United States v. Emil Earl Little Dog

Citations: 398 F.3d 1032; 2005 U.S. App. LEXIS 2998; 2005 WL 405808Docket: 04-1834

Court: Court of Appeals for the Eighth Circuit; February 22, 2005; Federal Appellate Court

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Emil Earl Little Dog was indicted on multiple counts, including four counts of aggravated sexual abuse and two counts of sexual contact, ultimately found guilty on all but one sexual contact charge. He received a sentence of 360 months in prison, three years of supervised release, and a $600 special assessment. Little Dog appealed, citing five alleged errors by the district court, but the appellate court affirmed the conviction.

The allegations stemmed from three minor females, the siblings of Little Dog's wife, Justine Grindstone. After being removed from their mother's custody due to chronic alcoholism, the girls were placed with Little Dog and Grindstone. One girl, MRL, testified that Little Dog sexually abused her repeatedly from around age ten, detailing incidents in various locations including his home and vehicles. MRL's trauma was severe enough to lead to a suicide attempt and ongoing fear of Little Dog.

Medical evidence was inconclusive, with Dr. Richard Kaplan noting that normal gynecological findings are not uncommon in sexual assault cases. Testimony regarding LRL, another victim, came from her sisters, who reported witnessing Little Dog inappropriately touching her while she was unconscious from drinking. LRL did not recall the incident.

The case saw multiple indictments, including charges of obstruction of justice linked to Little Dog's attempts to influence MRL's testimony. A pretrial motion for a gynecological exam of MRL was denied by the trial court.

On the second day of trial, the district court realized it had not sworn in the jury, despite having sworn the panel. The court acknowledged this procedural error but deemed it harmless after reviewing case law. Counsel was informed that the jury would be sworn in, but a motion for mistrial by Little Dog was denied. Little Dog also filed a motion to sever the obstruction charge from sexual charges, which was denied multiple times. He was ultimately found guilty on all but one sexual contact charge and subsequently filed for judgment of acquittal and a new trial, both of which were denied. The court sentenced him to 360 months in prison, three years supervised release, and a $600 assessment.

On appeal, Little Dog raised five claims of reversible error: 1) insufficient evidence for a judgment of acquittal; 2) failure to swear in the jury before opening statements; 3) denial of severing the obstruction charge; 4) refusal to allow his medical expert to conduct a gynecological exam; and 5) refusal to instruct the jury on the specific intent required for obstruction of justice. 

Regarding the sufficiency of the evidence, Little Dog argued that inconsistencies in witness accounts undermined the conviction. However, the appellate court emphasized that credibility determinations are within the jury's purview and found the evidence sufficient to support the verdict. The court also dismissed Little Dog's concerns about the failure to swear in the jury, stating his arguments lacked merit.

The district court erred by failing to administer the jurors' oath before trial, a crucial step as it marks the attachment of jeopardy. However, unless the delay in administering the oath resulted in prejudice, the error is considered harmless. Jurisprudence, including cases like Crist v. Bretz and Cooper v. Campbell, supports that a lack of demonstrated prejudice from such delays upholds the trial's validity. Little Dog's arguments for a mistrial based on this error lack persuasive support from analogous case law.

Regarding Little Dog's motion to sever the obstruction of justice count from the sexual abuse counts, he contends that the charges were improperly joined under Fed.R.Crim.P. 8(a), as they were not based on the same act or transaction. Alternatively, he claims that even if the joinder was appropriate, the court should have severed the counts due to potential prejudice under Fed.R.Crim.P. 14. However, broad interpretations of Rule 8(a) are encouraged for judicial efficiency. The court noted that while prejudice can arise from evidence of one charge influencing the jury's view of another, it did not apply in this case since the obstruction charge was interrelated with the sexual abuse charges. Evidence linking both crimes would be admissible in separate trials, negating claims of undue prejudice. The court emphasized that severance is only warranted if a defendant shows severe prejudice, which Little Dog failed to do by merely expressing a desire to testify on the sexual charges but not the obstruction charge.

In United States v. Jardan, 552 F.2d 216 (8th Cir. 1977), the court denied a motion to sever counts of an indictment as speculative, referencing Baker v. United States, which establishes that a defendant must convincingly show the necessity for severance by providing detailed information about the testimony he wishes to present and the reasons for refraining from testifying on other counts. 

Regarding Little Dog's claim that his expert, Dr. Scott Berry, should have been allowed to conduct a gynecological examination of MRL to bolster his credibility, the court reviewed the district's denial for abuse of discretion. The court found no abuse, as Dr. Berry had access to prior examination data showing no signs of injury, and it determined that an additional examination was unnecessary for Little Dog to mount an adequate defense. 

Little Dog further contended that the district court erred by not instructing the jury that obstruction of justice requires specific intent. However, the court ruled that the overall jury instructions appropriately covered the law, including the necessary specific intent element for obstruction of justice. Instruction Eighteen explicitly stated that the defendant must knowingly and intentionally attempt to obtain materially false testimony to obstruct justice. The court concluded that Little Dog's substantial rights were not affected by the district court's rulings, affirming the correctness of the jury charge provided.

Little Dog filed a motion for supplemental briefing to address implications of the Supreme Court's decisions in *Blakely v. Washington* and *United States v. Booker* on his sentencing as a career offender under U.S.S.G. 4B1.1, which resulted in a Criminal History Category VI. He argued that the district court had discretion to depart from the sentencing Guidelines post-*Booker* and suggested that the court would have sentenced him differently if the Guidelines were not mandatory. Little Dog referenced the district court's criticism of career criminal enhancements as "mindless." However, the court based Little Dog's criminal history category on two prior violent felony convictions, a fact not requiring proof beyond a reasonable doubt. The district court explicitly stated it did not intend to depart from the Guidelines, asserting that while it had the authority to do so, this case did not warrant such action. The court's decision was consistent with the principles established in *Booker*. The motion for supplemental briefing was denied.

The district court's decision is affirmed based on several key reasons. Notably, Little Dog was acquitted of charges related to KRL, and details of those charges are excluded from consideration. He was incarcerated with Richard Red Fox, who had relatives in a residence connected to MRL. Little Dog requested Red Fox to deliver a letter to his sisters, which he claimed was not intended to instruct them against testifying truthfully. However, Red Fox's accompanying letter advised the sisters to maintain their court testimony and not comply with Little Dog's request.

Regarding legal procedures, the applicable rule permits multiple offenses to be charged if they are related. Little Dog argued that the jury's instruction required proof of sexual contact occurring within a specific date range, contending that his conviction should be reversed since the evidence only indicated abuse from 2000. However, the court found that a variance in dates does not invalidate the conviction if the acts occurred within the statute of limitations and prior to the indictment. The jury was instructed that the evidence needed to show offenses occurred around the alleged dates. Additionally, Little Dog's claim that the date was an essential element of the crime was rejected, referencing precedents that clarify the date is not a critical element for the charge.