United States v. Yazzie

• Court: Court of Appeals for the Tenth Circuit
• Decided: July 14, 2000
• Docket: 99-2354
• Status: Unpublished

Opinion

F I L E D United States Court of Appeals Tenth Circuit UNITED STATES COURT OF APPEALS JUL 14 2000

TENTH CIRCUIT PATRICK FISHER Clerk

UNITED STATES OF AMERICA,

Plaintiff-Appellee, No. 99-2354 v. (D.C. No. CR-98-934-JC) (New Mexico) LEONARD BARNARD YAZZIE,

Defendant-Appellant.

ORDER AND JUDGMENT *

Before SEYMOUR, Chief Judge, EBEL, and BRISCOE, Circuit Judges.

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cause is

therefore ordered submitted without oral argument.

* This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, or collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3. Leonard Bernard Yazzie appeals his convictions for aggravated sexual

abuse of a child under the age of twelve in Indian Country in violation of 18

U.S.C. §§ 1153, 2241(c), and 2246(2)(D), and abusive sexual contact with a child

in Indian Country in violation of 18 U.S.C. §§ 1153, 2244(a)(1), and 2246(3). We

affirm.

Mr. Yazzie claims there was insufficient evidence at trial to establish

beyond a reasonable doubt that he committed these crimes on the dates alleged in

the indictment. Sufficiency of the evidence is a question of law which we review

de novo. See United States v. Barajas-Chavez, 162 F.3d 1285, 1289 (10th Cir.

1999) (en banc). When undertaking our review, we look to the evidence, “both

direct and circumstantial, together with all reasonable inferences in the light most

favorable to the prosecution, to determine whether a reasonable jury could find

the essential elements of a crime beyond a reasonable doubt.” See United States

v. Roberts, 185 F.3d 1125, 1140 (10th Cir. 1999). Where a defendant challenges

the government’s proof as to when an offense occurred and the time is not an

element of the offense, “there must be some evidence which tends to show that

the defendant committed the charged offense on ‘a date reasonably near to the

specified date’ alleged in the indictment.” United States v. Charley, 189 F.3d

1251, 1273 (10th Cir. 1999) (quoting United States v. Castillo, 140 F.3d 874, 885

(1998)), cert. denied 120 S. Ct. 1272 (2000).

-2- The indictment alleged that Mr. Yazzie committed these crimes against the

child victim “[o]n or about June and July 1997.” Rec., vol. I, Indictment. The

child victim testified at trial that although he could not remember how many years

ago the incidents took place or how old he was at the time, he did recall that it

was sometime close to his birthday in July, see Rec., vol. V, Tr. at 35-36; vol. IV,

Tr. at 269, and repeatedly testified it occurred while they were herding sheep

together near the San Juan River in Fruitland, New Mexico, see id., vol. V, Tr. at

31, 33, 51, 54-56, 60, 69. Mr. Yazzie himself testified that he herded sheep with

the child victim near the San Juan River in Fruitland sometime in May or June,

1997. See id. at 230-31 (testifying he took the boys to herd sheep down near the

river while living in Fruitland), and 245 (testifying he lived in Fruitland for thirty

days beginning in April or May, 1997). This evidence together is sufficient to

show that the crimes John Doe testified to occurred reasonably near June and

July, 1997, the alleged dates set forth in the indictment. See Charley, 189 F.3d at

1272 (proof sufficient where prosecution proves offense committed within a few

weeks of the date alleged in indictment); Castillo, 140 F.3d at 885 (where

indictment alleged crimes occurred on or about June and July of 1994, testimony

that crime occurred during summer of 1994 held sufficient).

We reject Mr. Yazzie’s argument that the evidence was insufficient simply

because John Doe could not testify to the exact month and year these events took

-3- place. Dr. Dave Sprenger, an expert in child psychiatry, testified that children are

less able than adults to give a temporal sequence, that is, put things on a time

line. See Rec., vol.V, Tr. at 105. The child victim was able to relate a location

and event corresponding to the crime, and Mr. Yazzie’s own testimony linked that

location and event to sometime in May or June, 1997, a time reasonably near

those dates set forth in the indictment. See, e.g., Charley, 189 F.3d at 1273

(suggesting evidence sufficient where child can specifically recall an event or

incident indexed to the specific time).

Mr. Yazzie also contends the district court abused its discretion in

summarily denying his request for funds under the Criminal Justice Act (CJA), 18

U.S.C. § 3006A. Prior to trial, Mr. Yazzie filed a sealed ex parte motion

requesting funds for the services of a polygraph examiner. See Rec., Doc. 13. In

this motion, which did not include an attached legal brief, Mr. Yazzie’s counsel

summarily requested such funds “in order to provide Defendant Yazzie timely,

effective assistance of counsel,” see id. at ¶2, relying on no more than his

“belie[f] that this request is reasonably necessary to provide effective assistance,”

see id. at ¶3.

We review a district court’s refusal to authorize funds under the CJA for an

abuse of discretion. See United States v. Kennedy, 64 F.3d 1465, 1470 (10th Cir.

1995). “In order to obtain services under [the CJA], the defendant must do more

-4- than allege that the services would be helpful. The defendant bears the burden of

showing that the requested services are ‘necessary’ to present an adequate

defense.” Id. Although Mr. Yazzie presents strenuous and lengthy arguments on

appeal regarding his need for the polygraph examiner due to the credibility issue

decisive at trial and the asserted admissibility of a polygraph examiner’s

testimony, none of these arguments were presented to the district court in support

of this request. As we stated in Kennedy, it is insufficient for a defendant to

generally allege that services are necessary without specifically showing why the

services are necessary or what the defendant expects to find through the use of

such services. See id. (citing United States v. Mundt, 508 F.2d 904, 908 (10th

Cir. 1974)). For this reason, the district court did not abuse its discretion in

denying Mr. Yazzie’s conclusory motion.

We AFFIRM the judgment of the district court.

ENTERED FOR THE COURT

Stephanie K. Seymour Chief Judge

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