Eighth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Charles Blue Bird, 372 F.3d 989, 64 Fed. R. Serv. 654, 2004 U.S. App. LEXIS 12422, 2004 WL 1398827 (8th Cir. 2004).

Opinions

MORRIS SHEPPARD ARNOLD, Circuit Judge.

After a jury convicted Charles Blue Bird of the sexual abuse of a minor under 18 U.S.C. § 2243(a), he appealed. Because we find that the district court erred in admitting evidence to which Mr. Blue Bird objected, and that the error was not harmless, we reverse his conviction.

I.

It is undisputed that Mr. Blue Bird, who was nineteen years old at the time, had consensual sexual intercourse with the minor in this case, who was thirteen years old. Mr. Blue Bird is an Indian and the encounter at issue in this case took place in Indian Country, giving jurisdiction to the federal courts. See 18 U.S.C. § 1153. Under 18 U.S.C. § 2243(c)(1), a defendant’s good faith belief that a minor with whom he or she had sexual intercourse had attained the age of sixteen is an affirmative defense. Mr. Blue Bird maintained that he had such a reasonable belief and testified that the minor had told him that she was seventeen years old. The minor denied telling Mr. Blue Bird her age. Mr. Blue Bird’s defense was the only material issue at trial.

Mr. Blue Bird raises several evidentiary issues. He challenges the admissibility of the testimony of two witnesses who stated that Mr. Blue Bird had had sexually suggestive encounters with them when they were minors. He maintains that it was error to admit testimony from the prosecuting witness that she was a virgin when she had sexual intercourse with Mr. Blue Bird. Third, he objects to the introduction into evidence of the minor’s panties, which were covered with menstrual blood.

II.

There is some confusion in our cases on the proper standard of review with respect to evidentiary issues. We have sometimes said that in reviewing a district court’s admission of evidence we review for an abuse of discretion. See, e.g., United States v. Salcedo, 360 F.3d 807, 809 (8th Cir.2004). Strictly speaking, however, this is not correct. Some rules require a balancing of how particular evidence might affect the jury, and we properly accord deference to the trial judge on such questions. See, e.g., Fed.R.Evid. 403. But a district court’s interpretation and application of most rules of evidence are matters of law. Of course, an error of law can always be characterized as “an abuse of discretion,” United States v. Weiland, 284 F.3d 878, 882 (8th Cir.2002), but our review in cases like the present one is more accurately characterized as de novo.

At trial, B.H. testified that when she was seven years old Mr. Blue Bird stayed [992]*992for a time in her house, and she awoke one night to see him standing in the doorway of her bedroom. She also testified that when she was fourteen years old, Mr. Blue Bird approached her while she was sleeping on a couch: She stated that he held her hand, rubbed her stomach, pushed her t-shirt up to just below her breasts, kissed her, and said, “Let’s do it.” When B.H. indicated that she was not interested, she testified that Mr. Blue Bird desisted. The government called another witness, S.T., who testified that when she was seven years old, Mr. Blue Bird, who was staying at her house, came into her bedroom, kissed her, and attempted to get under her bed covers. According to S.T., Mr. Blue Bird left when she told him that she was not interested. She also recounted an incident that occurred when she was thirteen years old: An intoxicated Mr. Blue Bird, she said, came into her room, attempted to take his pants off, and passed out on top of her. Mr. Blue Bird denied that any of these incidents took place.

Federal Rule of Evidence 404(b) provides that “[ejvidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.” Evidence of “other crimes, wrongs, or acts” may, however, be introduced to prove “motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake.” See Fed.R.Evid. 404(b). In addition, in 1994 Congress enacted a special rule of evidence for criminal cases involving certain sexual offenses, including the crime for which Mr. Blue Bird was being tried here. Ultimately codified as Federal Rule of Evidence 413, it states that in such cases “evidence of the defendant’s commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant.” Fed.R.Evid. 413(a). We have previously stated that this rule supersedes Rule 404’s prohibition against character evidence, allowing testimony of prior bad acts in sexual assault cases, provided that it is relevant. See United States v. LeCompte, 131 F.3d 767, 769 (8th Cir.1997); see also Fed.R.Evid. 401. Evidence admissible under both the exceptions in Rule 404(b) and under Rule 413 remains subject to Rule 403, which requires weighing the probative value of the evidence against the danger of unfair prejudice that its admission might create. See Clark v. Martinez, 295 F.3d 809, 814 (8th Cir.2002); United States v. Mound, 149 F.3d 799, 801-02 (8th Cir.1998), cert. denied, 525 U.S. 1089, 119 S.Ct. 842, 142 L.Ed.2d 697 (1999). The district judge ruled that the testimony of B.H. and S.T. was admissible under both Rules 404(b) and 413 and was not precluded by Rule 403.

We turn first to Rule 413. This rule makes admissible conduct that is proscribed by chapter 109A of Title 18 of the United States Code, as well as other conduct not relevant here. See Fed.R.Evid. 413(d). Thus, in order for the testimony of B.H. and S.T. to be admissible under Rule 413, the acts that they testified to must fit into one of the offenses in that chapter. Chapter 109A forbids both “sexual acts” and “sexual contact” with a minor, as well as attempts to do either of these things. See 18 U.S.C. §§ 2241(c), 2243(a), 2244(a)(1), (a)(3). A “sexual act” consists of vaginal, anal, or oral sex, as well as touching the genitalia of another for various purposes, including sexual gratification. See 18 U.S.C. § 2246(2).

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Bluebook (online)
372 F.3d 989, 64 Fed. R. Serv. 654, 2004 U.S. App. LEXIS 12422, 2004 WL 1398827, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-charles-blue-bird-ca8-2004.