                      United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT

                                    ___________

                                    No. 99-1769
                                    ___________

United States of America,                *
                                         *
             Appellee,                   *
                                         * Appeal from the United States
      v.                                 * District Court for the
                                         * District of South Dakota.
Bruce Withorn, Jr.,                      *
                                         *
             Appellant.                  *
                                    ___________

                              Submitted: November 16, 1999

                                   Filed: February 22, 2000
                                    ___________

Before WOLLMAN, Chief Judge, LAY, and BOWMAN, Circuit Judges.
                             ___________

WOLLMAN, Chief Judge.

       Bruce Withorn appeals from his conviction on one count of aggravated sexual
abuse by the use of force, in violation of 18 U.S.C. § 2241(a), and one count of sexual
abuse of a minor, in violation of 18 U.S.C. § 2243(a). He alleges evidentiary and
constitutional errors. We affirm.
                                           I.

        On July 7, 1998, Withorn beat and forcibly raped H.S., a 12-year-old girl, on the
Crow Creek Sioux Indian Reservation. Withorn, an enrolled member of the Crow
Creek Sioux Tribe, was 19 years old at the time and was on federal probation as a
result of a juvenile conviction for a firearms offense. When Withorn was arrested by
tribal authorities shortly after the incident, he appeared to be intoxicated.

        Because alcohol consumption violated the terms of Withorn’s probation, his
probation officer, Tanya Krietlow, came to the tribal jail on July 8 to obtain a urine
sample from Withorn. There, Withorn called Krietlow over to his cell and initiated a
conversation in which he informed her that he had had sexual intercourse with H.S., but
that he had believed that H.S. was 16 years old and that she “wanted it.” Krietlow
testified to this conversation at trial.

       The jury also heard from Sally Hill, a certified nurse midwife who conducted a
sexual assault examination of H.S. early in the morning of July 8, 1998, at the Mid-
Dakota Hospital in Chamberlain, South Dakota. Over the defense’s objection that
portions of her testimony constituted expert testimony offered without adequate
foundation, Hill related her observation that H.S. had been “run through the mill.” She
described swelling, bruises, and scratches on various parts of H.S.’s body apparently
resulting from “blunt trauma.” Hill testified that during the course of the examination
H.S. claimed that she had been struck, choked, and raped by Withorn. Hill stated that
the injuries she observed were fully consistent with H.S.’s claim.

       The government also called Withorn’s cousin, R.M., to testify at trial. R.M.
described how, when she was 12 years old, Withorn forcibly raped her in his car and
later claimed that she had consented. This incident led to a juvenile adjudication of
incest against Withorn. R.M. was a reluctant witness, and in an attempt to set her at
ease the district court barred from the courtroom some of Withorn’s family members,

                                          -2-
as well as R.M.’s mother, who was opposed to her daughter testifying, during R.M.’s
testimony. In addition, the court at times permitted the government to ask leading
questions because of R.M.’s hesitancy to tell her story.

       As part of his defense, Withorn attempted to introduce evidence of a previous
sexual assault accusation made by H.S. several years earlier against Chris Fallis, a
teenage friend of Withorn who had committed suicide before the matter could be
adjudicated. Withorn believed that H.S.’s allegation of forcible rape against Fallis, who
claimed that H.S. had consented to intercourse, suggested a pattern of false accusations
by H.S. During the jail-cell conversation with Krietlow, Withorn indicated his belief
that such a pattern existed by stating that “the same thing happened to Chris Fallis.”
At trial, the court granted the government’s motion to suppress this portion of
Withorn’s statement to Krietlow and prohibited the defense from introducing any other
evidence about the Fallis incident.

      The jury convicted Withorn on both counts, and the district court1 imposed
concurrent sentences totaling 20 years’ imprisonment.

                                           II.
                                           A.

       Withorn argues that it was error to admit evidence of his past sexual assault
while simultaneously excluding evidence that another man whom H.S. accused of
sexual assault had claimed that she consented. We begin by analyzing these
evidentiary decisions individually, and then consider their effect in combination. We
will not reverse a district court’s evidentiary rulings unless they constitute a clear and



      1
       The Honorable William R. Wilson, Jr., United States District Judge for the
Eastern District of Arkansas, sitting by designation.

                                           -3-
prejudicial abuse of discretion. See United States v. Goodson, 155 F.3d 963, 969 (8th
Cir. 1998).

                                           1.

       R.M.’s testimony that Withorn sexually assaulted her was admitted pursuant to
Rules 413 and 414 of the Federal Rules of Evidence, recently enacted provisions that
create exceptions to the general rule that evidence of past crimes may not be used “to
prove the character of a person in order to show action in conformity therewith.” See
Fed. R. Evid. 404(b). Rule 413 expressly permits the use of evidence of any past
sexual assault offense “for its bearing on any matter to which it is relevant” in an
ongoing sexual assault prosecution. Likewise, Rule 414 permits the introduction of
evidence of past child molestation offenses in child molestation prosecutions. See Fed.
R. Evid. 413 & 414. The district court found the rules applicable in Withorn’s case,
and we agree.

       In considering whether to admit evidence under Rules 413 and 414, federal
district courts must still apply the “balancing test” of Rule 403, which calls for the
exclusion of evidence whose probative value is substantially outweighed by its potential
for unfair prejudice. See United States v. Mound, 149 F.3d 799, 800 (8th Cir. 1998);
United States v. Sumner, 119 F.3d 658, 661-62 (8th Cir. 1997). In doing so, however,
courts must balance probative value against potential for unfair prejudice “in such a
way as to allow the new rules their intended effect.” Mound, 149 F.3d at 800
(brackets, citations, and internal quotation marks omitted). Thus, in determining the
admissibility of R.M.’s testimony the district court was obligated to take into account
Congress’s policy judgment that Rule 413 was “justified by the distinctive
characteristics of the cases it will affect,” and that Rule 414 evidence is “exceptionally
probative” of a defendant’s sexual interest in children. Mound, 149 F.3d at 801
(quoting 140 Cong. Rec. H8991 (daily ed. Aug. 21, 1994) (statement of Rep.
Molinari)).

                                           -4-
       In light of this “strong legislative judgment that evidence of prior sexual offenses
should ordinarily be admissible,” United States v. LeCompte, 131 F.3d 767, 769 (8th
Cir. 1997), we conclude that the district court did not abuse its discretion in allowing
R.M. to testify. The incident R.M. described was substantially similar to H.S.’s
experience with Withorn. The victims were approximately the same age at the time of
the rapes, and both assaults involved force and occurred after Withorn had isolated the
victims from others. Both victims also testified that immediately after the incident
Withorn threatened them not to inform anyone what had occurred, and in each case
Withorn’s defense was to claim that the victim had consented to the sexual activity.
Because of these parallels, R.M.’s testimony was probative evidence showing
Withorn’s propensity toward the type of behavior H.S. alleged.

        Moreover, we do not find that R.M.’s testimony “presented any danger of unfair
prejudice beyond that which all propensity evidence in such trials presents, but is now
allowed by Rule 413.” Mound, 149 F.3d at 802 (citation and internal quotation marks
omitted). It is not unusual for a young victim in sexual abuse cases to exhibit fear and
a reluctance to testify. See, e.g., United States v. Eagle, 137 F.3d 1011, 1013 (8th Cir.
1998) (child victim of sexual abuse afraid to point out defendant in courtroom). The
district court’s decisions to partially clear the courtroom and to permit leading
questions, which were justified by the need to prevent substantial psychological harm
to R.M. and to enable her to communicate effectively, did not unfairly prejudice
Withorn in the jury’s eyes. See United States v. Stelivan, 125 F.3d 603, 608 (8th Cir.
1997) (rejecting argument that trial court’s decision to allow leading questions of
“inarticulate and evasive” witness created “extreme prejudice”); 18 U.S.C. § 3509(e)
(permitting courtroom to be closed to the public to facilitate the testimony of a child
witness); comment to Fed. R. Evid. 611(c) (noting tradition of allowing leading
questions for child witnesses); cf. Zeitvogel v. Delo, 84 F.3d 276, 283 (8th Cir. 1996)
(rejecting argument that trial court’s ruling requiring defendant to remain shackled in
courtroom caused undue prejudice where the ruling “was clearly proper” as a means


                                           -5-
to protect others in the courtroom). Thus, we cannot say that the manner and
circumstances of R.M.’s testimony deprived Withorn of a fair trial.

                                           2.

       In excluding evidence of H.S.’s prior allegation against Fallis, the district court
relied on Rule 412, which generally prohibits evidence of the victim’s past sexual
behavior in sex offense cases. See Fed. R. Evid. 412(a)(1).

       Withorn wished to introduce H.S.’s prior rape allegation against Fallis in the
hope that the jury might infer that H.S. was lying based on the fact that both Fallis and
Withorn claimed that she had consented to intercourse. A conclusion that H.S.’s
unadjudicated accusation against Fallis was untrue, however, would have required the
jury to rely on sheer speculation. Moreover, impeaching the victim’s truthfulness and
showing her capability to fabricate a story “are not recognized exceptions to Rule 412.”
United States v. White Buffalo, 84 F.3d 1052, 1054 (8th Cir. 1996); cf. United States
v. Bartlett, 856 F.2d 1071, 1088-89 (8th Cir. 1988) (finding prior false rape accusation
inadmissible under either Rule 412 or Rule 608(b), which prohibits use of extrinsic
evidence to prove specific instances of conduct for the purpose of attacking a witness’s
credibility except where such evidence is “probative of [the witness’s] truthfulness or
untruthfulness”). “In the absence of an applicable exception, Rule 412 specifically bars
admission of evidence of the past sexual behavior of an alleged rape victim.” White
Buffalo, 84 F.3d at 1054 (citation and internal quotation marks omitted). Accordingly,
the district court acted well within its discretion in limiting the cross-examination of
Krietlow to exclude Withorn’s statement that “the same thing happened to Chris Fallis”
and in preventing the defense from introducing any other evidence of H.S.’s allegedly
false prior accusation.




                                           -6-
                                            3.

       Withorn argues that application of Rules 412, 413, and 414 in concert violated
his constitutional right to a fair trial. We construe this argument as a due process claim,
and evaluate it under the “fundamental fairness” standard of Dowling v. United States,
493 U.S. 342, 352 (1990).

        “Beyond the specific guarantees enumerated in the Bill of Rights, the Due
Process Clause has limited operation.” Id. Because the Supreme Court has “defined
the category of infractions that violate fundamental fairness very narrowly,” courts are
“not free, in defining due process, to impose . . . their personal and private notions of
fairness and to disregard the limits that bind judges in their judicial function.” Id.
(brackets, citations, and internal quotation marks omitted). In order to prevail, Withorn
must show that the combined effect of the district court’s evidentiary decisions was “so
extremely unfair” as to “violate those fundamental conceptions of justice which lie at
the base of our civil and political institutions.” See id. at 353 (citation and internal
quotation marks omitted).

        We have upheld the constitutionality of Rules 413 and 414 in the face of due
process challenges, see United States v. Mound, 149 F.3d 799, 801 (8th Cir. 1998),
and thus we may not revisit that question here. See United States v. Prior, 107 F.3d
654, 660 (8th Cir. 1997) (one panel not at liberty to overrule decision of another panel).
Moreover, this is not the first time Rules 412, 413 and 414 have been applied together
in a single case. In United States v. Eagle, 137 F.3d 1011, 1014-16 (8th Cir. 1998), the
two defendants challenged both the exclusion of evidence of the alleged victim’s past
sexual behavior and the admission of evidence regarding their own prior sex offenses.
We affirmed the district court’s evidentiary decisions under both Rule 412 and Rules
413-14 in Eagle, see id., and we reach the same result in this case.




                                           -7-
       Without question, Rules 412, 413, and 414, applied in a single case, make it
easier for the government to prosecute sex offense cases. As we held in Mound,
however, “[p]romoting the effective prosecution of sex offenses is a legitimate end.”
 See 149 F.3d at 801 (brackets added). Accordingly, we conclude that the overall
effect of applying the three rules in combination is not so unfair as to violate
fundamental conceptions of justice. See Dowling, 493 U.S. at 352-53.

                                           B.

        Withorn next argues that his confession to Krietlow should have been suppressed
because he was never given a Miranda warning. To be protected by the Fifth
Amendment, the statement must have been made while in police custody and in
response to police interrogation, see Miranda v. Arizona, 384 U.S. 436, 444 (1966),
or its “functional equivalent.” Rhode Island v. Innis, 446 U.S. 291, 300-01 (1980).
“We have repeatedly held that a voluntary statement made by a suspect, not in response
to interrogation, is not barred by the Fifth Amendment and is admissible with or without
the giving of Miranda warnings.” United States v. Hatten, 68 F.3d 257, 262 (8th Cir.
1995) (citing Innis, 446 U.S. at 299 (1980)) (internal quotation marks omitted).

       Although Withorn was clearly in custody, he initiated the conversation with
Krietlow, and he has presented no evidence to support his theory that the police asked
Krietlow to see him with the hope that her presence would induce Withorn to confess
his crime. Thus, admitting his spontaneous confession to Krietlow did not violate
Withorn’s Fifth Amendment rights.

                                           C.

      Finally, Withorn challenges the testimony of Sally Hill, the certified nurse
midwife who was called into the hospital emergency room to examine H.S. on the
morning of the incident. Specifically, Withorn asserts that Hill’s statements that H.S.’s

                                          -8-
overall injuries were consistent with her description of a violent sexual assault and that
they were probably caused by “blunt trauma” were expert testimony offered without
adequate foundation.

        Rule 702 permits any witness “qualified as an expert by knowledge, skill,
experience, training, or education” to present “scientific, technical, or other specialized
knowledge” if such information will be helpful to the jury. Fed. R. Evid. 702. This
rule envisions a “flexible” inquiry by the trial judge, who is charged with “the task of
ensuring that an expert’s testimony both rests on a reliable foundation and is relevant
to the task at hand.” Daubert v. Merrill Dow Pharmaceuticals, 509 U.S. 579, 594, 597
(1993); cf. comment to Fed. R. Evid. 702 (describing rule as “broadly phrased”). We
review decisions regarding the admissibility of expert testimony, including decisions
about how to determine reliability, for abuse of discretion. See Blue Dane Simmental
Corp. v. American Simmental Assoc., 178 F.3d 1035, 1039 (8th Cir. 1999).

       In this case, Hill was not only an expert witness but also the medical official who
conducted the initial rape examination of the victim, H.S. At trial, she provided a
detailed description of her training, qualifications, and experience, which included a
four-year bachelor’s degree in nursing, two years of post-graduate work to receive her
degree as a midwife, and more than five years of practice as a clinical and hospital
nurse midwife. Hill testified that she had received special training in conducting
examinations of rape victims, that she had provided emergency coverage for obstetrics
and gynecology in the past, and that a significant part of her practice consisted of
treating young teenage girls. We find that this extensive background adequately
qualified Hill to make the observations she did regarding the injuries to H.S,
observations that the district court reasonably found were helpful to the jury. See
Daubert, 509 U.S. at 597. There is nothing unusual about permitting expert testimony
by certified nurse midwives in rape prosecutions, see, e.g., United States v. Shaw, 824
F.2d 601, 604-05 (8th Cir. 1987), and we hold that the district court did not abuse its
discretion by doing so here.

                                           -9-
The judgment of conviction is affirmed.

A true copy.

      Attest:

         CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




                                 -10-
