United States v. Betone
2011 U.S. App. LEXIS 7149
| 8th Cir. | 2011Background
- Betone, a 19-year-old on the Cheyenne River Indian Reservation, was charged with three counts of sexual abuse in Indian country; he argued insufficient evidence and challenged the two vulnerable-victim enhancements.
- Jensen testified Betone began oral sex while Jensen was asleep; Jensen claimed no consent and Betone disputed this.
- Blue Arm, with diminished mental capacity, testified Betone orally and anally assaulted him after luring him to Betone's home.
- The district court convicted Betone on two counts (oral sex with Jensen; sexual acts with Blue Arm by threats/pressure) and acquitted on the third; it applied two-level vulnerable-victim enhancements to both counts.
- Betone challenged the sufficiency of the evidence for both convictions and the application of the vulnerable-victim enhancements on appeal.
- Jurisdiction was stipulated to be federal in Indian country under 18 U.S.C. § 1153.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for oral sex with Jensen (§2242(2)). | Betone argues Jensen’s testimony is unreliable. | Betone asserts Jensen’s account is inconsistent; Jensen was asleep. | Sufficient evidence supports Betone’s conviction. |
| Sufficiency of evidence for coerced sex with Blue Arm (§2242(1)). | Betone challenges Blue Arm’s claim of fear/coercion. | Blue Arm’s diminished capacity made him more susceptible to pressure. | Sufficient evidence supports Betone’s conviction. |
| Application of two-level vulnerable-victim enhancements to both counts. | Betone contends Jensen/Blue Arm were not vulnerable under §3A1.1 cmt. n.2. | Court properly found vulnerability due to physical/mental condition. | Enhancements properly applied to both convictions. |
Key Cases Cited
- United States v. Carter, 410 F.3d 1017 (8th Cir. 2005) (sufficiency established where intoxicated victim received oral sex)
- United States v. Kirkie, 261 F.3d 761 (8th Cir. 2001) (victim testimony can sustain § 2242 conviction)
- United States v. Coleman, 584 F.3d 1121 (8th Cir. 2009) (standard for reviewing sufficiency of evidence)
- United States v. Drapeau, 121 F.3d 344 (8th Cir. 1997) (de novo review of guidelines interpretations and factual findings)
- United States v. Chee, 514 F.3d 1106 (10th Cir. 2008) (vulnerability comparison in applying §3A1.1)