U.S. v. Calf

• Decision Date: 10 March 2011
• Docket Number: No. 09–3653.,09–3653.
• Citation: 634 F.3d 453
• Parties: UNITED STATES of America, Appellee,v.Roman WHITE CALF, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

634 F.3d 453

UNITED STATES of America, Appellee,

v.Roman WHITE CALF, Appellant.

No. 09–3653.

United States Court of Appeals, Eighth Circuit.

Submitted: Oct. 21, 2010.Filed: March 10, 2011.

Gary G. Colbath, Jr., AFPD, argued, Rapid City, SD, for appellant.Mark E. Salter, AUSA, argued, Sioux Falls, SD, for appellee.

Before RILEY, Chief Judge, MELLOY and GRUENDER, Circuit Judges.RILEY, Chief Judge.

A jury convicted Roman White Calf of sexual abuse of a minor, a violation of 18 U.S.C. §§ 1153, 2243(a), and 2246(2)(A). White Calf appeals, arguing the district court ¹ abused its discretion in instructing the jury and admitting certain evidence. We affirm.

I. BACKGROUND²

In June 2008, nineteen-year-old White Calf graduated from high school. White Calf invited classmates and friends to a party at his house on the Pine Ridge Indian Reservation in South Dakota. Everyone at the party became intoxicated, even though Pine Ridge is a “dry” reservation under Indian law.

Thirteen-year-old L.R.F. arrived late to the party. White Calf had not invited L.R.F. to the party. L.R.F.'s aunts, S.R.F. (age 18) and M.T.B. (age 16), allowed L.R.F. to tag along. S.R.F. and M.T.B. instructed L.R.F. to lie about her age at the party.

S.R.F. and White Calf were friends and high school classmates. White Calf and L.R.F. did not know one another before the night of the party, June 29–30, 2008. At some point after L.R.F. met White Calf, she lied and told him she was 15 years old. After L.R.F. and White Calf began kissing, L.R.F. told White Calf, “I am only 13.” White Calf responded, “age don't matter.” L.R.F. and White Calf flirted, hugged, and kissed.

S.R.F. unsuccessfully tried to break up the couple when she saw them kissing. White Calf told S.R.F. to leave the couple alone. S.R.F. later told White Calf that L.R.F. was “younger than what [L.R.F.]'s telling [White Calf]” and younger than D.B., a 15–year–old attendee of the party. White Calf thought D.B. was 14 or 15 years old.

S.R.F.'s attempts to separate L.R.F. from White Calf upset L.R.F. L.R.F. cried and later fell asleep in a bedroom. When L.R.F. woke up, White Calf was penetrating her vagina with his penis. As L.R.F. began to push White Calf away, Oglala Sioux Department of Public Safety Officer Llewellyn Preston Good Voice Flute, who was investigating a report of a loud party involving alcohol, entered the room. Officer Good Voice Flute observed White Calf and L.R.F., each naked below the waist, engaged in sexual intercourse. Specifically, Officer Good Voice Flute saw White Calf standing at the foot of the bed between L.R.F.'s legs, with his hands on L.R.F.'s hips, moving back and forth. L.R.F. was moaning, and Officer Good Voice Flute heard “[s]ex; skin slapping together.” Officer Good Voice Flute ordered White Calf and L.R.F. to dress and leave the bedroom.

Officer Good Voice Flute asked White Calf and L.R.F. their ages. White Calf told Officer Good Voice Flute he was 21 and L.R.F. was 19. L.R.F. did not correct White Calf, but later lied and said she was 16. Officer Good Voice Flute was skeptical because, in his opinion, L.R.F. was small and looked like a “grade schooler.” In a police cruiser, out of Officer Good Voice Flute's presence, White Calf threatened L.R.F. by telling her he would have someone beat her up if she told law enforcement the truth. White Calf instructed L.R.F. to tell law enforcement “we weren't doing nothing.”

FBI Special Agent Sherry Rice interviewed White Calf. White Calf told Special Agent Rice that S.R.F. “brought her little sister,” whom he did not know, to his party. White Calf estimated L.R.F. was 17 years old. White Calf initially denied having sex with L.R.F., saying his pants were still on when Officer Good Voice Flute entered the bedroom, but later recanted and admitted to having sexual intercourse with L.R.F. White Calf reported L.R.F. was flirting with him, and he did not know her name at the time. According to White Calf, L.R.F. took him to the bedroom and took her pants off. White Calf put on a condom and “was having sex when the police arrived.” Toxicological tests indicated White Calf's blood alcohol content was .25. L.R.F.'s blood alcohol content was .18.

In September 2008, a grand jury returned an indictment charging White Calf with sexual abuse of a minor, in violation of 18 U.S.C. §§ 1153, 2243(a), and 2246(2)(A). The indictment alleged White Calf “did knowingly engage, and attempt to engage, in a sexual act with [L.R.F.], a child who had attained the age of 12 years, but who had not attained the age of 16 years, and who was at least four years younger than” White Calf.

In July 2009, the district court held a three-day trial on the indictment. At trial, White Calf testified on his own behalf, (1) denying he had sexual intercourse with L.R.F., because Officer Good Voice Flute interrupted him before he could do so, and (2) stating he reasonably believed L.R.F. was 17 years old when he tried to have sexual intercourse with her.

The district court, employing a general verdict form, instructed the jury to find White Calf guilty if, among other things, the jury found White Calf attempted to sexually abuse or did sexually abuse L.R.F. The jury found White Calf guilty, and the district court sentenced him to 33 months imprisonment. White Calf appeals.

II. DISCUSSIONA. Standard of Review

“We review for abuse of discretion the district court's formulations of jury instructions.” United States v. Mitchell, 613 F.3d 862, 867 (8th Cir.2010). “We will reverse if the failure to properly instruct the jury was prejudicial.” Id. Likewise, “[w]e review a district court's decision to admit or exclude testimony for an abuse of discretion.” United States v. Jewell, 614 F.3d 911, 918 (8th Cir.2010), petition for cert. filed, No. 10–7889 (U.S. Dec. 7, 2010).

B. Jury Instructions

White Calf argues the district court abused its discretion by failing to instruct the jury that (1) the jury could consider White Calf's intoxication when evaluating the affirmative defense set forth in 18 U.S.C. § 2243(c)(1), and (2) the government was required to prove White Calf knew L.R.F. was not yet 16 years old.

1. 18 U.S.C. § 2243(c)(1) and Intoxication

a. 18 U.S.C. § 2243

It is a federal crime for an Indian to “knowingly engage[ ] in a sexual act with another person who ... has attained the age of 12 years but has not attained the age of 16 years” so long as such act occurred in Indian country and such person “is at least four years younger than the” Indian. 18 U.S.C. § 2243(a) and § 1153. Attempts are criminalized equally with the substantive offense, see id. § 2243(a), and “sexual act” is defined to include “contact between the penis and the vulva,” id. § 2246(2)(A). “[C]ontact ... occurs upon penetration, however, slight.” Id.

At common law, mistake of fact was no defense to statutory rape statutes such as § 2243(a). See United States v. Wilcox, 487 F.3d 1163, 1174 (8th Cir.2007) (citing Morissette v. United States, 342 U.S. 246, 251 n. 8, 72 S.Ct. 240, 96 L.Ed. 288 (1952)). As one of our sister circuit courts of appeals stated long ago, “it is well settled in cases of rape that ignorance that the prosecutrix is below the age of consent is no excuse.” United States v. Mack, 112 F.2d 290, 292 (2d Cir.1940). “[S]tatutory rape is a recognized judicial exception to the general principle that mistake of fact is a defense if it negatives the existence of a mental state essential to the crime charged.” Wilcox, 487 F.3d at 1174 (alteration in original) (quoting United States v. Juvenile Male, 211 F.3d 1169, 1170–71 (9th Cir.2000) (per curiam)).

Not surprisingly, § 2243(d) makes clear that the government's burden to prove scienter in a § 2243(a) prosecution is limited to proving the defendant “knowingly engage[d] in a sexual act.” Section 2243(d) provides, “In a prosecution under [§ 2243(a) ], the [g]overnment need not prove that the defendant knew—(1) the age of the other person engaging in the sexual act; or (2) that the requisite age difference existed between the persons so engaging.”

Ostensibly to ameliorate the harsh effects of the statute in cases of otherwise consensual teenage sex, § 2243(c)(1) provides a narrow affirmative defense to defendants. Section 2243(c)(1) provides, “In a prosecution under [§ 2243(a) ], it is a defense, which the defendant must establish by a preponderance of the evidence, that the defendant reasonably believed that the other person had attained the age of 16 years.”

As in Wilcox, 487 F.3d at 1174, the district court instructed the jury in a manner which tracked all of the plain and unambiguous statutory language in § 2243 quoted above. The district court did not abuse its discretion.

b. Intoxication

At common law, voluntary intoxication was a not a defense to criminal activity. See Montana v. Egelhoff, 518 U.S. 37, 45, 116 S.Ct. 2013, 135 L.Ed.2d 361 (1996). In the 19th Century, American courts “carved out an exception to the common law's traditional across-the-board condemnation of the drunken offender, allowing a jury to consider a defendant's intoxication when assessing whether he possessed the mental state needed to commit the crime charged, where the crime was one requiring a ‘specific intent.’ ” Id. at 46, 116 S.Ct. 2013. No such exception was created for general intent crimes.

Sexual abuse of a minor is a general intent crime, but attempted sexual abuse of a minor is a specific intent crime. See United States v. Kenyon, 481 F.3d 1054, 1069–71 (8th Cir.2007). Cf. United States v. Robertson, 606 F.3d 943, 954–55 (8th Cir.2010) (distinguishing attempted aggravated sexual abuse, a specific intent crime, from aggravated sexual abuse, a general intent crime). The district court instructed the jury that White Calf's voluntary intoxication was not a defense to the substantive offense of sexual abuse of a minor, but voluntary intoxication was a possible defense to the alternatively charged crime of attempted sexual abuse of a minor....