United States v. Demery
2011 U.S. App. LEXIS 10686
| 8th Cir. | 2011Background
- Demery was charged by a three-count indictment on Turtle Mountain Indian Reservation; convicted by a jury of abusive sexual contact in Indian country, sexual abuse in Indian country, and assault resulting in serious bodily injury in Indian country; district court sentenced 180 months on Counts One and Two and 120 months on Count Three, all concurrent, with concurrent supervised-release terms; on appeal, convictions on Counts Two and Three were affirmed but Count One was vacated and remanded for resentencing; Morin was awakened, touching progressed to penetration, causing severe injuries requiring emergency surgery; multiple witnesses corroborated the victim’s account; the government charged Counts One–Three under 18 U.S.C. §§ 1153 and 2244(a)(2), 2242(2)(A)-(B), and 113(a)(6).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence on §2242(2)(A)-(B) | Demery | Morin not incapable at penetration | Guilty; reasonable jury could find incapability at penetration. |
| Admissibility of O'Neil testimony about Longie's out-of-court statement | Probative impeachment evidence | Potential plain error | Not plain error; admissible for impeachment with no reversible error. |
| Admission of Wilson’s excited utterance about identity | Hearsay exception applies | Possible prejudice | Not reversible error; admissible and harmless given cumulative evidence. |
| Sentence on Count One exceeding statutory maximum | Count One max is 3 years | Sentencing error | Count One sentence vacated; remanded for resentencing on that count. |
| Alleged improper delegation in supervised-release counseling condition | Court delegated too much to probation officer | Delegation permissible if court retains authority | No abuse; condition permissible with ongoing judicial oversight. |
Key Cases Cited
- Barrett v. United States, 937 F.2d 1346 (8th Cir. 1991) (victim not fully awake yet; capable of incapacity finding at penetration)
- United States v. Logan, 121 F.3d 1172 (8th Cir. 1997) (Rule 403 projection on impeachment evidence objective test)
- United States v. Durham, 470 F.3d 727 (8th Cir. 2006) (impeachment evidence admissibility and probative value vs. prejudice)
- United States v. Marrowbone, 211 F.3d 452 (8th Cir. 2000) (impeachment evidence and credibility concerns)
- United States v. Little Bear, 413 Fed.Appx. 942 (8th Cir. 2011) (standard supervised-release conditions verified against judgment)
- United States v. Kent, 209 F.3d 1073 (8th Cir. 2000) (risk of court abdication in delegated decisions)
- United States v. Olano, 507 U.S. 725 (Supreme Court 1993) (plain-error standard for non-constitutional errors)