*1 America, STATES UNITED
Appellee, KENYON, as also known
Ronald Gene Bingen, Appellant. G.
Ronald 06-1693.
No. Appeals, Court
Eighth Circuit. 17, 2006. Oct.
Submitted: 9, 2007. April
Filed: *4 SMITH, BOWMAN, and
Before
COLLOTON,
Judges.
Circuit
COLLOTON,
Judge.
Circuit
a
appeal arises from re-trial
This
charges
on
that he sexual-
Ronald
A.L.,
age
ly abused
a child under
trial,
time. At
first
twelve at the
him
three counts of
jury
convicted
sexual abuse and two counts
aggravated
sexual contact.
reversed
abusive
We
admis-
improper
convictions based on the
hearsay
prejudiced
sion
for fur-
Kenyon, and remanded the case
v. Ken-
proceedings.
ther
United States
Cir.2005) (“Ken-
yon,
yon’s
prior
trial are
in our
first
described
I,
opinion. Kenyon
397 F.3d
1074-1075.
in the
According
presented
to evidence
Pierre, SD,
argued,
Albright,
Edward G.
trial,
years pre-
during
second
the three
appellant.
ceding April
when A.L. was between
eleven,
a
ages
eight
she was
Hanson,
At-
argued,
Mikal
Asst. U.S.
G.
guest at the home of
regular overnight
torney, for appellee.
wife,
Ronald
sion,
and his common-law
he unsuccessfully tried to insert his
April
Mona LaRoche. On
into
penis
vagina.
her
And she testified
guardians,
Middletent,
Robin and Dale
once,
that at least
maybe twice,
took her to the Children’s Safe Place in caused contact
penis
between his
and her
Thompson,
Dakota,
Fort
South
on an un- mouth. She also stated that she had not
there,
related matter. While
A.L. was in- disclosed the abuse before her interview
physician’s assistant,
terviewed
Re-
Kroupa
because she was scared of
Kroupa,
nette
Kroupa
and A.L. told
that Kenyon, both as a result of threats he had
Kenyon had
private
touched her
areas made and because of violence she had wit-
stayed
when she
at his home.
nessed.
During Kenyon’s
first
Kroupa tes-
Kroupa
Rennette
testified in a far more
tified in detail about the interview with limited manner than first trial.
I,
therefore reversed Kenyon’s convictions house. and remanded the case district court. *6 The I, convicted Id. at on 1082. Counts II, IV, and sentencing, V. At in determin- government a superseding obtained ing the advisory guideline sentence, the against indictment Kenyon, charging him applied adjustment court a two-level under with five counts of aggravated attempted 2A3.1(b)(3)(A), § because A.L. had been in sexual abuse of a child in Indian country, Kenyon’s “care, custody, or control” at the in §§ violation of 18 1153 U.S.C. and of time the abuse. The court determined 2241(c). Count I alleged sexual touching Kenyon’s advisory guideline sentenc- genitalia, see 18 U.S.C. ing range was 324 to 405 months’ impris- 2246(2)(D); § Count II charged contact onment, and imposed a sentence of 324 penis between the and involving the vulva months. penetration, § 2246(2)(A); see and Counts alleged IV V contact between pe- the II. mouth, 2246(2)(B).
nis § see Each count charged had committed Kenyon appeals several evidentiary the sexual acts and attempted to do so. rulings trial, made at his and argues that III, Count which alleged contact between all four counts of conviction should be re penis anus, the was on dismissed versed based on these alleged errors. He government motion during trial. challenges the admission of evidence that engaged violence, he had trial, At domestic ex second A.L. described pert testimony that says several different was Kenyon. encounters received occasions, proper She stated that on multiple required without or a Ken- notice hear yon moved ing his hand back reliability, and forth on her on hearsay testimony vagina. She testified that on another occa- from Renette Kroupa. Kenyon also ar- only when A.L. occurred mestic violence its discretion abused the court
gues that
old,
it
and that
evidence,
years
including
ten or eleven
was
excluding certain
report Ken-
A.L.’s failure to
explain
cross-examination
cannot
intended
part
La-
abuse,
from Mona
the domestic
testimony
because
sexual
yon’s
A.L. and some
court’s evi-
of the
district
near the end
place
review
Roche. We
violence took
of discretion.
abuse
rulings
A.L. claims she was
dentiary
during which
period
I,
at 1079.
F.3d
Kenyon Kenyon.
abused
evidentiary
We conclude
A.
of discretion.
not an abuse
rulings were
that Ken-
A.L. testified
During
hearing
preliminary
in the
A.L.
That
said
if she
to kill her
told
yon had threatened
was
she
occurred when
that the violence
abuse, and the
the sexual
anyone about
preclude
eleven” did
“maybe ten
or
her a series of
asked
later
government
whether
she
inquiring
from
prosecutor
things,
Among other
follow-up questions.
eight
was
when she
violence
also witnessed
if,
A.L. when she was
asked
prosecutor
if, in
point
old. And even
years
or nine
nine, ten, and elev-
eleven; eight,
“ten and
A.L.
fact,
occurred when
all of the violence
seen the Defendant
en,”
“ever
she had
eleven,
ad
the district court’s
ten or
was
in the home?”
anyone else
violent towards
not erro
still
of the
mission
(Id.
yes, the
A.L. answered
at
When
opportunity
had an
neous.
her,
you
“And were
asked
then
prosecutor
clarify
precise
A.L. to
cross-examine
had seen?”
you
fearful,
of what
because
witnessed the violence.
in which she
years
affirmatively.
(Id.).
answered
again
testimony as
prior
her
free to use
He was
to ex-
is admissible
This sort of
material, and to ask
impeachment
potential
report sexual
failure to
a victim’s
plain
time
Plumman,
designed
narrow
questions
abuse,
violence, possible.
if
domestic
(8th Cir.2005),
frame of the
and the dis-
not a
preju-
inability
unfair
so is
to avoid
failure
do
steps
His
trict court took
limiting
instruction
was error
there
by giving
dice
basis
conclude
(T.
jury.
examina
Tr.
answer
direct
allowing A.L.’s
tion.
testimony.
to this
He
objected
*7
violence
while
argues that
the admission of
appeals
Kenyon also
may be admissi-
the victim
in
causing fear
pro-
Kaplan,
Dr. Rich
testimony of
the
Plumman,
see
circumstances,
in
ble
some
University
at the
pediatrics
fessor of
928,
evidence here
the
was
409 F.3d at
and associ-
of Medicine
Minnesota School
questions
prosecutor’s
the
misleading, and
at
Children’s
medical
Midwest
ate
director
outside
had testified
the
improper.
an
Kaplan
as
testified
Resource Center.
she
jury that
observed
the
presence of
regarding vari-
government
expert for the
time,
one
LaRoche
and
Kenyon
Mona
beat
children.
of abused
characteristics
ous
times,”
“a whole bunch
hit her children
testimony
prosecu-
This
offered
the
was
“maybe ten or
she was
when
apparently
that
character-
tion to demonstrate
60). Kenyon
(T. Tr. at
claims
eleven.”
those of
inconsistent with
were not
istics
ques-
of the
phrasing
prosecutor’s
that the
an abused child.
when A.L.
trial&emdash;referring
was
tions
Kaplan’s
Dr.
challenges
eleven”-&emdash;created
ten,
nine,
the
“eight,
First,
ar
he
testimony
grounds.
two
continually
she
ob-
impression
false
to deter
hearing was required
that a
gues
and their
beating LaRoche
served
expert testimo
reliability of the
mine the
alleged-
he was
during
period
children
Second,
admitted.
could be
ny before it
that do-
Kenyon suggests
ly abusing A.L.
argues
government
consistently
failed to but the court
sustained Ken-
him
notice of the
provide
adequate
yon’s objections to
questions. Only
these
Kaplan’s testimony,
Dr.
as re-
contents of
once,
object
when
failed to
to such
by Federal Rule of Criminal Proce-
quired
question,
did Dr. Kaplan testify that
16(a)(1)(G).
court’s
dure
We review the
what he had
in
practice—
observed
expert
testimony
to admit
for
decision
children’s reluctance to disclose sexual
v. Ev-
abuse of discretion. United States
supported by
opinions
abuse—-was also
(8th Cir.2001).
ans,
1069,
272 F.3d
experts.
of other
fact
Given
supported by
also
Dr. Kaplan’s experience
admitting
testimony
Before
validity
and that
ques-
its
has not been
scientific,
spe
based on
technical or other
defendants,
tioned
its inclusion
knowledge,
cialized
a district court must
prior
without a
determination of its relia-
testimony
ensure that the
rests on a reli
bility
plain
Otherwise,
able foundation.
was not
Daubert v. Merrell Dow
error.
Pharm., Inc.,
579, 589,
509 U.S.
113 S.Ct.
entirety
Kaplan’s
of Dr.
testimony was
2786, 125
(1993);
L.Ed.2d 469
Kumho Tire
based on his
unchallenged
extensive and
Carmichael,
137, 141,
Co. v.
526 U.S.
119 experience, and the court did not abuse its
(1999).
S.Ct.
1063 statements, disputed stantial when she made influence” on the outcome of the Kotteakos, district court thus erred admit- trial. 765, U.S. 66 S.Ct. ting Kroupa’s testimony ground. on this 1239. conclude, however, that this We B. evidentiary error
non-constitutional
States,
harmless. See Kotteakos United
also challenges the dis
750, 764-65,
1239,
328 U.S.
S.Ct.
90 trict court’s
refusal
allow him to cross-
(1946). Kroupa’s
L.Ed. 1557
recounting of
examine
concerning
what he claims
brief, general
A.L.’s
provide
statements
were
allegations
false
of sexual contact
support
credibility
little
for A.L.’s
and had that
against
Russell,
A.L. made
William
Indeed,
potential
prejudice.
little
A.L.,
one-time
Cody
schoolmate of
testimony typically
sort of
is admissible as Russell,
Kenyon sought
her uncle.
to ask
“[preliminary
concerning
information
the A.L.
allegations
about these
part
as
of an
origin
investigation,”
of an
United States v.
attack on A.L.’s character for truthfulness
Horse,
(8th
Running
175 F.3d
608(b).
under Federal Rule of Evidence
Cir.1999),
although
the district court He
contends
the district court’s exclu
gave
limiting
no
respect
instruction with
to sion of this evidence was error under the
evidence,
think it unlikely
we
that the
rules of evidence and violated
rights
jury gave
greater
it
effect. A.L. already
under the Confrontation Clause. We re
had testified that she
Kroupa
informed
evidentiary
view
rulings regarding the
during
the abuse
her interview at the Chil
scope of a cross examination for
abuse
Place,
dren’s Safe
and that she had failed discretion,
Beal,
United States v.
430 F.3d
any
to tell
other
adults
the abuse be
(8th
Cir.2005),
955-56
but where the
light
cause she was afraid.
In
of this
Confrontation
implicated,
Clause is
we
testimony, Kroupa’s testimony concerning
consider
the matter de novo. United
cumulative,
A.L.’s
largely
comments was
v. Urqhart,
469 F.3d
and cumulative
usually
statements
are
.2006).
Cir
Shell,
harmless. See Iron
1064 however, Kenyon’s after ruling, came value.” probative minimal has 854, Tail, “an F.3d he had v. 459 asked Russell whether counsel States United See Cir.2006). (8th reputation for truth- as to opinion [A.L.’s] 860 in the communi- or untruthfulness fulness court found Here, the district 233-34). (T. Russell When ty.” Tr. at had girls who young the witnesses — concerning opinion his with answered evidentiary hearing that prior in a claimed or un- for truthfulness A.L.’s character William allegations against A.L. had made truthfulness, information he volunteered credi Russell —were not Cody and Russell question. responsive to the was testimony plagued was ble, their because Therefore, ordered the (R. properly the court Doc. and errors contradictions. 70). Russell to and directed stricken Hr’g at answer 142, Final Mot. Tr. of true, if their even that was asked. Ken- question also found answer court “may have only that A.L. subject of A.L.’s testimony proved returned to the yon never graders seventh other talking truthfulness, with never been and character for (Id. at activities.” sexual claimed about question that would have Russell asked were alleged accusations Since subject. Ac- opinion elicited his on authority figure, made an never ruling was court’s cordingly, the district at most to reasoned, they amounted court proper. actual accusa than gossip, rather childish district Kenyon next claims The court therefore of sexual abuse. tions portions two of improperly excluded court relating to the any evidence ruled that LaRoehe, testimony of Mona proposed value and probative had no allegations First, La- wife. common-law jury. confuse the time would waste had asked R.K. testified that Roche she ruling was an not think doWe J.K., a bed with children who shared or inconsistent with discretion abuse LaRoehe and stayed with A.L. she when The evidence Clause. Confrontation they anything noticed Kenyon, whether weak, there was no show falsity was accusations of support A.L.’s that would against accusations that A.L.’s ing Kenyon. Kenyon’s counsel against abuse scheme involv a broader also part were if R.K. or J.K. had asked LaRoehe then Russells. against the ing allegations contrived sug- any information her “with provided v. Stamper, Cf . (T. (W.D.N.C.1991), Tr. anything happened.” 1402-03 F.Supp. gesting re One Female Juve “No,” nom. In sub but LaRoehe answered aff'd 91-5334, Victim, WL No. hearsay grounds, nile objected prosecution 1992) Ac (unpublished).1 Apr.1, Cir. (Id.). Ken- was stricken. and the answer properly ex was cordingly, argues that the court erred yon now Tail, at 861. cluded. See striking LaRoche’s answer. did not for question call claims contends that the dis Kenyon also La- did not ask hearsay, because counsel by pre its discretion abused trict court R.K. the content statements Roche offering from Russell venting William J.K., only a statement but whether character truthful opinion 405(a). had made. been The court’s Fed.R.Evid. See ness. (R. activity Doc. Indeed, gage sexual court out that district
1. it turns skepticism of the at United States quite right evince Basis Statement Factual Russell, falsity, has for William Russell allegations of No. 3:06-CR-30081-CBK William making a false declaration guilty 29, 2006)). pled (D.S.D. since Sept. did en- that he admitted before a court and *11 Kenyon hearsay defines too order of the district court. aAs condition narrowly. Hearsay any includes “oral or Kenyon’s pretrial release, placed he was written ... assertion or nonverbal conduct custody in the of his mother stepfa- person, of a if it by person is intended the ther, ordered to only have supervised con- as an assertion” and “offered children, tact with his own and forbidden prove the truth of matter asserted.” overnight to have stays his children. circumstances, Fed.R.Evid. 801. In some (R. 4). Doc. at That Kenyon was silence itself can be a such nonverbal as “separated” from by LaRoche court order Hawkins, sertion. See Rahn v. 464 F.3d for the years two before his second (8th Cir.2006) (“[A] statement is therefore, seems irrelevant to whether La- person attributable when he or she Roche would be biased his favor due to silent in stands the face of its utterance if their common-law marital relationship. response natural deny would be to it if Indeed, LaRoche acknowledged that she untrue.”). Here, LaRoche testified that still considered Kenyon be her “hus- she had asked R.K. J.K. about A.L.’s (T. band.” Tr. at To the extent allegations against Kenyon, and defense there is some minimal relevance to the fact inquired then counsel whether the children that LaRoche were forced to provided “any suggesting any information cease their living common arrangements, (T. thing happened.” A nega Tr. think probative we value outweighed is response tive from LaRoche would have by the prejudicial confusion and effect of signified provided the children in no allowing government to explain that formation “suggesting anything hap separation was by caused stringent pened,” and the sought suggest defense conditions release, rather than that the natural response of the children breakdown in the LaRoche-Kenyon rela- would have been they abuse if report tionship. Kenyon’s Accordingly, perceive had seen it. we no effort to offer La- re- answer, negative therefore, Roche’s versible error in ruling. was an this attempt to offer nonverbal conduct of R.K.
and J.K. as evidence that had not C. A.L. The question abused called for hear say, LaRoche’s response properly was appeals also the district court’s stricken. denial of his motion for a mistrial based on Second, Kenyon challenges government the district comments made during court’s refusal to allow LaRoche to testify closing arguments. During Kenyon’s clos- separated that she been from ing argument, his counsel asked rhetorical- roughly years two before second trial. ly why prosecution had failed to call The court excluded this evidence as irrele- children, Kenyon’s J.K., R.K. and who vant, Kenyon argues but that it was crucial slept in the same as A.L. bed at the time to buttress credibility. LaRoche’s alleged abuse govern- occurred. The government sought to portray LaRoche as objected, ment arguing that “[t]he defen- by identifying biased as her com- power subpoena. dant has the They wife, and Kenyon argues mon-law that evi- anyone can call in the world also.” The separation dence of would have tended to court, objection, trial overruled the noting impression lessen the of bias. that defendants any “don’t have to call Later, during
We see no of discretion in witnesses.” his rebuttal ar- abuse ruling, because “separation” gument, prosecutor made the following Kenyon and LaRoche by. caused an statement: *12 instance, actually sustained Ken- the court obligation to has no
Yes, Defendant the com- any objections prosecutor’s to the present yon’s or witness any subpoena jury that ments, But the De- the the law. and then reminded That’s evidence. subpoena to any decided produce this case had no burden to Kenyon in fendant defense, brought peo- and difficulty his have no people We therefore evidence. bring So, power the to he has here. ple closing the concluding aspect that this in in this case. here, he did and people Kenyon to prejudice caused no argument [J.KJ is [R.K.] Where —? fair trial. him of a deprived that 350). (Id. at a mistrial based Kenyon moved for also objected gov- that the Kenyon’s counsel question asked on another rhetorical my burden that it’s “implying argu- ernment during closing prosecutor the witnesses, not.” and it’s these put to that an you really believe ment: “[C]an (Id.) that he was replied prosecutor The time, that an eleven year old at eleven a Kenyon had burden that implying a be able to concoct year going old is to Mona LaRoche had only that but proof, legal goes through the whole story that The court reiter- children. custody of the you heard all the detail that system, with bring to “no burden that had ated (Id. Kenyon’s counsel at about?” evidence,” prosecutor the to directed any remark, and the court objected to this that “I don’t on,” admonished “move objection. Kenyon contends the overruled (Id.) arguing that.” you want suggested comment prosecutor’s that that any allegation that survives previously held have
“We enough go to to legal system” long govern “whole attacks the when defendant says the comment true. He to call certain witnesses and trial must be ment’s failure credibility have might witnesses that those “bolstered” suggests improperly him, may government then the effectively exonerated the burden reversed had the that the also out defendant point proof. witnesses.” United subpoena
power ar prosecutor’s We think Feather, 915, 299 F.3d 919 Long States v. disput gument problematic, is because (8th Cir.2002); Flynn, v. see States may suggest well be read to ed statement (8th Cir.1999); 927, Unit 930-31 196 F.3d by the jury should be influenced that the 842, 872 Kragness, v. 830 F.2d ed States “legal system” in must fact that others Cir.1987). (8th manifesta rule is a This testimony in order for believed A.L.’s have proposition “[i]n general tion of the trial. proceed case to See United is entitled arguments, prosecutor closing 1163, Benitez-Meraz, F.3d v. 161 when response make a fair rebuttal (8th Cir.1998) vouching (“Improper 1167 government’s the defense attacks ... government re may occur when the Feather, F.3d at 919 Long 299 case.” implies facts outside the record or fers to 930). In view Flynn, 196 F.3d at (quoting supported is veracity that the of a witness area, in we doubt decisions this our that are unavailable to the by outside facts to note prosecutor for the improper it was however, established, It jury.”). is well power subpoena had the argument every impropriety “not custody of his were children who trial for a reversal of the calls for a new wife, where particularly common-law v. United States judgment of conviction.” by ac prefaced his remarks prosecutor (8th Cir.1986) Pierce, F.2d 742 had “no obli knowledging Hernandez, v. (quoting United States any present witness or gation subpoena Cir.1985)). (T. ulti- But any evidence.” Tr. III. prosecutor’s whether the question mate is comments, if “so infected the improper, challenges next sufficiency make the trial with unfairness as to result II, IV, of the evidence on Counts and V. process.” conviction a denial of due ing He also asserts that the court’s instruc- Mullins, 446 F.3d United States tions to the on these counts were *13 (8th Cir.2006) Darden (quoting 757 flawed. 168, 181, Wainwright, 477 U.S. 106 S.Ct. A. (1986)).
2464,
144
91 L.Ed.2d
II alleged
Count
had
Although the district court overruled the
engaged
attempted
or
to
in
engage
sexual
remark,
objection
prosecutor’s
to the
the
1153,
§§
abuse in violation of 18 U.S.C.
specifically
jury
did
court
instruct the
2246(2)(A).
2241(c), and
Sections 1153 and
arguments by
lawyers
the
were not evi- 2241(c)
unlawful,
make it
for an Indian
dence,
grand jury’s
and that the
return of within
country, knowingly
Indian
to en
guilt.
an indictment was no evidence of
gage in a
act
person
sexual
with a
under
(R.
125, Final Jury
Doc.
Instructions Nos.
years
age,
twelve
or to attempt to do so.
repeatedly
The court
2246(2)(A)
reminded the Section
defines “sexual act” to
jury
presumed
that the defendant is
inno-
encompass contact
penis
between the
cent,
vulva,
and that
the
government
the
bore the
with contact defined as occur
ring “upon penetration,”
slight.
however
proof beyond
burden of
a reasonable
2246(2)(A).
§
18
(Final
reviewing
U.S.C.
In
for
Jury
doubt.
Instructions No.
11-
evidence,
sufficiency of the
“we view the
jury
The
instructed that it
was
was
evidence in
light
most favorable to the
judge
testimony
of what
to believe or
verdict, and we will overturn a conviction
(Final Jury
not to believe.
Instruction No.
if
only
jury
no reasonable
could have con
7). We see no reasonable likelihood that
cluded that
guilty
the defendant was
be
single
argument
comment in final
led
yond a reasonable doubt on each essential
jury
that the burden of proof
believe
I,
charge.” Kenyon
element of the
entirety
was reversed. The
of the court’s
(internal
omitted).
quotation
F.3d at 1076
instructions made clear to the
that it
responsible
judging
A.L.’s credibil-
govern
We conclude that the
ity, independent
opinion may
of whatever
ment produced
sup
sufficient evidence to
port
attempted
a conviction of
sexual
prosecutor
have been reached
or
§§
abuse
in violation of
2241 and
grand jury.
ultimately
We
conclude
2246(2)(A).
required
elements of an
any perception
improper bolstering
“(1)
attempt
engage
are
an intent
through
prosecutor’s
reference to the
(2)
conduct,
criminal
conduct constitut
system”
legal
great
“whole
was not so
as
ing
step’
a ‘substantial
commission
toward
fair trial.
deprive
of a
of the
strongly
substantive offense which
summary,
In
we conclude that the dis-
criminal intent.”
corroborates
actor’s
rulings
trict
argu-
court’s
on evidence and
Arrows,
Plenty
United States v.
946 F.2d
largely
Viewing
ment were
correct.
(8th Cir.1991) (internal
quotation
whole,
record as
we do not believe that
omitted).
Kenyon,
testified that
identified,
the errors
considered individual-
aroused,
while naked and
took off her
ly
cumulatively, deprived Kenyon
of a
clothes,
up
top
moved
and down on
of her
fair trial or substantially
minutes,
influenced the
unsuccessfully
for five or ten
put
penis
vagina.
verdict.
tried to
his
into her
you say
do
When
THE COURT:
evi
provided sufficient
This
put
pe-
attempted
find both that
Mr.
jury to
for a
dence
A.L., and
sexually
your
abuse
mouth?
nis
intent to
had the
to do
step
a substantial
taken
he had
a date? I don’t
Like
THE WITNESS:
evidence
insufficient
there was
That
so.
I can’t remember.
a date.
have
preclude
does
penetration
actual
prove
Well, with reference to
COURT:
THE
II,
we
because
Count
under
a conviction
Kroupa
you talked with Renette
when
its verdict
jury reached
that the
presume
9, 2003,
give you
April
does
on
theory
attempt,
alternative
based
any information?
was sufficient.
for which
Grif
46, 59,
States,
502 U.S.
v. United
fin
No.
THE WITNESS:
(1991).
*14
466,
Being under the influence of alcohol being under the influence of drugs provides or a legal excuse for the drugs or alcohol could not legal be a ex- only commission of a crime if the effect cuse for charge in Count IV V. drug of the alcohol or it impossi- makes preserve did objection an to this ble for the defendant to have the specific *15 instruction with respect to Counts II. He (a) abuse, humiliate, harass, intent to or points out that Count II him charged with victim, degrade alleged or to arouse attempting abuse, to commit sexual and as gratify any per- the sexual desire of noted, we have evidence trial (b) son, attempt or to to commit the act only showed an attempt, because A.L. tes- charged. Evidence that defendant acted tified that did not pen- cause while under the influence of alcohol or etration. Kenyon argues that the influ- drugs may be you, togeth- considered ence of intoxication or drugs should have evidence, er all with the other in deter- been available as a on defense Count II as mining whether or not he did fact to the element that had specif- specific have such intent. ic intent attempt to the commission of the This instruction only relates to the charged. act The government responds I, charged crime in Count the essential commit attempt that sexual abuse is not elements which are set in In- of forth specific a intent crime. struction 11. Being under the influence alcohol or a drug provide does not a The common law definition of “attempt” of legal any excuse other counts requires showing a that a criminal defen- indictment. dant specific acted with the intent to com- (R. 125, Jury particular Nix, Doc. Final mit a Fryer Instruction No. offense. v. 775 17) added). (8th (emphasis 979, Cir.1985); F.2d 993 United States 1188, v. Gracidas-Ulibarry, 231 F.3d Kenyon argues that the district (9th Cir.2000) (en banc). 1192-93 Absent by limiting court erred application indication, an Congress that a intended dif- this instruction to Count I. In the district meaning, ferent our cases hold that to find court, Kenyon’s objection to Instruction a guilty defendant of an “attempt” to com- No. 17 was a limited to contention that the mit a a crime under federal criminal stat- defense drug of intoxication or use should ute, a must find the defendant have been with respect available to Count (T. specific II. had the Tr. at intent to commit that He conceded that the Arrows, 66; evidence on crime. Plenty Counts IV and V did not See 946 F.2d at attempt abuse, Mims, involve an to commit 1068, sexual United States v. 812 F.2d 1070 Nacotee, v. 159 intent.” United Cir.1987); v. (8th United States 1077 cf. Cir.1976) Cir.1998). (8th (7th 55, 1073, The dis-
Johnston, 58 1076 F.2d F.3d 543 statutory- convincing evidently on there was (holding, based trict court believed specific not include text, Congress did to warrant instruc- sufficient attempted bank element as an I, intent where both respect to Count tion with of the district court’s body robbery). The specific intent an parties agreed that proposition this recognized instruction offense, govern- and the of the element “[b]eing under the it stated when objection interposed no based suf- ment a drugs provides or alcohol influence of ficiency of the evidence. a crime for the commission excuse legal may be entitled A defendant drug the alcohol only if the effect it furthers instruction where to the even for the defendant impossible makes it attempt to not consistent ... defense is potential intent specific have the (R. 125, Doc. charged.” the act or his own testimo primary commit awith defense No.17) (emphasis Jury States, Final Instruction v. 485 U.S. ny. Mathews United added). language, with Consistent 58, 63-66, 99 L.Ed.2d 108 54 S.Ct. attempted held have other circuits States, (1988); 929 F.2d Arcoren v. United crime, intent specific abuse is sexual Cir.1991) (“[T]hat the ‘rec Crowley, F.3d v. United States may inconsistent be ognized defense’ Cir.2000); (2d States v. Sneez United asserting defendant is defense the another (9th Cir.1990), 177, 179-80 er, justify excluding evidence and does not the instruction on agree. Accordingly, we ‘recog on the an instruction failing give have use should not and drug intoxication ”); Womack nized defense.’ ground I on the to Count limited been (D.C.Cir.1964) States, 959, 959 336 F.2d an was not ele specific intent curiam) (“[A] defendant is entitled (per *16 charged in Count II. offense of the ment fairly any raised an instruction on issue alterna argues government evidence, whether or not consistent the attempted sexual abuse if tively that even testimony the or de with the defendant’s crime, there was insuffi intent specific is a (cited approval with in theory.”) trial fense impair of intoxication cient evidence Mathews). case, if example, In this on Ken instruction the ment to warrant Kenyon’s assertions jury the disbelieved charged with A yon’s defense. defendant attempted to make sexual that he never to is entitled an intent crime specific a A.L., Kenyon was still entitled contact when “the evidence intoxication instruction to its burden to put government to the finding a that defen support [the would requisite that he acted with the in prove that as a was in fact intoxicated dant] prohibited the act. tent when he committed that doubt there was reasonable result words, although Kenyon pursued In other United States specific he lacked intent.” defenses, preclud was not he inconsistent (8th Cir.1981). 375, 378 Fay, asserting intoxication ed from defense defen Although mere evidence (1) to jury, to the wit: argument in his enough drinking is dant had been attempting the act of sexu did not commit its court abused the district show (2) contact, you if find that he did al but instruc declining give discretion act, the evidence shows at commit the then tion, Phelps, 168 F.3d States v. he was he did while intoxicat so most (8th Cir.1999), is the instruction specific intent. requisite without the ed and required [the if there is “some evidence to long as there sufficient So was enough complete was drunk defendant] Kenyon was intoxi- finding requisite support to form the ly capacity lack the point cated to the he could not form and that said he “could have done intent, requisite then the instruction something like that if using he was drugs given. should have been (Id. 301). or alcohol.” at In final argu- ment, prosecutor argued twice that the reviewing pre After the evidence jury rely should on Vettelson’s testimony sented at we conclude that there was admitted he could have or require sufficient evidence to the instruc might sexually have abused A.L. while he tion drug on intoxication and use as a (Id. was drunk or high. at potential specific defense to the intent ele ment of Count II. A.L. testified that she sum, In there was some evidence that smelled alcohol on the defendant when he Kenyon charged committed the crimes (T. engaging was in sexual acts. Tr. at while he was heavily intoxicated or 43). Mona LaRoche admitted that she and out,” “blanked jury and the urged was (Id. illegal drugs. both abused at consider this evidence in reaching its ver- Kenyon’s cross-examination, During Presumably basis, dict. on that the dis- government asked him several times trict court jury instructed the that intoxi- whether he drank so much that he cation was an available defense to the “blanked out”—Whether he “drank to the specific intent element of Count I. The point couldn’t [he] remember what was same instruction applied should have on,” going including when A.L. was at the specific intent element of attempt (Id. 266-68). residence. at In one charged offense in Count II. exchange, Kenyon admitted that he did. The government argument makes no (Id. 266-67). that the instructional error was harmless. Although Kenyon denied elsewhere that Attempt only was the basis for conviction alcohol, he “blanked out” from govern- II, Count and if the believed Ken ment countered with of law en- yon was unable to specific form a intent to agents forcement concerning Kenyon’s ad- commit sexual abuse due to intoxication or missions. A1 Wipperfurth, agent, an FBI use, drug then it precluded by testified rebuttal that admitted jury instruction giving from effect to that occasion, in an interview that on he drank determination. The po elimination of this alcohol to the level where he would “blank tential defense a mistaken instruction *17 (Id. 278, 282-83). out.” at Wipperfurth therefore requires reversal of the convic Kenyon said that when was asked about tion under Count II. See United v. States allegations abuse, of sexual ini- he Prieskom, (8th 658 F.2d 636-37 Cir. tially said that he “could not remember 1981). (Id. 279). doing anything like that.” at agent The light testified that in of Ken- IV. yon’s prior statements “blanking about Finally, Kenyon that claims alcohol, out” from he followed up asking district court erred when it increased his it possible whether that was the sexual “care, points offense level two for his “may acts with A.L. have occurred” while custody, supervisory or control” A.L. Kenyon “high both,” was or drunk or and 1(b)(3)(A). § See USSG 2A3. Because we that “acknowledged pos- that it is (Id. 280-281). Kenyon’s affirm convictions on I Vettelson, sible.” at Counts John IV, criminal and investigator sentencing with the resolution of this Bureau of Affairs, Indian also issue advisory guideline testified rebuttal affects the range that counts, he asked in an interview for those proceed we to consider it. allegations abuse, about A.L.’s Graham, of sexual See United States v. 60 F.3d 1072 standards, we con these Cir.1995). Applying determina- (8th The court’s
467 testimony contained Kenyon’s control clude supervisory had tion that the district to sustain we re- sufficient evidence which finding, a factual of A.L. is himself had v. finding States court’s United error. view for clear Cir.2002). First, (8th A.L. when over supervisory control Miller, F.3d why he examination asked on direct “care, custody, or su has A defendant him, Kenyon A.L. had accused thought has been if the victim pervisory control” him not like be she did responded that 2A3.1, § com him. USSG “entrusted” kids, my with “I her do work cause made Blue, v. States (backg’d); United ment. know, all, they if you I them too. treated Cir.2001) (8th (per 609, 614-15 255 F.3d (T. Tr. at up.” to clean up, they have mess curiam). may apply enhancement examination, Kenyon was On cross transitory peripheral with “even anyone the children he had to feed whether asked Miller, F.3d at 472 Cir. custody,” home, responded, staying in his omitted), and 2002) (internal quotation they needed “Yeah; them where take [I] the defendant requirement no there is (Id. testimony per This go.” great the child entrusted with be responsibili had inference that he mits an 2A3.1, § also USSG See length of time. A.L., disciplining assigning chores to ty for comment, (“Teachers, day pro care (n.3). her, needs. We caring for some her temporary viders, or other baby-sitters, commit court did conclude district be who would among those are caretakers Kenyon shared finding clear error enhancement.”). Custody subject to this for the care of with LaRoche responsibility long as the So be exclusive. also need not Voice, 585, and that A.L., 200 F.3d at see for the responsibility has some defendant “care, custody, or inwas child, with the child, entrusted he has been supervisory control.” responsibility. shares even if another Voice, 584, 585 (8th Cir.2000) (per curiam). [*] * * Nevertheless, enough is not “proximity” reasons, we affirm foregoing For the had been the defendant to establish IV, I and on Counts Kenyon’s conviction Blue, child. 255 F.3d entrusted with on II based Count reverse conviction a defendant in Blue that held at 614. We jury, instruction to the erroneous on an in the a child bathroom who assaulted conviction Count V reverse his on in the home present was while his mother Because evidence. based on insufficient child, entrusted with had not been imposed premised the sentence mother had child and his though even conviction, we also vacate counts of four for six the defendant living been case for remand the the sentence. We *18 Blue, Thus, under at 614-15. months. Id. acquittal on Count entry judgment of a solely child with a not entrusted an adult is on the other proceedings and for further V house as stays in the same he because opinion. with this counts consistent relationship some sort child and has Accordingly, the Id. with child. concurring in SMITH, Judge, Circuit entrust- to have been cannot presumed be part. in dissenting part and LaRoche had Mona ed with because A.L. respects in all save majority the join I A.L. or be- for temporary responsibility give failure to court’s The district in the one. spent nights cause with voluntary intoxication instruction the same home. to II was not reversible intoxicated respect Count to realize that he was forc- error. ing engage to [the victim] in inter- course.
Unquestionably, the district court in- (internal omitted) jury erroneously that volun- Id. (emphasis structed citations tary added); intoxication is not a defense to an Crowley, United States v. cf. However, attempt charge. (2d such an in- Cir.2000) 110-11 (holding structional error is harmless if the defen- that where the defendants requested a vol- high dant’s defense was not that he was or untary intoxication instruction to a specific intoxicated. Three decisions our sister intent crime and the “theory defendants’ circuits are instructive on this issue. they defense” was that were “too intoxicat- ed to form the specific required intent
First, to rejected the Seventh Circuit commit the attempted crimes óf argument defendant’s sexual the district abuse attempted aggravated court should jury, have instructed the sua sexual abuse,” sponte, voluntary that the in- defendant’s the district court giv- erred instruction). negate requisite toxication could mens ing the required aggravated rea sexual assault Second, Nacotee, in United States v. because the defendant was “too intoxicated (7th Cir.1998), F.3d 1073 the defendant to form the specific knowingly intent to argued to district court that she was intercourse, force, engage in sexual too drunk at alleged the time of the assault with [the victim].” United States v. to form the intent necessary to sustain a (7th Cir.1995). Boyles, 57 F.3d charge aiding abetting. Id. at 1076. While the court had “no reason to doubt” defendant, therefore, requested that T.he that the defendant was at the “inebriated give district court a voluntary intoxi- assault,” time of the it noted that jury. cation instruction to the Id. The defendant “never testified that his in- district court refused to give requested gestion great of alcohol was to that instruction, concluding that the defendant degree impaired it judgment.” Id. failed present sufficient evidence at trial explained: at 542. The court further to show that sufficiently incapaci- she was He present has failed to us evi- tated to warrant instruction. Id. On dence to convince us the merits of his appeal, the defendant argued that the dis- argument that he was intoxicated to that refusing trict court erred in give degree of that he had no inebriation requested instruction. Id. “power of reason” or that he was “utter- ' recognized The court warrant a ly incapable” knowing that he was instruction, voluntary intoxication “the de- forcing engage [the inter- victim] produce fendant must some evidence she course with him. The defendant’s mere enough completely was drunk lack the post-trial statement that he was so in- capacity requisite to form If intent. toxicated that was unable to form the evidence, produce she fails to such in- no required intent to forcibly sexually as- reviewing struction is warranted.” Id. In sault [the victim] is insufficient to re- presented the evidence the court quire be instructed cited the defendant’s reliance on the testi- voluntary intoxication. His entire de- mony agent of an FBI that arrested her theory was based on the that both fense *19 approximately two months after parties willingly and the as- knowingly en- intercourse, sault. At gaged agent para- in consensual Id. the FBI a de- statement, phrased, which is a stark the contradiction to defendant’s ex- fense appellate argument plaining that he was too that the defendant indicated that 1074 necessary to intent forming specific thinking the drinking and “not had been
she con- of sexual of the as- commit crime abusive morning the night right” the however, duct,” court, failed to see held that the defendant the court The sault. Id. the helped a foundation testimony present “failed to sufficient agent’s FBI how the that she defendant, statement voluntary intoxication instruction.” “[t]he as a for hardly con- can be thinking right’ the government present ‘not did was Id. While the impairment.” a mental victim, stepfa- evidence sidered the the victim’s that Additionally, the court concluded mother, ther, indicating Id. and the victim’s remem- defendant] fact that [the drinking “[t]he on the was that the defendant not re- and did hitting victim] [one bered offense, not- alleged the the court night of indi- best hitting other] at [the member presenting was not government ed that the Nothing was drunk. defendant] [the cates the defendant. the “for” Id. evidence reported as statement defendant’s] in [the theory [the “the court observed that about anything agent] FBI reveals by [the to been appears defense have defendant’s] req- to capacity form defendant’s] [the that the sexual contact never occurred.” 1076-77. Conse- Id. at intent.” uisite at *4 n. 5. Id. that the district court held quently, the Crowley, Naco- recognized Boyles, in As finding no volun- in that did not err court Garcia, tee, inquiry is the relevant was warrant- instruction tary intoxication a evi- Kenyon provided whether sufficient ed. Id. at 1077. voluntary support a dentiary foundation addressed Finally, the Ninth Circuit not, then If he did intoxication defense. as a defense voluntary intoxication issue occurred, error as no reversible Garcia, F.3d v. in United States by the district would not harmed court’s be 1994) (9th Cir. March WL being jury instruction to the that intoxicat- Garcia, the defendant In (unpublished). a II. ed was not defense Count for abusive sexu conviction challenged his A of the record reveals thorough review court conduct, that the district arguing al maintained, in consistently as that a instruction failing give in erred Garcia, that he did not Boyles and commit at *3. The voluntary intoxication. Id. Crowley, in at all. Unlike the offenses that a defen initially “[w]here noted court theory” he Kenyon’s “defense was supported instruction is requested dant’s Instead, as high was or intoxicated. evidence, failure to a trial court’s by some Garcia, voluntary he never asserted intoxi- Applying error.” Id. give it is reversible government, not cation as a defense. The review,2 standard error plain Ken- Kenyon, “possibility” raised only is defendant explained court high intoxicated or yon might have been voluntary intoxication instruc to a entitled allegedly when the offenses occurred. “(1) that presents tion when he evidence: testified, A1 as in Agent Wipperfurth FBI (2) intoxicated, his intoxi he was Nacotee, that it was admitted forming him from cation precluded acts that he committed the “possible” commit the necessary to specific intent However, high or drunk. when (citing *4 United States Id. at crime.” Agent then testified Wipperfurth Cir. Washington, 819 “anybody that Kenyon explained that 1987)). “presented the defendant Because something like this would have would do any testimony or other expert no head, you if and even were him from be sick precluded that his intoxication give request reviewed district court’s failure failed to defendant 2. Because the instruction, plain error. Id. court voluntary instruction intoxication *20 high, [Kenyon] drunk or would not do
something Finally, that.” like like the de- Boyles, Kenyon
fendant in never testified drugs
or offered evidence that alcohol or
impaired judgment. conclusion,
In agree I that the district
court erroneously advised the
voluntary intoxication could not be a de- specific
fense to Count II —a intent crime.
However, harmless, such error was error,
therefore not reversible because
Kenyon failed to assert a defense of volun-
tary intoxication. The district court’s er- prejudice
roneous instruction did not Ken-
yon.
Based on the I foregoing, respectfully
dissent. America,
UNITED STATES
Appellant, SUMMAGE, Appellee.
Kerwin Lamont
No. 06-2111.
United States Appeals, Court of
Eighth Circuit.
Submitted: Oct. 2006. April
Filed: 2007.