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United States v. White

United States District Court, D. Minnesota

June 2, 2014

JAMES WHITE, JR., Defendant

Order Dated on June 3, 2014

Diedre Y. Aanstad, Assistant United States Attorney, UNITED STATES ATTORNEY'S OFFICE, Minneapolis, MN, for plaintiff.

Peter B. Wold, WOLD MORRISON LAW, Minneapolis, MN, for defendant.

Page 1034


JOHN R. TUNHEIM, United States District Judge.

On August 30, 2013, ten-month-old A.W.[1], suffered serious injuries resulting in seizure and was ultimately airlifted from his local hospital on the Red Lake Indian Reservation to a larger hospital in Fargo, North Dakota. A.W. was alone with his father, Defendant James White, for a ten-minute period during which the first symptoms occurred. Several days later, James White was arrested and ultimately indicted for assault resulting in serious bodily injury under 18 U.S.C. § 113(a)(6). The case proceeded to trial and the jury found White guilty. White now brings a motion for judgment of acquittal, requesting that the Court overturn the jury's verdict for lack of sufficient evidence to support a conviction beyond a reasonable doubt. The Court will grant the motion and overturn the jury's verdict because it concludes

Page 1035

that, viewing the evidence in a light most favorable to the government, the totality of the circumstantial evidence is insufficient to support a finding beyond a reasonable doubt that White caused A.W.'s injuries.



Defendant James White is the father of A.W., an infant who was ten months old in August 2013. (Tr. 93:2-10; 103:8-11; 242:16-18, Apr. 2, 2014, Docket Nos. 67-70.)[2] The mother of A.W., Cheryl Maxwell, has four other children: another son with White born in 2011 -- X.W., a girl born in 2004, a boy born in 2005 -- J.S., and a girl born in 2007; the older three children have a different father, who committed suicide in August 2009. (Tr. 102:11-103:11; 92:6; 94:22-97:7; 101:17-22.)[3] At the time of the incident giving rise to the indictment, White lived with Maxwell, and although she was the primary caregiver for her children, he would take care of them for her " once in a while," such as when she had to go to an appointment or to meet with someone. (Tr. 104:13-105:4.) Maxwell, an enrolled member of the Red Lake Indian Reservation, lives on the reservation in Redby, MN. (Tr. 90:25-91:2; 33:7-11.)


Much of the testimony at trial centered on the events that occurred on and after August 30, 2013. Maxwell testified that on that day, two of the older children were playing outside and she was inside with White, A.W. and X.W. (Tr. 113:8-13.) She testified that the older girl and boy " were in and out of the house that whole day." (Tr. 113:24.) She said she made rice soup for dinner and that everyone sat at the table eating the soup, including White and A.W., who was in a highchair, and that at the time he seemed fine -- there was nothing about him that was unusual. (Tr. 114:2-7; 114:11-24.) She said that after he ate he was tired and rubbing his eyes. (Tr. 115:3-4.)

After dinner, she went with the older children to walk to her cousin's house to try to get a ride to the store, leaving White at home with A.W. to put him to bed. (Tr. 115:24-116:11.) She testified that " he liked to be rocked when he'd go to sleep, so we would rock him in his carseat" and that White said he was going to put A.W. to sleep: " he would always put the boys to sleep. He would put X.W. to sleep, and he would put A.W. to sleep . . . in his carseat." (Tr. 118:3-19.) Nobody answered at her cousin's house, so they returned back to the house and " were only gone ten minutes . . . . And that's when I thought A.W. was choking. . . . [W]hen I came walking back, James was holding A.W. and he told me to call help and I panicked. I grabbed the phone [and] called 9-1-1 . . . ." (Tr. 115:24-116:11.) She explained that White opened the door and " told me to come help him, A.W. was choking. And when I went in there, I got scared. It looked like A.W. was choking because he had a little bit of rice coming out of his mouth and a little bit out of his nose. And that's what I told the dispatcher, I thought

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he was choking. I didn't know he was having a seizure until we got up to the Red Lake Hospital." (Tr. 118:22-119:15.) She testified that White was doing CPR on A.W., and that when he " blew in his mouth a little bit . . . it seemed like more of that rice came out." (Tr. 121:9-14.) She called 9-1-1 as soon as she got inside. (Tr. 120:18.)

Red Lake Department of Public Safety Patrol Officer Guadalupe Ybarra was the first to arrive. (Tr. 31:25-32:6; 32:19-33:6.) She found White holding the child; she described the baby's condition as " [v]ery limp, not -- he didn't appear to be breathing, just not coherent." (Tr. 37:22-38:5.) White told her immediately that he thought the baby " was choking [and] [h]e didn't know if he was choking on hamburger or rice that he had been fed earlier" and that he suggested A.W. could have been choking on a cigarette butt. (Tr. 39:18-20; 41:2-5; 45:3-14.) She looked around but did not see anything on the floor that the baby could have been choking on. (Tr. 41:10-15.) Ybarra testified that to her, " it didn't appear he was choking because he was so limp," but she still " attempted to do CPR." (Tr. 39:23-25.) She looked for other injuries on the baby but found no bruises on his legs, back, arms, ears, eyes or head. (Tr. 46:7-24; 50:1-9.) Red Lake Tribal Police Department Captain Dana Lyons, Jr. arrived while Officer Ybarra was administering first aid. (Tr. 52:3-8; 55:11-19.) He testified that " White came up and . . . basically told us the story of what happened, told us that the child was eating hamburger, rice, and all of a sudden the kid started choking and he stopped breathing. So, James basically told me that he tried to get the object out of the child's throat or the mouth area, and he tried to administer -- or do something to try to get the child to start breathing again." (Tr. 55:11-19.) Captain Lyons testified that " I always check around to see if there's objects laying on the ground that maybe something could have swallowed. And also checked the baby for bruisings or anything. I didn't see anything present at the time." (Tr. 55:21-24.) When asked if he saw anything " that would indicate that the child had vomited," he stated that he believed there was vomit on White's shirt. (Tr. 56:4-10.)

The three of them -- White, Ybarra, and Lyons continued to perform CPR until the ambulance arrived and the EMTs took over, which according to Ybarra was " maybe two, three minutes." (Tr. 42:2-10.) Ybarra drove the ambulance while the EMTs, A.W., and Maxwell rode in the ambulance and White stayed at the house. (Tr. 42:14-43:3.) Upon arrival at the Red Lake Indian Health Service Hospital, A.W. was seen in the emergency room by Dr. Randall Fryer. (Tr. 63:10-11, 65:21-23, 67:5-8.) As soon as Dr. Fryer saw A.W. he asked the charge nurse to call for a helicopter " [b]ecause I knew right away that the child needed a higher level of care than I could provide . . . [or that] the secondary hospital 30 miles away was going to be able to provide." (Tr. 68:5-12.)

After having the charge nurse call for a helicopter, Dr. Fryer did an initial examination and observed that " [t]he child was still seizing, and a seizure that had gone on . . . for a prolonged period of time can become dangerous in and of itself," such that there is " a concern about the airway," that they might breathe in their vomit. (Tr. 69:22-70:20.) Dr. Fryer sought information about what could have happened with the child, and learned that " there were a number of different things that the mother presented as possibilities for what was going on. And when things are that tense, that's not completely uncommon for the parent to be grasping at, it could be this, it could be that." (Tr. 72:10-14.) He checked the child over and observed that "

Page 1037

[t]he thing that was most concerning to me were the unequal pupils. The right pupil was dilated, the left pupil was constricted." (Tr. 72:22-24.) At the time, he was " concerned the child was going to die on [him]" because of the unequal pupils, a seizure that was not calming down, and the fact that they had used a strong sedative but the first dose did not stop the seizure. (Tr. 74:11-16.) When the helicopter arrived, the emergency team from the helicopter was able to intubate the child and he was taken away paralyzed by medications and intubated. (Tr. 78:3-9.) Dr. Fryer's encounter with the child lasted approximately twenty-five minutes. (Tr. 78:10-11.)


At Sanford Medical Center (" Sanford" ) in Fargo, ND, A.W. was seen in the emergency room and a CT scan and other imaging was done; he was then transferred to the Pediatric Intensive Care Unit where he was seen by Dr. Kenneth Gheen, a pediatric critical care physician. (245:22-246:14; 240:24-241:4.) Among other things, Dr. Gheen observed bruising on A.W.'s forehead and right ear. (Tr. 255:7-11.) Staff neurosurgeon Dr. Adam Jackson was on call and examined both the imaging results and A.W. himself. (Tr. 188:23-25; 189:18-25; 193:9-10, 196:16-20.) In his review of the CT scans, Dr. Jackson observed " [i]nterhemispheric fissure between the two lobes of the brain had the density consistent with acute blood" (Tr. 197:2-4), meaning that the blood would have been deposited " [u]sually within three hours of injury, up to three days or so . . . but within three hours at the least" (Tr. 197:16-20). At trial he referenced a CT image of A.W.'s brain and explained that there was acute blood between the lobes of the brain and acute blood on the right side between the brain and the skull extending all the way to the back. (Tr. 199:21-200:11.) The interhemispheric acute blood and blood on the right side between the skull and the brain were visible in scans at multiple levels of the brain (i.e. closer and farther from the top of A.W.'s head). ( See Tr. 201:11-202:17.) He explained that this indicated that much of the right side of A.W.'s head would have had acute blood. And that to get into the interhemispheric fissure, it has to come out of the vascular system and that for young children it most likely does that through trauma -- " the child striking its head, a car accident, some sort of trauma." (Tr. 203:2-15.) He testified that he cannot, based on the CT, determine how the injury or trauma occurred, but that trauma was the " most likely explanation" for the acute bleeding, which he also referred to as " spontaneous subdural hematoma." (Tr. 203:21-204:2.) A " subdural hematoma" is blood in the " subdural space" -- between the skull and the brain. (Tr. 210:10-13.) He again testified that for the acute bleeding to appear on the CT scan, the trauma would have had to occur anywhere between three hours and three days before the scan, as it takes some time to clot and become visible, but that he could not determine with any more precision when the cause of A.W.'s bleeding occurred. (Tr. 204:3-15.) He stated that he could not tell where the blood was coming from, and that " [i]t could be the underlying brain injury that causes the seizure injury, or it could be irritation of the brain by the blood, as we talked earlier. Both of those can happen," but that he could not determine definitively which caused A.W.'s seizure. (Tr. 215:8-19.)


In addition to Dr. Jackson, another physician, one who specializes in child abuse

Page 1038

pediatrics, was called in to A.W.'s case. ( See Tr. 249:11-23; 343:16-17.) Dr. Arne Graff, a physician with a subspecialty in child abuse pediatrics was called into the case because " [t]here were findings by the hospital staff that were concerning for non-accidental trauma, and so they requested a consult to get our opinion." (Tr. 343:16-17; 349:16-20.) He explained at trial that his role is " to examine a child and look at injuries that may be present and then help determine from the medical point of view whether or not there is a medical reason; an accidental reason; or a non-accidental, abuse-type of cause for the injuries we're looking at." (Tr. 347:5-10.) He spoke with another doctor who had been treating A.W., examined A.W., and spoke with Maxwell, tribal law enforcement, and White as part of his investigation. (Tr. 351:6-13.)

Dr. Graff testified that in his separate conversations with Maxwell and White, each described a few recent incidents as possible causes of A.W.'s injuries. First, both described an incident the night before the August 30, 2013 incident in which White was giving A.W. a bath and he slipped out of White's hands and hit his chin on the bathtub, which left some bruises on A.W.'s chin and shoulder. (Tr. 355:9-13; 360:9-361:5.) They also discussed Maxwell's older son, eight-year-old J.S., as having a history of injuring A.W. Dr. Graff testified that Maxwell told him that there was an incident in which A.W. was in a bouncing chair that hung from a door frame (a " Johnny Jumper" ) and that J.S. " must have wound it up a little bit and let it twirl and that the patient had hit his head on the door jamb," but that A.W. had been " perfectly fine since that time," which was almost a week before the August 30 event. (Tr. 354:20-355:4.) White also " expressed some concerns about the older son . . . about [him] potentially choking the infant and dragging him around," (Tr. 359:7-9) but Dr. Graff testified that " there was no indication that any accidents or any rough behavior had occurred that was witnessed by [White] that day" (Tr. 359:12-14).

Dr. Graff also heard from both parents their versions of what occurred on August 30. He testified that Maxwell said " that she had come home after about 10 minutes. The infant had looked perfectly fine when she left. She described the infant as being motionless. And when they got to the hospital, she noticed bruising to the ears that she had not previously noticed." (Tr. 355:23-356:2.)[4] Dr. Graff testified that White explained that Maxwell had just finished feeding A.W. and gone next door, and that he

Page 1039

took the infant from the highchair and put him in that carseat and gave him a bottle to work on. And a short time later, he was apparently in a different room, stated that he heard some gasping, went in to check and see what was going on with the infant. He told me that he had done a finger sweep and found a cigarette butt in the infant's mouth. The infant was obviously in distress. And he went outside, saw the mother, urged her to call 9-1-1, and then law enforcement showed up.

(Tr. 359:22-360:6.)

As part of this potential child abuse inquiry, a social worker at Sanford, Valerie Hanson, was also consulted. (Tr. 217:12-16, 220:15-17.) She was called in to A.W.'s case because it " was reported that there was multiple bruisings to this child, and it was unknown, and bleeding in the brain that they wanted me to assess with the families if I could discern what happened with this child." (Tr. 220:19-22.) She met with both Maxwell and White for a comprehensive social history, in which she learned of some stressors for the family but no allegations of prior abuse. (Tr. 222:13-15; 225:13-18.) In addition to the bathtub incident, (Tr. 227:3-8) they also told her about J.S., who she described as " a son that they had a lot of difficulty controlling and managing his behaviors" (Tr. 226:7-10). During the interview, White said he " thought it was possibly attributed to their other son in the home that had the behavioral problems because the other son had -- was very -- he said very rough on the other two youngest children," and mentioned that J.S. had thrown a toy at A.W.'s head but Hanson did not recall when White thought that had happened. (Tr. 228:8-19.) White also told Hanson that " the older child would -- the baby or the patient would be in a jumper in a doorway, and the older child would take the baby and swing it back and forth where he'd be hitting against the door frame." (Tr. 229:1-4.) Maxwell also spoke about her older son's medications and behaviors that were difficult to manage. (Tr. 229:18-230:1.)


Both White and the government presented expert witnesses to testify to the medical causes of A.W.'s injuries.

A. Dr. Graff

The government's expert was Dr. Graff, the child abuse pediatrician who was consulted on A.W.'s case at Sanford Medical Center. Dr. Graff testified that, in addition to the subdural hematoma described by Dr. Jackson, A.W. had " large amount[s] of retinal hemorrhages scattered throughout both eyes . . . through multiple layers." (Tr. 362:6-11.) He explained that this kind of retinal hemorrhaging indicates that " something has happened to the back of the eyeball on this wall" -- which could be for accidental or non-accidental reasons, but " with no family history, no history of another accident that would allow for these hemorrhages to occur, it became very concerning that the cause had to be considered -- what we call acceleration-deceleration, or what people call shaken baby." (Tr. 362:3-15.) He testified that " [n]o one really understands the mechanism" for retinal hemorrhaging occurring in a non-accidental case; " [t]here are a number of theories that the eye experts use, but no one knows exactly. . . . It occurs from some type of traction or tension that causes the retinas to rupture and bleed." (Tr. 363:3-8.) He testified that hemorrhaging through multiple layers, as was present in A.W., is significant because " [w]hen we see multiple layers with no other medical reasons, there are only a couple things you should think of. One is high-velocity motor vehicle accidents" -- approximately

Page 1040

four percent of children in such accidents get such hemorrhages -- and the other is " some type of acceleration-deceleration of the head." (Tr. 363:9-25.) He said that doctors do not understand why acceleration-deceleration movement would cause retinal hemorrhaging. (Tr. 364:3-8.) He explained that " acceleration-deceleration" injury means " a movement in one direction, and then . . . a sudden stop and movement in the other direction. And that fast movement, again, is taking those veins inside and stretching them to a certain point and then suddenly snapping them back in another direction." (Tr. 374:25-375:5.)

Dr. Graff discussed the bruising he observed on A.W., which he described as " to the forehead area, and then both ears," but explained that he " can't date a bruise" or determine how it occurred by looking at it. (Tr. 365:14-24.) He reviewed the CT scan and observed that there was acute " blood over the right kind of curve or hemisphere of the brain" and it " looked like it might extend back to the lower area." (Tr. 371:8-17.) He explained that " [t]his is not a subdural hematoma that I would expect from the fall.[5] Even if he had fallen right on his head, it would not be the kind of subdural I would look to see. So, now we have . . . what appears to be spontaneous new bleeding in the head which is very concerning because we have no medical reason for it." (Tr. 371:23-372:5.)

When asked if he drew " any conclusions regarding [A.W.]'s injuries" after reviewing the medical records, examining A.W., and talking to A.W.'s mother and father, he said that " there was no explanation of a medical cause or of an accidental injury that I was aware of that would allow for retinal hemorrhages, bleeding inside the head, or the bruising that I saw that was concerning" and that when " in the world of child abuse," if he " can't find a medical reason and if I can't find an accident to support the injuries I see, then I have to consider non-accidental-type injury." (Tr. 375:13-376:7.) He stated that based on the information he had, he " had no other reason, except at the top of my list is that non-accidental trauma, some type of rotational injury would be most likely the cause for what I was seeing." (Tr. 376:12-16.) He explained that " rotational injury" is " some type of . . . motion of the head and the brain and the skull" where they " don't move at the same pace and in unison." (Tr. 377:9-19.)[6] He could not, however, from the CT scan, determine whether there had been rotational injury and impact or just rotational injury, and he could not tell in A.W.'s case whether there had been impact (which would not necessarily have caused bruising on the skin to indicate such impact). (Tr. 378:11-25.)

He testified that with rotational or acceleration-deceleration injuries, the " insult to the brain" resulting from the motion, if severe enough, often causes children under two years of age to " stop breathing and . . . lapse into unconsciousness almost immediately." (Tr. 382:12-22.) By " immediately" he meant " [w]hen the event occurs" and explained that " [f]rom the best information we have and understand is when the event occurs, ...

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