United States v. Robert Thomas Aims Back

588 F.2d 1283 3 Fed. R. Evid. Serv. 937 UNITED STATES of America, Plaintiff-Appellee, v. Robert Thomas AIMS BACK, Defendant-Appellant. No. 77-2662. United States Court of Appeals, Ninth Circuit. Jan. 4, 1979. 1 William George Harris (argued), Missoula, Mont., for defendant-appellant. 2 Robert T. O'Leary, U. S. Atty. (argued), Butte, Mont., for plaintiff-appellee. 3 Appeal From The United States District Court For The District of Montana, Great Falls Division. 4 Before MERRILL and TANG, Circuit Judges, and TAYLOR, District Judge. * TAYLOR, District Judge: 5 Appellant, a member of the Blackfeet Indian Tribe, has appealed from his conviction of raping Jenny Lynn Makes Cold Weather, an Indian woman, in violation of 18 U.S.C. §§ 2031 and 1153. The issues raised by appellant are: (1) whether the trial court erred in permitting Beverly Jackson, another Indian woman, to testify in regard to appellant's activities relating to his intercourse with her, forcibly and without her consent, on the same night and subsequent to the offense with which appellant was charged; (2) whether the trial court erred in admitting into evidence a statement made by appellant to an investigating agent…

Appellant, a member of the Blackfeet Indian Tribe, has appealed from his conviction of raping Jenny Lynn Makes Cold Weather, an Indian woman, in violation of 18 U.S.C. §§ 2031 and 1153. The issues raised by appellant are: (1) whether the trial court erred in permitting Beverly Jackson, another Indian woman, to testify in regard to appellant’s activities relating to his intercourse with her, forcibly and without her consent, on the same night and subsequent to the offense with which appellant was charged; (2) whether the trial court erred in admitting into evidence a statement made by appellant to an investigating agent while appellant was in custody without a showing that appellant knowingly and intelligently waived his Miranda rights; and (3) whether the trial court erred in failing to dismiss the indictment for failure of the prosecution to establish by the evidence an essential element of the crime charged, i. e., penetration.

After carefully reviewing the entire record in this case, we believe that serious prejudicial error was committed at trial and that appellant is entitled to a new trial.

The indictment against appellant, Robert Aims Back (Robert), charged that on or…

dissenting:

I dissent. I agree with the district court that Jackson’s testimony as to her rape by appellant was properly admitted as part of the sequence of events during which the charged offense was committed. The witness was asked to describe what had occurred that evening; testimony respecting her rape served to put the charged offense in its factual setting. It was not proof that the accused had misbehaved on another occasion, from which the jury was invited to infer that he had misbehaved on this occasion. It was proof of what he actually did on this occasion. The evidence thus is clearly admissible under Rule 404(b), Federal Rules of.Evidence, being offered for a purpose other than proof of character. It was relevant because it bore directly on the charged offense.

With relevance thus established the question is whether under Rule 403, Federal Rules of Evidence, the prejudice to the accused outweighed the probative value attendant on presenting a clear picture of the circumstances under which the charged offense was committed. On that question I do not find this case distinguishable from United States v. Sangrey, 586 F.2d 1312 (9th Cir.) Under the standards set in Sangrey…