U.S. v. Crowley

• Decision Date: 31 January 2003
• Docket Number: Docket No. 02-1381.
• Citation: 318 F.3d 401
• Parties: UNITED STATES of America, Appellee, v. Francis CROWLEY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Second Circuit

318 F.3d 401

UNITED STATES of America, Appellee, v. Francis CROWLEY, Defendant-Appellant.

Docket No. 02-1381.

United States Court of Appeals, Second Circuit.

Argued: September 18, 2002.

Decided: January 31, 2003.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Debra D. Newman, Assistant United States Attorney, Eastern District of New York (Alan Vinegrad, United States Attorney; David C. James, Assistant United States Attorney, of counsel), Brooklyn, New York, for Appellee.

Edward M. Shaw, New York, New York, for Defendant-Appellant.

Before: CABRANES and STRAUB, Circuit Judges, and LYNCH, District Judge.^*

LYNCH, District Judge.

Francis Crowley appeals from his conviction, following a jury trial, of attempted aggravated sexual abuse, in violation of 18 U.S.C. § 2241(a)(1), and his resulting sentence to imprisonment for nine years, three years of supervised release, $13,253.97 in restitution payments, and the mandatory $100 "special assessment." Though Crowley raises a number of serious issues, none of his arguments warrants reversal of his conviction or sentence, which are affirmed.

FACTS

The criminal charges against Crowley and a co-defendant, Steven Valjato, who was acquitted, arose from an incident at the Kings Point Merchant Marine Academy in the early morning hours of September 28, 1997. It is undisputed that on that night, Crowley and Valjato, students at the Academy, entered the room of a fellow midshipman, Stephanie Vincent, and tried to persuade her to engage in sexual acts with them. While the details of what occurred were sharply disputed at trial, Vincent's testimony, which the jury was fully entitled to credit, supplemented and corroborated in certain respects by the testimony of her roommate and of a friend of Crowley who testified to certain arguable admissions by Crowley, would have permitted the jury to find the following facts.

On Saturday evening, September 27, 1997, Vincent, a twenty-year-old junior at the academy, and her roommate, Jennifer Bechtel, attended a "keg party" at the Academy. Crowley also attended the party, and he and Bechtel at some point smoked some marijuana. Vincent and Bechtel returned to their dormitory room before midnight and went to sleep.

Around 5:00 Sunday morning, Vincent awoke to hear the room door open. Crowley entered the room, climbed up on Vincent's desk, and approached her bed, which was raised five or six feet off the floor, supported by the desk and a chest of drawers. Crowley began calling, "Jen," and Vincent replied that Bechtel was in the other bed. Vincent left the room to use a bathroom, and Crowley crossed the room to approach Bechtel's bedside. Upon Vincent's return, she heard Crowley unsuccessfully urging Bechtel to go "party" with him and to smoke some crack. At Crowley's urging, Vincent went out into the hallway to talk to Crowley and Valjato, who were sitting in the hallway. They urged her to "party" with them, displaying what appeared to be marijuana, but Vincent rejected the offer and returned to bed.

Shortly thereafter, Crowley reentered the room and again climbed up to Vincent's bedside. After telling her that Valjato was angry about Vincent's rejection of their overtures, and that Valjato wanted to perform oral sex on her, Crowley tried to climb into Vincent's bed. A physical struggle ensued, in which Crowley pinned Vincent to the bed with his upper torso while fondling her breasts. Vincent resisted physically and repeatedly demanded that Crowley stop and leave, but Crowley persisted, telling her that he and Valjato wanted to engage in oral sex with her, urging her to agree, and touching her breasts. During this struggle, Crowley moved one of his hands inside the waistband of Vincent's shorts, pushed her up against the wall by the side of her bed while continuing to press her down with his body, gripped her genitals, and attempted to penetrate her vagina with his finger.

At about this point, Valjato also entered the room, climbed onto the desk, and added his entreaties, encouraging Vincent to "come on let us do this." Tr. at 85. Although Valjato could not get into the bed, his large body blocked any effort by Vincent to get away from Crowley, who continued to pin her to the bed while trying to pull down her shorts. When Vincent continued to resist, Valjato eventually punched the bedframe, saying, "[S]he's not going to ... do it, let's ... go." Id. at 90. Valjato then threatened Vincent never to tell anyone what had happened, "or it would be all over for [her]." Id. at 91. Crowley asked Vincent if she would charge him with sexual harassment, and she said that if he left the room everything would be fine.

Valjato and Crowley climbed down from the bed and left, but Crowley immediately reentered the room, and once again urged Vincent to agree to have oral sex, again saying that Valjato was angry at her refusal. When Vincent again refused, Crowley finally left. About an hour and twenty minutes had elapsed since Crowley's first entry. Vincent reported the incident later that day.

PROCEDURAL HISTORY

The prosecution of Crowley and Valjato took some unusual turns. Crowley was originally charged in Nassau County Court with two counts of first-degree sexual abuse, a felony punishable by a maximum of seven years' imprisonment. See N.Y. Penal Law §§ 130.65, 70.00 (McKinney 2002). On the eve of trial, the state court dismissed the charges on Crowley's motion, concluding that the federal government had exclusive jurisdiction over the Academy grounds.

Crowley and Valjato were then indicted by a federal grand jury in the Eastern District of New York and charged in four counts: one count each of attempted aggravated sexual abuse in violation of 18 U.S.C. § 2241(a)(1) and attempted sexual abuse in violation of 18 U.S.C. § 2242(1), and two counts of abusive sexual contact in violation of 18 U.S.C. § 2244(a). These similar-sounding and potentially overlapping offenses have distinct elements. Section 2241(a)(1), the most relevant for purposes of this opinion, prohibits causing or attempting to cause another person to commit a sexual act (specifically defined in 18 U.S.C. § 2246(2) as including, as to adults, essentially only genital, oral, anal or digital intercourse) "by using force against that other person." Section 2242(1) prohibits causing or attempting to cause another person to commit one of the defined sexual acts by the use of threats (short of threats of death, serious injury, or kidnaping, which are included in a different subsection of the more serious § 2241(a)). Finally, § 2244 prohibits (as relevant here) the use of force or threats to accomplish "sexual contact," defined by § 2246(3) more broadly than the limited "sexual acts" that are the subject of §§ 2241 and 2242.

At a jury trial in 1999 before the Honorable Joanna Seybert, both Crowley and Valjato were convicted of the two more serious aggravated sexual abuse charges, and acquitted on the two sexual contact counts. After the trial, however, Judge Seybert granted defense motions (1) for a new trial, on the ground that the court had erred by refusing to instruct the jury on the defense of voluntary intoxication, and (2) for dismissal of the indictment, on the ground that the indictment was defective in failing to specify the particular sexual act the defendants were accused of attempting. United States v. Crowley, 79 F.Supp.2d 138 (E.D.N.Y.1999).

On the government's appeal, this Court reversed the dismissal of the indictment, holding that the defendants had waived any objection to the indictment's lack of specificity by failing to raise the issue before trial, but affirmed the grant of a new trial, holding that the jury indeed should have been instructed on voluntary intoxication. United States v. Crowley, 236 F.3d 104, 106 (2d Cir.2000).

On remand, the case was first assigned to the Honorable Thomas C. Platt, Jr., who ruled on various pre-trial motions, and then to the Honorable Jacob Mishler, who presided over the trial. Following a five-day jury trial, the jury acquitted Valjato of both remaining charges, and acquitted Crowley of the lesser charge of attempted sexual abuse, but convicted Crowley again of the most serious charge of attempted aggravated sexual abuse under 18 U.S.C. § 2241(a)(1). After the trial, due to Judge Mishler's illness, the case was again reassigned, and on June 20, 2002, the Honorable Leonard Wexler sentenced Crowley, primarily to imprisonment for nine years.

This appeal followed.

DISCUSSION

Crowley raises five objections to his conviction and sentence. He argues (1) that the evidence was insufficient to support the jury's verdict; (2) that the District Court erred in instructing the jury on the definition of attempt; (3) that the court erroneously refused to permit him to cross-examine Vincent on certain matters, principally concerning alleged prior instances of false accusations of various sorts against other midshipmen; (4) that the indictment should have been dismissed for lack of specificity; and (5) that the District Court erred by not departing downward from the sentencing range prescribed by the sentencing guidelines. None of these arguments justifies reversal of the judgment below.

I. Sufficiency of the Evidence

Crowley argues that the evidence was insufficient to establish that he intended to accomplish a sexual act by force. Appellant's Br. at 19-29. In challenging the sufficiency of the evidence, the defendant faces "an uphill battle," United States v. Jones, 30 F.3d 276, 281 (2d Cir.1994), and "bears a very heavy burden," United States v. Rivera, 971 F.2d 876, 890 (2d Cir.1992) (internal quotation marks and citations omitted), because the evidence must be viewed in the light most favorable to the Government, with all reasonable inferences drawn in favor of the verdict, United States v. Amato, 15 F.3d 230, 235 (2d Cir.1994). The question for this Court is "not whether [it] believes that the evidence at trial established...