FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 05-30214
Plaintiff-Appellee,
v. D.C. No.
CR-04-00082-SEH
LEO SURE CHIEF, JR.,
OPINION
Defendant-Appellant.
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Argued and Submitted
January 13, 2006—Portland, Oregon
Filed February 17, 2006
Before: Diarmuid F. O’Scannlain, Susan P. Graber, and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Graber
1779
UNITED STATES v. SURE CHIEF 1781
COUNSEL
Michael Donahoe, Assistant Federal Defender, Federal
Defenders of Montana, Helena, Montana, for the defendant-
appellant.
1782 UNITED STATES v. SURE CHIEF
Joseph E. Thaggard, Assistant United States Attorney, Great
Falls, Montana, for the plaintiff-appellee.
OPINION
GRABER, Circuit Judge:
Defendant Leo Sure Chief, Jr., challenges his conviction
for aggravated sexual abuse on two grounds: (1) the district
court erred by refusing to dismiss the indictment because the
applicable statute of limitations had run, and (2) the district
court erred by limiting the evidence that Defendant was
allowed to present at trial. We hold that the statute of limita-
tions had not expired and that Defendant suffered no preju-
dice from the exclusion of the proffered evidence. We
therefore affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In approximately 1997, when B.V. was in the fourth grade,
Defendant took her and a few other children on a trip to the
country. B.V. knew Defendant because he was a friend of her
mother. While on the trip, Defendant took the children for
individual rides on a “four-wheeler.” When it was B.V.’s turn,
Defendant took her to an abandoned trailer. He then forcibly
fondled her vagina. When B.V. was in the ninth grade, she
reported that incident of abuse to her school principal and to
a counselor.
The Bureau of Indian Affairs1 and the Federal Bureau of
Investigation (“FBI”) investigated B.V.’s allegation. During
the course of the investigation, an FBI agent interviewed
Defendant. Defendant confessed that, a few years earlier, he
had touched B.V.’s vagina during a camping trip. Defendant
1
Defendant is Native American. Both he and B.V. lived on the Black-
feet Indian Reservation.
UNITED STATES v. SURE CHIEF 1783
wrote a statement apologizing to B.V. and describing the
molestation.
In October 2004, a grand jury indicted Defendant for aggra-
vated sexual abuse in violation of 18 U.S.C. §§ 1153 and
2241(a). He pleaded not guilty.
During a two-day trial, B.V. testified about the sexual
abuse. The FBI agent who interviewed Defendant testified
about his confession. Defendant’s confession was entered into
evidence and read in its entirety to the jury.
B.V.’s mother testified for Defendant. She told the jury that
her daughter was a “habitual liar.” She also said that she had
experienced problems with B.V., but she was not allowed to
testify in detail about B.V.’s behavior.
Defendant also testified. He asserted that his confession
had been coerced.2 The jury returned a guilty verdict. Defen-
dant now brings this timely appeal.
DISCUSSION
A. Statute of Limitations
We review de novo a district court’s decision not to dismiss
an indictment on statute of limitations grounds. Ellis v. City
of San Diego, 176 F.3d 1183, 1188 (9th Cir. 1999). We also
review de novo the district court’s decision to apply a particu-
lar statute of limitations. United States v. Shipsey, 363 F.3d
962, 968 n.4 (9th Cir. 2004), cert. denied, 543 U.S. 1004
(2005).
Defendant argues that his indictment, which was returned
on October 5, 2004—approximately seven years after the
2
On appeal, Defendant does not challenge the voluntariness of the con-
fession, nor does he assert that its admission was erroneous.
1784 UNITED STATES v. SURE CHIEF
alleged sexual abuse—was untimely because a five-year stat-
ute of limitations applies. He comes to this conclusion by a
creative, but ultimately misdirected, route.
[1] The general statute of limitations, which applies to most
noncapital offenses, requires the government to charge a sus-
pect within five years of the commission of a crime. 18
U.S.C. § 3282(a). But a different statute of limitations applies
in sexual abuse cases. 18 U.S.C. § 3283. In 1990, Congress
enacted a separate statute of limitations allowing the prosecu-
tion of sexual abuse crimes until the victim reached 25 years
of age. 18 U.S.C. § 3509(k) (1991). In 1994, the text of that
statute was recodified at 18 U.S.C. § 3283, which provided:
No statute of limitations that would otherwise pre-
clude prosecution for an offense involving the sexual
or physical abuse of a child under the age of 18 years
shall preclude such prosecution before the child
reaches the age of 25 years.
See 18 U.S.C. § 3283, Historical and Statutory Notes. In
2003, Congress again amended the statute to extend the stat-
ute of limitations so that the government could continue to
prosecute suspected child abusers at any time “during the life
of the child.”3
When the sexual abuse in this case took place, around
1997, the extant 1994 statute of limitations allowed prosecu-
tion until the victim’s 25th birthday. At the time of the indict-
ment in 2004, B.V. was still much younger than 25, so the
indictment would have been timely if the 1994 version of the
statute had remained in effect in 2004. By that time, however,
Congress had passed the 2003 amendment.
3
The offense of “kidnaping” was also added to the statute, but that
change is not relevant here.
UNITED STATES v. SURE CHIEF 1785
The crux of Defendant’s argument is that the 2003 version
of the statute, which allows prosecution during the life of the
child, does not include a savings clause to provide explicitly
that the 1994 statute of limitations continued to apply to
offenses committed between 1994 and 2003. Defendant con-
tends that, without an explicit retroactivity clause, the 2003
version of the statute cannot apply to him. He further reasons
that, because the 2003 amendment repealed the 1994 statute
of limitations (which allowed for prosecution until the child
reached age 25), the 1994 version of the statute cannot apply
to him. Rather, the default, general, five-year statute of limita-
tions in 18 U.S.C. § 3282 must apply. In other words, Defen-
dant argues, Congress—whether intentionally or not—
provided through its 2003 amendment that someone who sex-
ually abused a child before 2003 must be prosecuted within
five years of the commission of the crime, but that someone
who sexually abuses a child after 2003 can be prosecuted any-
time during the entire life of the child.
To support his contention that Congress’ failure to include
an express savings clause means that the 2003 version cannot
apply retroactively and that the earlier statute of limitations
was simply repealed, Defendant relies almost entirely on
Bridges v. United States, 346 U.S. 209 (1953). He interprets
Bridges to hold that, if Congress fails to include a savings
clause applying a statute of limitations retroactively, then the
statute never can apply to previously committed acts. We do
not read Bridges so broadly.
In Bridges, Congress had enacted a special five-year statute
of limitations for certain fraud offenses perpetrated against the
United States, suspending the usual three-year statute of limi-
tations then in effect for noncapital crimes. Id. at 224-25. In
1948, Congress repealed the special five-year statute of limi-
tations without providing another special limitations period,
which reinstated the general three-year statute of limitations.
Id. at 225. The following year, the government attempted to
indict the defendant for acts that he allegedly had committed
1786 UNITED STATES v. SURE CHIEF
four years earlier—in 1945. Id. at 215. The Supreme Court
held that the indictment had to be dismissed as untimely
because, when the indictment issued in 1949, only the three-
year statute of limitations period was in effect, but the defen-
dant’s alleged bad acts had occurred four years earlier. Id. at
225-28. Neither the three-year nor the five-year statute of lim-
itations included a clause stating that the five-year limit would
continue to apply to pre-1948 acts. Rather, the five-year stat-
ute was simply repealed, so that the default, general, three-
year statute again applied.
The key difference between Bridges and the current case is
that the statute of limitations there was shortened. A gap
existed between the end of the limitations period and the fil-
ing of the defendant’s indictment. In other words, in Bridges,
the three-year limitations period had run before the prosecu-
tion started. In that situation, the indictment in Bridges could
have been timely only if Congress had expressly preserved
the longer five-year statute of limitations period for pre-1948
acts, which Congress had not done.
[2] By contrast, here, Congress extended the limitations
period. There was no gap. Defendant’s indictment was timely
under the 2003 amendment, allowing prosecution during the
life of the child, as well as under the 1994 statute. That Defen-
dant’s indictment remained viable at all times is important
because otherwise ex post facto concerns would arise, as we
discuss below.
Moreover, it is clear that the 2003 version of the statute of
limitations did not simply repeal the previous statute of limi-
tations for sexual abuse offenses, as Congress had repealed
the special provision at issue in Bridges. Instead, Congress
amended the statute to lengthen the limitations period. Indeed,
we have held that, when Congress repeals one statute of limi-
tations by enacting another, the second statute of limitations
can “simultaneously replace[ ]” the former statute and apply
even to cases in which the actions at issue predate the most
UNITED STATES v. SURE CHIEF 1787
recent statute. See Friel v. Cessna Aircraft Co., 751 F.2d
1037, 1039 (9th Cir. 1985) (per curiam) (holding that, when
Congress repealed a two-year statute of limitations for mari-
time torts and replaced it with a three-year statute that did not
include a savings clause, a plaintiff who then sued for conduct
that took place two-and-one-half years earlier could proceed
with the case).
[3] To determine whether a new statute of limitations
simultaneously repealed and replaced an older one, we look
first to congressional intent. Id. at 1038-39. Here, it is clear
from the Joint Report, which accompanied the 2003 amend-
ment, that Congress intended to extend the statute of limita-
tions for sexual abuse crimes without reverting to the pre-
1990 five-year limit:
While [the statute of limitations allowing for prose-
cution until the victim reaches age 25] is better than
a flat five-year rule, it remains inadequate in many
cases. For example, a person who abducted and
raped a child could not be prosecuted beyond this
extended limit — even if DNA matching conclu-
sively identified him as the perpetrator one day after
the victim turned 25.
H.R. Conf. Rep. No. 108-66, at 54 (2003), reprinted in 2003
U.S.C.C.A.N 683, 688 (part of the Prosecutorial Remedies
and Other Tools to end the Exploitation of Children Today
Act of 2003 (PROTECT Act)).
[4] In addition, we consider whether there are reasons that
preclude retroactive application of the statute. Friel, 751 F.2d
at 1039. In Friel, we concluded that, when a newly enacted
statute of limitations effects only a remedial change but does
not alter substantive rights, there is no reason to apply it only
prospectively. Id. We noted that, at the time the limitations
period was extended, the previous two-year limitations period
had not yet expired. Because the action remained viable at all
1788 UNITED STATES v. SURE CHIEF
times, from the time when the alleged acts occurred through
the time when the complaint was filed, we concluded that
retroactive application of the statute was appropriate. Id. at
1040.
[5] Friel was a civil case, so it does not apply directly.
Nonetheless, in the context of a criminal case, ex post facto
principles yield a similar result. As we have emphasized, in
this case the statute of limitations had not yet run when the
2003 amendment took effect, so the amendment did not pur-
port to resurrect an expired criminal charge. Accordingly,
Defendant’s 2004 indictment does not violate the Ex Post
Facto Clause. See Stogner v. California, 539 U.S. 607, 632
(2003) (holding that an ex post facto violation occurs when
Congress enacts a new statute of limitations after the expira-
tion of a previously applicable one in order to revive a for-
merly time-barred prosecution, but that nothing “prevent[s]
the State from extending time limits for . . . prosecutions not
yet time barred”).
[6] Because Congress evinced a clear intent to extend,
rather than shorten, the statute of limitations applicable to sex-
ual abuse crimes, and because there is no ex post facto prob-
lem here, the prosecution was timely. In so holding, we
parallel the Eighth Circuit’s approach to this very issue. See
United States v. Jeffries, 405 F.3d 682, 685 (8th Cir.) (hold-
ing, in a case involving the extension of the statute of limita-
tions for sexual abuse offenses from five years to the child’s
25th birthday, that the new statute could apply retroactively
as long as the case was not time-barred when the new statute
was enacted, even though Congress failed to provide an
explicit savings clause), cert. denied, 126 S. Ct. 631 (2005).
B. Exclusion of Evidence
Defendant also argues that the district court erred by limit-
ing the evidence that he was allowed to present to the jury. He
makes two claims.
UNITED STATES v. SURE CHIEF 1789
First, Defendant wanted B.V.’s mother to testify that B.V.
had behavioral problems, that she was sent to a juvenile
detention center, that while in the detention center B.V. told
authorities about the sexual abuse, and that due to the abuse
allegation she was moved to a less secure facility from which
she ran away. He contends that this evidence was relevant
because the jury could have inferred from it that B.V. had a
motive to fabricate the abuse in order to leave the more
restrictive juvenile detention center. The district court con-
cluded that the proposed evidence was inadmissible because
B.V.’s mother had already testified regarding her view of her
daughter’s propensity for lying, so the matter was “fully cov-
ered.”
Generally, we review for abuse of discretion a district
court’s decision to exclude evidence at trial. United States v.
Pang, 362 F.3d 1187, 1194 (9th Cir.), cert. denied, 543 U.S.
943 (2004). However, when the district court excludes evi-
dence under Federal Rule of Evidence 4034 but does not
engage in explicit balancing, we review such a determination
de novo. United States v. Boulware, 384 F.3d 794, 808 n.6
(9th Cir. 2004), cert. denied, 126 S. Ct. 337 (2005). Under
either standard of review, we conclude that reversal is not cal-
led for. See id. at 808 (noting that an erroneous evidentiary
ruling resulting in a constitutional violation will not require
reversal if it was harmless beyond a reasonable doubt).
[7] Exclusion of the evidence in question was harmless
beyond a reasonable doubt. Defendant did present the most
powerful and direct version of his claim: B.V.’s mother testi-
fied that she considered her daughter to be a liar. Neverthe-
4
Rule 403 provides:
Although relevant, evidence may be excluded if its probative
value is substantially outweighed by the danger of unfair preju-
dice, confusion of the issues, or misleading the jury, or by consid-
erations of undue delay, waste of time, or needless presentation
of cumulative evidence.
1790 UNITED STATES v. SURE CHIEF
less, Defendant had provided the FBI with a full confession.
His confession corroborated B.V.’s own recollections of the
events. In the light of that very strong inculpatory evidence,
and of the testimony that B.V.’s mother was able to present,
the district court’s decision to exclude the evidence does not
constitute reversible error.
Second, Defendant sought to introduce school documents
from B.V.’s seventh grade year to show that, at that time, she
had displayed behavioral problems and had failed to report
abuse to school officials. The district court refused to admit
the documents, ruling that they were hearsay under Federal
Rule of Evidence 801.5 The district court did not err. Even
assuming the documents’ relevance, the authors of the docu-
ments were not going to testify, but the documents were
offered to prove the truth of their content. See United States
v. Bishop, 291 F.3d 1100, 1110 (9th Cir. 2002) (holding that
an out-of-court statement presented for the truth of the matter
asserted constitutes inadmissible hearsay).
AFFIRMED.
5
Rule 801(c) provides:
“Hearsay” is a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted.
United States v. Chief
Combined Opinion