## Facts

- Timothy Duane Arcoren, an American Indian, was prosecuted in federal court for sexual offenses occurring on the Rosebud Indian Reservation under 18 U.S.C. §§ 1153, 2241(a)(1), 2244, and 2243.
- On September 17, 1989, after drinking and returning from a dance, Arcoren was at his apartment with several people, including Charlene Bordeaux, his wife’s fifteen-year-old niece, and later his separated, pregnant wife, Brenda Brave Bird.
- Evidence credited by the jury showed that after Brave Bird arrived and discovered Arcoren and Bordeaux in the bedroom, Arcoren used physical and verbal abuse, restrained the women in the bedroom for hours, and forced sexual acts while one woman was made to watch the other.
- The next morning Brave Bird reported to a police officer and medical personnel that Arcoren had beaten and sexually assaulted her and Bordeaux, and she later gave similar testimony to a grand jury.
- At trial, Brave Bird recanted and testified in a manner favorable to Arcoren, minimizing or denying the alleged abuse.
- The government offered a psychologist to explain battered-woman syndrome (BWS) generally and how abuse may be associated with recantation and returning to the abuser; the expert did not diagnose Brave Bird and did not directly opine on her truthfulness.
- A jury convicted Arcoren of two counts of aggravated sexual abuse, one count of abusive sexual contact, and one count of sexual abuse of a minor; the district court imposed Guidelines sentences.

## Issues

1. Whether the district court erred by admitting general expert testimony about BWS under Federal Rule of Evidence 702 to help explain the complaining witness’s recantation, where the expert did not diagnose the witness and the case did not involve a self-defense theory.
2. Whether the evidence was sufficient to support the convictions for aggravated sexual abuse and abusive sexual contact.
3. Whether error affecting the sexual abuse of a minor count required vacatur and a new trial on that count.
4. Whether the district court correctly applied the Sentencing Guidelines to the affirmed counts.

## Decision

- The Eighth Circuit affirmed the admission of the BWS expert testimony as helpful to the jury under Rule 702 and not an improper direct credibility opinion.
- The court affirmed the convictions for aggravated sexual abuse and abusive sexual contact, finding sufficient evidence when viewed in the light most favorable to the government.
- The court vacated the conviction for sexual abuse of a minor and remanded for a new trial on that count due to error specific to that charge.
- The court affirmed the Guidelines sentences on the affirmed convictions; any sentence tied to the vacated count was set aside by operation of the remand.

## Legal Principles

- Expert testimony is admissible under Federal Rule of Evidence 702 if specialized knowledge will assist the trier of fact to understand evidence or determine a fact in issue.
- The prosecution may use general BWS testimony as “social framework” evidence to help jurors evaluate counterintuitive conduct such as recantation, so long as the expert does not diagnose the witness or directly opine that the witness is truthful.
- Expert testimony must not usurp the jury’s credibility function; describing general behavioral patterns is permissible, while direct “truth-telling” opinions are not.
- Sufficiency review in criminal cases requires viewing the evidence in the light most favorable to the government and affirming if a rational juror could find the elements proved beyond a reasonable doubt.
- When trial error affects only a particular count, an appellate court may affirm unaffected convictions while vacating and remanding for a new trial on the defective count.

## Conclusion

The Eighth Circuit held that general BWS expert testimony may be admitted to explain a victim’s recantation without diagnosing the victim or vouching for credibility, affirmed Arcoren’s aggravated sexual abuse and abusive sexual contact convictions and related sentences, and vacated the sexual abuse of a minor conviction for a new trial.


Arcoren v. United States, 929 F.2d 1235 (8th Cir. 1991)