## Facts

- Maurice Hollow Horn was accused of sexually touching two young relatives during an overnight gathering in Cherry Creek, South Dakota, in Indian country.
- One child, age 7, testified that while she was sleeping inside the house, Hollow Horn approached wearing only underwear and touched her genital area and inner thigh; she kicked him and he stopped.
- A second child, age 10, testified that later the same night, while she slept in a tent outside, Hollow Horn touched her breast and genital area over her clothing; she told him to stop and he did.
- The charged conduct was prosecuted federally as two counts of abusive sexual contact with minors under federal statutes applicable to offenses in Indian country.
- During trial, the government offered testimony from Laudine, the 10-year-old’s mother and Hollow Horn’s first cousin, describing an incident more than 11 years earlier: after she became intoxicated and passed out at a party, she awoke to Hollow Horn having sex with her; she told him to stop and he did.
- Laudine testified she initially pursued rape charges but later dropped them due to family pressure.
- Over Hollow Horn’s objection, the district court admitted Laudine’s testimony as evidence of another sexual assault.
- The jury convicted Hollow Horn on both counts, the district court denied a motion for a new trial, and Hollow Horn appealed, arguing the prior-assault testimony should have been excluded.

## Issues

1. Whether the district court abused its discretion by admitting Laudine’s testimony about an alleged prior sexual assault under Federal Rule of Evidence 413 (and/or Rule 404(b)).
2. Whether the testimony, even if admissible, should have been excluded under Federal Rule of Evidence 403 as unfairly prejudicial.
3. Whether the district court erred in denying Hollow Horn’s motion for a new trial based on the admission of that evidence.

## Decision

- The Eighth Circuit affirmed the convictions and the denial of the motion for a new trial.
- The court held the district court did not abuse its discretion in admitting Laudine’s testimony as evidence of another sexual assault under Rule 413.
- The court concluded the district court’s Rule 403 balancing was not an abuse of discretion and the evidence was not so unfairly prejudicial as to require exclusion.
- The court also noted the testimony would have been admissible alternatively under Rule 404(b) for non-character purposes such as intent or absence of mistake.

## Legal Principles

- Evidence of a defendant’s commission of another sexual assault may be admitted in a sexual-assault prosecution under Federal Rule of Evidence 413 if it is relevant, subject to Rule 403.
- Rule 413 does not require the prior act to be identical to the charged offense; differences in victim age or the specific sexual act go to weight and Rule 403 balancing, not categorical admissibility.
- Even when Rule 413 applies, the trial court must weigh probative value against unfair prejudice under Rule 403; appellate review of that balancing is for abuse of discretion.
- Prior-act evidence may also be admissible under Federal Rule of Evidence 404(b) for permitted purposes (such as intent, motive, or absence of mistake), not solely to show character.
- Denial of a motion for a new trial is reviewed for abuse of discretion, and such relief is granted sparingly.

## Conclusion

United States v. Hollow Horn involved federal convictions for abusive sexual contact with two minors, supported chiefly by the victims’ testimony. On appeal, Hollow Horn focused on the admission of a relative’s account of an earlier alleged sexual assault. The Eighth Circuit held that the district court acted within its discretion in admitting that prior-assault testimony under Rule 413 (and alternatively under Rule 404(b)), that the Rule 403 ruling was reasonable, and that the denial of a new trial was proper, so the convictions were affirmed.


United States v. Hollow Horn, 523 F.3d 882 (2008)