                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 12-2437
                        ___________________________

                             United States of America

                        lllllllllllllllllllll Plaintiff - Appellee

                                           v.

                          Gilbert Oliver Crow Eagle, Jr.,
                          also known as Leonard Oliver

                      lllllllllllllllllllll Defendant - Appellant
                                      ____________

                     Appeal from United States District Court
                     for the District of South Dakota - Pierre
                                  ____________

                          Submitted: December 13, 2012
                             Filed: January 30, 2013
                                   [Published]
                                 ____________

Before WOLLMAN, BYE, and BENTON, Circuit Judges.
                          ____________

PER CURIAM.

      Gilbert Oliver Crow Eagle, Jr. was convicted on two counts of aggravated
sexual abuse of a child and two counts of abusive sexual contact, in violation of 18
U.S.C. §§ 1153, 2244(a)(1), 2246(2)(A), 2246(2)(C), 2246(3), and 2241(c). Crow
Eagle appeals, claiming the district court1 abused its discretion in admitting evidence
of prior sexual assaults, and excluding evidence of past sexual allegations by the
victims and a witness. He also attacks the sentence. Having jurisdiction under 28
U.S.C. § 1291, this court affirms.

                                          I.

      Crow Eagle’s victims are two of his nieces, Shannon and Dusti Oliver. At trial,
Shannon testified that one night – sometime in the 1991 to 1993 timeframe, when she
was eight to nine years old – he rubbed Shannon’s vaginal area over her clothing.
Dusti testified that from 1998 to 1999, when she was six to seven years old, Crow
Eagle rubbed her vaginal area over her clothing on numerous occasions. The abuse
escalated to sexual intercourse, followed by intimidation to keep Dusti silent.

        Carlene Oliver, Jerilee Oliver, and Jamie Oliver testified about similar abuse
by Crow Eagle. His younger sister, Carlene, testified that he began sexually abusing
her when she was six or seven. It occurred more times than she could remember until
she turned 18. Jerilee, Crow Eagle’s niece, stated that he sexually abused her on more
than 20 occasions beginning when she was seven years old. Jamie, yet another niece,
testified that he tried to sexually assault her when she was 11.

       Over Crow Eagle’s objection, the district court admitted this testimony. The
court also prohibited him from introducing evidence of alleged prior false sexual-
assault accusations from Shannon, Dusti, and Jerilee. The jury found Crow Eagle
guilty.2 The district court sentenced Crow Eagle to 192 months’ imprisonment.


      1
       The Honorable Roberto A. Lange, United States District Judge for the District
of South Dakota.
      2
       Crow Eagle was acquitted on Count 5 – an alleged sexual assault of Britney
Sharpfish.

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                                           II.

      Crow Eagle contends that the district court abused its discretion by allowing
evidence of prior sexual assaults against other family members. “In a criminal case
in which a defendant is accused of a sexual assault, the court may admit evidence that
the defendant committed any other sexual assault.” Fed. R. Evid. 413(a). “In a
criminal case in which the defendant is accused of child molestation, the court may
admit evidence that the defendant committed any other child molestation.” Fed. R.
Evid. 414(a). The purpose of this evidence is to show the defendant’s propensity to
commit a similar act of sexual assault. United States v. Hollow Horn, 523 F.3d 882,
888 (8th Cir. 2008).

      Propensity evidence is admissible if the defendant’s conduct is similar to the
charged conduct, as long as the evidence is not unfairly prejudicial. Id. The district
court must first determine if the prior sexual assault is relevant and then whether it
would be more probative than prejudicial under Rule 403. United States v. Gabe, 237
F.3d 954, 959 (8th Cir. 2001); Fed. R. Evid. 403.

                                           A.

      This propensity evidence “may be considered on any matter to which it is
relevant.” Fed. R. Evid. 413(a), 414(a). “A relevant sexual assault is one committed
in a manner similar to the charged offense.” United States v. Rodriguez, 581 F.3d
775, 796 (8th Cir. 2009). There is no time limit on the admission of prior-sexual-
assault evidence. Hollow Horn, 523 F.3d at 888-89.

       Here, the district court correctly ruled that the testimony of Carlene, Jamie, and
Jerilee Oliver is relevant due to the similarity of the sexual abuse. When allegedly
abused, each was a younger family member of Crow Eagle between six and eleven
years old. Moreover, the methods of assault were similar, all involving inappropriate

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touching. See Gabe, 237 F.3d at 959 (“Both were young girls of six or seven years
at the time of the offenses; both were related to Gabe; and the sexual nature of the
offenses was similar.”). The district court correctly ruled that the testimony of
Carlene, Jerilee, and Jamie Oliver was relevant under Rule 413 and Rule 414.

                                          B.

       The district court properly ruled this testimony to be more probative than
prejudicial. Rule 403 is designed to exclude instances of unfair prejudice (evidence
suggesting a decision on an improper basis), keeping in mind that the purpose of
Rules 413 and 414 is to permit propensity evidence. Gabe, 237 F.3d at 959-60. The
district court’s balance of the prejudicial and probative impacts of evidence is
accorded “great deference.” United States v. Pumpkin Seed, 572 F.3d 552, 558 (8th
Cir. 2009).

       The district court limited the number of Rule 413 and Rule 414 witnesses and
included cautionary jury instructions with respect to the testimony from Carlene,
Jerilee, and Jamie Oliver. Only testimony from victims who were children when
abused was admitted; testimony from adult victims was barred due to dissimilarity
from the charges here (the district court judge remarking that “at some point it does
seem enough is enough”). This limitation and the cautionary jury instructions
indicate that the district court properly balanced the probative value of the evidence
with the risk of unfair prejudice. See United States v. Carter, 410 F.3d 1017, 1022
(8th Cir. 2005) (“The district court, moreover, decided to limit the number of
witnesses that the government could offer and to give the jury a cautionary instruction
with respect to how the witnesses’ testimony should be used.”). “Moreover,
‘[b]ecause the evidence [of prior abuse] was so similar to [one of] the acts charged,
it would not be so facially inflammatory as to unduly divert attention from the issues
of the case.’” Gabe, 237 F.3d at 960 (alterations in original) (quoting United States
v. Butler, 56 F.3d 941, 944 (8th Cir.1995)).

                                         -4-
      The district court did not abuse its discretion by admitting the testimony of
Carlene, Jamie, and Jerilee Oliver.

                                          III.

       Crow Eagle sought to introduce evidence of prior (allegedly false) sexual-
assault allegations from Shannon, Dusti, and Jerilee Oliver. He argues that the
district court abused its discretion by excluding this evidence under Rule 412. Rule
412 prohibits the admission of evidence intended to “prove that a victim engaged in
other sexual behavior” or “prove a victim’s sexual predisposition” in cases involving
sexual-assault charges. Fed. R. Evid. 412(a)(1), (2). “In the absence of an applicable
exception, Rule 412 ‘specifically bars admission of evidence of the past sexual
behavior of an alleged rape victim.’” United States v. White Buffalo, 84 F.3d 1052,
1054 (8th Cir. 1996) (quoting United States v. Blue Horse, 856 F.2d 1037, 1040 (8th
Cir. 1988)).

       There are several exceptions to this rule of exclusion. See Fed. R. Evid.
412(b). Relevant here is “evidence whose exclusion would violate the defendant’s
constitutional rights.” Fed. R. Evid. 412(b)(1)(C). Crow Eagle contends that the
exclusion of the prior allegations violates his Sixth Amendment right of
confrontation. The right of confrontation, however, does not permit the impeachment
of a victim with (alleged) prior false allegations if their probative value is weak.
United States v. Tail, 459 F.3d 854, 860 (8th Cir. 2006); United States v. Bartlett, 856
F.2d 1071, 1088-89 (8th Cir. 1988).

       The district court correctly noted that Crow Eagle offers no evidence of the
falsity of Dusti, Shannon, and Jerilee Oliver’s allegations of sexual assault by other
men. He relies on the long time span between the alleged assaults and reports, as well
as the lack of prosecution. “A conclusion that [the] unadjudicated accusation[s] . . .
[were] untrue, however, would have required the jury to rely on sheer speculation.”

                                          -5-
United States v. Withorn, 204 F.3d 790, 795 (8th Cir. 2000). The evidence of falsity
is weak, and admission of this evidence “would have triggered mini-trials concerning
allegations unrelated to [Crow Eagle]’s case, and thus increased the danger of jury
confusion and speculation.” Tail, 459 F.3d at 861. Similar to the defendant in Tail,
Crow Eagle provided “no firm proof of the falsity” of the previous allegations. Id.

       Crow Eagle’s claim that he had no opportunity to question Dusti, Shannon, and
Jerilee Oliver’s credibility about the allegations of sexual abuse by others is not
supported by the record. Crow Eagle’s attorney questioned them in pretrial hearings,
asking about other incidents of abuse.

    The district court did not abuse its discretion or violate Crow Eagle’s Sixth
Amendment rights by excluding witnesses’ prior sexual-assault allegations.

                                        IV.

       Crow Eagle asserts that the district court abused its discretion by imposing a
192-month sentence, within the advisory sentencing guideline range of 188 to 235
months. “[W]hen a district court is aware of its discretion to depart downward and
elects not to exercise this discretion, then that decision is unreviewable.” United
States v. Watson, 480 F.3d 1175, 1177 (8th Cir. 2007). To the extent that Crow Eagle
requested a variance, the denial is reviewed “for reasonableness, a standard similar
to the abuse of discretion standard.” United States v. Garlewicz, 493 F.3d 933, 938
(8th Cir. 2007). Because Crow Eagle’s sentence was within the guideline range, the
sentence is presumptively reasonable on appeal. Rita v. United States, 551 U.S. 338,
341 (2007).

      Crow Eagle requested a downward departure or variance from the guideline
range due to his age, 58, and health concerns. The district court demonstrated
awareness of its discretion to depart downward by recognizing that the guidelines are

                                         -6-
advisory, not mandatory. The decision to not depart is unreviewable. See Watson,
480 F.3d at 1177. Further, the district court considered all relevant factors in arriving
at its sentence, including Crow Eagle’s age and medical condition. The court
recommended that he serve his sentence in a federal medical center. The district
court did not abuse its discretion because it weighed the appropriate factors and did
not commit a clear error of judgment. United States v. Williams, 624 F.3d 889, 896-
97 (8th Cir. 2010) (“An abuse of discretion occurs when: (1) a court fails to consider
a relevant factor that should have received significant weight; (2) a court gives
significant weight to an improper or irrelevant factor; or (3) a court considers only the
appropriate factors but in weighing them commits a clear error of judgment.”).

                                     *******

      The judgment of the district court is affirmed.
                     ______________________________




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