U.S. v. Kane, 06–1103.

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: Before RILEY, Chief Judge, HANSEN and MURPHY, Circuit Judges.
• Citation: 639 F.3d 1121
• Parties: UNITED STATES of America, Appellant,v.Ruth KANE, Appellee.
• Docket Number: No. 06–1103.,06–1103.
• Decision Date: 29 April 2011

639 F.3d 1121

UNITED STATES of America, Appellant,
v.
Ruth KANE, Appellee.

No. 06–1103.

United States Court of Appeals, Eighth Circuit.

Submitted: April 18, 2011.Filed: April 29, 2011.

[639 F.3d 1123]

Dean J. Sauer, Asst. U.S. Atty., St. Louis, MO, for appellant.Kevin L. Schriener, Law & Schriener, St. Louis, MO, for appellee.Before RILEY, Chief Judge, HANSEN and MURPHY, Circuit Judges.RILEY, Chief Judge.

For $20, Ruth Kane repeatedly restrained her nine-year-old daughter (the child) ¹ while a pedophile molested and raped the child. Kane did so approximately twice a week for a total of more than 200 sexual molestations. After a jury found Kane guilty of various federal sex crimes, the district court sentenced Kane to 120 months in prison. We held Kane's sentence was unreasonable and reversed. The Supreme Court now asks us to reconsider our holding in light of an intervening decision, Pepper v. United States, 562 U.S. ––––, 131 S.Ct. 1229, 179 L.Ed.2d 196 (2011). Having considered Pepper's impact on Kane's sentence, we again reverse and remand for resentencing.

I. BACKGROUND²A. Facts

Kane gave birth to the child in early 1987. The child grew up in St. Louis, Missouri, with Kane and with Kane's live-in boyfriend James Grote ³ and two younger siblings.

In the early 1990s, Kane befriended a 300–pound pedophile, Joe Champion. Champion was born in 1948 and lived in Granite City, Illinois. An alcoholic, Champion typically drank as much as a case of beer a day. Champion later served time in federal prison for possession of child pornography.⁴

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Acquaintances described Champion as “like Santa Claus,” but “strange” and “weird.” Champion “played with all the kids in the neighborhood,” including “tag” and “guessing games,” and would take the children for rides on his Harley Davidson motorcycle. Champion gave the children presents, including soda, candy, and toys. Champion supplied the adults with “lots of beer.”

In 1995, Christina Totten, one of Kane's acquaintances, witnessed a “disturbing” incident involving the child, Kane, and Champion. Totten watched as Champion “twisted ... [the child's] wrist” to force the child to sit on his knee. The child was “very frightened” and, when Champion finally released his grip, the child was left “shaking” with fear. Kane was present but did not help her daughter.

The next day, Totten asked the child if Champion was “touching you and it makes you feel bad or you don't feel right or you're scared.” The child said Champion “was messing with me,” “pointed to her crotch area,” and began to cry. The child also remarked, “I don't want my mommy to get mad at me, he gives her money so that we can eat.” Kane who was present interjected, “[B]aby, you know he wouldn't hurt you.”

Totten twice reported Kane and Champion to the local department of human services' child abuse hotline. The authorities accused Totten of lying and did nothing to protect the child.

Champion asked Kane for permission to sexually molest her daughter. Kane agreed. Champion sexually molested the child with Kane's assistance approximately twice a week for more than 200 molestations. After ensuring the child's siblings were outside, Kane held her daughter on her lap, pinning the child down with Kane's arm in the child's back. As the child cried, Champion would then rub his penis against the child's vagina and ejaculate on the child's stomach. Kane would clean up the ejaculate. Champion paid Kane $20—sometimes in the child's presence—for the privilege.

At trial, the child recalled in vivid detail the first time Champion sexually molested her. It was a warm spring day, and the child was playing outside with her siblings. Kane called the child inside the family home. Champion, who was sitting at the kitchen table, went into a first-floor bathroom. Kane was posted at the bathroom door. The child “had a creepy feeling” and tried to run away. Kane pulled the child into the bathroom and ordered her to undress. Kane then sat on the toilet and pinned her nude daughter down onto Kane's lap.

Champion removed his suspenders and pants, grabbed Vaseline out of a medicine cabinet, and approached Kane's daughter with his penis in hand. The child's last memory before fainting was the pain of Champion's penis pressing on her vagina. After ejaculating, Champion returned to the kitchen, drank a couple of beers, and left.⁵

When the child awoke, she was on the bathroom floor with blood on the inside of her thigh. As the child began to cry, Kane “stuck her head through the door and told [the child] to clean up the mess.” The child obeyed and went to her room.

One day when it was raining outside and the child's siblings could not go outside to play, Champion sexually molested the child in Kane's bed. Kane guarded the door as Champion rubbed his penis against the

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child's vagina and ejaculated on the child's stomach. Kane only left her post to grab a towel and wipe Champion's ejaculate off her daughter's stomach.

Sometimes the molestations took place at Champion's home in Granite City. Again, Kane actively participated. Kane would strip off the child's pants and then lay down on a bed next to the child as Champion sexually molested the child. On one occasion, Kane asked Champion to drive the child to a relative's house in Illinois. Instead, Champion took the child to his home and molested her.

The child endured other abuse. Once Champion spontaneously reached under the kitchen table in the child's home and touched the child's vagina. Shortly thereafter, while at a restaurant with Kane and one of Kane's friends, the child told Kane she “had to tell her something.” Kane responded, “anything [the child] could say in front of [Kane], [the child] could say in front of [the friend].” The child revealed, “[Champion] touched me under the table.” Kane “[a]cted like she had no idea that ever happened and said [Champion] was never allowed at her house.”

The sexual abuse ended in approximately late 1997. Champion testified he stopped paying Kane to help him sexually molest the child because, “I just decided to stop.” The child later began mutilating herself and moved in with her father in Illinois.

For almost five years, the child largely kept the sexual abuse secret, which, as an expert witness testified at trial, is common for young victims. In September 2002, when the child was fifteen, she was watching a “Lifetime for Women” movie about a little girl who was sexually molested by her grandfather. At the end of the movie, the television channel ran a public service announcement, which included a telephone number that victims could call for help. The child called the number.

An organization, “Call for Help,” set up an appointment with the Granite City (Illinois) Police Department (GCPD). The GCPD was “very interested” in Champion, who later admitted in an interview that he had paid Kane for permission to sexually molest the child. The GCPD took no action against Kane.

Persistent in her efforts for justice and protection, the child enlisted the help of the Child Advocacy Center of St. Louis. In January 2003, the Federal Bureau of Investigation (FBI) began investigating Kane and Champion. What followed was a series of lies and half-truths by Kane, apparently designed to cover up the child's abuse.⁶

During a post-arrest interview in March 2003, Kane told law enforcement officers she was “aware that there was an allegation that she had been accepting money from people to allow them to touch [the child]” and admitted the child had told Kane that Champion had sexually molested the child. But Kane “denied she was ever aware that [the child] was ever molested” or “accepted money ... in exchange for allowing the molestation to take place.”

After law enforcement officers confronted Kane with Champion's confession to the GCPD, Kane “admitted that she had made some mistakes with [the child,]” but continued to deny involvement in any sexual abuse of her daughter. Later, Kane admitted “Champion had said to her that he had been touching [the child's] vagina, and that he wanted [the child] to touch his

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penis.” Kane admitted she continued to allow Champion to visit after Champion had told her these things and knew “she should have protected [the child] better and she failed to do so.”

After further questioning, Kane admitted, when the child was ten or eleven years old, “she and Joe Champion took [the child] upstairs to her bedroom.... She ordered [the child] to disrobe,” and for $40 stood in the doorway while “Champion knelt before her and touched her bare vagina with his hand.” Kane said the child was crying as Champion sexually molested her.

B. Prior Proceedings1. Original District Court Proceedings

In April 2003, a grand jury returned a twelve-count indictment against Kane and Champion. Only Counts 1 and 6 are relevant here.⁷ Count 1 charged Kane and Champion with conspiracy to commit aggravated sexual abuse, in violation of 18 U.S.C. § 371 and § 2241(c). The grand jury alleged that, from about May 1996 to December 1997, Champion “would pay Kane money for the right to engage in sexual activity with [the child].” Count 6 charged Kane and Champion with aggravated sexual abuse and aiding and abetting aggravated sexual abuse, in violation of 18 U.S.C. § 2241(c) and § 2. Count 6 alleged that, on or about June 1, 1997, Champion traveled to Kane's home and paid Kane to allow him to sexually molest the child.

In July 2003, Champion pled guilty to Counts 1 and 6. Champion agreed to testify against Kane in exchange for the government's promise not to seek an upward departure at Champion's sentencing.

In November 2003, the district court presided over a four-day jury trial. At trial, Kane suggested she was also a “victim” and that her situation was a “tragedy,” arguing the child was a liar and labeling the child's sworn account of events “fiction.” The jury disagreed, finding Kane guilty of Counts 1 and 6. The United States...