ORDER PARTIALLY GRANTING AND PARTIALLY DENYING DEFENDANT’S RULE 29 MOTION FOR JUDGMENT OF ACQUITTAL
This case is before me on Defendant Robert M. Hawpetoss’ Rule 29 motion for
BACKGROUND
This case began with an indictment charging Hawpetoss with a single count of attempted sexual abuse of a child. On September 18, 1999, eight-year-old Madeline O. reported to Menominee Tribal Police that she had been attacked by Hawpe-toss as she was walking with him along a gravel road. She and Hawpetoss were going to get help after the truck in which they had been riding with her mother and her mother’s boyfriend went off the road and broke down. The Tribal Police were unable to locate Hawpetoss at the time of the report, however, as he had left the reservation. He ultimately fled the State and assumed another name. Four years later, after he was arrested in Green Bay, the case was presented to the grand jury, and an indictment was returned.
At around the same time, the government apparently discovered that Hawpe-toss’ now adult stepchildren, Donovan S. and Feather B., had reported to the Tribal Police in the mid-1990’s that they had been repeatedly sexually assaulted by Hawpetoss when they lived with him and their mother on the Reservation throughout the 1980’s and into the 1990’s. The government returned to the grand jury and obtained a superseding indictment adding the additional counts relating to Hawpetoss’ step-children. 1
Of the eight counts in the second superseding indictment, only count one involving Madeline O. alleged a specific date on or about which the offense occurred. Counts two and three alleged that Hawpe-toss had engaged in sexual acts with Donovan S., his step-son. Count two alleged that the offense occurred sometime between approximately November 30, 1985, and September of 1986, and count three was alleged to have occurred sometime during the summer of 1987. Counts four through seven alleged that Hawpetoss had engaged in sexual acts with his stepdaughter Feather B. during the winters of the years 1985 through 1988, respectively. Count eight alleged a sexual act with F.B. during the summer of 1993.
Prior to trial, Hawpetoss moved to dismiss counts two through eight of the indictment on the ground they were barred by the statute of limitations and for lack of specificity as to the times of the alleged offenses. Alternatively, Hawpetoss sought a bill of particulars narrowing the time
At trial, both Donovan S. and Feather B., now both adults age thirty and twenty-six respectively, recounted a history of repeated sexual abuse by Hawpetoss throughout the time they lived with him on the Menominee Indian Reservation. However, neither testified with any degree of specificity concerning the time of the incidents alleged in the indictment. Donovan testified in detail concerning the first time he was sexually assaulted by Hawpetoss, approximately two to three months after he came to live with his mother and Haw-petoss on the Reservation. Donovan testified that Hawpetoss forced his penis in Donovan’s mouth and then simulated anal sex by rubbing his penis between his buttocks. (Tr. 409-10.) But this first incident described by Donovan was outside the statute of limitations. With respect to the two offenses against Donovan alleged in the indictment, Donovan was considerably less clear. When asked how many times Hawpetoss molested him, Donovan testified:
A. I’d say about, it happened at least ten times.
Q. Can you tell me whether or not it happened continuously throughout the years you were there?
A. You know, there was specific incidents that I remember, but there was a lot, I was so terrified and panicked that I had blocked out, you know what I’m saying, I can’t — it’s hard for me to remember.
Q. To remember the details?
A. Yes.
(Tr. 414.)
To the extent the testimony had any relation to count two, Donovan testified that he recalled an incident during the winter when he was eleven years old when Hawpetoss dragged him down the stairs to the basement of the house in which they were living and forced Donovan to masturbate him by rubbing his penis with his hand until he ejaculated. (Tr. 416-17.) He recounted no other incident that occurred when he was eleven. As to count three, Donovan testified to an incident that occurred when he was twelve in which Hawpetoss woke him up, drove him to an old logging road, put a knife to his neck and threatened to kill him if he did not suck his penis. (Tr. 417.) Donovan also acknowledged that this incident occurred during the summer after he had turned twelve. (Tr. 424-25.)
The testimony of Feather B. was likewise vague and indefinite as to the time of the offenses alleged in the indictment. Feather testified that beginning when she was four years old, and continuing until she was nine, Hawpetoss repeatedly placed his penis in her mouth as often as three times a week when her mother was not around. (Tr. 450-54.) Feather testified that the incidents would occur mostly in the winter time. She explained that she
Feather did testify with specificity about the offense alleged in count eight of the indictment. She testified that she left the reservation with her mother and brothers when she was nine and moved to Minnesota. She came back to visit relatives in August of 1993. One day, Hawpetoss came to the home of her cousin where she was staying and told Feather that her mother was coming to pick her up in two hours. Feather testified that Hawpetoss offered to drive her and her younger brother to meet her, but instead drove her to his house where he threatened to kill her if she did not have sexual intercourse with him. Feather testified that Hawpe-toss told her “He wanted to make me a woman.” (Tr. 467.) With her little brother watching, Feather’s step-father then had vaginal intercourse with her and after-wards drove her back to where he had picked her up. (Tr. 464-68.) As to counts four through seven, however, Feather did not describe any one particular assault or relate it to a specific place or date. She simply testified in general to the manner in which Hawpetoss assaulted her and stated that it occurred more often in the winter when it was cold.
At the close of the government’s evidence, Hawpetoss moved for judgment of acquittal pursuant to Rule 29(a) on the ground that the evidence was insufficient to sustain a conviction on any of the eight counts, but with particular emphasis on counts two through eight. Hawpetoss argued that the evidence presented by the government was simply too weak to allow any reasonable jury to find Hawpetoss guilty beyond a reasonable doubt.
The government conceded that the evidence was insufficient to support a guilty verdict on the offense of aggravated sexual abuse of a child as to count two, since Donovan had not testified that Hawpetoss had engaged in a sexual act with him during the relevant time period. But rather than dismiss count two, the government requested that the jury be instructed on the offense of abusive sexual contact in violation of 18 U.S.C. § 2244(1), which it claimed was a lesser included offense of aggravated sexual abuse of a child. As applicable here, abusive sexual contact is committed by one who has sexual contact with a child who has not attained the age of twelve years. The government argued that the evidence was sufficient to allow a jury to find that Hawpetoss had abusive sexual contact with Donovan during the period described in count two, and since abusive sexual contact is necessarily included in aggravated sexual abuse of a child, there was no reason to dismiss count two.
Notwithstanding Hawpetoss’ contention that abusive sexual contact was not a lesser included offense of count two, I ultimately granted the government’s request to submit the charge of abusive sexual contact in place of count two, but reserved ruling on Hawpetoss’ motion for judgment of acquittal on that count, as well as counts four through seven. I denied the motion as to counts one, three and eight, however, finding that the evidence was sufficient as to each of those counts. I now turn to the issues I took under advisement at the time of trial.
DISCUSSION
As the Seventh Circuit has repeatedly cautioned, “Rule 29 does not authorize the judge to play thirteenth juror.”
United States v. Genova,
Here, the government did not dispute Hawpetoss’ claim that the evidence was insufficient to sustain a conviction on count two of the indictment because Donovan did not testify that Hawpetoss engaged in a sexual act with him during the relevant time period. Instead, the government claimed that it was entitled to an instruction on a charge of abusive sexual contact, which it claims is a lesser included offense of aggravated sexual abuse of a child. Hawpetoss, on the other hand, contends that count two should be dismissed because the evidence presented by the government did not match the charge in the indictment and abusive sexual contact is not a lesser included offense of aggravated sexual abuse of a child. As to counts four through seven, Hawpetoss argues the evidence was so hopelessly confused and general that it is insufficient as a matter of law to sustain any one of the convictions for which it was offered. I will first address Hawpetoss’ argument as to count two.
A. Count Two
As a general rule, the government may not amend the indictment to seek a conviction on a charge different from that issued by the grand jury.
United States v. Leichtnam,
In
Schmuck v. United States,
To sustain the charge of aggravated sexual abuse in violation of 18 U.S.C. § 2241(c) as charged in count two, the government was required to prove that Hawpetoss engaged in a sexual act with Donovan after November 30, 1985, and prior to his twelfth birthday. The term “sexual act”, as used in Chapter 109A of Title 18, means:
(A) contact between the penis and the vulva or the penis and the anus, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however, slight;
(B) contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus;
(C) the penetration, however slight, of the anal or genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person; or
(D) the intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.
18 U.S.C. § 2246(2). The offense of abusive sexual contact in violation of 18 U.S.C. § 2244(c), on the other hand, required that instead of engaging in a sexual act with Donovan, Hawpetoss had sexual contact with him during the relevant time period. The term “sexual contact”, as used in Chapter 109A, means:
the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.
18 U.S.C. § 2246(3).
It is clear from a careful review of 18 U.S.C. § 2246(2) and (3) that the offense of abusive sexual contact contains an element that the offense of aggravated sexual abuse does not, at least as the more serious crime was charged here. Count two charged Hawpetoss with engaging in the specific sexual act of forcing Donovan to place his mouth on Hawpetoss’ penis. There is no intent element of the crime of aggravated sexual abuse as charged in count two. 3 The sexual contact required for the crime of abusive sexual contact, on the other hand, requires proof that the defendant acted “with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.” 18 U.S.C. § 2246(3). In light of this difference, application of the “elements test” leads to the conclusion that abusive sexual contact is not a lesser included offense of aggravated sexual abuse as charged in count two of the indictment.
Although the Seventh Circuit has not addressed the question, the Second, Ninth and Tenth Circuits have all held under similar circumstances that abusive sexual contact is not a lesser included offense.
See United States v. Hourihan,
Only the Eighth Circuit has ruled otherwise. In
United States v. Demarrias,
Subsections (A) and (B) describe conduct which needs no explicit intent element, because one who engages in such contact inherently intends to do so for sexual purposes. Subsection (C), however, covers conduct that is not inherently sexual, but that may be for a sexual purpose, depending upon the intent of the actor. Demarrias’ claim that intent is irrelevant for determining whether a sexual act has taken place is therefore without merit. Each subsection considers intent, but (A) and (B) imply it from the nature of the contact. A sexual act necessarily requires a sexual contact, since none of the acts described by section 2245(2) can be accomplished without an intentional touching with sexual intent.
Id.
But as the Tenth Circuit noted in
Castillo,
“[t]his reasoning ... contradicts the principle that ‘[t]o be necessarily included in the offense charged, the lesser offense must not only be part of the greater in fact, but it must be embraced within the legal definition of the greater as a part thereof.’ ”
Because the elements approach involves a textual comparison of criminal statutes and does not depend on inferences that may be drawn from evidence introduced at trial, the elements approach permits both sides to know in advance what jury instructions will be available and to plan their trial strategies accordingly. The objective elements approach, moreover, promotes judicial economy by providing a clearer rule of decision and by permitting appellate courts to decide whether jury instructions were wrongly refused without reviewing the entire evidentiary record for nuances of inference.
In my view, the Eighth Circuit’s decision in
Demarrias
represents an application of the inherent relationship approach explicitly rejected by the Court in
Schmuck.
Because the crime of abusive sexual contact includes an element that the crime of aggravated sexual abuse of a child as charged in count two of the indictment did not, I agree with the Second, Ninth and Tenth Circuits and conclude that under the “elements test” it is not a lesser included offense. It therefore follows that abusive sexual contact should not have been submitted to the jury and, be
B. Counts Four Through Seven
Hawpetoss’ challenge to counts four through seven raises the more difficult issue of whether a defendant can be lawfully convicted on the testimony of a witness who is unable to recall the specific details of any one assault and instead testifies generally about a pattern of assaults that occurred over a long period of time. While rarely if ever addressed in the federal courts, the issue has received careful consideration in the state courts, particularly those of the State of California, in cases involving the so-called “resident child molester.”
See California v. Jones,
the so-called “resident child molester” is a person who lives with his victim or has continuous access to him or her. In such cases, the victim typically testifies to repeated acts of molestation occurring over a substantial period of time but, lacking any meaningful point of reference, is unable to furnish many specific details, dates or distinguishing characteristics as to individual acts or assaults.
This is precisely the situation presented here. Feather testified that over an approximately five-year period, Hawpetoss repeatedly placed his penis in her mouth as often as three times a week when her mother was not around. (Tr. 450-454.) Because he was married to Feather’s mother and lived in the same house with her, Hawpetoss had continuous access to Feather. And because of the frequency with which the incidents occurred and her age at the time, the government contends that Feather is unable to provide specific details as to any one offense. This difficulty is obviously exacerbated by the amount of time that has passed since the Feather last lived with Hawpetoss. 4
But the fact that an alleged victim of a crime has difficulty recalling the specific details is not an excuse to ignore an accused’s right to a fair trial and the constitutional guarantees intended to insure that it is fair, including the right to an acquittal absent sufficient evidence to support the conviction. It is to these considerations that Hawpetoss appeals in support of his
Although somewhat overlapping and interconnected with his previous challenges to the indictment, Hawpetoss’ argument, like that of the defendant in Jones, is that the evidence adduced by the government was insufficient to allow a reasonable jury to find beyond a reasonable doubt that he committed the specific crimes charged in counts four through seven of the indictment. In essence, he argues that he was entitled to notice of the specific crimes he was accused of committing and the date on which, or a reasonably limited time period within which, he was alleged to have committed each crime. Moreover, before he could be lawfully convicted, the government was required to prove beyond a reasonable doubt that he committed the specific crimes charged in the indictment and a jury was required to agree unanimously that the government had met its burden as to each crime. Because the testimony offered by the government in support of counts four through seven was nonspecific and general, Hawpetoss argues it cannot support a conviction for the specific crimes alleged in those counts.
Hawpetoss further argues that allowing the jury to convict on counts four through seven based on the nonspecific and generic testimony elicited by the government deprived him of his Fifth Amendment right to face felony prosecution only for those crimes framed by a grand jury. It also deprived him of his due process right to present a defense and his Sixth Amendment right to unanimous jury verdict. His ability to present a defense, he contends, was hampered by the fact he had no notice of the specific date he is alleged to have committed the offense and thus had no opportunity to present an alibi or other defense as the circumstances might permit. And his right to a unanimous jury verdict was violated since without testimony as to a specific offense, unanimity over whether that offense has been proven beyond a reasonable doubt is impossible. For each and all of these reasons, Hawpe-toss argues that counts four through seven should be dismissed.
1. Insufficiency of Evidence
Hawpetoss first argues that the evidence was legally and factually insufficient to support a conviction on counts four through seven. In support of his argument, Hawpetoss relies principally upon the Seventh Circuit’s recent decision in
United States v. Ross,
I find
Ross
is inapposite to the issue before me. The problem with the counts challenged here is not a variance between the indictment and the proof adduced at trial. Each of the challenged counts
Griffin
is likewise inapposite.
Griffin
held that a general verdict of guilty on a multi-object conspiracy charge need not be set aside solely because the evidence is insufficient to support a conviction as to one of the objects alleged.
This is not to say that Hawpetoss has not raised a substantial challenge to the sufficiency of the evidence as to counts four through seven. The fact that the cases cited by him have little if any relevance to the issue he has raised seems more indicative of the lack of federal authority on the issue than the strength of the challenge. There are few crimes, other than sexual abuse of children, where such problems arise, and since federal jurisdiction over such crimes is limited, it is not surprising that there is a dearth of federal authority on the question. As noted above, however, the issue has been addressed by the state courts that see many more sexual assault prosecutions. And the state courts that have addressed the issue have generally concluded that generic testimony such as F.B.’s is sufficient to support a conviction.
In the previously cited case of
California v. Jones,
for example, the victim had been adopted by the defendant when he was ten years old. He testified that the defendant had first molested him about a month after he moved in with him and once or twice a month during the entire two-year period he lived with the defendant. Although the victim was able to provide some detail as to some counts, the court of appeals had concluded the evidence was insufficient to support convictions on several counts because the victim “could not describe the specific incidents or dates to enable the jury to differentiate among the various incidents.”
The victim, of course, must describe the kind of act or acts committed with sufficient specificity, both to assure that unlawful conduct indeed has occurred and to differentiate between the various types of proscribed conduct (e.g. lewd conduct, intercourse, oral copulation or sodomy). Moreover, the victim must describe the number of acts committed with sufficient certainty to support each of the counts alleged in the information or indictment (e.g., “twice a month” or “every time we went camping”). Finally, the victim must be able to describe the general time period in which these acts occurred (e.g., “the summer before my fourth grade,” or “during each Sunday morning after he came to live with us”) to assure the acts were committed within the applicable limitation period. Additional details regarding the time, place or circumstance of the various assaults may assist in assessing the credibility or substantiality of the victim’s testimony, but are not essential to sustain a conviction.
I agree with the analysis of these courts and conclude that the evidence presented here, while nonspecific and generic, was sufficient to sustain Hawpetoss’ convictions for counts four through seven. Feather described the kind of acts with sufficient specificity to allow the jury to determine that the unlawful acts occurred. She also testified that they occurred where the family was living on the Menominee Indian Reservation. Based on her estimate of the frequency with which Hawpetoss assaulted her, there was sufficient evidence from which the jury could conclude that at least one such assault occurred during each of the charging periods alleged. Hawpetoss was free to challenge her testimony and attempt to bring out more detail, but even if she had no more detail to give, I conclude it was enough.
2. Duplicity and Unanimous Jury
Hawpetoss argues that the generic and nonspecific character of the evidence presented by the government in support of counts four through seven rendered those counts duplicitous and deprived him of his right to a unanimous jury verdict. A charge is duplicitous when two or more offenses are joined in a single count.
United States v. Marshall,
As Hawpetoss himself acknowledges, however, none of the challenged counts are truly duplicitous as that term has been defined by the courts. The prohibition of duplicitous charges is a pleading rule. 1A Wright, Federal Practice and Procedure: Criminal 3d § 142 at 15 (West 1999). The rule prohibits charging multiple offenses in a single count. There was no violation of that rule here. Each of the challenged counts alleges a single offense of aggravated sexual abuse of a child during a specific period of time. The problem is not that the indictment joined multiple offenses in a single count; the problem instead is that Feather testified that multiple offenses occurred within the periods of time in which each of the charged offenses was alleged to have occurred. Because of the nature of the offense of child sexual abuse and the special evidentiary rules that apply in such cases, see Fed.R.Evid. 413 and 414, evidence of other acts of sexual abuse in addition to the charged offenses was admissible. But because of the number of offenses Feather claimed occurred during the period covered by each of the challenged counts and her inability to differentiate them, Hawpetoss argues that the same dangers exist.
Even when a charge contained in the indictment is duplicitous, however, it is not necessarily fatal unless the defendant is actually prejudiced. The Seventh Circuit has held that the risk of conviction in such cases by a jury that is not unanimous can be avoided by instructing the jury that it is required to agree as to which of the offenses included in the disputed count the defendant committed.
United States v. Buchmeier,
Each count of the indictment charges the defendant with having committed a separate offense. Each count and the evidence relating to it should be considered separately, and a separate verdict should be returned as to each count. Your verdict of guilty or not guilty of an offense charged in one count should not control your decision as to any other count. In addition, your verdict must be unanimous as to a particular offense within each count. In other words, for you to find the defendant guilty on any count, you must all agree as to the particular offense the defendant committed.
(Tr. 622; Jury Instr. at 16.) Jurors are generally presumed to follow the instructions of the court.
United States v. Banks,
On this issue, too, state court decisions offer persuasive guidance. In California v. Jones, for example, the California Supreme Court stated in response to the same argument made by the defendant here:
[W]e reject the contention that jury unanimity is necessarily unattainable where testimony regarding repeated identical offenses is presented in child molestation cases. In such cases, although the jury may not be able to readily distinguish between the various acts, it is certainly capable of unanimously agreeing that they took place in the number and manner described.
I am persuaded by the analysis of those state courts that have concluded that generic and nonspecific testimony of the type offered here does not render jury unanimity unattainable. Here, the jury was specifically instructed that they had to unanimously agree not only that the defendant was guilty, but also on the particular offense that he committed. In light of the presumption that a jury follows the court’s instructions, I find no violation of Hawpe-toss’ right to a unanimous verdict.
3. Notice and the Right to Present a Defense
Hawpetoss also contends that the other dangers against which the prohibition of duplicitous charging is intended to protect became manifest in this case as a result of the character of the evidence
To some extent, this argument repeats the argument made in support of Hawpe-toss’ pretrial motion to dismiss counts two through eight of the superseding indictment for failure to allege with sufficient specificity when the charged offenses allegedly occurred. I rejected the argument at that time, noting that in cases involving sexual abuse of young children, courts had allowed greater liberality in alleging the time of offense:
Sexual abuse and sexual assaults of children are difficult crimes to detect and prosecute. Often there are no witnesses except the victim. The child may have been assaulted by a trusted relative or friend and not know who to turn to for assistance and consolation. The child may have been threatened and told not to tell anyone. Even absent a threat, the child might harbor a natural reluctance to reveal information regarding the assault. These circumstances many times serve to deter a child from coming forth immediately. As a result, exactness as to the events fades in memory. Young children cannot be held to an adult’s ability to comprehend and recall dates and other specifics.
State v. Fawcett,
In
Jones,
the court noted that “only infrequently can an alibi or identity defense be raised in resident child molester cases.”
Hawpetoss took the stand and denied he had sexually assaulted Feather or any of the other four individuals who swore he had abused them. His attorney argued to the jury in closing that the evidence presented by the government failed to establish his guilt beyond a reasonable doubt. Counsel pointed out discrepancies and the overall vagueness in the testimony of the government witnesses, the failure of those witnesses to report the offenses for years, possible motives they might have for fabricating the accusations against Hawpetoss, and the lack of any corroborating evidence for any of the specific counts. (Tr. 655-65.) This was his defense. It was not enough to overcome the compelling testimony, often accompanied by tears, clear indications of emotional suffering, and other indicia of reliability, of the witnesses who testified against him. The fact that his defense did not succeed, however, is not evidence that he was denied the opportunity to present it. Hawpetoss did present a defense; it simply failed.
CONCLUSION
In sum, I conclude that Hawpetoss’ constitutional rights were not violated and that the evidence presented was sufficient to support his conviction on counts four through seven of the second superseding indictment. Accordingly, Hawpetoss’ Rule 29 motion for judgment of acquittal on counts four through seven is denied. The evidence was not sufficient to support a conviction on count two, however, and because the offense of abusive sexual contact is not included in the offense of aggravated sexual abuse of a child, it should not have been submitted to the jury. Hawpetoss’ motion is therefore granted as to count two, and that count is hereby dismissed with prejudice.
SO ORDERED.
Notes
. The First Superseding Indictment contained nine counts. The government later returned to the grand jury a third time and obtained a Second Superseding Indictment in response to the defendant's motion to dismiss on statute of limitations grounds. The Second Superseding Indictment omitted one count and narrowed the time of offense for another.
. As to count four, the period was limited to after December 1, 1985, to exclude any offenses that were barred by the statute of limitations.
. Intent is an element of aggravated sexual assault where the sexual act alleged is "penetration of the genital or anal opening of another” or the "intentional touching, not through clothing, of the genitalia of a person who has not attained the age of 16 years.” See 18 U.S.C. § 2246(2)(C) and (D).
. A number of States, including Wisconsin, have attempted to avoid this difficulty by creating a new offense of repeated acts of sexual assault of the same child, which is defined as three or more sexual assaults of the same child within a specified period of time. The statute specifically provides that the jury must unanimously agree that the defendant committed at least three sexual assaults of the child, but need not agree on which acts constitute the requisite number. See Wis. Stat. 948.025 (2003-04).
. Although Hawpetoss does not raise the issue here, I also note that he was also protected from exposure to double jeopardy under the circumstances of this case. The government stipulated that it was precluded from prosecuting him for any offense against Feather B. or Donovan S. that occurred within the time periods alleged in the indictment. (Tr. 536.)