United States District Court, D. South Dakota, Central Division
OPINION AND ORDER DENYING DEFENDANT'S MOTION FOR NEW TRIAL
ROBERTO A. LANGE, District Judge.
Following a jury trial on February 27, 28, 29, and March 1, 2012, Defendant Gilbert Oliver Crow Eagle, Jr., also known as Leonard Oliver ("Crow Eagle"), was convicted on two counts of aggravated sexual abuse of a child and two counts of abusive sexual contact, in violation of 18 U.S.C. §§ 1153, 2241(c), 2244(a)(1), 2246(2)(A), 2246(2)(C), and 2246(3). Doc. 118 at 1. The United States Court of Appeals for the Eighth Circuit affirmed Crow Eagle's conviction and sentence. Docs. 134, 135; United States v. Crow Eagle, 705 F.3d 325 (8th Cir. 2013) (per curiam).
On February 17, 2015, Crow Eagle filed a prose Motion for New Trial under Rule 33(b)(1) of the Federal Rules of Criminal Procedure, which allows three years for a defendant to file a new trial motion "grounded on newly discovered evidence." Doc. 138. Crow Eagle primarily stated two arguments in his motion. First, he asserted that two material witnesses-Shannon Oliver Broken Leg ("Shannon") and Dusti Rose Oliver ("Dusti")-have recanted their testimony and stated that they were compelled to give false testimony. Doc. 138 at 2-4. Crow Eagle's second argument- concerning underrepresentation of Native Americans on his jury and in the pool-was denied by this Court on February 25, 2015, as "not grounded on newly discovered evidence.'" Doc. 140. In addition to the two primary arguments, Crow Eagle also asserted malicious prosecution and claimed that his due process rights were violated. Doc. 138 at 2-3. He requested an evidentiary hearing. Doc. 138 at 3. The Government opposed Crow Eagle's motion and set forth argument and authorities why Crow Eagle was not entitled to relief. Doc. 139.
This Court then entered an Order Directing Defendant to Reply, part of which stated:
Defendant's affidavit contains hearsay information about alleged recantation. For this Court to determine whether an evidentiary hearing is needed and whether appointment of counsel is merited, this Court needs to receive an affidavit from the Defendant at a minimum and ideally from those who heard alleged recantations detailing by whom, when, where, and to whom such alleged recantation statements were made and what was said, as well as when, how, and from whom Defendant learned of the alleged recantations.
Doc. 141 at 2. Thereafter, Crow Eagle signed and filed an affidavit asserting that a person who is now dead heard Shannon recant her statements. Doc. 142. Crow Eagle also submitted two letters from the person who ostensibly heard the dead man's hearsay statement about Shannon's alleged recantation, but those two letters do not corroborate that she recanted her testimony. Doc. 142-1. For the reasons explained below, the remainder of Defendant's Motion for New Trial is denied.
I. FACTS PERTINENT TO NEW TRIAL MOTION
Shannon and Dusti are both victims and nieces of Crow Eagle. At trial, Shannon testified that one night between 1991 and 1993, when she was eight to nine years old, Crow Eagle rubbed her vaginal area over her clothing. Doc. 99-1 at 57-66. Dusti testified that between 1998 and 1999, when she was six to seven years old, Crow Eagle rubbed her vaginal area over her clothing on numerous occasions. Doc 99-1 at 82-88. Dusti also testified that the abuse escalated to sexual intercourse, followed by intimidation by Crow Eagle to keep her silent. Doc. 99-1 at 89-95.
The government presented additional witnesses who testified about similar abuse by Crow Eagle. Crow Eagle's younger sister, Carlene Oliver, testified Crow Eagle had sexually abused her when she was six or seven years old, and the abuse continued until she was approximately eighteen. Doc. 99-1 at 228-233. Another niece of Crow Eagle, Jeri lee Oliver, testified that she was sexually abused by Crow Eagle on more than twenty occasions beginning when she was seven years old. Doc. 99-1 at 188-99. Yet another niece of Crow Eagle, Jamie Oliver, also testified that Crow Eagle had attempted to sexually assault her when she was ten or eleven years old. Doc. 99-1 at 10-12, 16-20.
The government also presented testimony from Eric Oliver, Crow Eagle's nephew, and Bernadette Oliver, Shannon and Dusti's mother. Eric Oliver testified that he and his sister, Shannon, had slept over at Crow Eagle's home and were babysat by Crow Eagle when they were younger. Doc. 99-2 at 196-98. Bernadette testified that Crow Eagle had babysat both Dusti and Shannon. Doc. 99-2 at 13, 30-31. Bernadette also testified that she confronted Crow Eagle about sexually assaulting Shannon. Doc. 99-2 at 25-26. When she asked him why he had sexually assaulted her daughter, Crow Eagle replied, "That's what they get." Doc. 99-2 at 25-26.
Crow Eagle did not testify and argued that he did not sexually abuse anyone. He produced testimony that Shannon and Dusti had not stayed with him, that he had not taken care of them, and that did not he have access to sexually assault them. See, e.g., Doc. 99-2 at 127, 156-57, 186. The jury found Crow Eagle guilty of sexually abusing Shannon and Dusti. Doc. 80. Crow Eagle was acquitted on Count 5, an alleged sexual assault of Britney Sharpfish. Doc. 80.
Nearly three years after his conviction and sentencing, Crow Eagle filed the present motion for new trial. Doc. 138. To initially support his claim, Crow Eagle submitted an affidavit of his own dated February 10, 2015. Doc. 138-1 at 2. Crow Eagle's affidavit states he has been contacted by witnesses who have heard that Shannon and Dusti recanted their trial testimony. Doc. 138-1 at 2. Crow Eagle became aware of these claimed recantations between May 4, 2012 and August 8, 2014, when he had a phone conversation with Keith Horse Looking ("Horse Looking"). Doc. 138-1 at 2. Specifically, Crow Eagle asserts that "Dale Eagle Deer personally witnessed Shannon Oliver Broken Leg recant her testimony and state it was her dad, Marlon and others who had sexually abused her and Dusti Rose Oliver." Doc. 138-1 at 2. Thereafter, this Court entered its Order Directing Defendant to Reply with more specific information, noting Crow Eagle's affidavit contains hearsay information. Doc. 141.
Crow Eagle subsequently filed a second affidavit which stated he "was told by Keith Horse Looking that Keith had been contacted by Dale Eagle Deer about Shannon recanting her allegations...." Doc. 142. Dale Eagle Deer passed away and has given no sworn testimony by affidavit or otherwise. Doc. 142. Crow Eagle also submitted family photographs to this Court and asserted that such photographs are proof there was no sexual abuse. Doc. 142. Crow Eagle further claimed that he was unable to subpoena witnesses in Iowa, that he previously stopped his nephews from harming Shannon, that the nephews were "telling their parents [Crow Eagle] was bothering the girls, " and that he "never harmed or touched any of his relatives." Doc. 142.
Crow Eagle also submitted two letters from Horse Looking. Doc. 142-1. Horse Looking's first letter stated that he was told by Dale Broken Leg (" Broken Leg") that Crow Eagle "did not do that crime." Doc. 142-1 at 1. Horse Looking was unable to recall what date this conversation occurred and acknowledged that Broken Leg is deceased. Doc. 142-1 at I. Horse Looking's first letter also stated that "everybody knows [Crow Eagle] is innocent" and that Broken Leg said other men assaulted "this girl... several times." Doc. 142-1 at 1. Horse Looking's ...