U.S. v. Jahagirdar

• Decision Date: 20 October 2006
• Docket Number: No. 05-2270.,05-2270.
• Citation: 466 F.3d 149
• Parties: UNITED STATES of America, Appellee, v. Deepak JAHAGIRDAR, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

466 F.3d 149

UNITED STATES of America, Appellee, v. Deepak JAHAGIRDAR, Defendant, Appellant.

No. 05-2270.

United States Court of Appeals, First Circuit.

Heard September 7, 2006.

Decided October 20, 2006.

Kimberly Homan for appellant.

John T. McNeil, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief for appellee.

Before BOUDIN, Chief Judge, LYNCH, Circuit Judge, and SCHWARZER,^* Senior District Judge.

BOUDIN, Chief Judge.

On March 31, 2002, Deepak Jahagirdar was seated next to D.S., a 22-year-old woman, on a commercial airline flight from Dallas to Boston. D.S. later testified that she awoke from a nap to find Jahagirdar's hand inside her underpants. D.S. cursed at Jahagirdar, pushed her way to the aisle, and immediately told a flight attendant that "[t]he guy next to me had his hand down my pants."

Upon landing, Jahagirdar was arrested. D.S. was asked to remain onboard the airplane after the other passengers had exited, and was interviewed by Massachusetts State Trooper Kevin Hogaboom. After disembarking, D.S. was interviewed again and made a written statement. D.S. was then taken to the hospital for a rape examination.

A grand jury indicted Jahagirdar on February 11, 2004, charging him (so far as is relevant to this case) with sexual abuse and attempted sexual abuse, 18 U.S.C. § 2242(2) (2000), within the special aircraft jurisdiction of the United States, 49 U.S.C. § 46506 (2000). Sexual abuse includes, subject to other conditions,¹ "the penetration, however slight, of the ... genital opening of another by a hand or finger or by any object." 18 U.S.C. § 2246(2)(C).

At trial, D.S. testified that Jahagirdar's fingers were "underneath the lip area of the vagina" and that his fingers were "[u]nderneath the outer lips [labia majora] and the inner lips [labia minora]" of her genitals; and she made corresponding marks on an anatomical diagram to illustrate her testimony.

On cross-examination of D.S., Jahagirdar sought to impeach her by suggesting that she had not told the doctor or nurse at the hospital that she had been penetrated, and that she had in fact denied having been penetrated when asked by the doctor. Jahagirdar also implied that she had settled on her description of the alleged assault after consulting a lawyer and after concluding that Jahagirdar was an attractive target for a civil suit.

The government was then allowed to offer evidence from the trooper who had interviewed D.S. at the scene. He testified that, when he asked D.S. whether she had been penetrated, she stated that she had been, and that, on the basis of her response, he recommended that Jahagirdar be charged with rape.

There was also testimony from flight attendants and secret service agents who were on board the plane as to D.S.'s visible emotional distress, and expert testimony that a large quantity of D.S.'s DNA was found on Jahagirdar's hands, consistent with his fingers having come into contact with her vaginal secretions. However, the expert agreed that it was also possible that Jahagirdar could have picked up skin cells from the waistband of D.S.'s pants, so this forensic evidence did not incontrovertibly establish just where Jahagirdar had placed his hand.

Jahagirdar testified in his own defense. He admitted that he had placed his hand in D.S.'s pants, but claimed that D.S. had begun and encouraged a sexual encounter, that his hand touched only her "pubic hair area," and that he withdrew his hand when he began to feel guilty about betraying his wife's trust.

The jury convicted Jahagirdar of sexual abuse. The district judge sentenced Jahagirdar to 87 months' imprisonment, a term of supervised release, and a $25,000 fine. Jahagirdar now appeals, challenging the critical jury instruction as to the scope of the statute, the admission of D.S.'s statements to the trooper, and certain of the district court's sentencing determinations.

Jahagirdar's first argument on appeal is that the district court erroneously instructed the jury as to an element of the offense. Section 2242(2) criminalizes "knowingly. engag[ing] in a sexual act with another person if that other person is ... physically incapable of declining participation in, or communicating unwillingness to engage in, that sexual act." Section 2246(2) in turn defines "sexual act" (we underscore the most pertinent language) as

(A) contact between the penis and the vulva or the penis and the anus, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however slight;

(B) contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus;

(C) the penetration, however slight, of the anal or genital opening of another by hand or finger or by any object, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person; or

(D) the intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person (emphasis added).

Jahagirdar requested that the court instruct the jury that "penetration of the ... genital opening" in section 2246(2)(C) refers to the penetration of the "vaginal orifice." The government requested an instruction stating that "genital opening ... includes not only the vagina itself, but also the anterior parts known as the vulva and labia," so that "penetration of the labia majora, or outer lips, of the vulva is sufficient" to find Jahagirdar guilty of violating section 2242.

The district court chose a middle ground, instructing the jury that the government had to prove beyond a reasonable doubt that Jahagirdar "placed his finger or hand beyond Ms. DS's labia majora to at least the labia minora or inner lips.... The government is not required to prove that he penetrated her vaginal or[i]fice." Jahagirdar objected. On appeal, Jahagirdar continues to press his argument that "genital opening" means "vaginal orifice."

The term "genital opening" is not itself a medical term of art. The term "genitalia" refers to the "external and internal" organs of reproduction, Stedman's Medical Dictionary 738 (27th ed.2000), but "esp[ecially] the external organs," Random House Dictionary 797 (2d ed. unabridged). For women, the "external genitalia" include the mons pubis, the labia majora, the labia minora, the clitoris, and the vaginal orifice. Gray's Anatomy 1876 (38th ed.1995). "The term ... vulva includes all these parts." Id.

Taken by itself, the term "genital opening" could conceivable refer to any of at least three successive openings in the female genitalia: (1) the exterior opening bounded by the outer lips or labia majora, (2) the interior opening bounded by the contained inner lips or labia minora, and (3) the opening, yet further along the same channel, called the vaginal orifice.

The most straightforward reading of "genital opening" is that the term encompasses all three orifices including the outermost — a reading given support by the statutory phrase "penetration, however slight." Nor is it clear why Congress would have sought to distinguish among them, treating more leniently the deliberate insertion of a finger into the outermost orifice — given that the perpetrator must be acting without consent and for the mostly malign purposes described in the statute.

The literal reading becomes almost conclusive when one comes to understand that, under state law, the definition of "rape" — whether penile rape or the variant digital rape with which Jahagirdar was charged — is almost always satisfied under state law by penetration of the labia majora, regardless of whether the statute refers to the "genital opening" (as some do), the "female sex organ" (as others do), or even (in a few cases) the "vagina."² Under this rule, known as the "least penetration doctrine," rape laws are "designed to punish the fact, not the degree, of penetration," State v. Albert, 252 Conn. 795, 750 A.2d 1037, 1047 (Conn.2000).

"[W]here Congress borrows terms of art in which are accumulated the legal tradition and meaning of centuries of practice, it presumably knows and adopts the cluster of ideas that were attached to each borrowed word...." Morissette v. United States, 342 U.S. 246, 263, 72 S.Ct. 240, 96 L.Ed. 288 (1952). Here, no single term is used in all of the state statutes, but the cluster of terms has been given the same meaning by construction and the rationale of Morissette strongly supports the straightforward reading of the statute that we adopt.

Jahagirdar's textual response is to point to use of the term "vulva" in subsections (A) and (B) of the definitional statute, section 2246(2), and argue that Congress must have meant to distinguish between "vulva" and "genital opening" or else it would simply have repeated the prior, more specific term in subsection (C). But if Congress had deliberately intended to depart from the common-law approach, the obvious way would been to say "vaginal orifice" instead of "genital opening."

Although Congress' purpose in using "genital opening" rather than repeating "vulva" cannot be known for sure, one plausible explanation exists and gives Jahagirdar no help. In subsection (A), Congress' concern was with penetration by the penis, and in subsection (B), with "contact" between the mouth and either "penis," "vulva," or "anus"; in both cases, the use of the female-specific term "vulva" makes sense. By contrast, in subsection (C), use of the gender neutral term "genital opening" may well have been intended to encompass the insertion of "any object" into the penis as well as the vulva.³

Jahagirdar also relies upon the rule of lenity, namely, that ambiguities in criminal statutes are to be resolved in favor of the defendant; but that rule requires real uncertainty and applies only when "after seizing everything from which aid can be...