United States v. Hollow Horn

523 F.3d 882 (8th Cir. 2008)

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Nature of the Case

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Facts

In July 1999, several girls attended the 10th birthday party for D's daughter, Maurisa. The party began at D's home. The adults set up a tent outside of Maurisa's grandmother's home a few hundred yards away so that the girls could have a sleepover. R.R.A.--who was 7 years old at the time--became scared, left the tent, and went into her grandmother's house to sleep on the couch. The other four girls spent the night in the tent. R.R.A. testified that D removed her covers and touched her vagina, rubbing it in an 'up and down' motion with his hand over her panties but underneath the long shirt that she was wearing. D continued this rubbing for a couple of seconds before R.R.A. kicked him in the side, causing him to stop. D placed the covers back on R.R.A., told her to be quiet and go back to sleep, and walked out of the room. H.C., who was 10 years old testified that she was asleep inside the tent with the three other girls when she was awakened by someone rubbing her breasts. H.C. opened her eyes when she felt someone lift up her nightgown, exposing her stomach, and she saw D trying to remove her panties. H.C. told D to stop, and he complied. D left the tent without speaking. H.C. testified that she did not call out for help or otherwise wake up the other girls because she was scared. The district court allowed H.C.'s mother, Laudine, to testify pursuant to Federal Rule of Evidence 413. Laudine testified that D raped her at a New Year's Eve party on the night of December 31, 1987, when Laudine was 20 years old. Laudine had become intoxicated and passed out. When she came to, she found her pants at her ankles, her shirt pulled up, and D--her first cousin--having sex with her. She told D to get off of her, and he moved back, pulled up his pants, and watched as she got dressed. Laudine told a neighbor what had happened, and the police were notified. The police took a report from Laudine and transported her to the hospital for an examination. A tribal prosecution was commenced, but Laudine withdrew the complaint due to pressure from her mother. In withdrawing the complaint, Laudine did not recant her allegation. D was not prosecuted for the alleged rape. D called 12 witnesses, most of whom had been at the birthday party, including the other young girls at the party. They were unaware of any sexual contact. D testified that he had not had any sexual contact with either R.R.A. or H.C. and denied that he had gone to the tent. D's testimony confirmed that he had been at the same New Year's party as Laudine on December 31, 1987, but he denied that he had sex or any sexual contact with Laudine. D was convicted. Curley, who had testified at the trial, sent a letter to defense counsel stating that she believed that R.R.A.'s parents had coached the girl's testimony, based on statements Curley claimed that she heard the girl's parents make to R.R.A. while they were all in the witness room prior to and after R.R.A.'s testimony. D moved for a new trial. The district court denied D's motion for a new trial. D appealed.