U.S.A v. Robertson

• Decision Date: 07 June 2010
• Docket Number: No. 09-1612.,09-1612.
• Citation: 606 F.3d 943
• Parties: UNITED STATES of America, Appellee,v.Galen G. ROBERTSON, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

606 F.3d 943

UNITED STATES of America, Appellee,v.Galen G. ROBERTSON, Appellant.

No. 09-1612.

United States Court of Appeals Eighth Circuit.

Submitted: Feb. 8, 2010.

Filed: June 7, 2010.

Rehearing and Rehearing En Banc Denied July 22, 2010.

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Richard J. Henderson, AFPD, argued, Mark S. Falk, on the brief, Fargo, ND, for Appellant.

Whitney Chase, AUSA, argued, Brett M. Shasky, on the brief, Fargo, ND, for Appelle.

Before LOKEN, Chief Judge,¹ COLLOTON and GRUENDER, Circuit Judges.

GRUENDER, Circuit Judge.

A jury convicted Galen G. Robertson of attempted aggravated sexual abuse (Count I) and attempted abusive sexual contact (Count II) in Indian country, in violation of 18 U.S.C. §§ 2241(a)(1), 2244(a)(1) and 1153. Robertson argues that the district court abused its discretion in granting the Government a continuance on the eve of trial, plainly erred in admitting hearsay evidence, improperly instructed the jury, and erred in denying his motion for judgment of acquittal. He also argues that his being convicted of both offenses violates the Double Jeopardy Clause of the Fifth Amendment. We affirm Robertson's conviction on Count I, reverse Robertson's conviction on Count II, and remand to the district court with instructions to vacate Robertson's conviction and sentence on Count II.

I. BACKGROUND

Robertson is an enrolled member of the Spirit Lake Sioux Tribe. On the morning of September 16, 2007, Robertson, then thirty years old, was driving a pickup truck with his friend, Grant Cavanaugh, on the Spirit Lake Reservation in North Dakota. Robertson saw a seventeen-year-old girl, F.S., walking along the side of the road toward the nearby community of Fort Totten. Robertson, a friend of F. S.'s mother, stopped the truck to offer F.S. a ride. F.S. had been drinking alcohol at various parties throughout the night and early morning and was on her way home. She accepted the ride, gave Robertson $20 for gas, and asked to be taken home. Instead of driving F.S. directly home, Robertson stopped to buy beer and then drove to a ranch owned by Duane Smith. At the ranch, F.S. stayed in the truck while Robertson and Cavanaugh worked in a nearby field for about an hour. Robertson, Cavanaugh, and F.S. then drove to another location on Smith's ranch where they entered a bus that had been converted into a camper. Inside the bus, the three drank beer and talked. F.S. did not object to stopping at the ranch or getting on the bus.

After a couple of hours, Cavanaugh exited the bus, leaving Robertson and F.S. alone. Robertson took F.S. to the back of the bus, where there was a makeshift bed. F.S. testified at trial that she went to the back of the bus willingly but that she turned around to return to the front of the bus when she saw the bed. When F.S. turned around, she saw that Robertson was standing directly in front of her, so she backed away from him and sat on the bed. Robertson sat down next to F.S. and reached for her belt. F.S. tried to push his hand away, and a struggle ensued. After forcibly removing F.S.'s belt, Robertson pulled F.S.'s pants and underwear down below her knees while she kicked, screamed, and repeatedly told him to stop. Ignoring her protests, Robertson got on top of F.S., who was now lying on her back, and began pushing against her with his body. Throughout the encounter, F.S. was “screaming and crying” and “telling him to stop.” Robertson stopped and backed away only after F.S. told Robertson that her dad was going to kill him.

Cavanaugh returned to the bus a few minutes later. F.S. testified at trial that she did not mention the assault to Cavanaugh because she felt embarrassed and ashamed. The group eventually got in Robertson's pickup truck and began to drive away. In a nearby pasture, they came upon Smith and Tribal Judge William Cavanaugh in another truck. Robertson stopped the truck and began talking to Smith and Judge Cavanaugh. During the ensuing ten-minute conversation, F.S. could not see the occupants of the other truck, but she testified that she was upset and scared and that she began yelling loudly that she wanted to go home. After driving away, Robertson dropped Grant Cavanaugh off and then took F.S. to her mother's house.

Robertson followed F.S. inside, where her mother, Rayone, was waiting. F.S. was crying hysterically when she walked in the door. She told her mother, “He done something to me,” and then looked at Robertson and demanded, “Tell her what you did to me.” Robertson repeatedly denied any wrongdoing and then said to F.S., “I'm your friend.” F.S. retreated to her mother's bedroom, where she continued crying until she fell asleep. Meanwhile, Robertson spoke with Rayone in the kitchen. During their conversation, Robertson put his head in his hands and said, “I could get into a lot of trouble for this, right?” Robertson told Rayone that he had kissed F.S., and he asked Rayone not to tell his wife. ² Rayone testified that Robertson stayed for about an hour and a half and that he was very nervous during their conversation.

After Robertson left, Rayone went to her bedroom to speak with F.S. She saw that F.S.'s pants had been ripped and asked what had happened. According to Rayone, F.S. responded, “He raped me.” After speaking with F.S., Rayone sought the advice of her brother, Lavern Littlewind, a Bureau of Indian Affairs (“BIA”) police officer. Rayone found Littlewind, who was off-duty that evening, told him about the situation, and drove him back to her house. Littlewind called the police, and BIA Officer Leo Belgarde arrived to investigate. Officer Belgarde, Littlewind, and Rayone asked F.S. to explain what had happened. Rayone excused herself from the conversation to get some fresh air. When she stepped outside, Robertson called out to her from a neighbor's yard. Rayone approached Robertson, who asked her why the police were involved. Robertson then suggested that Rayone bring F.S. outside so that they could “go for a drive” and “work something out.” Rayone refused and returned to her house.

Officer Belgarde decided to take F.S. to the hospital to be examined. When F.S. learned that Robertson was outside, however, she became frightened and refused to leave the house. She eventually agreed to go to the hospital after Officer Belgarde assured her that she would be safe. Once Officer Belgarde drove away with F.S., Robertson approached Littlewind and told him that F.S. had “come on to him” and that she had told him she was eighteen. Robertson called Littlewind three times in the next twenty-four hours to inquire about the investigation.

At the hospital, F.S. complained of soreness in her vaginal area and was examined for evidence of rape. A nurse who helped examine F.S. testified that she saw no visible injuries on F.S.'s body, but she acknowledged that some injuries, such as bruising, are not immediately visible to the naked eye. Photographs of F.S. taken a few days later at the police station showed bruises and scratches on her inner thighs. An FBI laboratory analysis of the evidence collected during F.S.'s examination revealed the presence of semen containing Robertson's DNA on F.S.'s underwear.

A federal grand jury returned an indictment charging Robertson with attempted aggravated sexual abuse, in violation of 18 U.S.C. §§ 2241(a)(1) and 1153 (Count I), and attempted abusive sexual contact, in violation of 18 U.S.C. §§ 2244(a)(1) and 1153 (Count II). A jury found Robertson guilty on both counts, and the district court sentenced him to 144 months' imprisonment on Count I, a concurrent term of 120 months' imprisonment on Count II, concurrent five-year terms of supervised release, and a $100 special assessment on each count. Robertson appeals.

II. DISCUSSION

Robertson first argues that abusive sexual contact (Count II) is a lesser-included offense of aggravated sexual abuse (Count I) and that his being convicted on both Counts I and II therefore violates the Fifth Amendment's prohibition against double jeopardy. Robertson failed to raise this issue at trial. There is a conflict in our circuit over whether a defendant may raise a double jeopardy claim for the first time on appeal. See United States v. Plenty Chief, 561 F.3d 846, 851 n. 3 (8th Cir.2009) (recognizing the conflict); United States v. Two Elk, 536 F.3d 890, 897 (8th Cir.2008) (same). We have held in some cases that double jeopardy claims raised for the first time on appeal are waived see, e.g., United States v. Bentley, 82 F.3d 222, 223 (8th Cir.1996), but in other cases we have reviewed double jeopardy claims raised for the first time on appeal for plain error see, e.g., United States v. Sickinger, 179 F.3d 1091, 1092-93 (8th Cir.1999).

“When we are confronted with conflicting circuit precedent, the better practice normally is to follow the earliest opinion, as it should have controlled the subsequent panels that created the conflict.” T.L. ex rel. Ingram v. United States, 443 F.3d 956, 960 (8th Cir.2006). Our refusal to review double jeopardy claims raised for the first time on appeal has the longer history in our precedents. See, e.g., United States v. Conley, 503 F.2d 520, 521 (8th Cir.1974) (refusing to consider a double jeopardy claim raised for the first time on appeal and observing that “immunity from double jeopardy is a personal right which if not affirmatively pleaded by the defendant at the time of trial will be regarded as waived” (quoting Ferina v. United States, 340 F.2d 837, 838 (8th Cir.1965))). But the Supreme Court's intervening decision in United States v. Olano, 507 U.S. 725, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993), “arguably justified the [subsequent] departure” from that line of cases see Ingram, 443 F.3d at 960 (“[I]t is well settled that a panel may depart from circuit precedent based on an intervening opinion of the Supreme Court that undermines the prior precedent.”). In Olano, the Supreme Court clarified the...