UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT
                        ____________________

                           No. 98-60305
                       ____________________

                    UNITED STATES OF AMERICA,

                                                Plaintiff-Appellee,

                              versus

                          STERLING BELL,

                                             Defendant-Appellant.
_________________________________________________________________

           Appeal from the United States District Court
             for the Southern District of Mississippi
                          (4:97-CR-27-BS)
_________________________________________________________________

                          June 21, 1999

Before SMITH, DUHÉ, and BARKSDALE, Circuit Judges.

PER CURIAM:1

     Sterling Bell challenges his conviction for abusive sexual

contact with a child in violation of 18 U.S.C. § 2244(a)(1), basing

reversible error on hearsay testimony by the child’s examining

physician and insufficiency of the evidence.    We AFFIRM.

                                I.




     1
      Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
     Bell resided with his wife, Alma Bell, on the Choctaw Indian

Reservation in Mississippi.    Frequent visitors at their home were

Ashley and Crystal Martin, the young daughters of Phoebe Martin,

Alma Bell’s niece.    All are Native Americans.

     On 7 February 1997, Ashley and Crystal Martin spent the night

with the Bells.   Sometime during the night, the children got into

bed with the Bells.    It was located against a wall; Alma Bell was

on the outermost side, with Crystal Martin next to her, and with

Bell between Crystal and Ashley Martin, who was closest to the

wall.   Alma Bell testified that, at some point, she felt that

“somebody was telling [her] to wake up and look over to where

Sterling [Bell] was sleeping”.     She looked over at Bell, whom she

could see because of a security light shining through the window,

and saw him kissing Ashley Martin (then five years of age) and

noticed that his hand, which was under the bedcover, “was moving on

[the child’s] private part”.

     Alma Bell removed the cover and ordered the girls to leave the

bed; she did not then confront Bell or later that morning.     But,

that evening, she told the child’s mother, Phoebe Martin, what she

had observed. Phoebe Martin testified that she asked Ashley Martin

about what had happened; and that the child cried before telling

her what had occurred.

                                 - 2 -
     Phoebe Martin took the child to the health center located at

the reservation; she was examined by Dr. Coats.            The doctor was

advised that Bell had touched Ashley Martin in her genital area.

     Bell was indicted for abusive sexual contact, in violation of

18 U.S.C. § 2244(a)(1).2      Found guilty by a jury, his sentence

includes 30 months imprisonment.

                                  II.

     Bell claims inadmissible hearsay and insufficient evidence.

It is undisputed that he and the child are Native Americans; that

the offense occurred in Indian country; and that, at the time of

the incident, the child was under the age of 12.       See 18 U.S.C. §

1153 (federal jurisdiction); 18 U.S.C. § 2244(c) (“If the sexual

contact that violates this section is with an individual who has

not attained the age of 12 years, the maximum term of imprisonment

that may be imposed for the offense shall be twice that otherwise

provided in this section”).

                                  A.

     Concerning Dr. Coats’ testimony as to what Ashley Martin

related   to   the   doctor   through    a   translator,     Bell   claims



    2
      Bell was indicted on two such counts; the second as a result
of a separate incident involving the same child. The court granted
a judgment of acquittal on that count, following the Government’s
case.

                                 - 3 -
inadmissible “double hearsay”.           Because of the broad discretion

afforded district courts in ruling on evidence, “[w]e will reverse

... only when the court has clearly abused its discretion and a

substantial right of a party is affected”.          Tamez v. City of San

Marcos, 

, 1098 (5th Cir. 1997), cert. denied, 118 S.

Ct. 1073 (1998); see also FED. R. EVID. 103; United States v. Liu,

, 452 (5th Cir. 1992); United States v. Follin, 

, 375 (5th Cir. 1992).

      Dr. Coats testified that Ashley Martin’s mother and an aunt

presented the child for a medical examination; that the child spoke

in Choctaw; and that either the mother or aunt translated, because

the doctor does not speak Choctaw. Bell’s double hearsay objection

was overruled.

      Dr. Coats then testified that, through the translator (mother

or aunt), Ashley Martin stated that her uncle had “touched” her,

and   had   placed   her   hand   over   her   external   genital   area   to

demonstrate where; and that one of the two women told Dr. Coats

that Bell was Ashley Martin’s uncle.        A medical examination did not

reveal any physical evidence of sexual contact.

      Phoebe Martin testified that Alma Bell had not gone to the

clinic with them; that only she, Dr. Coats, and a nurse were

present when the doctor examined Ashley Martin; that the child told

                                    - 4 -
Dr. Coats, in English, what had happened to her; and that Phoebe

Martin had translated only when the doctor did not understand what

the child was saying. Although she testified that her translations

had been     correct,   Phoebe   Martin    insisted   that   Dr.   Coats   had

received almost all of the information directly from the child.

     Hearsay is “a statement, other than one made by the declarant

while testifying at the trial or hearing, offered into evidence to

prove the truth of the matter asserted”.              FED. R. EVID. 801(c).

Bell asserts that there are two levels of hearsay in Dr. Coats’

testimony:     what the child told the translator; and what the

translator then told the doctor.      “Hearsay included within hearsay

is not excluded under the hearsay rule if each part of the combined

statements conforms with an exception to the hearsay rule provided

in [the Federal Rules of Evidence].”         FED. R. EVID. 805.

     Certain statements, although hearsay, are excepted from the

general rule, see Rule 802, prohibiting the admission of hearsay

testimony.      Rule 803 provides several exceptions for which the

availability of the declarant to testify is immaterial.            One is for

statements

           made for purposes of medical diagnosis or
           treatment and describing medical history, or
           past or present symptoms, pain, or sensations,
           or the inception or general character of the
           cause or external source thereof insofar as

                                   - 5 -
            reasonably       pertinent       to   diagnosis         or
            treatment.

FED. R. EVID. 803(4).         Bell does not contest the Rule 803(4)

admissibility    of    statements     to     physicians     made    by     children

identifying their abuser.

      Instead, Bell objected on the basis that the statements were

made through a translator, because

            this seem[ed] to be ... hearsay within ...
            hearsay. The child spoke Choctaw, obviously
            to someone [who] spoke English, somebody else
            who then related to [sic] English, I’ve got at
            least two people here I can’t cross-examine.

The district court responded that it was

            going to overrule the objection under the
            medical history ... exception to the hearsay
            rule.    The court will assume that the
            translation of the child’s words [was] correct
            since this was for medical purposes, same as
            though the medical history itself was.

      For whether the translator added an additional level of

inadmissible    hearsay,     we    must   determine   the    admissibility        of

“extrajudicial statements made through an interpreter when the

testifying witness was unable to understand the original language

of   the   declarant   and   can    testify    only   to    the    words    of   the

interpreter”.    United States v. Nazemian, 

, 526 (9th

Cir. 1991), cert. denied, 

(1992).



                                     - 6 -
      Our court addressed a similar issue in United States v.

Cordero, 

(5th Cir. 1994), in which the defendant’s

extrajudicial non-English statement was introduced at trial through

the testimony of a person who had received a contemporaneous

translation.      Citing to 

, and United

States v. Lopez, 

, 724 (2d Cir. 1991), in which the

courts treated interpreters’ translations as those of declarant,

our court stated:

           We find the reasoning of the Second and Ninth
           Circuits persuasive, and we adopt it. Except
           in unusual circumstances, an interpreter is no
           more than a language conduit and therefore his
           translation [does] not create an additional
           level of hearsay.

(internal quotations omitted, alteration

in original).

      In Cordero, because the defendant failed to object, our court

reviewed only for plain error.         Of course, by objecting, Bell

preserved our normal abuse of discretion review. In any event, our

court   adopted    the   Second   Circuit’s   view   in   Lopez   that   an

interpreter is merely a conduit, absent “unusual circumstances”.

“unusual circumstances” exception noted by our

court in Cordero, other circuits have generally evaluated whether


                                   - 7 -
the appellant alleged or demonstrated any bias on the part of the

interpreter or any inaccuracies in the interpretation.    See 

(defendants “offer[ed] no reason to doubt the

accuracy of [the] translation”); United States v. Koskerides, 

, 1135 (2d Cir. 1989) (“There is nothing in the record to

suggest that the interpreter had any motive to mislead or distort,

and there is no indication that the translation was inaccurate”);

DCS Sanitation Management, Inc. v. Occupational Safety and Health

Review Comm’n, 

, 816 (8th Cir. 1996) (“DCS raised no

questions regarding the abilities or biases of the interpreter”);

(noting that defendant did not present

evidence of bias or incompetence on part of interpreter).

     Bell does not claim any “unusual circumstances”, including any

bias or incompetence on the part of the interpreter.3    In sum, Dr.

Coats’ testimony was admissible: (1) the statements to her by the



    3
     Along this line, it is unclear who (if anyone) translated for
the child.     Her mother testified that, during the medical
examination, she provided any necessary interpretation.        Her
interest, as the child’s mother, would be to provide the most
complete and accurate information. Although Bell’s counsel opined
at oral argument that any mother would be biased, given the nature
of the charges, he did not point to any evidence indicating that
the mother had any bias which would compel her to implicate Bell.
Also, even if the aunt/Bell’s wife translated, the mother was
present and would have been aware of any defects in the
translation. Further, there was no evidence that the mother was
not fluent in Choctaw, or unable to provide an accurate
translation.

                              - 8 -
child regarding the identity of her abuser were admissible under

Rule 803(4); and (2) the statements made through the interpreter

were not hearsay.

                                 B.

     Bell preserved the sufficiency of the evidence issue by

properly moving for judgment of acquittal.   FED. R. CRIM. P. 29 (a).

The well-established standard for reviewing such claims is whether,

viewing the evidence, and all inferences reasonably drawn from it,

in the light most favorable to the Government, a rational trier of

fact could have found the essential elements of the offenses beyond

a reasonable doubt.   E.g., United States v. Sanchez, 

,

1173 (5th Cir. 1992).   Along this line, our role does not include

weighing the evidence or making credibility determinations of the

witnesses.   E.g., United States v. Myers, 

, 78-79 (5th

Cir.), cert. denied, 

(1997). Restated, we consider

whether the trier of fact made a rational decision, not whether it

correctly determined guilt or innocence.     E.g., United States v.

Jaramillo, 

, 923 (5th Cir. 1995).   But, consistent with

the reasonable doubt standard, we will reverse a conviction “if the

evidence construed in favor of the verdict gives equal or nearly

equal circumstantial support to a theory of guilt and a theory of



                                - 9 -
innocence of the crime charged”.          

and

citations omitted).

     Bell was convicted under 18 U.S.C. § 2244(a)(1), which makes

it a crime to “knowingly engage[] in or cause[] sexual contact with

or by another person, if so to do would violate – (1) section 2241

of this title had the sexual contact been a sexual act”.           The

referenced § 2241 proscribes “knowingly caus[ing] another person to

engage in a sexual act – (1) by using force against that other

person; or (2) by threatening or placing that other person in fear

that any person will be subjected to death, serious bodily injury,

or kidnaping; or attempts to do so”.       18 U.S.C. § 2241(a).   Bell

maintains that the Government failed to prove, beyond a reasonable

doubt, both that he engaged in “sexual contact” and that he had the

requisite intent.     Bell did not testify or otherwise present

evidence.

                                  1.

     “Sexual contact” is defined as, inter alia, “the intentional

touching, either directly or through the clothing, of the genitalia

... of any person with an intent to abuse, ... or gratify the

sexual desire of any person”.     18 U.S.C. § 2246(3).

     At trial, six-year-old Ashley Martin testified in English; she

was very shy and inarticulate.    She did not testify under oath, but

                                 - 10 -
told the court that it was a bad thing to “tell a story”, and that

she would tell the truth.     She testified that Bell had touched her

“in her front” while they were sleeping in the bed.       She pointed to

where Bell had touched her, but the record does not state where she

pointed. She stepped out of the witness box so that the jury could

see her body and was asked by the Government to “point to the

place” a second time; but, she did not respond to the request.

Bell’s counsel did not cross-examine her.

      Following the close of the evidence and outside the presence

of the jury, the district court noted for the record that the child

had been “extremely reluctant to talk”; that most of her answers

had been either nods or shakes of the head; that she had used “very

few   words”;   and   that   her   demeanor   indicated   that   she   was

“overwhelmed” by the courtroom.       The court stated that it intended

no inferences to be drawn from its comments.

      Alma Bell testified that she saw Bell kiss the child and move

his hand, under the bedcover, over her genital area; the child’s

mother testified that the child told her what happened (the mother

did not testify as to what the child said); and Dr. Coats testified

that the child said that Bell had touched her genital area.




                                   - 11 -
       Bell claims that the child’s testimony was insufficient; Alma

Bell was biased against him; and it was physically impossible for

her to see through the bedcover.

                                     a.

       Bell’s contentions regarding the weight to be given the

testimony by the child and Alma Bell lack merit because, as noted,

credibility and weight determinations are within the sole province

of the jury.      Those were issues for Bell’s counsel to exploit

during cross-examination and arguments to the jury.

       As noted, Bell did not cross-examine the child.               And, in

addition to challenging her credibility, Bell’s counsel questioned

Alma    Bell   regarding   bias,   such     as   because   of   an   alleged

confrontation between Bell and one of her sons from a previous

marriage.

                                     b.

       Bell asserts that it was physically impossible for Alma Bell

to observe his hand through the bedcover.            “Unless a witness’s

testimony is incredible or patently unbelievable, we must accept

the jury’s credibility determinations.” United States v. Lopez, 

, 578 (5th Cir.), cert. denied, 

(1996).             In

this regard, we “will ... declare testimony incredible as a matter

of law[] when the testimony is so unbelievable on its face that it

                                   - 12 -
defies physical laws”.         United States v. Casteneda, 

, 48

(5th Cir. 1992)(internal quotation omitted).                    See also United

States v. Kelley, 

, 607-08 (5th Cir.), cert. denied,

, 247 (1998); United States v. Medina, 

(5th Cir. 1998), cert. denied, 

(1999).

       In Casteneda, the defendant challenged the reasonableness of

the border patrol stop that resulted in the discovery of over 200

pounds of marijuana hidden under a truck.                 

.    The Border Patrol Agent testified that he made the stop

because, as he was following the truck, “he could detect the faint

odor   of   marijuana”.         

     court,    although      not

convinced    that   it   was    possible     to   smell    marijuana       under   the

circumstances, credited the Agent’s testimony based on the court’s

observations of the Agent and belief in the Agent’s credibility.

the defendant claimed that it was impossible for

the Agent to have smelled the marijuana, especially considering the

Agent’s testimony about a cross-wind.                

           Our court

affirmed,    stating     that    the   factual     finding     was    not    clearly

erroneous; and that the Agent had not “testified to something the

physical laws tell us could not have happened”.                      

United States v. Jaras, 

, 387-88 (5th Cir. 1996)

                                       - 13 -
(testimony of co-defendant not incredible where co-defendant lied

about existence of plea agreement with the Government).

       Alma Bell testified that she could see Bell’s hand because the

bedcover    was      thin.      Bell      cross-examined      her   regarding    that

testimony,      in    the    light   of    the     incident   having    occurred   in

February, when it was cold.            The bedcover was not introduced into

evidence, so the only evidence regarding its thickness, and Alma

Bell’s ability to see Bell’s hand through it, was her testimony,

which was properly evaluated by the jury.                 We cannot say that her

testimony was incredible.

       In sum, three witnesses testified that Bell touched the child:

Alma    Bell,   who    was    present      when    the   incident    occurred;     the

child/victim; and Dr. Coats, who was told (through an interpreter)

by the child that Bell touched her genitals.                           Viewing their

testimony in the light most favorable to the verdict, a reasonable

juror could have concluded that Bell did “engage[] in or cause[]

sexual contact”.        18 U.S.C. § 2244(a).

                                            2.

       Section 2246 states that the requisite intent for “sexual

contact” is, inter alia, “to arouse or gratify the sexual desire of

any    person”.       The    indictment      charged     Bell   with    “intentional

touching of the genitalia of [the child] ... with the intent to

                                          - 14 -
gratify [his]     sexual   desire”.   Bell     contends     that   there   was

insufficient evidence of such intent, asserting that there was no

evidence of it.

      “[K]nowledge and intent, because of their nature, must largely

be proved by circumstantial evidence.”         United States v. Mitchell,

, 1181 (5th Cir. 1989) (quoting Johnson v. Wright, 

(5th Cir. 1975)); see also United States v. Haas, 

, 265-66 (5th Cir. 1999) (“The government may, of course, prove

the   defendant’s    criminal   intent    by     way   of    circumstantial

evidence”); United States v. Pettigrew, 

, 1522 (5th

Cir. 1996).   “The intent necessary to support a conviction can be

demonstrated by direct or circumstantial evidence that allows an

inference of an unlawful intent, and not every hypothesis of

innocence need be excluded.”      United States v. Aggarwal, 

, 740 (5th Cir. 1994).

      There was sufficient circumstantial evidence of the requisite

intent.   In addition to testifying that she saw Bell touching the

child, Alma Bell also testified that he was kissing her.

      In the light of this evidence, the jury could reasonably find

that Bell intended to gratify his sexual desires.           For example, in

United States v. Bailey, 

, 1235 (5th Cir.), cert.

denied, 

(1997), our court found that there was

                                 - 15 -
sufficient evidence that the defendant entered a dwelling with the

intent to commit sexual assault where the evidence showed that he

entered at night wearing a ski mask, but no shirt, and pulled on

the victim’s toe.

     In sum, the evidence was sufficient for the jury to find each

of the elements of the crime beyond a reasonable doubt.    Bell’s

sufficiency challenge fails.

                                III.

     For the foregoing reasons, the judgment is

                                                    AFFIRMED.




                               - 16 -