                                                                              F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                        UNITED STATES COURT OF APPEALS
                                                                               OCT 14 2004
                                   TENTH CIRCUIT
                                                                          PATRICK FISHER
                                                                                    Clerk

 UNITED STATES OF AMERICA,

          Plaintiff-Appellee,
 v.                                                         No. 04-5001
                                                      (D.C. No. 03-CR-03-K)
 MAURICE PRENTICE KENT,                            (Northern District of Oklahoma)

          Defendant-Appellant.


                                ORDER AND JUDGMENT*


Before TACHA, Chief Judge, McWILLIAMS, Senior Circuit Judge, and PORFILIO,
Senior Circuit Judge.**


      In a two-count indictment filed in the United States District Court for the Northern

District of Oklahoma, Maurice Prentice Kent (“defendant”) was charged as follows: in

Count 1, he was charged with breaking into a dwelling house of an adult female, C. S., on

November 3, 2002, with an intent to commit some crime therein and that the breaking and


      *
         This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. This court generally disfavors the
citation of orders and judgments; nevertheless, an order and judgment may be cited under
the terms and conditions of 10th Cir. R. 36.3.
      **
         Neither party requested oral argument. After examining the briefs and the
appellate record, this three-judge panel has determined unanimously that oral argument
would not be of material assistance in the determination of this appeal. See Fed. R. App.
P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral
argument.
entering was committed by “forcefully bursting and breaking” an outer door of the house,

located in the Northern District of Oklahoma, in Indian Country, in violation of 18 U.S.C.

§§ 1151 and 1153, and 21 Okla. Stat. §§ 1431 and 1436; and, in Count 2, he was charged

with knowingly causing C. S. to engage in a sexual act by force, in violation of 18 U.S.C.

§§ 1151, 1153, 2241 and 2246. A jury convicted the defendant on both counts. In a

motion for new trial, the defendant claimed his conviction on Count 2 should be vacated

because the alleged victim, C. S., who had testified at trial that the defendant had forcibly

raped her, had, since the trial, recanted her testimony and now said that her “encounter”

with the defendant was consensual. An evidentiary hearing was held on the motion for a

new trial, at which time C. S. was defendant’s sole witness. She then testified that her

“encounter” with the defendant on November 3, 2002, was consensual. Supplemental

briefs were thereafter filed. The district court later in a written order denied the motion

for a new trial. The defendant was then sentenced to imprisonment for 121 months on

each count, to be served concurrently, to be followed by three years supervised release on

Count 1 and five years of supervised release on Count 2, also to be served concurrently.

A fine of $1,500.00 was also imposed.

       On appeal, defendant challenges his conviction on Count 2, claiming that the

district court abused its discretion in denying his motion for new trial on Count 2, based

on C. S.’s post-trial “recantation.” There is no challenge, as we understand it, to

defendant’s conviction on Count 1, or the sentence imposed thereon.


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       Limited background facts will put the single issue raised in this appeal in focus.

The defendant and C. S. are both Osage Indians and C. S., a legal secretary, lives in

Indian Country in the Northern District of Oklahoma. The defendant and C. S. were not

“strangers” and had been “dating,” off and on, for several years, but had supposedly

ended their relationship in September, 2002. In this general connection, the defendant is

the father of C. S.’s one-year old daughter. It was the government’s theory of the case

that, on the night here in question, the defendant “kicked in” C. S.’s front door, shattering

the doorjamb, entered the house, and that he later raped her. In support thereof, C. S.

testified at trial that the defendant broke into her house in the early morning hours on

November 3, 2002, and, after much quarreling and bickering between the two, he forcibly

raped her. C. S. also testified at the trial that, after the defendant raped her, she eventually

ran out into her yard, naked, where she retrieved some clothing from her car. She

testified that the defendant then came out of the house and “tackled her.” This was

witnessed by a neighbor who called the police. The police arrived at the scene as the

defendant was taking C. S. back into her home. The defendant told the police that his

encounter with C.S. was consensual. However, at trial, the defendant exercised his

constitutional right not to testify. The only defense witness was defendant’s mother.

       As indicated, after his conviction on both counts of the indictment, the defendant,

in a motion for a new trial on Count 2, stated that after the trial C. S. had “recanted” and

that she now agreed that theirs was a consensual encounter. At the hearing on the motion


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for new trial, C. S., as a defense witness, so testified. The defendant did not testify at the

hearing. At that same hearing, the government called a witness, C. S.’s cousin, who

testified that C. S. told him that she “changed her mind” after the defendant was

convicted, because she heard that his sentence was going to be about seventeen years in

prison, and that earlier she had not realized the length of the sentence he was possibly

going to receive.

       The denial of a motion for new trial, based on newly discovered evidence, is

renewed for “abuse of discretion.” United States v. Combs, 267 F.3d 1167, 1176 (10th

Cir. 2001). A district court abuses its discretion when its decision is “arbitrary,

capricious, whimsical or manifestly unreasonable.” Id. See also, United States v.

Youngpeter, 986 F.2d 349, 356 (10th Cir. 1993) (a motion for a new trial based on newly

discovered evidence is not regarded with favor, and should be granted only with great

caution); and United States v. Ahern, 612 F.2d. 507, 509 (10th Cir. 1980) ( “[r]ecantation

of testimony given under oath at trial is not looked upon with favor. Indeed, such is

generally looked upon with downright suspicion”).

       The district court held an evidentiary hearing on defendant’s motion for a new

trial, as well it should have, and concluded that there was “no basis for choosing one

testimony over the other and under the applicable standard, the trial testimony trumps.”

Reviewing the record, we cannot say that the district court’s decision was “arbitrary,

capricious, whimsical or manifestly unreasonable.” Where so-called “new evidence” is


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the recantation of the victim’s trial testimony, the trial court must first be satisfied that the

challenged testimony was false. United States v. Pearson, 203 F.3d 1243, 1274 (10th Cir.

2000). In concluding that C. S.’s trial testimony was true, and not false, the district court

did not abuse its discretion. The “circumstances” of the case, relied on by defendant as

indicating that C. S. testified falsely at trial, are not such as would compel the district

court to grant defendant’s post-trial motion to vacate his conviction on Count 2 and order

a new trial.

       Judgment affirmed.



                                                           ENTERED FOR THE COURT

                                                           Robert H. McWilliams
                                                           Senior Circuit Judge




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