U.S. v. Papakee

• Decision Date: 17 July 2009
• Docket Number: No. 08-2032.,No. 08-2037.,08-2032.,08-2037.
• Parties: UNITED STATES of America, Appellee, v. LaMont William PAPAKEE, Appellant. United States of America, Appellee, v. Connie Frances Blackcloud, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

573 F.3d 569

UNITED STATES of America, Appellee, v. LaMont William PAPAKEE, Appellant.

United States of America, Appellee, v. Connie Frances Blackcloud, Appellant.

No. 08-2032.

No. 08-2037.

United States Court of Appeals, Eighth Circuit.

Submitted: December 10, 2008.

Filed: July 17, 2009.

Jonathan Hammond, argued, Cedar Rapids, IA, for Appellant, Papakee.

Erik K. Parrish, argued, Des Moines, IA, for Appellant, Blackcloud.

Ian K. Thornhill, AUSA, argued, Cedar Rapids, IA, for Appellee.

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 left Papakee's house and began staying at the home of one of Papakee's relatives. The assault was reported to the Tama County Sheriff's Office later that week.

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 18 U.S.C. §§ 2, 1151, 1153, and 2241(a)(1). Count 2 charged each defendant with knowingly engaging in, and attempting to engage in, a sexual act with another person who was incapable of appraising the nature of the conduct and physically incapable of declining participation in, and communicating unwillingness to engage in, that sexual act, in violation of 18 U.S.C. §§ 2, 1151, 1153, and 2242(2). Following a four-day jury trial, Papakee and Blackcloud were convicted of sexual abuse as charged in Count 2, but acquitted of aggravated sexual abuse as charged in Count 1.

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 18 U.S.C. § 3553(a).

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. Fed.R.Evid. 412. According to Papakee, Rule 412 does not bar evidence of L.D.'s statements to Sebetka, because her statement that the deputy was "cute" and her proposal that he "crawl into bed" with her do not qualify as "sexual behavior" or evidence of her "sexual predisposition."

We conclude that the district court properly excluded the disputed testimony under Rule 412. The testimony tended to show that L.D. propositioned Sebetka for sex within a short time after the alleged assault by Papakee and Blackcloud. We agree with the district court that a sexual proposition is "other sexual behavior" within the meaning of Rule 412(a)(1). The ordinary meaning of "behavior" extends to the manner in which a person conducts herself, Webster's Third New International Dictionary 199 (2002), and when a person undertakes conduct aimed at engaging in sexual activity, that conduct is naturally understood to be "sexual behavior." There is no reason to believe that the rule is limited to sexual intercourse or sexual contact. To the contrary, the advisory committee's notes explain that the word "behavior" should be construed to include "activities of the mind," such as fantasies or dreams. Fed.R.Evid. 412 advisory committee's notes; see also Wilson v. City of Des Moines, 442 F.3d 637, 639-40, 643-44 (8th Cir.2006) (concluding that female employee's statements about vibrators and male sex organs constituted "sexual comments and behavior" that was governed by Rule 412). If a person's unexpressed desire to engage in sexual activity is inadmissible, then surely her expression of that desire to another person also comes within the scope of the rule.

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." Fed.R.Evid. 412(b)(1)(C). According to Papakee, the court's exclusion of the testimony violated his rights under the Confrontation Clause. We disagree. A restriction on an accused's right to introduce evidence may not be arbitrary or disproportionate to the purpose that the restriction is designed to serve, Michigan v. Lucas, 500 U.S. 145, 151, 111 S.Ct. 1743, 114 L.Ed.2d 205 (1991), but that principle was not violated here. Rule 412 serves important purposes of preventing harassment or embarrassment of sexual abuse victims, and the proffered evidence was of little or no probative value. See United States v. Bordeaux, 400 F.3d 548, 558-59 (8th Cir.2005). Papakee contends that L.D. met with Sebetka shortly after leaving Papakee's residence, and that her intoxicated state was relevant to her ability to perceive and recall the events of that evening. But the district court did permit testimony that L.D. was intoxicated when she met with Sebetka. (T. Tr. II, at 409, 414-15). The court excluded only evidence of the sexual proposition, which had little, if any, relevance to the question whether L.D. was sexually abused by Papakee and Blackcloud. There was no error.

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 18 U.S.C. §§ 2, 1151, 1153, and 2242(2). Sections 1151, 1153, and 2242(2) make it unlawful for an Indian in Indian country knowingly to engage, or attempt to engage, in a "sexual act" with another person who is "incapable of appraising the nature of the conduct," or "physically incapable of declining participation in, or communicating unwillingness to engage in, that sexual act." 18 U.S.C. § 2242(2). The term "sexual act" refers, among other things, to "the penetration, however slight, of the ... genital opening of another ... by any object, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person." Id. § 2246(2)(C). Section 2 makes it unlawful for any person to aid or abet the commission of a federal offense, including the offense of sexual abuse.

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, 90 S.Ct. 642, 24 L.Ed.2d 610 (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, ...