United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 07-1287
___________
United States of America, *
*
Plaintiff-Appellee, *
* Appeal from the United States
v. * District Court for the District
* of South Dakota.
Juan Gerardo Rojas, *
*
Defendant-Appellant. *
___________
Submitted: November 14, 2007
Filed: March 28, 2008
___________
Before MELLOY, BEAM, and SHEPHERD, Circuit Judges.
___________
MELLOY, Circuit Judge.
A jury convicted Defendant Juan Gerardo Rojas on charges of sexually abusing
his former girlfriend’s two daughters, K.H. and A.P., and physically assaulting the
younger of the two girls, A.P. The jury acquitted Defendant as to charges of assault
with a deadly weapon related to a third child. Following trial, A.P. purportedly
recanted her testimony in separate conversations with her mother, Defendant’s
attorney, and an Assistant United States Attorney.
Defendant moved for a new trial and requested an evidentiary hearing based on
the reported recantation. The district court denied the request for a hearing and denied
relief. On appeal, Defendant challenges these rulings. In addition, he raises a
sufficiency of the evidence argument and challenges two separate determinations
related to the calculation of his advisory Guidelines sentencing range. We affirm as
to the sufficiency of the evidence and the Guidelines determinations. Regarding the
purportedly recanted testimony and the motion for a new trial, we hold that Defendant
was entitled to an evidentiary hearing. Accordingly, we vacate the order denying a
new trial and remand for an evidentiary hearing.
I. Background
Defendant lived with A.P., K.H., and the girls’ mother at various locations,
some of which were on the Crow Creek Indian Reservation in South Dakota.
Defendant and the girls’ mother had two younger children together who also lived
with them. Defendant and the mother ended their relationship, and Defendant began
living with another woman, Sheila Carpenter, and her son, the boy involved with the
count of acquittal. The boy’s grandmothers noticed evidence of physical abuse,
confronted Defendant, and reported the suspected abuse. Investigators went to the
boy’s home and discovered that he had lacerations on the palm side of his left wrist
and abrasions under his chin. The boy stated that Defendant had cut him with a knife.
A counseling professional involved with the boy’s case knew that Defendant had
previously lived with A.P., K.H., and their mother. The counselor advised the girls’
mother to bring A.P. and K.H. in for questioning.
A.P. met with Ellen Cuny, a counselor for Indian Health Services in South
Dakota. At Defendant’s trial, Cuny testified regarding her discussions with A.P.
During questioning by Cuny, A.P. was initially reluctant to talk about abuse, but
according to Cuny, A.P. eventually opened like a “floodgate” and provided an
extensive account regarding Defendant’s physical and sexual abuse of her and
physical abuse of her mother and K.H. Cuny arranged to have the girls talk to a
second interviewer, Lora Hawkins at Black Hills Pediatrics in Rapid City, South
Dakota. During the course of interviews with Hawkins, both girls made notations on
-2-
anatomical drawings to indicate the parts of their own bodies and Defendant’s body
involved in sexual contact. The annotated drawings were admitted into evidence.
A.P., K.H., their mother, and Lori Strong, an examining physician, also testified
at Defendant’s trial. A.P. was ten years old at the time of trial. She appeared to lose
control of her emotions during her direct examination, and the government elicited her
testimony largely through the use of leading questions. She stated that the abuse
started around the time she entered kindergarten. A.P. described Defendant touching
her between her legs, removing her clothes, and painfully penetrating her digitally and
with his penis on repeated occasions over an extended period of time when they lived
together in three different towns. She also described Defendant kissing her “like
boyfriend and girlfriend,” forcing her to touch his penis, and attempting to put his
penis in her mouth. A.P. stated that she hadn’t disclosed the sexual abuse prior to her
meeting with Cuny because she was afraid of Defendant, she had seen Defendant beat
her mother and K.H., and Defendant had threatened to kill himself if she told anyone
about the sexual abuse.
A.P. also described an incident when Defendant beat her with a belt buckle and
left bruises and pain that lasted for days. A.P.’s mother and older sister, K.H.,
confirmed that A.P. appeared to have been beaten by a buckle. A.P.’s mother testified
that Defendant admitted to her that he beat A.P. with a belt and buckle, but the mother
did not disclose the beating because she was personally afraid of Defendant and
because Defendant controlled her actions at the time of the abuse. A.P. conceded on
cross examination that she first disclosed the sexual abuse shortly after her mother had
been in a fight with Sheila Carpenter in which her mother received two black eyes.
K.H. testified that she was about eight years old and in the second grade when
she, her mother, and A.P. started living with Defendant. K.H. stated that from age
nine to age thirteen, Defendant touched her over and under her clothing almost nightly
and penetrated her digitally. K.H. testified that she didn’t yell out during the abuse
-3-
because she was afraid of Defendant, and if she tried to push him away, he would hold
her down. She first disclosed the abuse in her interview with Lora Hawkins in Rapid
City. On cross examination, K.H. conceded that her first disclosure of abuse came
shortly after her mother had the fight with Defendant’s then-girlfriend Sheila
Carpenter.
Physician Lori Strong, also of Black Hills Pediatrics, testified that she
performed medical vaginal examinations of A.P. and K.H. and that her findings were
normal. She testified, however, that there are a number of reasons exam results might
be normal in the presence of sexual abuse.
Defendant is an enrolled member of the Crow Creek Sioux Tribe, and
jurisdiction is proper. On June 8, 2006, the jury convicted Defendant of the following
counts: Counts I and II, Aggravated Sexual Abuse of a Child (A.P.), in violation of
18 U.S.C. § 2241(c); Count III, the lesser-included offense of Simple Assault of a
Child (A.P.), in violation of 18 U.S.C. § 113(a)(5); Count IV, the lesser-included
offense of Assault by Striking, Beating and Wounding (A.P.), in violation of 18
U.S.C. § 113(a)(4); and Counts V and VI, Aggravated Sexual Contact With a Child
(K.H.), in violation of 18 U.S.C. §§ 2241(c), 2244(a), and 2246(2)(D). The jury
acquitted as to the charges regarding Defendant’s alleged assault of the boy, Count
VII, Assault With a Dangerous Weapon. After trial, Defendant was held in a county
jail pending sentencing.
On July 24, 2006, Defendant’s attorney submitted a motion for an evidentiary
hearing and a new trial on Counts I and II regarding the sexual abuse of A.P. In the
motion, Defendant’s attorney stated that A.P.’s mother contacted him on June 23 and
told him that A.P. recanted and admitted lying about Defendant. Defendant’s attorney
drove to A.P.’s home and interviewed her on July 10, at which time A.P. said she lied
at trial because she was angry with Defendant for leaving her mother and for starting
-4-
a relationship with Sheila Carpenter. Defendant’s attorney met with A.P. and K.H.
on July 14, at which time A.P. again repeated her recantation.
Also on July 24, the district court sent a letter to the parties indicating its receipt
of Defendant’s motion. The court stated that sentencing was scheduled for September
18, the government should file a response to the motion, and the court would “then
decide whether or not to conduct an evidentiary hearing.”
On July 31, the government filed its response in resistance to Defendant’s
motion for a new trial. In the response, the Assistant United States Attorney (AUSA)
who prosecuted the case stated that he had visited with A.P. and her mother on July
25. According to the AUSA, the mother told him that, around July 10, Defendant
participated in a three-way call with her that had been arranged by a third party
without her knowledge. In that call, Defendant claimed he still loved the mother and
wanted to get back together with her. The mother then stated that Defendant had
called the home about ten times and that she had allowed Defendant to talk to their
younger children. At first, the mother stated that Defendant only talked to the younger
children, but she later admitted that she also let him talk to A.P. According to the
AUSA, she admitted that the conversation with Defendant probably caused A.P. to
recant, and she also admitted that Defendant was “probably conning her to get her to
help him.”
The AUSA reported that he then spoke with A.P. and that she relayed the
following information. A.P. said she had last talked to Defendant on July 24 at which
time he claimed he still loved her and her mother and wanted to get their family back
together. A.P. said that she still loved Defendant and that she was worried the
younger children would not have a father because someone had told her Defendant
would be in prison until A.P. was her mother’s age. A.P. then stated that she had lied
at trial. She initially stated that she had lied about the sexual abuse and the physical
abuse with the belt buckle. When the AUSA confronted her with the fact that
-5-
Defendant admitted to A.P.’s mother that he hit A.P. with the belt, A.P. said that she
testified truthfully about the beating, but lied at trial about the “sexual stuff.”
On August 7, Defendant’s attorney submitted a reply in further support of the
motion for a new trial and to renew the request for an evidentiary hearing. On August
8, the district court entered an opinion, signed on August 4, denying the motion for
a new trial and denying an evidentiary hearing. In the order, the district court
emphasized being impressed with A.P. as a witness at trial and finding her credible
at trial. In addition, the court noted generally and with specific reference to the
present case that minors who are abuse victims are often plagued with feelings of guilt
over family break-ups and other consequences attendant to the disclosure of abuse.
The court also noted that it found A.P.’s claim that she lied about Defendant due to
her anger over the relationship with Sheila Carpenter to be unbelievable. The court
stated, instead, that this appeared to be a case of an abused woman, A.P.’s mother,
being controlled by her abuser and manipulating her daughter in an attempt to please
the abuser. Finally, we note that there were no affidavits or other evidence before the
court and that the court specifically stated, “I accept what [Defendant’s attorney], an
officer of the court, states in his memorandum. I assume, for the purposes of the
motion, that all such statements are true.” At a later point in its written order, the
district court stated, “As with [Defendant’s attorney] I take what [the] AUSA . . . says
to be true.”
On September 12, Defendant filed a motion to reconsider accompanied by an
affidavit from A.P.’s mother. In the affidavit, A.P.’s mother denied the AUSA’s
assertions about a three-way call. She also claimed that, after the trial, Defendant only
talked to herself and the younger children except for (1) brief comments that may have
been exchanged when A.P. answered the phone, and (2) one specific instance when
A.P. spoke with Defendant and during which the mother was listening to what A.P.
was saying. A.P.’s mother also denied stating that she believed Defendant was trying
to con her and denied stating that a conversation with Defendant had caused A.P. to
-6-
recant. She emphasized that A.P. first recanted shortly after trial and before any of the
post-trial phone calls from Defendant and that A.P. lied because she was upset with
Defendant for breaking up their family. Finally, the mother denied pressuring A.P.
to change her story. The district court did not rule on the motion to reconsider.
At sentencing, the district court made two contested rulings. First, applying
U.S.S.G. Section 2A3.1(b)(1), the district court held that Defendant’s threat to
A.P.—that he would kill himself if she disclosed the abuse—qualified as “threatening
. . . that any person will be subjected to death.” 18 U.S.C. § 2241(a)(2) (as
incorporated by U.S.S.G. § 2A3.1(b)(1)). Defendant argued that an offender’s threat
of suicide could not satisfy Section 2A3.1(b)(1). The district court rejected this
argument and applied a four-level increase in Defendant’s offense level. Second,
applying U.S.S.G. Section 4B1.5(b), the district court held that the conduct giving rise
to the current convictions—the repeated sexual abuse of A.P. and K.H.—qualified as
a “pattern of activity involving prohibited sexual conduct” requiring a five level
increase in Defendant’s offense level. U.S.S.G. § 4B1.5(b). Defendant argued that
an enhancement under Section 4B1.5(b) required a prior conviction for a sex offense
and could not be based entirely on the conduct of the present offense. The district
court rejected this argument.
The district court found that Defendant had a Category I criminal history, an
overall offense level of 48, and a Guidelines range of life imprisonment. Ultimately,
the district court imposed a sentence of life imprisonment on each of Counts I, II, and
V, 12 months on Count III, 6 months on Count IV, and 120 months on Count VI, all
to run concurrently.
Defendant appeals as to the sufficiency of the evidence, the two contested
sentencing determinations, and the denial of his motion for an evidentiary hearing and
a new trial.
-7-
II. Discussion
A. Sufficiency of the Evidence
Defendant challenges the sufficiency of the evidence only as to Counts I and
II, the sexual abuse of A.P. His arguments are twofold. He claims the evidence was
insufficient because the district court improperly permitted leading questions, thus
hindering the reliability and usefulness of A.P.’s testimony, and because no
corroborating medical evidence supported A.P.’s testimony.
We will affirm a conviction against claims of insufficient evidence unless the
evidence, viewed in a light most favorable to the conviction, is such that no reasonable
jury could have found guilt beyond a reasonable doubt. See United States v.
Guenther, 470 F.3d 745, 747 (8th Cir. 2006). The use of leading questions with
alleged victims who are minors is a matter of trial management that we review for
abuse of discretion. See United States v. Flute, 363 F.3d 676, 678 (8th Cir. 2004);
United States v. Butler, 56 F.3d 941, 943 (8th Cir. 1995); Fed. R. Evid. 611(c)
advisory committee’s note (“The matter clearly falls within the area of control by the
judge over the mode and order of interrogation and presentation and accordingly is
phrased in words of suggestion rather than command.”). We have repeatedly allowed
the use of leading questions with child-witnesses in sexual abuse cases, and we do not
believe that the district court ran afoul of our precedent or abused its discretion by
allowing the challenged questions and testimony in the present case. See United
States v. Grassrope, 342 F.3d 866, 869 (8th Cir. 2003) (“It is not uncommon that the
precise physiological details of sexual assault must be elicited by focused questioning.
We have repeatedly upheld the use of leading questions to develop the testimony of
sexual assault victims, particularly children.”); Butler, 56 F.3d at 943 (noting that
although leading questions on direct examination are generally prohibited, “[t]he child
witness is a long-recognized exception to this rule”). Here, the AUSA asked several
leading questions, some of which demanded yes or no answers and some of which
-8-
required or elicited further response or explanation by A.P. A.P. was ten years old at
the time of trial. The record suggests that she was distraught during her testimony.
In these circumstances, the use of leading questions does not make her testimony
infirm or otherwise preclude the jury from relying on her testimony.
Regarding the absence of corroborating medical evidence, the examining
physician clearly explained how the absence of medical evidence could be consistent
with the sexual abuse as described by A.P. As a result, the jury was free to accept the
physician’s testimony and find abuse based on A.P.’s testimony, notwithstanding the
absence of medical evidence. United States v. Kenyon, 397 F.3d 1071, 1076 (8th Cir.
2005) (affirming conviction for sexual abuse of a child where victim displayed no
physical injuries); United States v. Kirkie, 261 F.3d 761, 768 (8th Cir. 2001)
(affirming conviction for child sex abuse notwithstanding a lack of corroborating
medical evidence). The physician explained how the affected area of the anatomy is
highly vascular, and therefore, quick to heal. The physician also explained how
examinations of the victims did not occur close in time to the alleged sexual abuse.
Also, we note that the physician had extensive experience in the examination of sexual
abuse victims, and Defendant does not challenge the physician’s qualifications. The
jury was entitled to rely upon the physician’s explanation and A.P.’s testimony in light
of that explanation, and the absence of corroborating medical evidence did not
mandate an acquittal. Kenyon, 397 F.3d at 1076 (“It is well-established . . . that
credibility is the province of the jury, and the jury was free to determine what weight
should be given to [the victim’s] testimony in light of the evidence cited by
[Defendant].”).
B. U.S.S.G. § 2A3.1(b)(1)
We review interpretation of the Guidelines de novo. See United States v.
Aguilar, 512 F.3d 485, 487 (8th Cir. 2008). Guidelines Section 2A3.1(b)(1) regarding
“Criminal Sexual Abuse” contains a cross reference that calls for a four- level increase
-9-
in a defendant’s offense level if the offense involved conduct described in 18 U.S.C.
§ 2241(a) or (b) regarding “Aggravated Sexual Abuse.” The cross-referenced code
section entitled “By force or threat,” includes the following conduct: “knowingly
causing another person to engage in a sexual act . . . by threatening or placing that
other person in fear that any person will be subjected to death, serious bodily injury,
or kidnaping.” 18 U.S.C. § 2241(a)(2) (emphasis added).
According to trial testimony, the defendant told A.P. he would kill himself if
she disclosed the sexual abuse. Defendant argued below and argues on appeal that a
threat of suicide can not satisfy the requirements of § 2241(a)(2). Rather, he argues,
the threat must be against someone other than the offender, and the four-level
enhancement of U.S.S.G. Section 2A3.1(b)(1) is inapplicable in this case. The district
court held that the language “any person” in § 2241(a)(2) could include Defendant
himself such that a threat of suicide could satisfy § 2241(a)(2). The district court’s
interpretation comports with the plain meaning of § 2241(a)(2), and we find this
statutory language to be unambiguous. “Any person” is not inherently exclusive of
the offender, and Congress commonly employs the words and phrases “another,”
“another person,” and “other person” when they intend to identify an act or threat
directed at persons other than the offender. See, e.g., 18 U.S.C. § 2241(a)
(“knowingly causes another person to engage in a sexual act”) (emphasis added); 18
U.S.C. § 2241(a)(1) (“by using force against that other person”) (emphasis added).
Especially in the case of a child-victim, an offender’s threat of suicide is a particularly
heinous tool to coerce compliance and secrecy. As in many cases of sexual abuse, the
present offender was not a stranger to the victims, but a father-figure, a one-time
member of the family home, and the father of the victims’ younger siblings. Placing
the responsibility for the possible death of the offender on the child-victim’s shoulders
is, we believe, precisely the kind of threatening and coercive conduct that Guidelines
Section 2A3.1(b)(1) and U.S.C. § 2241(a)(2) intend to target.
-10-
C. U.S.S.G. § 4B1.5(b)
Defendant also argues the district court erred by imposing a 5-level increase in
his offense level based on the Guidelines’ enhanced penalties for “Repeat and
Dangerous Sex Offender Against Minors.” U.S.S.G. § 4B1.5. He argues specifically
that an increase based on U.S.S.G. Section 4B1.5 requires a prior conviction for a sex
offense against a minor and that a sentencing court cannot rely solely on conduct
involved in the present offense. If Defendant had been sentenced under subsection (a)
of Section 4B1.5, this argument would have merit—subsection (a) expressly requires
a prior conviction. Subsection (b), however, does not.
Subsection (b) applies in the specific circumstances when “neither § 4B1.1 nor
subsection (a) of this guideline applies, and the defendant engaged in a pattern of
activity involving prohibited sexual conduct.” U.S.S.G. § 4B1.5(b). Subsection (a)
only applies if “the defendant committed the instant offense of conviction subsequent
to sustaining at least one sex offense conviction.” U.S.S.G. § 4B1.5(a). Because
subsection (b) applies specifically when subsection (a) does not, the plain language
of the Guidelines support the view that subsection (b) applies when a defendant has
no prior sex offense conviction. Further, the commentary explains that no prior
conviction is required and that the conduct triggering the enhancement under
subsection (b) may be the conduct of the present offense:
An occasion of prohibited sexual conduct may be considered for
purposes of subsection (b) without regard to whether the occasion (I)
occurred during the course of the instant offense; or (II) resulted in a
conviction for the conduct that occurred on that occasion.
U.S.S.G. § 4B1.5(b) cmt. 4(B)(ii).
We now hold that subsection (b) may apply where there is no prior sex offense
conviction and the only “pattern of . . . conduct” is conduct involved in the present
-11-
offense of conviction. This is not the direct holding of any of our prior cases, but we
believe it is the rule we must apply, as is apparent not only from the plain language
of the Guidelines and the commentary, but also from the facts presented in a number
of our prior cases addressing other arguments regarding Section 4B1.5(b). Typically,
these cases involved challenges based on alleged double-counting. See, e.g., United
States v. Fadl, 498 F.3d 862, 867 (8th Cir. 2007) (rejecting a double-counting
argument in a case involving no reference to a prior offense and holding that “[t]he
application of § 2G2.1(d)(1) punished Fadl for exploiting different minors, while the
§ 4B1.5(b) enhancement punished him for exploiting those minors on multiple
occasions”) (quotation omitted and emphasis added); United States v. Peck, 496 F.3d
885, 890 (8th Cir. 2007) (“A ‘pattern of activity’ for the purposes of § 4B1.5(b)(1)
occurs when the defendant engages in the prohibited sexual conduct with a minor on
at least two separate occasions. U.S.S.G. § 4B1.5, cmt. n. 4(B)(I).”); United States v.
Sharpfish, 408 F.3d 507, 511 (8th Cir. 2005) (holding Section 4B1.5(b) applicable
where “[t]he district court recited evidence that Sharpfish had sexually abused [the
victim] often and repeatedly, as well as evidence that Sharpfish sexually abused
[another victim] with his foot.”). In Fadl, Peck, and Sharpfish, we affirmed the
application of subsection (b) without reference to prior convictions, and in Fadl, we
made explicit reference to the fact that Section 4B1.5(b) was triggered by the
exploitation involved in the offense conduct. Defendant presents no authority
suggesting that the plain language of the Guidelines or the commentary is ambiguous
on this point, and we find no error in the district court’s interpretation of this
Guideline provision.
D. Motion for New Trial and Request for Evidentiary Hearing
We review for abuse of discretion the denial of a motion for a new trial and the
denial of an evidentiary hearing on a motion for a new trial. United States v.
Begnaud, 848 F.2d 111, 113 (8th Cir. 1988). We have held that a district court may
rule on a motion for a new trial based only on affidavits and that an evidentiary
-12-
hearing may not be necessary if the judge who ruled on the post-trial motion also
presided at trial and, therefore, had a prior opportunity to consider the veracity of the
purportedly recanting witness. See, e.g., id. (“The necessity for a hearing is lessened
in cases involving challenged testimony where the trial judge has had the opportunity
to observe the demeanor and weigh the credibility of the witness at trial.”); United
States v. Baker, 479 F.3d 574, 579 (8th Cir. 2007) (affirming a denial of an
evidentiary hearing and relying, in part, on the fact that motion judge had been trial
judge); United States v. Provost, 969 F.2d 617, 619 (8th Cir. 1992) (same). We have
not held, however, that the presence of the motion judge at trial should be our sole
consideration. Rather, “[t]here may be exceptional circumstances in which an oral
hearing should be granted.” United States v. Ward, 544 F.2d 975, 976 (8th Cir. 1976)
(per curiam).
When reviewing district courts’ decisions as to the necessity of evidentiary
hearings on motions for new trials, we have relied upon a number of factors. Some
of these factors include: the importance of the purportedly recanting witness in
obtaining the conviction; the existence of evidence corroborating either the conviction
or the recantation; the potential trauma to an abused minor of having to re-testify; the
temporal proximity of the trial testimony and the purported recantation; the
consistency of the recantation with the witness’s comments and behavior before,
during, and after trial; and the existence of evidence of outside influence suggesting
either coerced testimony or coerced recantation. See, e.g., Baker, 479 F.3d at 579
(finding no abuse of discretion in the denial of an evidentiary hearing where a witness
recanted between trial and sentencing, but the witness’s trial testimony was relatively
unimportant to the defendant’s conviction); United States v. Gayles, 1 F.3d 735, 737-
38 (8th Cir. 1993) (finding no abuse of discretion in the denial of a hearing in a
kidnaping case where the recanting victim-witness married the defendant after the
trial, the victim’s testimony was not crucial to the conviction, and the victim’s
recantation was contrary to the testimony of eye-witnesses who had seen the
defendant beat the victim-witness and force her into his car); Provost, 969 F.2d at 619
-13-
(finding no abuse of discretion where the trial judge had observed a victim-witness
who purportedly recanted four years after trial and who had continued to talk of her
abuse throughout those four years such that her post-trial statements largely
buttressed, rather than detracted from, her trial testimony).
Here, we believe a hearing was necessary. Defendant’s conviction for the
sexual assault of A.P. rested solely on A.P.’s testimony, which the AUSA elicited
largely through the use of leading questions. Further, no physical evidence
corroborated A.P.’s trial testimony. Although we sustain this evidence as sufficient
to support the conviction, there can be little dispute that this evidence was only
minimally sufficient. It is difficult to imagine a case where the testimony of a
purportedly recanting witness could have factored more largely into a defendant’s
underlying conviction.
We note also that A.P.’s purported recantation occurred mere days after trial,
and defense counsel as well as the AUSA claim to have heard A.P.’s recantation and
the mother’s report of the recantation on separate occasions. Further, while A.P.’s
trial testimony was consistent with her pre-trial statements to counselors, there is no
indication that she maintained her version of the facts following trial. This is not a
case like Provost, where years passed between trial and recantation and where the
witness maintained her version of the facts following trial.
The government asserts that no hearing was required because this is a clear case
of improper influence by Defendant over A.P. and her mother. Cf., United States v.
Rouse, 410 F.3d 1005, 1009 (8th Cir. 2005) (finding victim-witnesses’ recantations
non-credible following a four-day evidentiary hearing based on the fact that medical
evidence corroborated the victims’ trial testimony and based on the fact that relatives
who disbelieved the victims’ testimony had custody of the victims between trial and
prior to the recantations and exerted influence over the victims during that time). In
particular, the government asserts that Defendant held sway over A.P.’s mother during
-14-
the time period following trial, called A.P.’s home over seventy times from the jail,
and bribed A.P.’s mother with the purchase of a vehicle. Such behavior, if
demonstrated, would be relevant to the veracity of, and motivations for, the purported
recantation. The evidence cited by the government, however, was not before the
district court when the court ruled on the motion. While an evidentiary hearing may
well prove the government correct in its assertion that Defendant exerted improper
influence by over A.P. and her mother, we do not believe attorney representations as
to this issue are a sufficient grounds for denying a hearing.
Here, the post-trial “record” consisted solely of attorney representations
regarding the purported recantation. These representations paint a confusing and
inconsistent picture, yet the district court accepted each attorney’s representations in
ruling on the motion. Given the factors cited above, in particular, the importance of
A.P.’s testimony to the conviction and the absence of corroborating evidence, we
believe an evidentiary hearing was required.1
1
A motion for a new trial should be supported by evidence in the form of an
affidavit. Normally, we would not excuse a movant’s failure to properly support a
motion with evidence in the form of an affidavit or otherwise if that movant later
contests the denial of an evidentiary hearing. Here, however, events unfolded rapidly
and in an unusual manner that leaves us with the firm conviction that justice demands
an evidentiary hearing to ensure that all the relevant facts come before the court.
Defendant filed the motion for a new trial and request for a hearing based solely on
counsel's representations in the pleadings. The government similarly responded
without affidavit based merely on the AUSA’s representations. Defendant rebutted
these representations with an affidavit, albeit an untimely affidavit attached to the
motion to reconsider filed weeks after the court entered judgment on the motion.
Defense counsel explains that he had intended to present evidence at a hearing but that
the district court ruled quickly and did not inform the parties that no hearing would
be granted. In fact, the district court had informed the parties via an earlier letter that
it would determine whether a hearing was required. Given this history, it was not
unreasonable for counsel to presume that there would be an opportunity to present
evidence, at a hearing or otherwise. Given the gravity of the issue before us, the
differences in the attorneys’ representations of the facts surrounding the recantations,
-15-
The judgment of the district court is affirmed in part and reversed in part, and
this matter is remanded for further proceedings as discussed herein.
______________________________
and the district court’s reliance on both sets of representations, we are unwilling to
“penalize” Defendant for counsel’s failure.
-16-