U.S. v. Plenty Chief

• Decision Date: 09 April 2009
• Docket Number: No. 08-1121.,08-1121.
• Citation: 561 F.3d 846
• Parties: UNITED STATES of America, Appellee, v. Robert PLENTY CHIEF, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

561 F.3d 846

UNITED STATES of America, Appellee, v. Robert PLENTY CHIEF, Appellant.

No. 08-1121.

United States Court of Appeals, Eighth Circuit.

Submitted: November 12, 2008.

Filed: April 9, 2009.

David James Fransen, argued, Aberdeen, SD, for Appellant.

Thomas J. Wright, AUSA, argued, Sioux Falls, SD, for Appellee.

Before MELLOY, BOWMAN, and SMITH, Circuit Judges.

SMITH, Circuit Judge.

A jury convicted Robert Plenty Chief of aggravated sexual abuse against his step daughter, in violation of 18 U.S.C. §§ 1153, 2241(c), and 2246(2) ("Count 1"); sexual abuse of a minor, in violation of 18 U.S.C. §§ 1153, 2243(a), and 2246(2) ("Count 2"); and abusive sexual contact, in violation of 18 U.S.C. §§ 1153, 2244(a)(3), and 2246(3) ("Count 3"). Count 1 referenced an incident that occurred in 2004, when the victim was 11 years old, while Counts 2 and 3 referenced an incident that occurred in 2005, when the victim was 12 years old. Plenty Chief appeals, arguing that his convictions on Counts 2 and 3 violate the Double Jeopardy Clause of the Fifth Amendment because "18 U.S.C. § 2243(a) as charged in Count 2, and 18 U.S.C. § 2244(a)(3) as charged in Count 3 are nearly identical statutes, with nearly identical elements." Additionally, he argues that insufficient evidence supports his convictions on all three counts. We now affirm the judgment of the district court.¹

I. Background

In 2004, Plenty Chief married Lynnelle Quinn in Eden, South Dakota. Quinn had three children from previous relationships, including an 11-year-old daughter, T.Q. Shortly after the marriage, Plenty Chief, Quinn, and her three children moved to a home in Red Iron, South Dakota. Plenty Chief and Quinn slept in the basement, while the three children all had separate bedrooms.

According to T.Q., one evening in 2004, while T.Q. was sleeping alone in her bed, she was awakened when she heard her bedroom door shut. She looked toward the door, where she saw Plenty Chief standing. Plenty Chief then walked toward T.Q.'s bed, where he sat down. According to T.Q., Plenty Chief smelled strongly of alcohol when he came near her. Eventually, Plenty Chief began rubbing T.Q.'s legs. At the time, T.Q. was wearing a pair of shorts, a T-shirt, and a pair of underwear. T.Q. recalled that, after Plenty Chief rubbed her legs and thighs, he placed one hand inside her underwear, inserted his finger into her vagina, and started grabbing her chest with his other hand. T.Q. stated that "[i]t hurted" when Plenty Chief inserted his finger inside her vagina. T.Q. estimated that Plenty Chief was in her room for 20 to 25 minutes. The incident scared T.Q. and made her reluctant to leave her room. She did not tell anyone about the incident.

In July 2005, when she was 12 years old, T.Q. was once again asleep in her bedroom when she was awakened by the sound of the door slamming shut. According to T.Q., the second incident proceeded much like the first incident. Plenty Chief sat on T.Q.'s bed and began to rub her legs, thighs, and chest. In an effort to get away from Plenty Chief so that his finger would not penetrate her vagina, as in the first incident, T.Q. "kept rolling over." T.Q. estimated that the second incident, like the first, lasted approximately 20 to 25 minutes. As with the first incident, T.Q. did not tell anyone. In October 2005, Plenty Chief and Quinn separated, and Plenty Chief moved out of the house.

In April 2006, T.Q. disclosed Plenty Chief's molestation during a counseled youth group session in which another teenager had recounted an incident of sexual abuse. The group's counselor did not explore the issue in front of the group but later interviewed T.Q. in greater detail. At that time, T.Q. told the counselor that Plenty Chief had sexually abused her. The counselor reported the incident to her supervisor.

In May 2006, the Federal Bureau of Investigation (FBI) interviewed Plenty Chief. Plenty Chief never denied inserting his finger into T.Q.'s vagina but instead maintained that it was an accident. In a recorded statement, Plenty Chief recalled an incident in 2005 in which he entered T.Q.'s bedroom one night when it was raining and attempted to close her window. According to Plenty Chief, when he reached over her bed, he may have rested his hand on her pelvic area. He told the FBI that his hand may have "penetrated a little bit." Later in the interview, he also stated that his finger may have penetrated T.Q.'s vagina up to his first knuckle.

Plenty Chief was charged in a superseding indictment with aggravated sexual abuse, in violation of 18 U.S.C. §§ 1153, 2241(c), and 2246(2) ("Count 1"); sexual abuse of a minor, in violation of 18 U.S.C. §§ 1153, 2243(a), and 2246(2) ("Count 2"); and abusive sexual contact, in violation of 18 U.S.C. §§ 1153, 2244(a)(3), and 2246(3) ("Count 3"). Count 1 referenced the incident that occurred in 2004, when T.Q. was 11 years old, while Counts 2 and 3 referenced the incident that occurred in 2005, when T.Q. was 12 years old.

At trial, during the government's case-in-chief, the jury heard T.Q.'s testimony, as well as Plenty Chief's recorded statement to the FBI. Additionally, pursuant to Federal Rule of Evidence 413, the jury heard testimony concerning another act of sexual abuse Plenty Chief perpetrated on Quinn's other daughter.

At the close of the government's case-in-chief, Plenty Chief made a motion to dismiss, arguing that the government "has not proven [its] case substantially in accordance with Rule 29." Thereafter, the district court and the government engaged in the following exchange:

THE COURT: Mr. Wright [government counsel], what—in the superseding, in the superseding indictment, is it the Government's position that counts two and three deal with the same alleged incident?

MR. WRIGHT: Yes. If I may, Your Honor?

THE COURT: Yes. Go ahead.

MR. WRIGHT: Count one deals with the first incident that [T.Q.] labeled, which happened shortly after they moved into the blue house that she thought was the summer of 2004 when she was 11. She testified that the defendant walked in there, put his finger in her vagina. If that evidence is believed, the jury could find the defendant guilty.

Counts two and three refer to the second incident, we believe, when the defendant went into the bedroom and attempted a sexual act. Count two charges a sexual act or an attempt, count three charges sexual contact.

Also, Your Honor, when the defendant was interviewed by Agent Burdge [of the FBI], he did say he went in the bedroom and put his finger in the vagina by accident, but he said it happened in May of 2005. So if the jury thinks the defendant's recollection is better than [T.Q.'s], then that incident occurred, a sexual act, in May of 2005. So there's a difference between when she says the finger was in the vagina and when the defendant says that. And it's an important difference because the law changed that September. She was 11 during the summer of 2004, she turned 12 in the fall, and then the following incident occurred when she was 12. So depending on who's correct as to when the finger was there, they can find him guilty of count one or count two, or they can find him guilty of all three counts if they believe count two was an attempted sexual act, which the Government asserts that it was, and sexual contact.

THE COURT: So it's your position that the Government can charge a defendant in connection with the same incident as either having sexual contact or attempted sexual contact, and either attempting to commit a sexual act or—well, obviously, there's no evidence that he did engage in a sexual act the second time.

MR. WRIGHT: Other than his statement that it happened in May of 2005, which is within that time period—

THE COURT: Right.

MR. WRIGHT: —when his finger was in the vagina. And the jury could think that his recollection as to when it actually happened is better than hers. So we have to, we have to cover both time periods of the sexual act because this is when she said it occurred and this is when he said it occurred.

THE COURT: You think that the defendant can be convicted of both counts two and three?

MR. WRIGHT: Yes. Yes, I do. If they find that in count one it was a sexual act and [T.Q.] was correct about the date, and count two, it was an attempted sexual act. An attempt at a sexual act.

THE COURT: Well, I'm skeptical about that, but we'll see. Well—

MR. WRIGHT: I don't expect—I'm sorry.

THE COURT: Excuse me. Go ahead.

MR. WRIGHT: I don't expect a guilty verdict on all three counts, but I, but certainly I can see any combination depending on where they think the testimony is accurate. And of course, the court can revisit this if there is a conviction.

During the defense's case-in-chief, Plenty Chief testified that, in the spring of 2005, he entered T.Q.'s bedroom to shut her window because it was going to rain. After entering T.Q.'s bedroom and approaching her bed, Plenty Chief testified as follows:

I leaned across her bed as I usually did. She usually sleeps at the head of the bed, but—and the window is by the foot of the bed. So when I leaned over where I usually put my hand close to the window, she was laying under the window. Either she was hot or she was cold; I don't know. Because the heat register is right under the window, also. The heat was on and the window was open. I had to choose one of the two. Since it was going to rain and heat register is electric, I chose to shut the window. This happened in a matter of about two or three seconds. Leaning over, I was around 335 pounds at this time, so when I felt myself touch [T.Q.'s] body, I pulled away, readjusted, shut the window, covered [T.Q.] up, and I left the room. And I did not shut the door.

Plenty Chief further testified that while he did touch her in the pelvic area, his "finger did not go in her vagina."

The jury found Plenty Chief guilty on all three counts.

II. Discussion

Plenty Chief makes two arguments on appeal. First, he...