                United States Court of Appeals
                    FOR THE EIGHTH CIRCUIT
                         ___________

                      No. 97-2831
                       ___________
United States of America,   *
                            *
    Plaintiff - Appellee    *
                            *
v.                          * Appeal from the United
                            * States District Court for
John M . Eagle,             * the District of South
                            * Dakota.
    Appellant               *
                            *


                         ___________

              Submitted: December 9, 1997
               Filed: February 18, 1998
                      ___________

Before McMILLIAN, MAGILL, and MURPHY, Circuit Judges.
                      ___________

MURPHY, Circuit Judge.

    John M. Eagle appeals his conviction for aggravated
sexual abuse of a child in violation of 18 U.S.C. §
2241(c) and § 1153.         He argues that there was
insufficient evidence to support the jury’s verdict and
also that he should be entitled to a new trial because of
the improper admission of hearsay statements and of a
prior conviction for a sexual offense involving a minor
and the exclusion of certain favorable evidence.       We
affirm.


                              1
    The charge in the indictment alleged that Eagle
sexually abused K.W., an 8 year old Indian girl during
the summer or fall of 1996. The evidence at trial showed
that Eagle was living in Peever, South Dakota with his
common law wife Sherrie Bretzke when her niece K.W. came
to live in the household in 1994. Some time towards the
end of October or early November in 1996, Mary
Christopherson who was K.W.’s teacher observed that the
girl had become withdrawn and her performance in school
had begun to slip. Christopherson attempted to get K.W.
to talk about what was bothering her, but she was
unsuccessful until one day K.W. was missing from the
school bus she regularly took home. When Christopherson
learned K.W. had gone to her grandmother’s home instead,
she asked why and the girl responded that her uncle
(Eagle) was mean to her. Christopherson then recommended
that K.W. receive counseling.

    K.W. met with Linda Crawford, a social worker who
specializes in child abuse, physical abuse, and neglect
matters.   Crawford testified that during an interview
K.W. said that her uncle had touched her. Dr. Patrick
James Duey, a pediatrician, than examined K.W. and found
that she had physical features which could be attributed
to contact or trauma to the vaginal and anal regions,
including a scar which he testified was caused by an
external source.    Dr. Duey testified that the medical
evidence was consistent with K.W.’s allegations of sexual
abuse.

    K.W. testified at trial and was subject to cross
examination by Eagle. She told about incidents where he
instructed her to come into Bretzke’s bedroom and lie

                            2
down on the bed with him. He touched her “ch’na”1 with
his finger several times and attempted to take off her
clothes. She also testified that while they were on the
bed he laid his stomach across her “ch’na.” She stated
that she did not like being touched there and that it
made her feel weird. K.W. circled the vaginal area on an
anatomically correct picture of a naked girl when asked
to mark the area where Eagle had touched




    1
    Linda Crawford testified at trial that "ch’na” is a Lakota word meaning vagina.
                                       3
her. She also identified the genital area on a picture
of a man when asked what part of Eagle’s body she saw,
and she said that part was “big” when the touchings
occurred.   K.W. said that Eagle told her not to tell
anyone about what happened.

    K.W. gave a physical description of Eagle and
referred to him by name during her testimony, but she did
not point him out when asked to identify him in the
courtroom. She acknowledged on redirect examination that
she was afraid of seeing “John” and that she was afraid
to say whether she saw him in court. She also testified
that she feared Eagle would do the same thing to her
again. The district court2 made a finding in its denial
of Eagle’s Rule 29(b) and 33 motions that K.W. exhibited
an obvious fear of the defendant while she was
testifying.

    The jury heard Gilbert Kohl, a criminal investigator
for the Bureau of Indian Affairs, testify that Eagle had
pleaded guilty in May of 1987 to a federal crime of
“carnal knowledge,” or “engaging in sex with a child
under sixteen.” 18 U.S.C. § 2032 (repealed 1986). The
victim of that crime was K.W.’s aunt, Sherrie Bretzke,
who was 14 years old in 1987 while Eagle was then 40.

    The jury convicted Eagle of aggravated sexual abuse
of K.W., and the court sentenced him to 182 months
imprisonment.   Eagle claims on appeal that the court
erred in denying his motions for a judgment of acquittal


      2
        The Honorable Charles B. Kornman, United States District Judge for the
District of South Dakota.
                                      4
based on sufficiency of the evidence and for a new trial.
Fed. R. Crim. P. 29(b) and 33. He argues the court erred
in refusing to allow D.E., the cousin of K.W., to testify
that she knew about activities engaged in by K.W. and her
sister that could have caused the physical conditions
observed by Dr. Duey. This evidence was excluded by the
trial court because of Eagle’s failure to comply with the
notice requirements of Fed. R. Evid. 412(c). Eagle also
claims that the court erred by admitting hearsay
statements by Linda Crawford and




                            5
Katie Boley from their interviews with K.W. as well as
evidence that he had been convicted in 1987 of a sex
crime involving a minor.

    Eagle claims that the district court erred in denying
his motion for dismissal because of insufficiency of the
evidence. Fed. R. Crim. P. 29. A violation of 18 U.S.C.
§ 2241(c) is established when an individual “knowingly
engages in a sexual act with another person who has not
attained the age of 12 years . . . or attempts to do so
. . . .”    18 U.S.C. 2246(2) defines “sexual act,” in
pertinent part, for the purposes of §2241 as:

    (A) the penetration, however slight, of the anal
    or genital opening of another by hand or finger
    or by any object, with an intent to abuse,
    humiliate harass, degrade or arouse or gratify
    the sexual desire of any person; or

    (B) the intentional touching, not through the
    clothing, of the genitalia of another person who
    has not attained the age of 16 years with an
    intent to abuse, humiliate, harass, degrade, or
    arouse or gratify the sexual desire of any
    person.

    Eagle claims that the evidence at trial was
insufficient to convict because K.W.’s testimony did not
establish that a “sexual act” within the meaning of the
statute was committed against her and she did not
adequately identify him as the perpetrator of the abuse.
When reviewing the denial of a motion to overturn the
verdict based on sufficiency of the evidence, the court
“views the evidence in the light most favorable to the
government, . . . and accept[s] all reasonable inferences
drawn from the evidence that support the jury’s verdict.”

                            6
United States v. Scott, 64 F.3d 377, 380 (8th Cir. 1995)
(citing United States v. Erdman, 953 F.2d 387, 389 (8th
Cir. 1992).    The verdict is upheld if supported by
substantial evidence “irrespective of any countervailing
testimony that may have been introduced.” United States
v. Lincoln, 630 F.2d 1313, 1316-17 (8th Cir. 1980); see
United States v. Snelling, 862 F.2d 150, 153 (8th Cir.
1988).




                           7
    The evidence at trial supports a finding that K.W.
was the victim of a “sexual act” under the statutory
definition. Dr. Duey testified that K.W. had injuries
that were consistent with sexual abuse, and there was
evidence that these injuries were not present before she
moved in with her aunt.     K.W. herself testified that
Eagle told her to come into the bedroom where she found
him naked.   He then started to remove her clothes and
touched her on her “ch’na.”     She said that Eagle was
“big” when this happened and that it hurt. K.W. circled
the female genital area to point out where she had been
touched, and the male genital area to point out what part
of the defendant she saw. This was sufficient to
establish that she was the victim of a “sexual act” which
the statute defines as intentional touching of the
unclothed genitalia. 18 U.S.C. § 2246(2)(D). See United
States v. St. John, 851 F.2d 1096, 1099 (8th Cir. 1988)
(conviction for incest by sexual intercourse under 18
U.S.C. § 1153 upheld after ten year old victim testified
to “the bad touch,” “hump[ing],” and “secret” acts, and
marked   an  anatomically   correct   diagram;   victim’s
courtroom confusion and unresponsiveness was attributable
to the intimidating courtroom environment). Cf. United
States v. Plenty Arrows, 946 F.2d 62, 65 (8th Cir. 1991)
(victim’s testimony did not have the degree of
specificity to establish penetration, as the statute then
required).

    There was also substantial evidence to establish that
Eagle was the abuser of K.W. There was testimony from
one specialist in interviewing child victims of sexual
abuse that K.W. had identified Eagle as the perpetrator.
While K.W. did not point out Eagle at trial, she

                            8
testified that “John” was the perpetrator and that he
touched her vagina with his finger, and Linda Crawford
testified that K.W. had told her that her uncle was the
person who had touched her. K.W. also described Eagle in
some detail from the stand, and in denying the post trial
motion the district court noted that she exhibited an
“obvious fear of the defendant during her testimony”.
The trial court and the jury had an opportunity to
evaluate K.W.’s demeanor and credibility, and based on
the strength of the evidence against Eagle, the court did
not err by denying the motion for acquittal based on
sufficiency of the evidence. See St. John, 851 F.2d at
1099.




                            9
    Eagle argues alternatively that the district court
abused its discretion in denying his motion for a new
trial in the interest of justice. Fed. R. Crim. P. 33;
see United States v. Hiveley, 61 F.3d 1358, 1361 (8th
Cir. 1995). The court should “balance the alleged errors
against the record as a whole and evaluate the fairness
of the trial” to determine whether a new trial is
appropriate. United States v. McBride, 862 F.2d 1316,
1319 (8th Cir. 1988).      The district court properly
reviewed the evidence and considered the fairness of the
trial, and did not abuse its discretion in denying
Eagle’s Rule 33 motion.

    Eagle contends that the district court erred by
excluding the testimony of K.W.’s cousin who said she had
seen K.W. and her sister digitally penetrate each
another. Eagle argues that this evidence was essential
to his defense because it shows an alternative source for
injuries to K.W. The rules of evidence for a criminal
case involving sexual misconduct require advance notice
before sexual information about the alleged victim can be
offered. Under Rule 412 evidence of “specific instances
of sexual behavior by the alleged victim offered to prove
that a person other than the accused was the source of .
. . injury or other physical evidence” is admissible,
provided that the offering party complies with the
procedures set out in the rule.           Fed. R. Evid.
412(b)(1)(A) and 412(c). A party seeking to offer such
evidence must:

        (A)    file a written motion at least 14 days
    before     trial   specifically   describing   the
    evidence   and stating the purpose for which it is
    offered     unless the court, for good cause

                             10
    requires a different time for filing or permits
    filing during trial; and

        (B) serve the motion on all parties and
    notify the alleged victim or, when appropriate,
    the alleged victim’s guardian or representative.

Fed. R. Evid. 412(c)(1).

    Eagle filed his Rule 412 motion only six days before
trial and failed either to




                           11
notify K.W. of his intent to use the evidence at trial or
to seek assistance from the government or the court in
order to provide notice. The district court denied the
motion before trial, but offered to review any further
filings if Eagle attempted to comply with the rule. It
also gave him an opportunity to show cause why he should
have been excused from filing a timely motion.        The
government offered to serve notice of the evidence on
K.W., and the court left open the possibility of an in
camera hearing under the rule. Eagle nevertheless made
no further attempt to show why he should be able to
introduce the evidence or to move for a continuance so he
could comply with the rule.

    Eagle now contends that he had good cause for his
failure to comply with the notice requirements because he
had not become aware of the evidence until the week
before he filed his motion and it would have taken him
several more days to develop the testimony because the
declarant is a minor and difficult to contact.         He
further argues that the court should have deemed K.W.
notified by his notice to the prosecutor who he claims
represents her interests and that he was unaware of her
whereabouts.

    The record reveals that Eagle filed his motion well
beyond the rule’s 14 day deadline, and the failure to
comply with the time limits would be sufficient grounds
to uphold the district court’s decision.    See   United
States v. Rouse, 111 F.3d 561, 569 (8th Cir. 1997);
United States v. Eagle Thunder, 893 F.2d 950, 954 (8th
Cir. 1990); United States v. Provost, 875 F.2d 172, 177
(8th Cir. 1989). Eagle’s contention that compliance with

                           12
the rule was impossible because of his late discovery of
the evidence is undercut by the fact that the information
was contained in materials disclosed to Eagle almost five
weeks before his motion and by the court’s finding that
Bretzke disclosed the information to a criminal
investigator two months prior to that.       The district
court did not abuse its discretion in concluding that
Eagle’s failure to act on the information did not excuse
his non-compliance with the deadlines in Rule 412(c).
Moreover, the court gave him additional opportunity to
try to introduce the evidence, and he failed to take
advantage of it. He has not shown that the court erred
in




                           13
excluding the evidence or that it violated his
constitutional rights. See Eagle Thunder, 893 F.2d 950,
954 (8th Cir. 1990); Rouse, 111 F.3d at 569.

    Eagle also argues that the court erred by allowing
Linda Crawford and Katie Boley to testify under Fed. R.
Evid. 803(24) to hearsay statements made by K.W. during
interviews.    Such evidence was admissible under the
circumstances in this case, see St. John, 851 F.2d at
1097-98, if the government complied with the procedural
requirements of Rule 803(24). Eagle argues that it did
not because it did not notify him about the particulars
of the hearsay statements, including the name and address
of the declarants. See Fed. R. Evid. 803(24). Because
Eagle failed to object at trial to the content of the
notice, he has waived review of its sufficiency except
for plain error and there was none here. United States
v. Belfany, 965 F.2d 575, 579 (8th Cir. 1992).

    The government’s Rule 803(24) notice indicated its
intent to offer “the substance of statements made by the
victim during the respective witnesses’ interviews with
[the victim].” It claims that the written statements it
provided to Eagle in discovery contain the substance of
K.W.’s statements and that the notice adequately pointed
him to those materials.     The notice was served on the
defendant one month before trial, and the defense had
ample opportunity to request more information from the
government or to move for more detailed notice.      Even
though the government notice was “admittedly slim on the
particulars” and it would have been preferable to have
given   more   detailed    information   concerning   the
statements, it was not plain error for the district court

                           14
to find the government’s notice sufficient.

    Eagle protests the introduction of evidence of his
prior conviction for the federal crime of carnal
knowledge, which involves sexual abuse of a minor. The
district court ruled the evidence admissible under Fed.
R. Evid. 413 and 414,3 and determined that




      3
       The record indicates that the victim of Eagle’s earlier offense was 14 when the
conduct occurred. Rule 414 defines “child” as someone below the age of fourteen, but
neither party has discussed the applicability of the rule in terms of the victim’s age.
                                          15
its probative value did not substantially outweigh any
unfair prejudice to Eagle. Fed. R. Evid. 403(b). Eagle
argues this was an abuse of discretion because the
probative value was outweighed by the danger the jury
would draw an improper inference that he had a propensity
to commit sex crimes against minors. He also says the
conviction’s probative value was minimal because the
crime had occurred 10 years before and involved sex with
the individual now his common law wife.

    When a defendant is accused of an offense of sexual
assault, Rule 414 provides that evidence of prior child
molestation crimes is admissible and Rule 413 permits
evidence of prior sexual assaults. Under both rules the
court must conduct a Rule 403 balancing test prior to
admitting the evidence. See United States v. Enjady, 96-
2285, 1998 WL 17344, *4 (10th Cir. Jan. 20, 1998) (Rule
413); United States v. LeCompte, 97-1820, 1997 WL 781217
*3 (8th Cir. December 22, 1997) (Rule 414); United States
v. Sumner, 119 F.3d 658 (8th Cir. 1997) (Rule 414); see
also United States v. Larson, 112 F.3d 600, 604 (2d Cir.
1997).   The district court conducted a balancing test
when the testimony was offered, and its decision to admit
the conviction was not an abuse of discretion. Cf.
Sumner, 119 F.3d at 661-62 (failure to conduct Rule 403
balancing).    Sherrie Bretzke testified at trial on
Eagle’s behalf, explaining that she is now his common law
wife, and this gave the jury the opportunity to discount
prejudice the information might otherwise have caused.
Moreover, Rule 414 allows evidence of such a crime “for
its bearing on any matter to which it is relevant.” Fed.
R. Evid. 414; see LeCompte, 1997 WL 781217 at *3.
Lastly, Eagle’s claim that the conviction had little

                           16
probative value because it occurred ten years before is
seriously weakened by the fact that he had spent six of
those years incarcerated for that crime. See LeCompte,
1997 WL 781217 at *2.

    Eagle’s citation to United States v. LeCompte, 99
F.3d 274 (8th Cir. 1996) for the proposition that
evidence offered under Rule 414 must also comply with
Rule 404




                          17
(prior bad acts evidence) is incorrect. In LeCompte the
court analyzed evidence of prior acts of child sexual
assaults by the defendant under Rule 404 because the
government had failed to file a timely Rule 414 motion,
not because such evidence is only admissible if it
fulfills the requirements under both rules. Id. at 274.
On remand the government filed a timely Rule 414 motion,
and the evidence was held admissible under that rule.
See LeCompte, 1997 WL 781217 at *1. In the instant case,
the district court properly held that the evidence of
Eagle’s prior sexual misconduct crime was admissible.
See id. at *2.

    For the reasons already discussed, we affirm the
judgment of the district court in all respects.

A true copy.

    Attest:

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




                           18
