                 United States Court of Appeals
                        FOR THE EIGHTH CIRCUIT
          ___________

          No. 95-1554
          ___________

United States of America,         *
                                  *
     Plaintiff - Appellee,        *
                                  *
     v.                           *
                                  *
Desmond Rouse,                    *
                                  *
     Defendant - Appellant.       *
          ___________

          No. 95-1556
          ___________

United States of America,         *
                                  *
     Plaintiff - Appellee,        *
                                  *   Appeal from the United States
     v.                           *   District Court for the
                                  *   District of South Dakota
Jesse Rouse,                      *
                                  *
     Defendant - Appellant.       *
          ___________

          No. 95-1558
          ___________

United States of America,         *
                                  *
     Plaintiff - Appellee,        *
                                  *
     v.                           *
                                  *
Garfield Feather,                 *
                                  *
     Defendant - Appellant.       *
            ___________

            No. 95-1559
            ___________

United States of America,        *
                                 *
     Plaintiff - Appellee,       *
                                 *
     v.                          *
                                 *
Russell Hubbeling,               *
                                 *
     Defendant - Appellant.      *
                            ___________

                    Submitted:    March 3, 1997

                          Filed:   April 11, 1997
                               ___________

Before McMILLIAN, BRIGHT, and LOKEN, Circuit Judges.
                           ___________


LOKEN, Circuit Judge.


     Brothers Desmond and Jesse Rouse, and their cousins, Garfield
Feather and Russell Hubbeling, appeal convictions for sexual abuse
of young children on the Yankton Sioux Indian Reservation, raising
numerous issues.    A divided panel reversed and remanded for a new
trial on grounds that the district court erred in excluding certain
expert opinion testimony and in denying defendants' motion for
independent   pretrial    psychological   examinations   of   the   abused
children.     See United States v. Rouse, 100 F.3d 560 (8th Cir.
1996).   After the court granted the government's suggestion for
rehearing en banc and vacated the panel opinions, the panel granted
the government's petition for rehearing, and the court denied
rehearing en banc as moot.     Having further considered the parties'
contentions on appeal, we now affirm.



                                   -2-
                             I.    Background.


     The victims are granddaughters of Rosemary Rouse.              During the
summer and fall of 1993, defendants lived at Rosemary's home on the
Yankton Sioux Reservation.        The victims also lived or spent a great
deal of time at this home.         In October 1993, five-year-old R. R.
was placed with Donna Jordan, an experienced foster parent, due to
neglect and malnutrition.     R. R. disclosed apparent sexual abuse to
Jordan, who reported to the Tribe's Department of Social Services
(“DSS”) (as Jordan was required to do) that R. R. said she had been
sexually abused.      On January 10, 1994, DSS told Jordan to take
R. R. to therapist Ellen Kelson.              After an initial interview,
Kelson reported to DSS (as Kelson was required to do) that R. R.
had reported   acts    of   sexual    abuse     against   herself   and   other
children in the Rouse home.          On January 11, DSS removed thirteen
children living in the Rouse home and placed them in Jordan's
foster home.    Of the four who disclosed sexual abuse by their
uncles, T. R. was seven years old, L. R. was six, R. R. was five,
and J. R. was four and one-half.            The fifth victim of the alleged
offenses, F. R., was a twenty-month-old infant.


     Four days later, pediatrician Richard Kaplan examined the
children.   Dr. Kaplan reported to DSS his medical findings and what
the children had said about sexual abuse.           J. R. told Dr. Kaplan,
“Uncle Jess hurt me,” pointing to her left labia; Dr. Kaplan found
a recent bruise or contusion consistent with that kind of abuse.
L. R. had “a fairly acute injury” on the right side of her labia
majora which “really hurt her.”         R. R. told Dr. Kaplan, “I have a
bruise where my uncle put his private spot,” and Dr. Kaplan found
a sagging vagina and a scar on her anus.             Dr. Kaplan found that
T. R. had “obvious trauma and contusion . . . and very, very much
tenderness” on her labia majora; T. R. told him, “Uncle Jess hurt


                                      -3-
me there.”      On January 19 and 21, 1994, FBI Special Agent William
Van Roe and BIA Criminal Investigator Daniel Hudspeth interviewed
J. R., T. R., R. R., and L. R.         The children again reported sexual
abuse    by   their   uncles.        The     children        were   also    seen     by   a
psychiatrist, who referred them to Kelson for therapy.                             Kelson
first saw the children in a group on January 22.


       On February 11, Dr. Robert Ferrell conducted a colposcopic
examination      of   the   five    victims.           Dr.    Ferrell      found    “very
significant” damage to R. R.'s hymenal ring and tearing in her anal
area     consistent   with   anal     intercourse.             He   noted    a     “whole
constellation of findings” indicating L. R. had been abused --
damage to her hymenal area, furrowing on either side of her vagina,
chronic irritation or trauma, and “clue cells” that are “known to
be sexually transmitted.”          To Dr. Ferrell, a scar on J. R.'s hymen
where a tear had healed was an “important finding,” while T. R.'s
“hymenal ring was essentially gone,” the entire area was irritated,
and she had furrows in her vagina.               Infant F. R. had “tearing and
scarring of the anal mucosa.”


       Defendants'     medical     expert,       Dr.    Fay,    admitted      that    the
reported hymenal scarring on L. R., R. R., and J. R. “certainly
. . . leads you to think about sexual abuse,” and that “a labial
injury . . . is a very significant finding” of abuse.                              In its
rebuttal, the government called Dr. Randall Alexander, a member of
the Board of Governors of the National Committee to Prevent Child
Abuse.    Dr. Alexander testified that it takes considerable force to
inflict labial injuries like those exhibited by three of the
victims.      “It's rare to see one [in young girls] and to see three
of them show up is just . . . rareness to the third power.”




                                           -4-
      On March 24, 1994, a grand jury indicted Feather, Hubbeling,
Duane Rouse, Desmond Rouse, and Jesse Rouse on twenty-three counts
of aggravated sexual abuse in violation of 18 U.S.C. § 2241(c).
After a three week trial, the jury acquitted Duane Rouse.               It
convicted Desmond Rouse on three counts, Jesse Rouse on two counts,
Feather on four counts, and Hubbeling on two counts.       They received
long prison sentences but raise no sentencing issues on appeal.          We
consolidated their four appeals.


       II.    Issues Concerning the Victims' Trial Testimony.


      The government's case consisted primarily of testimony by the
two   physicians,    the   four   oldest   victims,   another   child   who
witnessed acts of sexual abuse, and FBI Agent Van Roe.          On appeal,
defendants raise numerous issues regarding the district court's1
handling of the critical child victim testimony.


             A.   Denial of Defense Access to the Children.


      Prior to trial, the victims lived with foster parents in the
legal custody of DSS.       Defendants     argue they were denied their
Sixth Amendment right to effective cross-examination and their
Fifth Amendment right to due process because DSS refused to permit
defense counsel interviews of the victims before trial.         Defendants
also argue that the district court erred in refusing to order
additional medical examinations of the victims prior to or during
the trial, and lengthy pretrial psychological interviews by a
defense expert.




       1
       The HONORABLE LAWRENCE L. PIERSOL, United States District
Judge for the District of South Dakota.

                                     -5-
        1.   When a child witness is in the legal custody of a social
services agency, that agency as custodian may refuse requests for
pretrial interviews.      See Thornton v. State, 449 S.E.2d 98, 109-10
(Ga. 1994); Hewlett v. State, 520 So. 2d 200, 203-04, (Ala. Crim.
App. 1987); see also O’Leary v. Lowe, 769 P.2d 188, 192-93 (Or.
1989) (en banc).      In this case, defense counsel never complained to
the district court that DSS denied them pretrial access to the
child witnesses, so this issue was not preserved for appeal.2
Defendants admit that DSS made the decision to deny access; they do
not point to evidence that the prosecution interfered.                   Cf. United
States v. Murdock, 826 F.2d 771-773-74 (8th Cir. 1987).                   In these
circumstances, there was no error, much less plain error.


        2.   Defendants did file motions to compel additional medical
examinations and psychological interviews.                    The evidence at a
pretrial evidentiary hearing revealed that the victims received two
medical      examinations.        Dr.    Kaplan    found      physical    evidence
consistent     with    sexual    abuse     but    did   not    perform    thorough
examinations.     Instead, he referred the children to Dr. Ferrell, an
obstetrician/gynecologist, who examined the anesthetized children
using a colposcope instrument for magnified viewing of the genital
area.    Dr. Ferrell reported tearing and scarring of infant F. R.'s
anal mucosa, and evidence of significant trauma to the other
victims' hymenal areas.         He testified that this evidence as a whole
indicated abuse.
        Defendants    argued    that    another   examination     was    necessary
because Dr. Kaplan's examinations were not sufficiently thorough
and Dr. Ferrell was not experienced in pediatric sexual abuse



    2
     Because one defense theme at trial was that DSS contaminated
the victims as witnesses by isolating them in the months before
trial, defendants' failure to raise this access issue with the
district court was no doubt by design.

                                         -6-
examinations.     The victims' guardian ad litem opposed additional
medical examinations.      The district court denied the motion for
further examinations because the detailed reports of Drs. Kaplan
and Ferrell were available to defendants, and no good cause had
been shown "that it is necessary to the adequate defense of these
cases for the alleged victims to again, for a third time, undergo
these invasive procedures at the hands of strangers."


     Regarding    the   request    for        psychological   interviews,    the
hearing evidence revealed that social worker Kelson had counseled
the victims but took no part in investigating the alleged abuse.
Her focus was therapy, and her detailed reports were available to
the defense.     Defendants argued that their expert, psychologist
Ralph C. Underwager, needed to interview the victims to demonstrate
that suggestive interviewing and environmental pressures made the
children's testimony unreliable.              The government advised that it
would request interviews by its expert if defense interviews were
allowed.      The victims' guardian ad litem opposed psychological
examinations, particularly by adversarial experts.                 The district
court   denied   defendants'     motion       for   interviews   by    Underwager
because there “has not been good cause shown as to why this
additional intrusion into the alleged victims already troubled
lives should be ordered.”


     We agree with the district court that defendants' showing of
need for these examinations was insufficient.                   Drs. Kaplan and
Ferrell were well qualified.            Dr. Ferrell had ample experience
conducting colposcopic examinations, had examined children in his
practice, and had received training on sexual abuse during his
residency.    Dr. Kaplan examines six to seven hundred children each
month   for    sexual   abuse.     He     participated     in    Dr.   Ferrell's
examinations, and concurred in his findings.              Their detailed


                                        -7-
reports and findings were made available to defendants' medical
expert.   And defendants extensively cross-examined Drs. Kaplan and
Ferrell at trial.


     Likewise, defendants did not establish need for the requested
psychological interviews.     Defense counsel and Dr. Underwager had
access to Agent Van Roe's interview reports and therapist Kelson's
extensive notes of her sessions with the children.              Kelson was
called as a defense witness at trial and questioned about her
counseling methods and contacts with the victims.        Dr. Underwager
stated at the motion hearing that he had sufficient information to
assess whether the children had been sexually abused.3      He observed
the trial testimony of the victims and therapist Kelson, assisted
defense counsel at trial, testified regarding the effects of child
interview techniques, and was prepared to express opinions on the
suggestibility   of   the   investigative   and   therapeutic    practices
employed.   See Spotted War Bonnett, 882 F.2d at 1362 (interview
properly denied because defense expert reviewed other interview
records and was present when victim testified).
     Finally, the district court property gave strong consideration
to the victims' interests.     An adult witness may simply refuse to
undergo adversarial medical or psychological examinations.             See
United States v. Bittner, 728 F.2d 1038, 1041 (8th Cir. 1984) ("the
defendant's right of access is not violated when a witness chooses



     3
      Defendants did not tell the district court that psychological
examinations were needed to determine the victims' competency to
testify. On appeal, defendants argue that proper hearings were not
held to assess competency, but they filed no written motion in the
district court for competency examinations and thus failed to
preserve this issue. See 18 U.S.C. § 3509(c)(2-4); United States
v. Spotted War Bonnett, 882 F.2d 1360, 1362-63 (8th Cir. 1989)
(subsequent history omitted). Children are presumed competent to
testify, and the district court made specific findings that each
child witness was competent.

                                   -8-
of her own volition not to be interviewed").           With child witnesses
who are in protective custody, the issue is more complex because
they are not able to make these difficult decisions for themselves.
Of course, the court must protect a criminal defendant's right to
a fair trial, but it must also protect the State's paramount
interest in     the   welfare   of     the    child.   Making    court-ordered
adversarial examinations routinely available would raise a barrier
to the prosecution of this kind of crime by maximizing the trauma
that its victims must endure.          At a minimum, therefore, the court
should heed a custodial agency's opinion that pretrial access to
the child for investigative or adversarial purposes is unnecessary
or unwise.4


       Given the difficulty of balancing these important interests,
we conclude that, if the custodian of a child witness opposes
access as not in the child's best interest, defendant must show
that   denial   of    access   would    likely    result   in   an   absence   of
"fundamental fairness essential to the very concept of justice"
before the trial court need reach the question whether some type of
access may appropriately be ordered.5            Here, the victims' guardian
opposed access, and defendants did not show need for the requested
examinations.    The district court did not abuse its discretion in



       4
       Unlike the court in United States v. Benn, 476 F.2d 1127,
1130-31 (D.C. Cir. 1973), we do not assume that the court presiding
over a criminal case may compel pretrial testing of a child that a
social services arm of government believes to be adverse to the
child's best interests.      To posit an extreme example, if a
government custodian should opine that the interests of a child
witness require dismissing a prosecution rather than compelling the
child to undergo further traumatic testing, and if the court can
devise no other way to protect the defendant's right to a fair
trial, the criminal case may have to be dismissed.
       5
       This is the basic test for a denial of due process. See
United States v. Valenzuela-Bernal, 458 U.S. 858, 872 (1982).

                                        -9-
declining to order DSS to subject the victims to further medical or
psychological examinations.


        B.     Victim Testimony by Closed Circuit Television.


     Prior to trial, the government filed a motion to permit all
child witnesses to testify by closed circuit television.                At a
hearing on this motion, therapist Kelson testified that the victims
were afraid of defendants -- "They still believe if they walked in
the courtroom today that their uncles would attack them."                The
district court denied the motion without prejudice, concluding
there had not been a sufficient showing that the children could not
testify due to fear of the defendants.


     At trial, when three of the victims were called as witnesses
and appeared to be emotionally unable to testify in open court, the
district court questioned each child in chambers, in the presence
of defense counsel, one prosecutor, the child's guardian ad litem,
and a court reporter.       See 18 U.S.C. § 3509(b)(1)(c).         Five-year-
old J. R. was unable to speak when called to testify and stated in
chambers that she was afraid to speak in front of her uncles.
Considering this statement along with Kelson's pretrial testimony,
the court found that defendants' presence in the courtroom would
"more than anything else prevent her from testifying."             The court
made similar findings after questioning six-year-old R. R., who was
found sobbing outside the courtroom and affirmed in chambers that
she was crying out of fear of her uncles; and nine-year-old T. R.,
who became so fearful before testifying that “the guardian ad litem
would   have    had   to   physically   pull   her   into   the   courtroom.”
Defendants argue that the district court erred in permitting these
three victims to testify by closed circuit television.             (The other
two child witnesses were able to testify in open court.)


                                    -10-
       The Sixth Amendment's Confrontation Clause "guarantees the
defendant a face-to-face meeting with the witnesses appearing
before the trier of fact."            Coy v. Iowa, 487 U.S. 1012, 1016
(1988).      However, this right is not absolute and must accommodate
the State's "compelling" interest in "the protection of minor
victims of sex crimes from further trauma and embarrassment."
Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 607 (1982).
Accordingly, "where necessary to protect a child witness from
trauma that would be caused by testifying in the physical presence
of the defendant, at least where such trauma would impair the
child’s ability to communicate, the Confrontation Clause does not
prohibit use of a procedure" which preserves "the essence of
effective confrontation" -- testimony by a competent witness, under
oath, subject to contemporaneous cross-examination, and observable
by the judge, jury, and defendant.            Maryland v. Craig, 497 U.S.
836, 851, 857 (1990).     Testimony by closed circuit television is a
procedure now authorized by statute.          See 18 U.S.C. § 3509(b).


       Before invoking such a procedure, the district court must find
that   the    child   "would    be   traumatized,   not   by   the   courtroom
generally, but by the presence of the defendant."               Hoversten v.
Iowa, 998 F.2d 614, 616 (8th Cir. 1993), quoting Craig, 497 U.S. at
856.   See 18 U.S.C. § 3509(b)(1)(B)(I) (child may testify by closed
circuit television "if the court finds that the child is unable to
testify in open court in the presence of the defendant . . .
because of fear").     In this case, the district court made specific
"because of fear" findings for three victims.             Our review of the
children's responses to the court's questions in chambers and the
prior testimony by therapist Kelson persuades us these findings are
not clearly erroneous.         See United States v. Carrier, 9 F.3d 867,
870-71 (10th Cir. 1993), cert. denied, 114 S. Ct. 1571 (1994).




                                       -11-
       Defendants         argue    that    the     district   court's       findings      are
inadequate because they were not based upon the expert testimony
required by § 3509(b)(1)(B)(ii).                    However, the statute does not
require an expert to support a "because of fear" finding.                                That
finding       may    be   based     upon    the     court's      own     observation      and
questioning of a severely frightened child.                      "[O]nce the trial has
begun, the court may judge with its own eyes whether the child is
suffering the trauma required to grant the requested order."                             H.R.
Rep. No. 101-681(I), 101st Cong., 2nd Sess. (1990), reprinted in
1990       U.S.C.C.A.N.      6472,    6574.          We   also    reject        defendants'
contention that the closed circuit television system infringed
their Sixth Amendment rights because defense counsel could not see
the jury while cross examining the sequestered witnesses.6                          Compare
Spigarolo v. Meachum, 934 F.2d 19, 24 (2nd Cir. 1991).


               C.    Evidence of Victims' Past Sexual Conduct.


       The    day     before      trial,   the     government      filed    a    motion   to
preclude evidence of the victims' past sexual activity because
defendants had not filed written motions "at last 14 days before
trial," as required by Fed. R. Evid. 412(c)(1).                          Defendants then
filed three untimely motions to offer evidence that one victim had
engaged in          sexual   activity      with     another      child    living    in    her
neighborhood, that another victim had made accusations of inter-
household sexual activity,7 and that a third victim had acted-out


       6
      The system included five monitors in the courtroom for the
judge, jury, defense expert, and defendants to view the child
testifying in chambers; a monitor for the child witness to view
defendants as she testified; and separate communication lines
permitting each defendant to confer with his attorney.
       7
      Evidence that the victim has accused others of sexual abuse
is subject to Rule 412's limitations. United States v. Provost,
875 F.2d 172, 177-78 (8th Cir.), cert. denied, 493 U.S. 859 (1989).

                                            -12-
in a sexual manner.      The district court excluded this evidence
because the allegations flowed from an interview with a young boy
almost three months before trial and therefore defendants had no
good cause for their untimely motions.           See Rule 412(c)(1)(A).


     On appeal, defendants argue that the district court abused its
discretion   because    they   effectively       gave   Rule    412     notice   by
mentioning the victims' sexual activity in their pre-trial motion
for independent medical examinations.              We disagree.          Rule 412
limits the admissibility of such evidence to protect the victims of
rape and sexual abuse.    See Provost, 875 F.2d at 177; United States
v. Azure, 845 F.2d 1503, 1506 (8th Cir. 1988).           The Rule has strict
procedural   requirements,     including     a    timely       offer    of   proof
delineating what evidence will be offered and for what purpose, and
an in camera hearing at which the victim may respond.                  Defendants'
vague notice fell far short of complying with the Rule, and the
district court properly excluded this evidence.            See United States
v. Eagle Thunder, 893 F.2d 950, 954 (8th Cir. 1990).


                   D.   Admission of Child Hearsay.


     At trial, the government offered testimony by FBI Agent Van
Roe of what four victims said during Van Roe's initial interviews
in January 1994.   Defendants objected.      After questioning Agent Van
Roe outside the jury's presence, the court admitted statements made
by the three oldest victims under the residual hearsay exception,
Fed. R. Evid. 803(24).         On appeal, defendants argue that the
district court abused its discretion in admitting this testimony.


     This contention is at odds with "a formidable line of Circuit
precedent that sanctions the use of hearsay testimony in child
sexual abuse cases."     United States v. St. John, 851 F.2d 1096,


                                   -13-
1093 (8th Cir. 1988).        Here, the district court determined that FBI
Agent Van Roe had been trained to interview children in abuse
cases, interviewed the children individually at the home of their
foster parent, and did not ask leading questions.                 Agent Van Roe’s
testimony    and    interview      notes   established       that     the    victims'
responses were spontaneous and not repetitious.                       The victims'
statements also provided more details regarding the abuse than
their testimony at trial.           In these circumstances, the district
court did    not    abuse    its    discretion       in   admitting    the    initial
interview statements.         See United States v. Grooms, 978 F.2d 425,
426-28 (8th Cir. 1992).          Defendants also argue that admission of
the   victims’     statements      violated    the    Confrontation         Clause   as
construed    in    Idaha    v.   Wright,      497   U.S.   805,   815-16      (1990).
However, the Confrontation Clause was satisfied because the victims
testified at trial.         See Spotted War Bonnet, 933 F.2d at 1473.


      III.   Exclusion of Expert Testimony on Implanted Memory.


      After failing to exclude or nullify the testimony of the child
victims, the defense concentrated on undermining the credibility of
that testimony.      In addition to cross-examining the doctors, the
victims, and FBI Agent Van Roe during the government's case, the
defense called therapist Kelson and DSS witnesses as adverse
witnesses, seeking to prove that the children were forcibly removed
from Rosemary Rouse's home and then interviewed at length by many




                                       -14-
government investigators.8      The culmination of this defense was the
testimony of psychologist Underwager as a defense expert witness.


     The district court held a preliminary hearing to explore
whether    Dr.   Underwager's   proposed    testimony   was   sufficiently
reliable    scientific   evidence    that   would   assist    the   jury   to
understand a fact in issue.         See Fed. R. Evid. 702; Daubert v.
Merrill Dow Pharmaceuticals, Inc., 113 S. Ct. 2786, 2796 (1993).
The court heard Dr. Underwager's proposed testimony concerning his
theories of “learned” or “implanted” memory.             After reviewing
scientific research and publications offered in support of these
theories, the court made two preliminary rulings:


          I'm not going to allow Dr. Underwager to testify as
     to whether or not the [child] witness's testimony is
     believable or not, or telling the truth or not.

          [W]ith regard to the principles and the methodology,
     this is an area of valid scientific inquiry, but there is
     not anywhere near yet the agreement in the community as
     to methods, techniques, testings or reliability that
     would warrant the admissibility before a jury of these
     matters . . . . It would result in a confusion of the
     issues, a possible misleading of the jury by undue
     reliance possibly being placed upon [one side's
     methodology]. So, for these reasons, under Daubert, I'm
     not going to allow evidence with regard to the different
     . . . psychological methods of evaluating the reliability
     of witnesses.




      8
       Without citing specific instances of error or supporting
authority, defendants argue that the district court erred by
failing to control witness Kelson. We have reviewed this portion
of the trial testimony and conclude that the court properly
exercised its discretion in maintaining reasonable control over the
examination and testimony of this witness.      See Fed. R. Evid.
611(a); United States v. DeLuna, 763 F.2d 897, 911 (8th Cir.),
cert. denied, 474 U.S. 980 (1985).

                                    -15-
     Later in the trial, Dr. Underwager was called as a defense
witness.    He testified at length concerning his own research into
the ways in which the reliability of children's allegations of
physical or sexual abuse may be tainted by adult questioning
practices   that    suggest   false     answers      or    even   implant   false
memories.     Dr. Underwager identified for the jury practices of
“suggestibility” that produce unreliable child testimony -- use of
leading or coercive questions; communicating adult assumptions that
cause the child to give what is perceived as the desired answer;9
repetitive questioning; play therapy, which Dr. Underwager opined
has “no scientific support”; adult use of rewards or negative
reinforcement      that   motivate     children       to    lie;    and     “cross
germination” among a group of children who pick up stories from
each other.     Dr. Underwager opined that “a memory can be created
. . . by questioning someone.”        Moreover, “[t]he younger the child,
the greater the suggestibility, the more vulnerable they are to the
influences.”


     When the prosecution successfully objected to some questions
put to Dr. Underwager, defendants made an offer of proof at the end
of his direct examination.       In a three-page narrative answer to the
question    whether   “there's    been       a   practice   of    suggestibility
employed” with the child victims, Dr. Underwager opined (i) that
therapist Kelson had exerted “massive social influence” on the
victims; (ii) that Kelson engaged in “highly suggestive and highly
contaminating” practices; (iii) that the prosecutor used leading
questions at trial and the children “were comfortable doing the
yes/no bit,” showing “they'd learned” to answer yes; (iv) that Van
Roe's use of diagrams was “very suggestive and very leading”; (v)


     9
      Dr. Underwager testified that “preconceived assumptions of
the interviewer are the single most powerful determinant of what
comes out of an interview.”

                                      -16-
that the children “were kidnapped . . . taken from their families,
taken to this strange place where all of the people are concerned
that    they   talk    about   sex   abuse”;     and   (vi)     that   the   “total
environment [was] one of the most powerful and coercive influences
upon children that I've seen.”          The district court excluded these
opinions as not proper subjects of expert opinion.


       On appeal, defendants argue generally that the district court
misapplied Daubert in excluding Dr. Underwager’s testimony.                     We
find two distinct components to this issue.                First, we conclude
that the district court's preliminary pretrial rulings regarding
the    scope   of     Dr.   Underwager's      testimony   did    not   abuse   its
discretion.     See Cook v. American S.S. Co., 53 F.3d 733, 738 (6th
Cir. 1995) (standard of review).           It is clear from the record that
this expert was intent upon expressing his ultimate opinion that
the victims' accusations of sexual abuse were not credible.10                   But
assessing the reliability or credibility of a victim's accusations
is the exclusive function of the jury.             Dr. Underwager's opinions
about witness credibility were properly excluded.                See Westcott v.
Crinklaw, 68 F.3d 1073, 1076 (8th Cir. 1995); United States v.
Witted, 11 F.3d 782, 785-86 (8th Cir. 1993); United States v.
Azure, 801 F.2d 336, 339-40 (8th Cir. 1986).11                The district court
was also well within its discretion in ruling that Dr. Underwager


       10
      In a letter to defense counsel just before trial that became
a preliminary hearing exhibit, Dr. Underwager said he was prepared
to opine “that the children in this case have been subjected to
massive and coercive social influence by adults . . . such as to
make it highly likely any statements are so contaminated by adult
behaviors as to be unreliable.”
       11
      In this regard, we note that Dr. Underwager's attempts to
express such opinions in other child abuse cases have been
consistently rejected. See State v. Swan, 790 P.2d 610, 632 (Wash.
1990) (en banc), cert. denied, 498 U.S. 1046 (1991); State v.
Erickson, 454 N.W.2d 624, 627-29 (Minn. App. 1990).

                                       -17-
should not embellish his own research and opinions by telling the
jury about the research and writings of other psychologists because
these works have not produced a consistent body of scientific
knowledge and therefore admission of other theories and writings
would result in a battle of experts that could confuse or even
mislead the jury.


     The   second   issue,   whether      the   court    erred   in   rejecting
defendants' offer of proof at trial, is more difficult.               Indeed, it
is an issue on which we continue to disagree.             A qualified expert
may explain to the jury the dangers of implanted memory and
suggestive   practices    when   interviewing       or    questioning     child
witnesses, but may not opine as to a child witness's credibility.
That leaves a troublesome line for the trial judge to draw -- as
the expert applies his or her general opinions and experiences to
the case at hand, at what point does this more specific opinion
testimony become an undisguised, impermissible comment on a child
victim's veracity?       The issue was unusually difficult for the
district court in this case because defendants made their offer of
proof through Dr. Underwager's three-page monologue, instead of
asking the court to rule on specific questions and answers, and
because of Dr. Underwager's obvious desire to testify impermissibly
on the children's lack of credibility.


     Our differing views on the question whether the district court
erred in rejecting defendants' offer of proof are set forth in the
vacated panel opinions.      See Rouse, 100 F.3d at 566-74, 582-85.
Having again considered this issue in light of the voluminous trial
record, a majority of the panel has concluded that exclusion of
this additional expert testimony was, in any event, harmless error.
We base this conclusion on a number of factors.              First, the jury
heard evidence as to the interviewing techniques used by foster


                                   -18-
parent Jordan, therapist Kelson, and FBI Agent Van Roe.               It learned
of the social influences affecting the victims at the time they
accused their uncles of sexual abuse.           And it observed the victims
testify and knew that the prosecutor asked the children leading
questions at trial.12           Second, the jury heard Dr. Underwager
describe   at   length    the    ways     in   which   adults   can   influence
children's memories and the possible impact of such influences on
their credibility.       Defense counsel used this expert testimony to
define their theory of implanted memory in closing argument:


     The questions were asked over and over and over again
     and, when the story came out the way the adults wanted
     it, then the children were rewarded . . . . [W]hen [J.
     R.] was testifying . . . did you notice [the prosecutor]
     . . . phrased most of the questions in a manner in which
     she would get a positive response, a “Yes” answer. . . .
     [Dr. Underwager] talked about the influence that people
     have on children, when they interview kids. He talked
     about memory, the process of reconstruction, implantation
     of memory, play-therapy, worthless. . . . The children
     only felt comfortable answering “Yes” or “No”.       They
     didn't show memory of the events.       The FBI Agent's
     diagram that he used, the drawing of the male body with
     the penis drawn in, what did that tell the kids that he
     wanted to talk about?      Everything was calculated to
     produce some sort of compliance with these kids . . . .


This gave the jury an informed basis on which to make its ultimate
determinations as to the victims' credibility.            Third, the victims'
trial testimony was consistent with their “free recall” -- R. R.'s
reports of abuse to Jordan and Kelson in early January, and the
four oldest victims' reports to Dr. Kaplan during his initial
medical examinations.      These unprogrammed disclosures preceded the


     12
      When the first child witness (the nine-year-old male cousin)
froze on the stand in open court, the district court, consistent
with numerous Eighth Circuit cases, ruled that leading questions
could be asked of reticent child witnesses. Defendants did not
object to this ruling nor raise the issue on appeal.

                                        -19-
FBI   interviews     and    Ellen       Kelson's      therapy.           Dr.   Underwager
testified for the defense that, “[b]asically, the most reliable
information is obtained from free recall.”                  In these circumstances,
we    conclude   that      exclusion      of     additional           testimony    by    Dr.
Underwager regarding whether a “practice of suggestibility” was
employed on the victims “could not have had substantial influence
on the outcome of the case,” Azure, 845 F.2d at 1507, the governing
harmless   error     standard.          See      28   U.S.C.      §    2111;   Brecht      v.
Abrahamson, 113 S. Ct. 1710, 1718 & n.7 (1993).


                                  IV.    Juror Bias.


       After   the   trial,    Verna      Severson,         who   worked       with     juror
Patricia Pickard at a local preschool, called the Clerk's Office to
complain that Pickard should not have served on the jury because
she is prejudiced against Native Americans.                           The court held an
evidentiary hearing on this issue.               Severson testified that Pickard
made derogatory statements about Native Americans before the trial;
Pickard denied this allegation.                  Severson alleged that Pickard
refused to teach a Native American unit in her class; Pickard and
the school's director testified that Pickard had taught a Native
American unit for years.                Severson testified that Pickard had
stated, “it's a sad thing to be born an Indian girl because Indian
girls are used for sexual purposes”; Pickard explained that her
sister-in-law, a counselor, made that comment after the trial and
Pickard had repeated it not as her own belief.                        Three of Pickard's
other co-workers testified that Pickard is not a racist.                                 Two
witnesses questioned Severson's reputation for truthfulness.


      After    hearing     this    testimony,         the   district       court      denied
defendants' motion for a new trial, finding that juror Pickard had
“responded honestly and accurately” during voir dire and had not


                                          -20-
concealed “any racially prejudiced attitudes, beliefs, or opinions”
about Native Americans.      The court found that “as between juror
Pickard and Ms. Severson, juror Pickard [was] the more credible
witness.”     The court further found that the jury foreman and an
alternate juror “testified credibly that they did not hear juror
Pickard make racially disparaging remarks about the defendants or
about Native American people during the trial,” and “that no
improper outside influence affected the jury.”     These findings are
not clearly erroneous.      They establish that defendants are not
entitled to a new trial because of juror Pickard's responses during
voir dire.    See McDonough Power Equip., Inc. v. Greenwood, 464 U.S.
548, 556 (1984); United States v. Whiting, 538 F.2d 220, 222-23
(8th Cir. 1976).


     Defendants further argue that they are entitled to a new
trial because juror Pickard admitted that she laughed at a comment
about Native Americans during the jury deliberations.     However, we
agree with the district court that this neither overcame the
court's finding that the jury was not subjected to improper outside
influence, nor justified further inquiry into the validity of the
verdict.     See Fed. R. Evid. 606(b); United States v. Tanner, 483
U.S. 107, 120-27 (1987).


                       V.   Jurisdiction Issues.


     After both sides rested, defendants moved for judgments of
acquittal on the ground that the government had failed to prove the
alleged offenses occurred in Indian Country.          The government
responded by moving to reopen its case to better establish that the
alleged sexual abuse occurred at grandmother Rosemary's home on the
Yankton Sioux Reservation.      After expressly considering both the
possible prejudice to defendants in reopening, and the impact on


                                  -21-
the child victims of having to testify again, the district court
ruled that the government could reopen to offer limited evidence
regarding offense location.         The parties then stipulated that this
evidence would establish that all alleged offenses except those
involving J. R. had occurred in Indian Country.                    The government
reopened its case and placed this stipulation into evidence, and
the court denied defendants' motions for judgment of acquittal.


           A.     Allowing the Government To Reopen Its Case.


     Defendants first argue that the district court abused its
discretion by permitting the government to reopen its case to
establish this jurisdictional fact.                  The trial court has broad
discretion to allow the prosecution to reopen to establish an
element of an offense after the defendant has moved for judgment of
acquittal.      See, e.g., United States v. Powers, 572 F.2d 146, 152-
53 (8th Cir. 1978), involving whether the weapon at issue was a
“firearm.”      The relevant inquiry is “whether the evidence caused
surprise     to      the   defendant,   whether       he   was     given    adequate
opportunity to meet the proof, and whether the evidence was more
detrimental       to    him   because   of     the    order   in    which   it   was
introduced.”         United States v. Webb, 533 F.2d 391, 395 (8th Cir.
1976).   Here, defendants were not surprised by the evidence, and
the district court carefully limited its ruling to avoid prejudice
from allowing victim testimony late in the trial.                    There was no
abuse of discretion.


                B.     Insufficient Evidence of Jurisdiction.


     Defendant Jesse Rouse also argues that there was insufficient
evidence that he sexually abused J. R. in Indian Country, a fact
essential to federal jurisdiction over that offense.                 See 18 U.S.C.


                                        -22-
§ 1153(a).    The trial testimony focused on events that occurred at
“grandma's house,” grandmother Rosemary Rouse's home in Indian
Country.     J. R. testified that she lived in Marty, that she spent
a lot of time at grandma's house, and that her uncles were often in
that house.      She testified that it was not safe at the house
“[b]ecause our uncles are doing naughty stuff to us.”                       Jesse
testified that he lived at Rosemary’s house from September 1993
until the victims were removed in January 1994.                   Viewing this
evidence in the light most favorable to the jury's verdict, as we
must, we agree with the district court that there was sufficient
evidence to support the jury's finding of jurisdiction.


       The judgments of the district court are affirmed.


McMILLIAN, Circuit Judge, concurring in the result.


       I concur in the result affirming the convictions, but only
because I agree that the exclusion of the expert evidence was
harmless error.


BRIGHT, Circuit Judge, dissenting.
       I respectfully dissent.     Previously, two judges on this panel
reversed the convictions in this case because the trial judge erred
by rejecting the expert opinion evidence in question.                   United
States v. Rouse, et al., 100 F.3d 560 (8th Cir. 1996).                 The new
majority now affirms the convictions on grounds that such error was
harmless.      I disagree.    Depriving the jury of the questioned
evidence     critically   eroded   the     strength   of    the   defense   and,
                                                       13
therefore, did not constitute harmless error.


  13
   In the previous opinion, we also ruled that the trial court
prejudicially erred by denying “the defendants’ motion for
independent psychological examination” of the children in light

                                    -23-
I.   DISCUSSION


     This dissent fully incorporates the panel opinion previously
reported at 100 F.3d 560.          In the interests of comprehension,
however, I shall reiterate some of that prior opinion.


     The convictions rested upon the following evidence:                  the
uncorroborated testimony of four of the thirteen children initially
removed from their families, medical evidence describing tissue
injuries in the victims’ vaginal and anal areas, and statements the
alleged victims made to other adults.          In my view, this evidence is
suspect.   For example, the “children’s evidence and testimony [in
this trial] became tainted by suggestive influences to which the
children   were    subject   in   the     investigation   and   trial,   which
influences included taking the children (the alleged victims and
nine other children) from their families and from their residences”
for extended periods of time.      Id. at 562.      During this isolation,
which lasted up to six months, social workers and investigators
subjected the alleged victims to repeated and intense questioning.
Despite the interrogation, nine of the children steadfastly denied
any abuse.
     Furthermore, the medical evidence introduced at trial was
inconclusive.     For example, the defense challenged the conclusions
of the prosecution’s witnesses, the prosecution failed to establish
the source of any injuries to the alleged victims, and the medical




of the coercive questioning and interrogation of the alleged
victims. See Rouse, 100 F.3d at 562-63. I stand by this ruling.
Nevertheless, this error fails to justify a new trial unless the
exclusion of the expert testimony regarding coercive influences
on the children constituted prejudicial error.


                                        -24-
evidence lacked photographic documentation of the injuries.      See
id. at 575-76.   In addition, the district court excluded important
evidence of inter-child sexual activity which potentially skewed
the medical findings relating to the victims’ injuries.   Id.   These
ambiguities magnified the importance of the children’s testimony to
the jury’s verdict, thereby exacerbating the harm suffered by the
defense when the district court excluded the expert’s opinion.   The
following discussion reiterates the background for the expert’s
testimony and explains why the exclusion of that testimony resulted
in substantial harm.


     A.   BACKGROUND FOR THE EXPERT TESTIMONY


     The panel’s earlier opinion discussed the investigation by
social services personnel, the FBI’s interrogations of the alleged
victims and others, and the manner of eliciting the children’s
testimony.   See id. at 563-66.      The opinion also questioned the
reliability of the children’s bizarre stories.        Id. at 563-66
(noting, for example, that investigators and social workers offered
rewards for the children’s “truthful” testimony).


     We examine the defense’s offer of proof, including background
evidence provided to the court by the expert witness outside the
presence of the jury.   We repeat from our earlier opinion:


          At trial, the defense offered the testimony of Dr.
     Ralph Charles Underwager. Dr. Underwager is a clinical
     psychologist and has been practicing his profession or
     teaching psychology for approximately twenty years. He
     has conducted extensive research and writing in the area
     of child sex abuse and is familiar with extensive
     psychological research into this subject during the past
     ten years. His expertise has not been challenged by the
     prosecutor, only the substance of his testimony.
     . . . .


                                  -25-
     With this background, we examine Dr. Underwager’s
foundation and compare that foundation and his commentary
on suggestibility with the status as of the time of trial
of psychological research and writings concerning child
witnesses and their susceptibility to faulty memory. As
noted above, in the defense’s offer of proof, Dr.
Underwager testified outside the presence of the jury
that from his review of the files, records and testimony
in this matter, there had been “a practice of
suggestibility employed in these techniques.” (Tr. Vol.
IX at 1768.)

     He further testified outside the presence of the
jury that Kelson’s notes revealed she had exerted a
massive influence over the children; she had a powerful
prior assumption or conclusion that the children had been
abused; and she engaged in highly suggestive and
contaminating practices, such as the groups and
questioning.   Dr. Underwager testified the prosecutor
asked the children only if they remembered reporting an
incident to a particular individual (FBI agent, social
worker, etc.), rather than whether they remembered the
incident itself; the prosecutor used exclusively leading
questions in the courtroom and the children’s comfort
level showed they were used to this type of questioning.
He testified that studies show that adults almost always
rely on leading questions given the task of finding
something out from a child.

     Dr. Underwager found the FBI’s use of sexually
explicit diagrams very suggestive and leading, and
asserted the evidence does not show such diagrams
accomplish anything other than to suggest to the child
that the interviewer is interested in sexual behavior.

     He testified that a large body of research shows
that the presence at an interview of several adults--
people   of   relatively  high  status--increases   the
conformity and compliance with what those adults expect
from a child.

     Dr. Underwager testified that the documents from the
case files and courtroom testimony suggested to him that
powerful and potentially coercive influences had been
brought to bear on the small four- and five-year-old
children who were taken without notice from their
mothers, families and homes, without being told the
reasons and kept incommunicado in a strange place where


                           -26-
       all the people around them urged them to talk about sex
       abuse. (Tr. Vol. IX at pp. 1768-74.)


Id. at 566, 568-69.


       The prosecution, however, objected to this offer of proof
because the testimony reflected “an area ‘within the province of
the jury and not within something that an expert should testify
on.’”     Id. at 566 (quoting Trial Tr. Vol. IX at 1771).                     The
district court agreed and “rejected the offer as essentially not
the subject of expert testimony and not reliable or relevant under
Federal Rule of Evidence 104(a) and confusing and misleading to the
jury    under    Federal   Rule    of   Evidence     403.”      Id.   at   566-67.
Furthermore, the district court “barred the expert witness from
testifying      on   whether      or    not    the   investigative     practices
constituted ‘a practice of suggestibility.’”                 Id. at 567.


       The prior panel opinion demonstrated that the proposed expert
testimony passed the test for reliability under Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).               Rouse, 100 F.3d at
567-68, 572 (discussing application of Daubert analysis to “soft
science”).      That opinion reviewed the nature of the investigations
and interrogations of the children against the commentary in a
recent article presented to the district court:


            We have examined both the evidence and the
       literature presented to the district court and conclude
       that both support the defendants’ offer of proof. In
       particular, the district court made reference to a recent
       article   by   Stephen   J.  Ceci   and   Maggie   Bruck,
       Suggestibility of Child Witnesses: A Historical Review
       and Synthesis, 113 Psychological Bulletin 403-439 (1993),
       which reviews the research and writing on the subject and
       supports the view that the very matters observed and
       testified to by Dr. Underwager can produce biased, untrue
       or false memories in children, and more particularly


                                        -27-
young children.      Almost all the other literature
presented to the court is consistent with the Ceci-Bruck
article.

     The Ceci-Bruck article does not state that young
children should not testify but observes that many common
interviewing practices can produce an altered memory.
Among other things, the article documents adequate
research indicating the following:

     1. A subject’s, particularly a child’s, original
verbal answers are better remembered than the actual
events themselves, yes-no questioning leads to more
error, and young children are particularly vulnerable to
coaching and leading questions. Id. at 406-09.

     A review of the record here reveals the children
were asked entirely leading questions in court. Even
though the children testified by television outside the
presence of defendants, the prosecutor asked suggestive
questions. Not only did the questions call only for yes
or no answers, the children were asked only if they
remembered reporting abuse to law enforcement officers,
doctors, and their therapist, rather than whether they
remembered the alleged abuse itself.

     The questioning at trial represents a highly
questionable aspect of testifying about an event. This
is exactly what Dr. Underwager described in his offer of
proof.

     2. Children desire to comply or cooperate with the
respected authority figure interviewer and will attempt
to make answers consistent with what they see as the
intent of the questioner rather than consistent with
their knowledge of the event even if the question is
bizarre.    Id. at 418-19.    Interviewer bias can skew
results as a child will often attempt to reflect the
interviewer’s interpretation of events, particularly when
more    than   one    interviewer    shares   the    same
presuppositions.    Id. at 422.    If the interviewer’s
original perception is incorrect, this can lead to high
levels of inaccurate recall.

     Here, these children were taken from their homes on
the basis of a five-year-old’s statements, and were
placed under the sole supervision and influences of Donna
Jordan, Jean Brock, and Ellen Kelson--interviewers who


                           -28-
had decided at the outset that all the children had been
sexually abused.

     The FBI agents were also strong authority figures--
the kind of high status interviewers described by Dr.
Underwager--with preconceived notions about the facts of
this case, and they did not interview the children until
after the children had been with Jordan for over a week.
Agent Van Roe testified that he had explained his status
as an FBI agent at the initial interview and told the
children that an FBI agent was like a policeman on the
reservation.    Van Roe testified that Jean Brock and
foster mother Donna Jordan remained in the room while FBI
agents conducted the initial interviews of the children
on January 19 and 21, 1994--over a week after the
children were taken from their parents’ homes, told by
Jordan and Brock that this was because their uncles had
done bad things to them, and put into the care of Jordan.

     At this initial interview, R.R. handed investigator
Hudspeth a group of papers which reflected things she had
previously told foster mother Donna Jordan which Jordan
had written down for her. Thus, agents received a frame
of reference which could produce bias, even before the
start of the interviews.

     3.   Repeated questions can produce a change of
answers as the child may interpret the question as “I
must not have given the correct response the first time,”
and the child’s answers may well become less accurate
over time.    Id. at 419-20.    Repeated questioning of
victims often results over time (or even within a single
interview) in an inaccurate report.

     A three-month hiatus existed from the time R.R. was
taken from her home to the time of her complaints of sex
abuse.   These children were repeatedly questioned by
Brock, Jordan, Kelson, doctors and law enforcement
agents. By March 1994, the children’s accounts of the
familial sexual abuse were so skewed that the district
court refused to admit these interviews into evidence.

     4. Younger children are more susceptible to
suggestibility than older children, especially in the
context of stereotyping. Id. at 407, 417. Stereotypes
organize memory, sometimes distorting what is perceived
by adding thematically congruent information that was not
perceived, and stereotype formation interacts with


                           -29-
        suggestive questioning to a greater extent for younger
        rather than older children. Id. at 416-17. Studies have
        shown children are particularly susceptible to an
        interviewer’s “bad man” stereotype, and when repeatedly
        told the actor is a bad man, they may construct a false
        account of an event often embellished with perceptual
        details in keeping with the stereotype. Id.

             Here, various persons told the children from the
        beginning that the defendants were “bad” and that it
        would not be “safe” to go home until the defendants were
        gone. The children remained isolated from their families
        and community.14 The “bad man-uncle” theme was replayed
        again and again, including at trial.15 In addition, the
        children testified via closed circuit television based on
        their “fear” of defendants.        While closed circuit
        television, other security procedures at the courthouse,
        and disallowing the children to see any family members
        before the trial did not amount to trial error, those
        procedures served to reinforce the children’s “bad men”
        stereotype of their uncles, the defendants.




  14
   Kelson testified at a hearing in May 1994 that the children
felt isolated and withdrawn and missed the nurture of their
mothers and extended families; “[O]ne of the children said they
felt trapped, isolated.” (Trial Tr. Vol. V at 694.)
   15
    Although the children testified that Jordan, their foster
mother, told them their uncles had been doing bad things to them
and talked to them of the abuse, Jordan testified she had never
talked to the children about their uncles or told them that their
uncles were bad or did bad things. She subsequently acknowledged
she had told the children a lot of bad things had happened to them,
had gotten very specific about what these bad things were, and had
told them this was not their fault.          Jordan testified she
deliberately tried to avoid discussing the sex abuse with the
children or influencing them, but acknowledged that it had been her
experience as a foster parent that children are easily susceptible
to suggestion and influence by adults.


     Brock also denied ever telling the children that their uncles
were bad or explaining to them why they were being taken away. The
children’s versions and other evidence provided ample foundation
for the expert’s proposed opinion.

                                   -30-
     5. The use of anatomical dolls or sexually explicit
materials will not necessarily provide reliable evidence
as children may be encouraged to engage in sexual play
with dolls, etc., even if the child has not been sexually
abused, and further no normative data exists on non-
abused children’s use of dolls. See id. at 423-25.

     The second law enforcement (January 21) interview
took place at the United States Attorney’s Office with
the Assistant United States Attorney present.        The
children saw an anatomical drawing of a penis. Later,
Kelson utilized play therapy and art media, and
apparently dream journals. Dr. Underwager testified that
exposing children to these materials suggests to them
that the authority figure wants information about sex.

     6. “[A] major conclusion is that contrary to the
claims of some, children sometimes lie when the
motivational structure is tilted toward lying.” Id. at
433. Patterns of bribes for disclosures, implied threats
in nondisclosures, or insinuations that peers have
already told investigators of suspects’ abusive behavior
are highly suggestive. Id. at 423. Children will lie
for personal gain, and material and psychological rewards
need not be of a large magnitude to be effective. Id.

     Here, the children were promised picnics, vacations
and even a chance to return home as a reward for their
“truthful,” successful testimony at trial.     They were
told they could not go home until their uncles had been
successfully removed. Experts are critical of this kind
of reward as “bribing” children to “admit” abuse or give
abuse-consistent answers, such as promising to end the
interview, or giving them other tangible rewards. Such
techniques affect the accuracy of children’s reports.

     7. Dr. Underwager testified regarding the concept
of “cross-germination” among the children. Children in
studies and in actual cases have shown that peer pressure
or interaction with other children has effects on the
accuracy of their reporting:      they will provide an
inaccurate response when other children have “already
told” in order to go along with a peer group or be part
of the crowd. See id. at 423; see also Stephen J. Ceci,
Jeopardy in the Courtroom:     A Scientific Analysis of
Children’s Testimony 146-50 (American Psych. Assoc. 1st
ed. 1995). In several cases where convictions have been
overturned, children were shown to have talked with one


                           -31-
another about the abuse, sometimes even siblings
questioned siblings to get them to “open up” or provide
incriminating evidence. Id. at 150-51.

     As mentioned above, Kelson reported that she talked
to the group in “talk circle”; that the group seemed to
have discussed an agenda among themselves each week and
that T.R. was the ringleader.        Testimony at trial
reflects that Jordan, Kelson, and FBI agents spoke to and
questioned the children in groups about the abuse.

     The Ceci-Bruck article’s summary       relating   to
interviewing of children stated:

          The studies on interviewing provide
     evidence that suggestibility effects are
     influenced by the dynamics of the interview
     itself, the knowledge or beliefs possessed by
     the interviewer (especially one who is
     unfamiliar with the child), the emotional tone
     of the questioning, and the props used.
     Children attempt to be good conversational
     partners by complying with what they perceive
     to be the belief of their questioner. Their
     perceptions, and thus their suggestibility,
     may be influenced by subtle aspects of the
     interview such as the repetition of yes-no
     questions, but their compliance is evidenced
     most    fully   in   naturalistic    interview
     situations in which the interviewer is allowed
     to question the child freely; this gives the
     child the evidence to make the necessary
     attributions about the purposes of the
     interview and about the intents and beliefs of
     the interviewer.

          Observations of interactions in the legal
     arena highlight the fact that children who
     testify in court are not interviewed in
     sterile conditions such as those found in many
     of the experiments we have reviewed. They are
     usually questioned repeatedly within and
     across sessions, sometimes about an ambiguous
     event by a variety of interviewers, each with
     their own agenda and beliefs.     Children are
     sometimes interviewed formally and informally
     for many months preceding an official law-
     enforcement interview with anatomical dolls,


                           -32-
     providing an opportunity for the child to
     acquire scripted and stereotypical knowledge
     about what might have occurred.


Id. at 425.   The authors conclude with these comments:


     Our review of the literature indicates that
     children can indeed be led to make false or
     inaccurate   reports   about  very   crucial,
     personally experienced, central events.

. . . .

    Therefore, it is of the utmost importance to
    examine the conditions prevalent at the time
    of a child’s original report about a criminal
    event in order to judge the suitability of
    using that child as a witness in the court.
    It seems particularly important to know the
    circumstances under which the initial report
    of concern was made, how many times the child
    was   questioned,  the   hypotheses  of   the
    interviewers who questioned the child, the
    kinds of questions the child was asked, and
    the consistency of the child’s report over a
    period of time. If the child’s disclosure was
    made in a nonthreatening, nonsuggestible
    atmosphere, if the disclosure was not made
    after repeated interviews, if the adults who
    had access to the child prior to his or her
    testimony are not motivated to distort the
    child’s recollections through relentless and
    potent suggestions and outright coaching, and
    if the child’s original report remains highly
    consistent over a period of time, then the
    young child would be judged to be capable of
    providing much that is forensically relevant.
    The absence of any of these conditions would
    not in and of itself invalidate a child’s
    testimony, but it ought to raise cautions in
    the mind of the court.


Id. at 432-33.




                           -33-
Rouse, 100 F.3d at 569-72.      Other references also supported the
reliability of the expert’s testimony.16


       The majority does not dispute that the district court erred by
excluding the offer of proof, but affirms on the basis that
excluding the testimony amounted to harmless error.     The majority
notes the differing views on the offer of proof set forth in the
prior, vacated panel opinion at 100 F.3d at 566-74, 582-85.     I now
examine this harmless error contention.


       B.   THE ERROR WAS NOT HARMLESS


       In determining whether the district court’s rejection of the
offer of proof of the defendants’ expert constituted harmless
error, we rely on Federal Rule of Criminal Procedure 52(a).     That
rule states:


            (a)     Harmless Error.       Any error, defect,
       irregularity   or  variance   which   does not affect
       substantial rights shall be disregarded.


We consider, then, whether the court’s error substantially affected
the defendants’ rights and whether it influenced or had more than
a slight influence on the jury.      See Crane v. Kentucky, 476 U.S.
683 (1986); United States v. DeAngelo, 13 F.3d 1228 (8th Cir.
1994); United States v. Copley, 938 F.2d 107 (8th Cir. 1991).    The



  16
    The majority opinion discusses the trial court’s rejection of
Dr. Underwager’s attempt to buttress his testimony by references to
other research and writings.    Maj. Op. at 17-18.     The majority
expresses concern that admitting “other theories and writings would
result in a battle of experts that could confuse or even mislead
the jury.” Id. at 18. There is no battle of experts here. Even
the prosecution’s expert agreed that children’s memories may be
falsified. Rouse, 100 F.3d at 572.

                                  -34-
crucial issue at trial in this case was whether the children
testified to actual events or from implanted memory.                          The excluded
evidence directly addressed this issue and its exclusion deprived
the defendants of substantial rights.


       The majority considers the evidentiary error harmless because
the jury received evidence about interviewing techniques, learned
of the social influences affecting the alleged victims and listened
to    them   respond       to    the    prosecution’s         leading    questions.       In
addition, the jury heard Dr. Underwager generally describe how
adults can influence children’s memories and the impact of these
influences on the alleged victims’ credibility.                         Further, defense
counsel relied on Dr. Underwager’s testimony to argue the theory of
implanted     memory.           Thus,    the    majority       asserts      that   the   jury
received      an    “informed          basis    on    which     to   make    its   ultimate
determinations as to the victims’ credibility,” and that trial
testimony accords with the children’s “free recall.”                           Maj. Op. at
19.


       I disagree for five reasons.                    First, in my reading of the
record,      no    “free    recall”       statements       by    the     children    exist.
Instead, all early statements were subject to adult influences.


       Second, the jury needed the excluded expert testimony to
render a truly informed judgment about whether the children’s
testimony     resulted          from    implanted      memory.         According    to   Dr.
Underwager and authoritative writings discussed above, the foster
home persons, the social workers, the FBI and even the district
judge     used     or   permitted         potentially         coercive       investigative
questioning and techniques.                    Thus, if investigators used these
techniques, even with the best of motives, they potentially induced
false or faulty memories and testimony.                       The jury, however, would


                                               -35-
not   recognize   these   possibly    coercive        influences   without   the
assistance of the excluded expert testimony.


      Third, one juror “may have believed that long delay and
persistent, lengthy questioning of young children would likely
produce truthful testimony.”    Rouse, 100 F.3d at 572, n.15.             As our
previous panel opinion concluded, however, “the contrary has been
well established,” id., and this misunderstanding exemplified “the
desirability and necessity of expert opinion on the subject as
offered by Dr. Underwager.”     Id.         The juror’s belief, based on an
assumption contrary to the expert’s scientific opinion, reflected
the jury’s need for assistance to understand the evidence regarding
the suggestibility of children’s memory.


      Fourth, the majority, even if not a ground for a new trial,
acknowledges that the record contains some evidence of prejudice by
one or more jurors against Native Americans.              See Maj. Op. at 20-
21; see also Rouse, 100 F.3d at 577-78.           If even slight prejudice
existed in one or more jury members, evidence challenging the
credibility of the children’s testimony against the Native American
defendants   would   be   important     to     help    overcome    any   juror’s
prejudice.


      Finally, as a result of the exclusion of the expert’s opinion,
the defense counsel’s argument about implanted memories of the
young witnesses represented empty words unsupported by evidence.
The majority refers to argument of the defense counsel:


      The questions were asked over and over and over again
      and, when the story came out the way the adults wanted
      it, then the children were rewarded . . . . [W]hen [J.
      R.] was testifying . . . did you notice [the prosecutor]
      . . . phrased most of the questions in a manner in which
      she would get a positive response, a “Yes” answer. . . .


                                     -36-
      [Dr. Underwager] talked about the influence that people
      have on children, when they interview kids. He talked
      about memory, the process of reconstruction, implantation
      of memory, play-therapy, worthless. . . . The children
      only felt comfortable answering “Yes” or “No”.       They
      didn’t show memory of the events.       The FBI Agent’s
      diagram that he used, the drawing of the male body with
      the penis drawn in, what did that tell the kids that he
      wanted to talk about?      Everything was calculated to
      produce some sort of compliance with these kids . . . .


Maj. Op. at 19.      Because the district court erroneously excluded
the expert’s   opinion    that     suggestive   interrogation   techniques
potentially tainted the children’s testimony, defense counsel’s
statement reflected only arguments of counsel, not evidence.            With
Dr. Underwager’s      testimony,    however,    counsel’s   argument   could
constitute substance over rhetoric.


II.   CONCLUSION


      For the foregoing reasons, the evidentiary error in question
was not harmless; rather, its exclusion substantially harmed the
defendants.   The circumstances of this case raise a close question
as to the validity of the verdict and, therefore, I would grant the
defendants a new trial.


      A true copy.


           Attest:


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




                                     -37-
