Appeal from the United States District Court for the District of Montana. D.C. No. CR-93-00053-1-JDS. Jack D. Shanstrom, District Judge, Presiding.
Before: James R. Browning, William C. Canby, Jr., Circuit Judges and Marilyn L. Huff*fn* , District Judge. Opinion by Judge Huff.
Daniel Rivera appeals his jury conviction for aggravated sexual abuse of a fifteen-year old girl and for being a felon in possession of a firearm. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.
Daniel Rivera, a 45-year-old member of the Crow Tribe of Indians, lived in Pryor, Montana, within the Crow Indian Reservation. In the early morning hours of May 27, 1993, a 15-year-old Crow Indian girl, "Natasha",*fn1 went to Rivera's house with her boyfriend, Ronald Roundface. Natasha had never before met Rivera, who lived in the home with Roundface's sister.
Soon after arriving at Rivera's home, Natasha asked Roundface to give her a ride home. However, because Roundface was too intoxicated to drive, he told her to wait until morning. Roundface then passed out on the couch and Natasha went to sleep as well.
Around 6:00 a.m., Natasha tried, without success, to awaken Roundface to take her home. Rivera offered to drive Natasha to her home, a distance of approximately two miles. Natasha agreed and got into a pickup truck with Rivera. Rivera began driving toward Natasha's house. It is at this point that their stories diverge.
According to Rivera's testimony, he and Natasha had consensual sex. He testified that in the car, he asked Natasha if she wanted to have sexual intercourse and she agreed. Rivera and Natasha then rode to the Sundance grounds just outside Pryor, Montana. While there, Rivera and Natasha engaged in consensual sexual intercourse. There were no threats, no resistance and no struggle. After intercourse, Rivera claimed Natasha sat in the pickup truck for approximately 30 minutes during which time the two discussed her child, her school and other matters. Afterwards, Rivera stated he drove to Natasha's residence, pulled into the driveway and dropped her off.
Natasha's account of the incident differed dramatically. According to her testimony, she and Rivera did not speak as the truck proceeded toward her home. When they reached Natasha's street, Rivera failed to turn down the lane which led to her home and she immediately became alarmed. Natasha asked why Rivera had not stopped, and he replied that he needed to check some minnow traps.
Natasha became frightened and once again asked Rivera to take her home. She then made numerous attempts to get out of the vehicle, but Rivera forcibly restrained her each time, pulling her back into the truck by her clothing or hair. Rivera then stopped at the Sundance Grounds and went around to the back of the truck. Fearing for her safety, Natasha armed herself with what she described as a "little metal pipe." At trial, she identified a tire gauge found in Rivera's truck as the little metal pipe in question.
When Rivera got back into the truck, he asked Natasha to have sex with him. She refused and tried to escape from the truck. Rivera grabbed Natasha by the shoulder and pulled her by the hair back into the truck. Natasha stabbed at Rivera with the tire gauge. A struggle ensued. Rivera wrestled the gauge away from Natasha and shouted "shut the fuck up, bitch." Rivera then threatened to kill Natasha's family.
Finally, Natasha quit struggling. Rivera ordered her to take off her jeans and underpants, which she did. Rivera then disrobed and told Natasha to lay down on the seat. He penetrated Natasha's vagina digitally two times. Rivera then penetrated Natasha with his penis and had intercourse with her. After having intercourse, Rivera and Natasha put their clothes back on. Thereafter, the two engaged in "negative" conversation for approximately thirty minutes. A few minutes after 7:00 a.m., Rivera took Natasha home. Natasha immediately told her mother what had happened to her.
Natasha initially told her mother she did not wish to report the incident because she feared Rivera would retaliate against their family. She and her mother spent the morning taking care of business at the Crow Agency. Later in the day, Natasha's mother persuaded her to see a counselor. The counselor, in turn, referred her to a doctor for examination.
Dr. Carol Greimann, a physician at the hospital in Hardin, examined Natasha. At trial, Dr. Greimann testified that Natasha was distraught but able to describe what had occurred. After taking Natasha's history, Dr. Greimann physically examined Natasha and collected specimens for a rape kit. During her examination, Dr. Greimann noted the presence of non-motile sperm, which was consistent with the time reported for the rape. Based upon the history which Natasha gave, Dr. Greimann's observation of Natasha's emotional state and her physical examination of Natasha's injuries, Dr. Greimann concluded that Natasha had been forced to have intercourse against her will.
That same day, a federal warrant was issued for Rivera's arrest. On May 28, 1993, BIA criminal investigators stopped Rivera who was driving his pickup truck. Upon approaching the vehicle, the officer ordered Rivera to place his hands on the steering wheel. Rivera complied, and when the officer opened the door to the truck, he saw a pistol with the hammer cocked on Rivera's lap. Rivera was then taken into custody.
On June 17, 1993, the Grand Jury returned an Indictment charging Rivera with aggravated sexual abuse in violation of 18 U.S.C. §§ 1153, and 2241(a), and with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). Rivera pled not guilty to both counts of the Indictment and was tried before a jury on August 30, 1993. The jury returned a verdict of guilty on both counts the next day.
On November 5, 1993, the court sentenced Rivera at level 37, Criminal History Category VI. Rivera received a sentence of 400 months on Count I and 120 months on Count II, to be served concurrently ...