903 F.3d 704
8th Cir.2018Background
- Defendant Robert Fool Bear, Sr., an enrolled Indian on the Standing Rock Sioux Reservation, was indicted after his minor niece reported repeated sexual abuse beginning when she was about ten and continuing intermittently through age sixteen.
- A five-count federal indictment charged attempted aggravated sexual abuse of a child (Count 1), aggravated sexual abuse of a child (Count 2), aggravated sexual abuse by force (Count 3), incest in Indian Country (Count 5), and one acquitted assault-with-a-weapon count.
- At trial the niece testified to an initial incident (fondling and being asked to touch his penis) when she was ~10, a later incident a few months later involving penile-vaginal penetration, recurring monthly abuse thereafter, and a separate force-based incident at age 16.
- The jury convicted on four counts; Fool Bear appealed arguing multiplicity (double jeopardy), instructional error (omitted mens rea), and insufficiency of evidence for three convictions.
- The Eighth Circuit affirmed convictions for Count 2 (aggravated sexual abuse of a child) and Count 5 (incest), reversed Counts 1 (attempted aggravated sexual abuse) and 3 (aggravated sexual abuse by force), and remanded.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Counts 2 (aggravated sexual abuse of a child) and 5 (incest) are multiplicitous | Prosecution: Counts allege distinct statutory harms; each requires different elements | Fool Bear: convictions double punish him for the same conduct | Held: Not multiplicitous; §2241(c) requires victim <12, incest requires proximate relation—different elements (Blockburger met). |
| Whether jury instruction omitted element that defendant acted "with intent to abuse, arouse, and gratify" | Prosecution: Instruction tracked statutory elements and was sufficient | Fool Bear: Instruction omitted alleged mens rea from indictment | Held: No error—the quoted language is surplusage, not an element of §2241(c); instruction correct. |
| Sufficiency of evidence for Count 1 (attempted aggravated sexual abuse) | Prosecution: jury could infer intent from subsequent completed penetrations and conduct during first incident | Fool Bear: first incident lacked penetration and no direct evidence of intent to penetrate | Held: Reversed; evidence insufficient to prove intent and a substantial step beyond reasonable doubt. |
| Sufficiency of evidence for Count 3 (aggravated sexual abuse by force) | Prosecution: victim’s testimony about being grabbed, led, pushed and contextual history supported finding of force or coercion | Fool Bear: conduct did not meet statutory force; lack of evidence that victim was overcome, restrained, or coerced | Held: Reversed; victim’s words and context insufficient to prove force beyond a reasonable doubt. |
Key Cases Cited
- United States v. Anderson, 783 F.3d 727 (8th Cir.) (Double jeopardy/multiplicity principles and reliance on legislative intent)
- United States v. Benton, 890 F.3d 697 (8th Cir.) (definition and treatment of multiplicitous charges)
- Blockburger v. United States, 284 U.S. 299 (United States Supreme Court) (test for whether offenses require proof of different elements)
- United States v. DeCoteau, 630 F.3d 1091 (8th Cir.) (elements of aggravated sexual abuse of a minor under §2241(c))
- United States v. Plenty Arrows, 946 F.2d 62 (8th Cir.) (elements of attempt: intent and substantial step)
- United States v. Geddes, 844 F.3d 983 (8th Cir.) (use of other-acts evidence to prove intent)
- United States v. Brumfield, 686 F.3d 960 (8th Cir.) (propensity/other-acts evidence admissible to show intent)
- United States v. Gabe, 237 F.3d 954 (8th Cir.) (force element: overcoming, restraining, injuring, or coercive threat)
- United States v. Fire Thunder, 908 F.2d 272 (8th Cir.) (discussion of what constitutes statutory force)