                    United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                   ___________

                                   No. 04-1834
                                   ___________

United States of America,               *
                                        *
             Appellee,                  *
                                        * Appeal from the United States
      v.                                * District Court for the
                                        * District of South Dakota.
Emil Earl Little Dog,                   *
                                        *
             Appellant.                 *
                                   ___________

                          Submitted: November 17, 2004
                              Filed: February 22, 2005
                                    ___________

Before SMITH, BEAM, and BENTON Circuit Judges.
                           ___________

SMITH, Circuit Judge.

       Emil Earl Little Dog was indicted on four counts of aggravated sexual abuse,
two counts of sexual contact, and one count of obstruction of justice. Little Dog was
found guilty on all but one of the sexual contact counts. He was sentenced1 to 360
months’ imprisonment, three years of supervised release, and a special assessment of
$600. Little Dog seeks reversal of his conviction based upon five alleged district
court errors. We affirm.


      1
       The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.
                                    I. Background
      Three minor females, siblings of Little Dog's wife, Justine Grindstone, made
allegations of sexual abuse against Little Dog. Grindstone’s mother, Patricia Red
Legs, had twelve children. South Dakota social services removed the children from
the Red Legs' custody due to the parents' chronic alcoholism. Tribal social services,
for some period of time, placed the girls, nine-year old MRL, fourteen-year old LRL,
and seven-year old KRL,2 with Little Dog and Grindstone at their home at Old Bear
Soldier Housing.

       MRL claimed that Little Dog sexually abused her “more times than she could
count.” According to MRL, the first penetration occurred in Little Dog’s bedroom
when she was about ten years old. She indicated other similar incidents followed, in
the bedroom, in Little Dog’s car and truck, and in remote, rural areas near the
Messiah Church. MRL identified some of these areas with photographs provided by
F.B.I. Special Agent Kelly Kenser.

      MRL testified that the abuse occurred often and usually while Grindstone was
away from home. The abuse did not cease after MRL moved to another relative's
home because Little Dog would pick her up and continue to take her to remote areas.
MRL was so traumatized by the abuse that she attempted suicide to escape from Little
Dog. After her first interview with Kenser, MRL routinely wet the bed, something she
had never done before. MRL also testified that while placed at New Beginnings
adolescent treatment facility, she feared Little Dog would find and harm her so she
began to sleep on the couch near the staff room. MRL ran away from New
Beginnings to avoid having to testify in court when she learned Little Dog would be
present.




      2
       At trial, the jury acquitted Little Dog of the charges related to KRL. The facts
underlying that charge will not be recounted.

                                         -2-
       Medical evidence in the case was inconclusive. Dr. Richard Kaplan, former
Medical Director at the Center on Child Abuse at the Children’s Hospital in Sioux
Falls, South Dakota, testified that MRL’s gynecological examination was normal. He
indicated that a normal vaginal finding was not unusual in sexual assault cases.

       The evidence regarding Little Dog's abuse of LRL came from two other of her
sisters, VYB and MRL2. The girls recalled that the morning after a night of heavy
drinking at Little Dog’s residence, they observed Little Dog standing over LRL while
her pants were pulled down to her knees. At the time, LRL was unconscious from
excessive drinking. VYB claimed she saw Little Dog put his fingers inside of LRL’s
vagina or anus and move them. MRL2 recalled the events a bit differently but also
described seeing Little Dog with his fingers inside LRL's vagina and recalled that
LRL was unconscious at the time. LRL testified that she had no recollection of the
event.

      Little Dog was initially charged with three counts of aggravated sexual abuse
and one count of sexual contact. A first superseding indictment was filed, adding an
obstruction of justice charge based upon evidence that Little Dog attempted to
influence the perception of MRL's allegations through a cellmate3 who had indirect
contact with MRL. A second superseding indictment was later filed, adding an


      3
         Little Dog was placed in a cell with Richard Red Fox who had two younger
sisters in the New Beginnings residence with MRL. Little Dog asked Red Fox to
write a letter to his sisters that would help him. Red Fox declined but agreed to pass
a letter to his sisters if Little Dog wrote one, which Little Dog did. At trial, Little Dog
admitted that he intended the letter to instruct Red Fox’s sisters to tell authorities that
MRL told the sisters she hated Grindstone and Little Dog, and that MRL had lied
about the sexual allegations. Little Dog claimed that although he wrote the letter, he
did not intend or instruct Red Fox to give it to his sisters. Red Fox admitted he wrote
a letter to his sisters to accompany Little Dog’s letter. This letter advised his sisters
not to acquiesce to Little Dog’s request, but to stick to their story in court.


                                           -3-
additional count of aggravated sexual abuse of a child and one count of sexual
contact. Before trial, Little Dog made a motion to compel a gynecological exam of
MRL. The trial court denied the motion.

       On the morning of the second day of the trial, the district court discovered it
had failed to swear in the jury. With counsel in chambers, the court said “the jury
selection process yesterday was something I have not seen previously in the almost
nine years I’ve been on the bench . . . . With all the extra commotion going on in the
courtroom yesterday of course we had to take a recess and I neglected to have the jury
sworn. The panel was sworn but the 13 members were not sworn.” The district court,
upon reviewing relevant case law, determined that it was error not to swear in the jury
following voir dire. However, the court found that the error was harmless. The district
court then informed counsel that it would swear in the jury. Little Dog moved for a
mistrial, the motion was denied.

       Little Dog filed a motion under Fed. R. Crim. P. 8(a) to sever the obstruction
of justice charge from the sexually related charges.4 The district court denied this
motion. Little Dog renewed this motion at the close of the government’s case-in-chief
and at the close of all the evidence, but each time it was denied. Little Dog was found
guilty on all but one count of sexual contact involving KRL. He filed a motion for
judgment of acquittal or, in the alternative, a motion for a new trial. The district court
denied both motions. The district court sentenced Little Dog to 360 months’
imprisonment, three years of supervised release, and a special assessment of $600.


      4
       The applicable portion of Fed. R. Crim. P. 8(a) states:

      The indictment . . . may charge a defendant in separate counts with two
      or more offenses if the offenses charged . . . are of the same or similar
      character or are based on the same act or transaction, or are connected
      with or constitute parts of a common scheme or plan.


                                           -4-
       On appeal, Little Dog argues that the district court committed five reversible
errors including: (1) denying his motion for judgment of acquittal based on
insufficient evidence; (2) failing to swear in the jury until after opening statements;
(3) denying his motion to sever his obstruction of justice count from his sexual abuse
counts; (4) refusing to permit his medical expert to conduct a gynecological
examination; and (5) refusing to instruct the jury that the crime of obstruction of
justice requires specific intent.

                                      II. Discussion
                   A. Little Dog’s Motion for Judgment of Acquittal
                             Based on Insufficient Evidence
        Little Dog contends that "this case is one of those rare ones where the evidence
presented by the government with regard to sexual abuse and sexual contact was
insufficient for a jury to conclude [Little Dog] was guilty beyond a reasonable doubt."
Little Dog bases this contention upon various inconsistencies and credibility concerns
with the girls' accounts. However, as we have often noted, it is properly the province
of a jury to resolve matters of witness credibility. United States v. Cole, 380 F.3d 422,
425 (8th Cir. 2004) (citing United States v. Enriquez, 201 F.3d 1072, 1074 (8th Cir.
2000). Our role is to determine whether a rational jury would have no choice but to
reasonably doubt the existence of an element of a crime charged. United States v.
Williams, 181 F.3d 945, 950 (8th Cir. 1999). This is not such a case. The record facts
indicate the jury properly considered and weighed the evidence and even acquitted
Little Dog on one of the charges. MRL, LRL, VYB and MRL2 gave accounts that,
if believed, would establish a sufficient factual basis for Little Dog's conviction. The
inconsistencies pointed out by Little Dog do not make it unreasonable for a jury to
find him guilty of the charges on the evidence presented.5


      5
       Little Dog claims that because the district court instructed the jury that to
convict, the government had to prove Little Dog engaged in sexual contact with LRL
between July 2, 2001, and July 23, 2002, the sexual contact must have occurred

                                          -5-
           B. Failure to Swear in the Jury Until After Opening Statements
       Little Dog contends that the failure to properly swear in the jury should result
in a mistrial or, at the very least, striking the testimony of witnesses who testified
prior to the swearing-in. This issue raises a question of law which we review de novo.
Laws v. Armontrout, 863 F.2d 1377, 1381 (8th Cir.), cert. denied, 490 U.S. 1040
(1989). We find no merit in Little Dog’s argument.

       As the district court acknowledged, it was error not to administer the oath to
the jurors before the beginning of the trial. The swearing-in of a jury is important
because at that point jeopardy attaches. Crist v. Bretz, 437 U.S. 28, 38 (1978). In the
absence of prejudice caused by the delay in administering the oath, the error is
harmless. Cooper v. Campbell, 597 F.2d 628 (8th Cir.), cert. denied, 444 U.S. 852
(1979) (determining that no prejudice was shown by the delay); United States v.
Hopkins, 458 F.2d 1353, 1354 (5th Cir. 1972) (holding that no prejudice was shown
by the delayed swearing in of the jury); United States v. Martin, 740 F.2d 1352, 1358
(6th Cir. 1984) (determining that a defendant’s rights were not violated by the district
court’s failure to administer the oath following voir dire). Little Dog cites only
unpersuasive, non-analogous state law cases to support his view that the district court


during this time period. Consequently, Little Dog contends his conviction must be
reversed because the evidence only showed sexual abuse during 2000. Little Dog is
incorrect. For an analogous situation, see United States v. Joyner, 539 F.2d 1162,
2264–65 (8th Cir. 1976) (holding a variance between the date in the indictment and
the proof is not fatal if proof shows the acts charged were committed on a date within
the statute of limitations and prior to the return date of the indictment). Here, the
district court instructed the jury that the evidence had to establish beyond a
reasonable doubt that the offenses were committed on a date or dates near the alleged
dates. Little Dog also argues that jury instruction fifteen made the date of the offense
an element of the crime, therefore making it difficult for him to prepare his defense.
For good reason, the district court rejected this claim. See United States v. Stuckey,
220 F.3d 976, 982 (8th Cir. 2000) (holding that the date of the offense is not an
element of the charge).

                                          -6-
was obligated to declare a mistrial. Little Dog fails to prove the district court’s error
prejudiced his defense.

         C. Little Dog’s Motion to Sever His Obstruction of Justice Count
                           From His Sexual Abuse Counts
       Little Dog argues that joinder of the obstruction charge under Fed. R. Crim. P.
8(a) was improper because that charge was not based on the same act or transaction
as the other counts, nor was it connected with, or part of a common scheme or plan.
Alternatively, Little Dog indicates that even if joinder is proper, the district court
should have severed because he established prejudice under Fed. R. Crim. P. 14. We
review a decision to join counts de novo. United States v. Boyd, 180 F.3d 967, 981
(8th Cir. 1999). Little Dog is incorrect.

      Broad interpretation of Fed. R. Crim. P. 8(a) is encouraged for the efficient
administration of justice. Haggard v. United States, 369 F.2d 968, 973 (8th Cir. 1966)
(decided in context of multiple defendants joined in the same indictment). We have
recognized that:

      Prejudice may result from a possibility that the jury might use evidence
      of one crime to infer guilt on the other or that the jury might cumulate
      the evidence to find guilt if the crimes were considered separately. On
      the other hand, a defendant does not suffer any undue prejudice by a
      joint trial if the evidence is such that one crime would be probative and
      admissible at the defendant’s separate trial of the other crime.

United States v. Davis, 103 F.3d 660, 981-82 (8th Cir. 1996).

      Little Dog’s obstruction charge is connected to, and interrelated with the sexual
abuse charges. If the district court had severed the charges, evidence of Little Dog’s
attempt to tamper with or influence witnesses would have been admissible in his
sexual abuse trial to show criminal intent and state of mind. In a separate trial for

                                          -7-
obstruction, evidence of Little Dog’s sexual abuse of MRL would be required to show
his motive for seeking to influence Red Legs' sisters into giving false testimony about
MRL. Therefore, the "evidence is such that one crime would be probative and
admissible at the defendant’s separate trial of the other crime." Id.; see also United
States v. Moeckly, 769 F.2d 453, 465 (8th Cir. 1985) (holding that the district court
properly denied severance because the same proof of the smuggling conspiracies
would have been required in separate trials).

      To avoid prejudice, the district court can always grant severance. Haggard, 369
F.2d at 973. A denial to sever is only reversed if the defendant can show severe
prejudice. United States v. Boyd, 180 F.3d 967, 982 (8th Cir. 1999). "Severe prejudice
occurs when a defendant is deprived of an appreciable chance for an acquittal, a
chance that [the defendant] would have had in a severed trial." United States v.
Koskela, 86 F.3d 122, 126 (8th Cir. 1996). Little Dog contends he was prejudiced
because he did not want to testify to the obstruction charge but did want to testify to
the sexual charges. That is not enough to require severance. In United States v.
Jardan, 552 F2d 216, 220 (8th Cir. 1977), we denied a motion to sever as speculative
when the defendant indicated his defense to count one was stronger than for count
two. We cited Baker v. United States, 401 F.2d 958 (D.C. Cir. 1968), with approval:

      [N]o need for a severance exists until the defendant makes a convincing
      showing that he has both important testimony to give concerning one
      count and strong need to refrain from testifying on the other. In making
      such a showing, it is essential that the defendant present enough
      information—regarding the nature of the testimony he wishes to give on
      one count and his reasons for not wishing to testify on the other—to
      satisfy the court that the claim of prejudice is genuine and to enable it
      intelligently to weigh the considerations of economy and expedition in
      judicial administration against the defendant’s interest in having a free
      choice with respect to testifying.




                                         -8-
Id. at 977 (internal quotations omitted); see also Closs v. Leapley, 18 F.3d 574, 578
(8th Cir. 1994) (holding prejudice sufficient to require separate trials where a
defendant wants to testify in one but not the other may be established only by a
persuasive and detailed showing regarding the testimony that the defendant would
give on the one count he wishes severed and the reason why he cannot testify on the
other counts). Little Dog failed to provide the trial judge sufficient information that
he had important testimony to give on the sexual abuse offense but a strong need to
refrain from testifying on the obstruction count. On this record, we are also
unconvinced.

          D. Refusing to Permit Little Dog’s Medical Expert to Conduct a
                        Gynecological Examination of MRL
       Little Dog argues that his expert medical witness, Dr. Scott Berry, should have
been permitted to conduct a gynecological exam of MRL in order to enhance Dr.
Berry’s credibility with the jury. Little Dog also argues that in refusing to grant his
expert an opportunity to examine MRL, the district court denied him a fair trial. We
review the denial of a motion to compel examination of a child for abuse of
discretion. United States v. Summer, 119 F.3d 658, 663 (8th Cir. 1997). The
defendant must convince the court that expert services are necessary to present an
adequate defense. United States v. Sailer, 552 F.2d 213, 215 (8th Cir. 1977). We find
no abuse of discretion.

      Little Dog's arguments are insufficient to prove an additional exam was
necessary for him to present an adequate defense. The record contained gynecological
examination data for MRL consistent with Little Dog's defense. The examination was
normal. Dr. Berry was provided with a tape of MRL's medical examination and
agreed with the conclusion. We see no unfairness to Little Dog in not requiring MRL
to submit to an additional physical examination to confirm what one exam had
already shown—that the child showed no evidence of physical injury. Dr. Berry's



                                         -9-
credibility is unaffected in a case such as this, where there is no controversy about the
ultimate medical results. The district court's ruling did not deny Little Dog a fair trial.

           E. Refusal to Instruct the Jury that the Crime of Obstruction of
                             Justice Requires Specific Intent
       Finally, Little Dog contends that the district court erred in not instructing the
jury that obstruction of justice requires specific intent. We review the district court
instructions in their entirety. Failure to give a requested instruction is not erroneous
if the court’s charge, as a whole, correctly instructs the jury on the applicable law.
United States v. Mitchell, 463 F.2d 187, 191 (8th Cir. 1972). We will reverse only if
the error affected the substantial rights of the parties. Jones v. Swanson, 341 F.3d 723,
734 (8th Cir. 2003). We hold Little Dog’s substantial rights were unaffected by the
district court's refusal to give the specific instruction he requested.

       Little Dog correctly notes that the charge of obstruction of justice requires a
jury instruction on specific intent. However, the instruction given by the district court
in this case did so. The court gave Jury Instruction Eighteen which provides:

                                INSTRUCTION NO. 18

      3. That by urging, suggesting, or instructing Tessie and Trish Red Fox
      to give false or misleading testimony at his upcoming trial, the
      defendant corruptly endeavored to obstruct the due administration of
      justice.

      As used above and in this case, the word endeavored means to
      knowingly and intentionally try to obtain testimony which the defendant
      would have known would be materially false, his idea being to hinder
      or obstruct the prosecution of the federal case pending against him.

(emphasis added). Little Dog argues that although he admitted participating in the
preparation of the letter, he denied ever intending or knowing that it would actually

                                           -10-
be delivered. Reviewing the district court’s actual jury charge, we hold that it
correctly instructed the jury on the law.

                                 F. Career Offender
       Prior to oral argument, Little Dog filed a motion for supplemental briefing to
address potential issues raised by the Supreme Court's decision in Blakely v.
Washington, 124 S. Ct. 2531 (2004) and our decision in United States v. Mooney, No.
02-3388, 2004 WL 1636960 (8th Cir. July 23, 2004), vacated and reh'g en banc
granted, August 6, 2004. Since oral argument, the Supreme Court issued its ruling in
United States v. Booker, 125 S. Ct. 738 (2005). Based upon our review of the record
and Booker, we deny the motion for supplemental briefing. Little Dog was sentenced
as a career criminal under U.S.S.G. § 4B1.1, resulting in a Criminal History Category
VI. In his motion, Little Dog argued that because of Booker, the district court had
discretion to not sentence within the Guideline range, and contends that the court
would have sentenced him differently if the Guidelines were not mandatory. He cites
the following statement of the district court in the sentencing transcript:

      [T]hese criminal career enhancements are tough propositions. I’ve
      always thought those kind of things were stupid, kind of a mindless
      thing like they have in California, three strikes and you’re out. This isn’t
      a baseball game or something. . . . It’s just a mindless approach to
      justice, is what it is. . . .

       However, the district court set Little Dog's criminal history category based
upon the undisputed fact that he had been convicted of two prior violent felonies.
Such a fact does not need to be established by proof beyond a reasonable doubt.
Booker, 125 S.Ct. at 756. The record is clear that the district court chose not to
downwardly depart from the Guidelines understanding its discretion to do so. In his
motion, Little Dog omits a crucial section of the sentencing transcript, in which the
district court concluded:


                                         -11-
      I do not intend to downwardly depart or to upwardly depart. I have not
      given notice to that effect and I don’t think under the facts here that
      either an upward departure or a downward departure would be
      appropriate. I am convinced that I do have the authority to downwardly
      depart from a career criminal status in the appropriate case, but this is
      not such a case.

We find no discord between the district court’s decision and Booker.

                                 III. Conclusion
      For the foregoing reasons, we affirm the decision of the district court.
                       ____________________________




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