United States v. White Buffalo ( 1996 )

_____________
No. 95-3671SD
_____________
United States of America, *
*
Appellee, *
*
v. *
*
William White Buffalo, *
*
Appellant. *
_____________ Appeals from the United States
District Court for the District
No. 95-3672SD of South Dakota.
_____________
United States of America, *
*
Appellee, *
*
v. *
*
Ernest White Buffalo, *
*
Appellant. *
_____________
Submitted: March 12, 1996
Filed: May 30, 1996
_____________
Before FAGG, JOHN R. GIBSON, and WOLLMAN, Circuit Judges.
_____________
FAGG, Circuit Judge.
A jury convicted William White Buffalo and his brother Ernest White
Buffalo of aggravated sexual abuse and of aiding and abetting aggravated
sexual abuse. See 18 U.S.C. § 2241(a) (1994). The White Buffalo brothers
appeal, and we affirm.
According to Antoinette Boltz, she met William and Ernest
White Buffalo at a drinking party, they took her for a ride into the
country, and then raped her. Although the victim told a hospital doctor
she had not engaged in consensual sexual intercourse within seventy-two
hours of the rape, laboratory test results suggested otherwise. At trial,
the brothers wanted to offer the victim's denial of earlier sexual
intercourse and then introduce the test results to impeach her credibility.
The district court decided the evidence about the victim's past sexual
behavior was inadmissible under Rule 412 of the Federal Rules of Evidence.
On appeal, the White Buffalo brothers contend the district court
improperly refused to admit the test results. William argues the test
results were admissible to impeach the victim's truthfulness and to show
her capability to fabricate a story about the rape. Contrary to William's
view, these are not recognized exceptions to Rule 412. United States v.
Azure, 845 F.2d 1503, 1506 (8th Cir. 1988). In the absence of an
applicable exception, Rule 412 "specifically bars admission of evidence of
the past sexual behavior of an alleged rape victim." United States v. Blue
Horse, 856 F.2d 1037, 1040 (8th Cir. 1988). Unlike his brother, Ernest
argues the district court should have admitted the test results under two
of the exceptions listed in Rule 412. Ernest contends the test results
showed "that a person other than the accused was the source of semen."
Fed. R. Evid. 412(b)(1)(A). Ernest cannot rely on this exception, however,
because the Government did not introduce any evidence about the victim's
past sexual behavior or the presence of semen in the victim. See United
States v. Shaw, 824 F.2d 601, 604 (8th Cir. 1987), cert. denied, 484 U.S.
1068 (1988). Ernest also contends the district court's refusal to admit
the test results violated his constitutional right to confront the victim
and impeach her general credibility with the lie to the doctor. Fed. R.
Evid. 412(b)(1)(C). In Ernest's view, "[a] jury cannot judge the
credibility of a witness unless that jury is informed of each and every lie
the witness told [before]
-2-
the trial [about] the case." We disagree. Because the victim's statement
about unrelated consensual sexual intercourse was of little or no probative
value on the question of whether she falsely accused Ernest of rape, the
exclusion of the test results did not deprive Ernest of a constitutional
right. See United States v. Bartlett, 856 F.2d 1071, 1088-89 (8th Cir.
1988). Thus, we conclude the district court did not abuse its discretion
when it prohibited impeachment of the victim with her past sexual behavior.
Fed. R. Evid. 412.
Finally, William contends the district court improperly denied his
request for an acceptance of responsibility adjustment. Instead of
accepting responsibility for rape, William makes it perfectly clear that
he has "consistently denied raping [the victim], [because] the sexual
intercourse was consensual." The district court correctly denied William's
request. See U.S.S.G. § 3E1.1(a) (1994); United States v. Yankton, 986
F.2d 1225, 1230 (8th Cir. 1993).
We affirm the White Buffalo brothers' convictions and William's
sentence.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
-3-