UNITED STATES of America, Appellee, v. LaMont William PAPAKEE, Appellant. United States of America, Appellee, v. Connie Frances Blackcloud, Appellant.
Nos. 08-2032, 08-2037
United States Court of Appeals, Eighth Circuit
Submitted: Dec. 10, 2008. Filed: July 17, 2009.
Rehearing Denied Sept. 1, 2009.
571 F.3d 569
A city‘s conditions to a permit application‘s approval will not ordinarily convert an otherwise private development into a public works project. That the public benefits from the construction does not result in such a conversion, nor does the fact that Little Rock has an established system that apparently relies upon such conditions. The evidence reveals that although a minor arterial road was planned for the future, there was no foreseeable, and certainly no imminent construction intended by the city. Cf. City of Bridgeton, 219 S.W.3d at 229 (noting that Bridgeton had intended to do necessary improvements on Taussig Road for some time, but was unable to fund the construction). It is also undisputed that the location of the minor arterial road was changed to accommodate the Whisenhunts’ development. The Whisenhunts “erroneously seek to equate governmental purpose with governmental action.” Home Builders Assoc., 784 S.W.2d at 291. Though the public may benefit from the construction on Kirk Road and the Whisenhunts may in turn be effectuating a governmental purpose, their acceptance of conditions to accomplish their private development should not be equated with action by the city of Little Rock. The actions here were private; even “by complying with exactions, property owners such as Developers, are performing no governmental acts.” Id.
The judgment is affirmed.
Ian K. Thornhill, AUSA, argued, Cedar Rapids, IA, for Appellee.
Jonathan Hammond, argued, Cedar Rapids, IA, for Appellant, Papakee.
Before COLLOTON, BRIGHT, and SHEPHERD, Circuit Judges.
COLLOTON, Circuit Judge.
LaMont William Papakee and Connie Frances Blackcloud were convicted by a jury of committing sexual abuse against a Native American woman, L.D., in Indian country. The district court1 sentenced Papakee and Blackcloud to 360 months’ and 262 months’ imprisonment, respectively. Both defendants appeal, challenging an evidentiary ruling made at trial, the sufficiency of the evidence supporting their convictions, and their sentences. We affirm.
I.
L.D. is a member of the Omaha Tribe of Nebraska. In August 2006, L.D. left her tribe in Nebraska and moved to the Sac and Fox Tribe of the Mississippi in the Meskwaki Settlement in Tama County, Iowa. There, she began living with Papakee and Blackcloud in Papakee‘s house. Every day, the three drank heavily, to the point of intoxication.
According to the prosecution‘s evidence, in early September 2006, on a day the three had spent drinking beer and vodka, Papakee and Blackcloud sexually abused L.D. inside Papakee‘s house. L.D. testified that Papakee and Blackcloud held her down on a bed and forced a cucumber into her vagina. Following the incident, L.D.
A grand jury returned an indictment against Papakee and Blackcloud based on this incident. Count 1 of the superseding indictment charged each defendant with knowingly causing, and attempting to cause, another person to engage in a sexual act by using force against that person, in violation of
At sentencing, the district court determined that Blackcloud‘s base offense level was 30 under USSG § 2A3.1(a)(2). It then applied a four-level specific offense characteristic for aggravated sexual abuse under § 2A3.1(b)(1), even though the jury had acquitted Blackcloud on Count 1. Based on an offense level of 34 and a criminal history category IV, the court sentenced Blackcloud to 262 months’ imprisonment, the top of the advisory guideline range.
As to Papakee, the district court also started with a base offense level of 30 and applied a four-level specific offense characteristic for aggravated sexual abuse. The court then determined that Papakee was a career offender under § 4B1.1. Application of the career-offender guideline raised Papakee‘s offense level from 34 to 37 and his criminal history category from IV to VI. After concluding that Papakee‘s advisory guideline range was 360 months’ to life imprisonment, the court sentenced him to 360 months. The court stated, moreover, that it would have imposed the same sentence even if Papakee was not a career offender. Without the career-offender enhancement, Papakee‘s advisory guideline range was 210 to 262 months’ imprisonment, but the court stated that it would have imposed a sentence of 360 months based on
II.
Papakee contends that the district court abused its discretion at trial by excluding evidence designed to attack L.D.‘s credibility. Papakee sought to introduce testimony from Wesley Sebetka, a deputy in the Tama County Sheriff‘s Office, that while he was interviewing L.D. about the sexual abuse, L.D. told him that he was “cute” and asked him if he wanted to “crawl into bed” with her. The district court ruled that the proffered testimony was inadmissible under Federal Rule of Evidence 412 and, alternatively, under Rule 403.
Rule 412 provides that, “in any civil or criminal proceeding involving alleged sexual misconduct,” evidence offered “to prove that any alleged victim engaged in other sexual behavior,” or “to prove any alleged victim‘s sexual predisposition,” is not admissible, unless certain enumerated exceptions apply.
We conclude that the district court properly excluded the disputed testimony un
Papakee maintains that even if L.D.‘s statements qualify as “sexual behavior,” then the disputed testimony should have been admitted under Rule 412‘s exception for “evidence the exclusion of which would violate the constitutional rights of the defendant.”
III.
Papakee and Blackcloud both challenge the sufficiency of the evidence to support their convictions. Each defendant was convicted of sexual abuse as charged in Count 2, in violation of
The jury was properly instructed that it could convict each defendant on Count 2 under any one of four theories: (1) that the defendant engaged in sexual abuse; (2) that the defendant attempted to engage in sexual abuse; (3) that the defendant aided and abetted the commission of sexual abuse; or (4) that the defendant aided and abetted the commission of attempted sexual abuse. Because the jury returned a general verdict of guilty in the case of each defendant, we do not know which theory or theories the jury found that the government proved beyond a reasonable doubt. We will therefore uphold the jury‘s verdicts if the evidence is sufficient to support the defendants’ convictions under any one of the alternative theories. Turner v. United States, 396 U.S. 398, 420 (1970). The evidence is sufficient if, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).
Papakee and Blackcloud dispute that they knowingly engaged, or attempted to engage, in a sexual act with L.D. We believe the evidence is sufficient to support the jury‘s conclusion that they did. At trial, L.D. testified that she was sexually abused by Papakee and Blackcloud while staying in Papakee‘s house in early September 2006. Although L.D. could not remember the precise date of the alleged abuse, she recalled being intoxicated from drinking beer and vodka on the day the abuse occurred. She also recalled falling asleep in Papakee‘s bedroom around 10:30 p.m. that night.
L.D. testified that she awoke an hour later to find herself lying on the bed on her back, with Papakee pressing his knees on her shoulders and head-butting her on the nose, and Blackcloud pulling apart her legs and tearing open her pants. L.D. recalled that Blackcloud had a cigarette, which she used to burn L.D.‘s buttocks and thigh, as well as a cucumber. According to L.D., Blackcloud “tried to put” the cucumber in L.D.‘s vagina, while Papakee “held it by one hand and tried to help her put it inside.” L.D. testified that she felt the cucumber in her vagina, and that she heard Blackcloud say, “Shut up and take it like a man.” L.D. further testified that Blackcloud struck her on the head with a vodka bottle, and that the abuse ended only when Papakee‘s cousin, Sheila, came into the bedroom. By that time, L.D. stated, she was bleeding from her head, nose, and lip. L.D. recalled that Sheila helped gather her belongings and then took her to the home of Rodney Papakee, Sheila‘s father.
Important elements of L.D.‘s testimony were corroborated by the testimony of others. Sheila testified that she was in Papakee‘s house on three separate occasions on the alleged day of the abuse. She stated that when she first entered the house around 1 p.m., she found Blackcloud “roaming around,” L.D. passed out on a couch in the living room, and Papakee sitting next to L.D. According to Sheila, Papakee asked her, “Do you want to check this out?,” and lifted a blanket covering L.D.‘s waist to reveal a cucumber in L.D.‘s vagina. Sheila testified that she left the house, but returned an hour later to find L.D., awake and fully clothed, listening to music and watching TV in the living room. Sheila stated that she left the house again, but decided to call back to check on L.D. When she heard L.D. crying on the other end of the line, Sheila decided to make another trip to the house. She testified that when she entered the house around 3
Another of Papakee‘s cousins, Rita, testified that she confronted Papakee and Blackcloud upon learning about the alleged sexual abuse. Although Rita admitted that she was drunk when she confronted them, she recalled speaking to both defendants individually. According to her testimony, she asked Papakee, “How would you feel if somebody did that to your daughter?,” and Papakee responded, without denying abuse, by saying, “You don‘t even know this woman. What does it matter?” Rita testified that when she confronted Blackcloud about abusing L.D. with a cucumber, Blackcloud admitted, “Yeah, I did use a cucumber on her.” Rita recalled responding by punching Blackcloud in the face.
We conclude that a rational jury, viewing this evidence in the light most favorable to the prosecution, could have found each defendant guilty of sexual abuse. L.D.‘s testimony about the incident in the bedroom, together with Sheila‘s description of what happened that day and Rita‘s account of how the defendants reacted when confronted, provided sufficient grounds to establish that Papakee and Blackcloud knowingly placed a cucumber in L.D.‘s vagina while L.D. was incapacitated. To be sure, L.D. and Rita were intoxicated during the events about which they testified, and inconsistencies existed between the testimony of L.D. and others. Whereas, for example, L.D. testified that the abuse occurred at night and ended when Sheila entered the bedroom, Sheila‘s testimony suggested that the abuse took place in the afternoon and concluded before she arrived. But the credibility of a witness is for the jury to decide, and any questions regarding the credibility of L.D. or others must be resolved in favor of the jury‘s verdict. United States v. McCarthy, 97 F.3d 1562, 1571 (8th Cir.1996). The evidence was sufficient to support the conviction of each defendant on Count 2 as charged in the indictment.2
IV.
A.
Both Papakee and Blackcloud contend that the district court committed procedural error in calculating their advisory guideline sentences. The district court adjusted each defendant‘s offense level under USSG § 2A3.1(b)(1), which requires a four-level increase “[i]f the offense involved conduct described in
Blackcloud contends that the district court‘s consideration of acquitted conduct to enhance her sentence violated her rights under the Fifth and Sixth Amendments. It is settled in this circuit, however, that the Constitution does not preclude a district court from considering acquitted conduct in sentencing a criminal defendant. United States v. Canania, 532 F.3d 764, 771 (8th Cir.2008).
Papakee argues that the district court clearly erred in finding that his offense of conviction involved conduct described in
B.
Papakee also contends that the district court erred in sentencing him as a career offender under USSG § 4B1.1. One prerequisite to qualification as a career offender is that the defendant‘s offense of conviction be “a felony that is either a crime of violence or a controlled substance offense.” USSG § 4B1.1(a). Papakee argues that sexual abuse in violation of
We need not decide whether a violation of
Papakee does not challenge the adequacy of the district court‘s explanation of its alternative sentence, but argues that the sentence is substantively unreasonable. We review the substantive reasonableness of a sentence under a “deferential abuse-of-discretion standard.” Gall v. United States, 552 U.S. 38, 128 S.Ct. 586, 591, 169 L.Ed.2d 445 (2007). Where, as here, the sentence is outside the advisory guideline range, we “may consider the extent of the deviation, but must give due deference to the district court‘s decision that the
In considering the
Giving deference to the district court as required by Gall, we conclude that Papakee‘s sentence is not unreasonable in light of
***
For these reasons, the judgment of the district court is affirmed.
BRIGHT, Circuit Judge, concurring.
I join the majority‘s ultimate conclusion in these appeals, but write separately to voice my opposition to the use of acquitted conduct in determining Blackcloud‘s sentence.
I concur, rather than dissent, because I am bound by prior decisions of this circuit that expressly permit a district court to use acquitted conduct at sentencing. See, e.g., United States v. No Neck, 472 F.3d 1048, 1055 (8th Cir.2007) (“Acquitted conduct may be used for sentencing purposes if proved by a preponderance of the evidence.“). But I am aware of no post-Booker authority from the Supreme Court that authorizes the use of acquitted conduct.3
Not long ago, I wrote extensively that the use of acquitted conduct violates the Sixth Amendment. See
I will not repeat here my concurrence in Canania. But I will reiterate that “the use of ‘acquitted conduct’ at sentencing in federal district courts is uniquely malevolent.” Id. (Bright, J., concurring). We must end the pernicious practice of imprisoning a defendant for crimes that a jury found he did not commit. It is now incumbent on the Supreme Court to correct this injustice.
COLLOTON
CIRCUIT JUDGE