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Ford v. United States

United States Court of Appeals, Eighth Circuit

March 6, 2019

Robert Ford Movant - Appellant
v.
United States of America Respondent - Appellee

          Submitted: October 16, 2018

          Appeal from United States District Court for the District of South Dakota - Sioux Falls

          Before SMITH, Chief Judge, LOKEN and GRUENDER, Circuit Judges.

          SMITH, CHIEF JUDGE.

         On July 19, 2012, a jury found Robert Ford guilty of kidnapping but acquitted him on the charge of sexual abuse of an incapacitated person. The district court[1] then sentenced Ford to 36 months' imprisonment. Ford appealed that conviction, and we affirmed. See United States v. Ford, 726 F.3d 1028, 1029 (8th Cir. 2013). Ford then moved to vacate, set aside, or correct his sentence in the district court. See 28 U.S.C. § 2255. Ford claimed ineffective assistance of counsel based on his counsel's alleged failure to impeach his accuser's credibility. The district court denied Ford's motion without holding an evidentiary hearing.

         Ford now appeals that denial, arguing that the district court erred in denying his § 2255 motion and declining to hold an evidentiary hearing. For the reasons stated below, we affirm.

         I. Background

         In December 2011, Ford was charged with sexually assaulting and kidnapping Christina Weston. Weston claimed Ford assaulted her while she was sleeping and then confined her in her bedroom to prevent her from reporting the assault.

         The court appointed Stacy Kooistra as Ford's counsel. Kooistra represented Ford through the end of his jury trial. In preparation for trial, Kooistra sought and secured a court-appointed investigator, Tim Mulloy, and two court-appointed medical experts. Kooistra also successfully subpoenaed phone records to assist in establishing a timeline for relevant events.

         At trial, the government called Eric Sherman and Michelle Red Earth as witnesses. Sherman and Red Earth had been at Weston's house drinking with her and Ford the night before the alleged assault. Both also slept at Weston's house that night.

         Sherman testified that he and Red Earth arose around 11 or 11:30 a.m. on the morning of the alleged assault. About 15 or 20 minutes after waking, Sherman heard noise coming from Weston's bedroom. He went to investigate, but Ford stepped out of the room just as Sherman approached and closed the door behind him. Ford told Sherman that Weston was "having a fit, an attack" and that he had "better go check on her." Trial Tr. at 41, United States v. Ford, No. 4:11-cr-40116-KES-1 (D.S.D. October 25, 2012), ECF No. 87. Sherman described Ford as upset. When Sherman entered the room, he found Weston on the floor "sobbing," with red marks on her arms. Id. When asked what was wrong, Weston told Sherman "that f***ing Bob" and pointed towards the door. Id. at 42.

         Red Earth testified that she got up between 8 and 9 a.m. to go buy breakfast supplies and then returned to Weston's house. She testified to hearing a cry, "something . . . horrible. . . . like a shattered soul" coming from Weston's bedroom sometime after returning. Id. at 56. Red Earth then found Weston on her bedroom floor "in a heap, crying, trembling, broken." Id. at 56-57. Weston told Red Earth that Ford had done "wrong." Id. at 57. Red Earth testified Weston had marks on her arms and legs, which had not been present the night before.

         Weston also testified. Weston explained that she and Ford had once dated, but they had stopped in 2008. Ford lost his home in the spring of 2011, and Weston allowed him to live in her basement while he searched for new accommodations; however, they did not rekindle their relationship during this time. Just as Sherman and Red Earth had, Weston described the evening preceding the assault as involving heavy alcohol consumption. At trial, she testified to awakening to pain in her genital area between 7 and 9 a.m. the next morning and to seeing Ford "scrambling to get [her] bottoms up and backing away." Id. at 79. Weston claimed that she started screaming and tried to leave the room, but Ford blocked her by standing in front of the door and putting his leg up. She claimed that he also took her cell phone when he left. She then testified she was unable to leave the room until Sherman arrived. Weston also identified photos of the marks on her arms and legs; she said they were bruises that Ford caused.

         When Kooistra cross-examined Weston, he highlighted inconsistencies between her testimony and that of the other witnesses. Weston alleged the assault and confinement occurred sometime between 7 and 9 a.m. In contrast, Sherman's testimony suggested a later time frame. Kooistra also highlighted inconsistencies in Weston's own testimony. Although Weston initially stated she saw no clock in her room, she later testified to seeing a clock. She also initially stated she awakened several times during the night preceding the alleged assault. But she later testified to being so incapacitated by alcohol and Ambien that she did not wake up when Ford had sex with her. Kooistra also exposed inconsistencies in her testimony about the amount of beer she consumed that night and the nature of Ford's sexual acts.

         To conclude its case, the government called a forensic scientist, who testified to the presence of Ford's sperm in Weston's genital area, and a physician's assistant, who testified to the freshness of the bruising on Weston's arms and legs. Finally, the government called the FBI agent who had interviewed Weston and Ford following Weston's allegations. The agent testified to his conversations with the victim and suspect.

         After the close of the government's case, Kooistra initiated Ford's defense by calling two expert witnesses: Drs. Eric Kutscher and Elizabeth Dimitrievich. Dr. Kutscher testified as an expert in pharmacology. His testimony cast doubt on Weston's claim that she had been incapacitated during her sexual encounter with Ford by the pills and alcohol consumed the evening prior; Dr. Kutscher concluded Weston would have become more sober by dawn. Dr. Dimitrievich testified as an expect in gynecology. Her testimony called into question Weston's description of Ford's sexual acts. Dr. Dimitrievich concluded the condition of Weston's genital area was inconsistent with the type of acts Weston claimed Ford had perpetrated.

         Finally, Kooistra called Ford to testify on his own behalf. Ford averred that he and Weston had consensual sex around 10:30 a.m. of the morning in question. He testified that after their encounter, they chatted and eventually discussed his upcoming testimony against her in a tribal assault case; Ford had been scheduled to testify against Weston for assaulting him on a prior occasion. Ford had previously obtained permission from the court to ask questions related to the assault charges against Weston. Ford claimed that, after they discussed his upcoming testimony that morning, Weston began screaming at him. Ford alleged that he called Weston's mother after Weston began asking for her. Ford denied confining Weston to her bedroom, bruising her, or taking her cell phone.

         The jury returned a verdict of not guilty on the charge of sexual assault of an incapacitated person and a verdict of guilty on the charge of kidnapping. The district court then sentenced Ford to 36 months' imprisonment, a downward variance from the Guidelines range of 121 to 151 months. Ford appealed his sentence, arguing that he could not be convicted of kidnapping since he had been acquitted of sexual assault. He also contested the district court's jury instructions, as well as its denial of his motions for judgment of acquittal and for a new trial. We affirmed Ford's sentence. Ford, 726 F.3d at 1029.

         In October 2015, Ford filed for relief under 18 U.S.C. § 2255. Ford claimed ineffective assistance of counsel based on Kooistra's alleged failure to impeach Weston's credibility. The district court denied Ford's motion without holding an evidentiary hearing. Ford now appeals that denial, arguing that the district ...


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