U.S. v. Yankton, s. 92-1404
| Decision Date | 01 March 1993 |
| Docket Number | 92-1482,Nos. 92-1404,s. 92-1404 |
| Parties | UNITED STATES of America, Appellant/Cross-Appellee, v. Quentin YANKTON, Appellee/Cross-Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Stephen D. Easton, U.S. Atty., Fargo, ND, argued, for appellant.
Donald R. Becker, Fargo, ND, argued, for appellee.
Before McMILLIAN, MAGILL, and HANSEN, Circuit Judges.
Quentin Yankton was found guilty by jury verdict of aggravated sexual abuse by use of force, pursuant to 18 U.S.C. §§ 2241(a) and 1153. The district court denied Yankton's motion for new trial, which raised a Batson 1 claim. At sentencing, the court declined to make an upward adjustment for obstruction of justice, a specific offense characteristic increase for bodily injury, an upward departure based on the facts of this case, and a downward adjustment for acceptance of responsibility. Yankton was sentenced to 144 months' imprisonment to be followed by five years of supervised release, restitution in the amount of $8,089.77, and a fine of $5,000. Both parties appeal. We affirm in part and reverse and remand in part.
On November 10, 1990, the victim, T.L., who was fifteen years old, was drinking beer with other teenage girls at the home of Pansy Johnson on the Devils Lake Sioux Indian Reservation. While driving his pickup, Quentin Yankton, who was thirty-nine years old, came across the teenage girls who then were also driving around. Yankton told them to follow him and his companion to Wood Lake. At Wood Lake, the two men and the teenage girls drank beer. The group later returned to the Johnson home to continue drinking and to smoke marijuana. Although Yankton is T.L.'s second cousin, he maintains that he did not know this fact until later that night.
Yankton agreed to drive T.L. and her friend to their respective homes. The friend was dropped off first. When they stopped, T.L. got out of the vehicle, talked to her friend, and got back into the vehicle. Instead of driving T.L. home, Yankton drove past T.L.'s home and on to Ziebach Pass where he proceeded to rape her. Yankton denies that the intercourse was actually a rape. 2 When Yankton finished, T.L. put her underwear and pants back on and told Yankton that her shoe fell out of the pickup and that she was going to get it. T.L. then attempted to run away, but Yankton caught her, dragged her back to the pickup, and raped her again. Yankton denies having intercourse with her a second time. Yankton threatened to beat T.L. if she told anyone and also told her that her father would not do anything because they were related. Yankton denies making such threats.
Yankton finally dropped T.L. off at the Johnson home. T.L. went into the Johnson's bathroom and cried. When she came out of the bathroom, she told Wendell Johnson about Yankton twice raping her and about his threats. T.L. told him not to let Yankton in the house. T.L. got two knives for her protection. When Yankton knocked on the door, T.L. jumped out the window and ran, taking the knives with her. She ran home, woke her father and stepmother, and told them about the rapes. They tried to calm her, took the knives from her, and took her to the police station. From the station, she was taken to a hospital for a medical examination.
Two days later, when Yankton was being held on tribal charges for a liquor violation and for contributing to the delinquency of a minor, the tribal investigator informed Yankton of his Miranda rights and asked him about T.L.'s allegations of rape. Yankton denied raping T.L.
T.L. became pregnant with twins as a result of the rape. One twin died in utero. Because of complications with the pregnancy, T.L. was hospitalized and gave birth to the remaining child by cesarean. The baby girl was born with a fatal disease, osteogenesis imperfectis, that caused her bones to be extremely brittle. The baby died three weeks after birth. T.L. had not attended school since the time of the rape and did not return until after her daughter had died.
Medical tests established that on the night of November 10, 1990, Yankton had intercourse with T.L. The tests further proved to a 99.243% degree of certainty that Yankton was the father of T.L.'s baby girl. Although Yankton initially denied having any sexual relations with T.L., he contended at trial that he and T.L. did have intercourse that night but that it was consensual. The jury convicted Yankton.
The government raises two issues in its appeal. First, the government contends that the district court's decision to not make a upward adjustment for obstruction of justice pursuant to United States Sentencing Guideline § 3C1.1 was clearly erroneous. The second argument raised by the government is that the district court erred by not making a specific offense characteristic increase for bodily injury suffered by the victim pursuant to U.S.S.G. § 2A3.1(b)(4) or by not departing upward based on the facts of the case. We affirm the district court on the first issue but reverse and remand on the second issue.
The government requested that the district court make a two level increase in Yankton's base offense level pursuant to U.S.S.G. § 3C1.1 for obstruction of justice. The government based its request upon Yankton's initial denial to the tribal investigator that he had sexual intercourse with the victim, his alleged perjurious testimony under oath, and his repeating these statements to the probation officer. 3 We review the district court's finding for clear error only. United States v. Amos, 952 F.2d 992, 994 (8th Cir.1991) (citing United States v. Dyer, 910 F.2d 530, 533 (8th Cir.), cert. denied, 498 U.S. 907, 111 S.Ct. 276, 112 L.Ed.2d 232 (1990)), cert. denied, --- U.S. ----, 112 S.Ct. 1774, 118 L.Ed.2d 432 (1992).
"A defendant's denial of guilt (other than a denial of guilt under oath that constitutes perjury) ... is not a basis for application of this provision." U.S.S.G. § 3C1.1, comment. (n.1). Yankton's statement to the tribal investigator was, "I did not rape [T.L.], she's my niece." See trial transcript, at 302. Although Yankton admitted at trial that the statement was false to the extent that it meant he did not have sexual intercourse with the victim, we view Yankton's statement to be a general denial of guilt that was not made under oath. Therefore, the district court's refusal to make an obstruction of justice adjustment based upon the statement made to the tribal investigator was not clear error. Likewise, any general denial made by Yankton to the probation officer was also not a proper basis for an obstruction of justice adjustment.
The government argues that Yankton's testimony at trial was perjury sufficient to constitute the primary basis for an obstruction of justice adjustment. The obstruction of justice adjustment should not be imposed United States v. Willis, 940 F.2d 1136, 1140 (8th Cir.1991), petition for cert. filed, (Dec. 9, 1991). In addition, the adjustment "cannot be given simply because a defendant testifies in his own behalf and the jury disbelieves him." Id. "The district court itself must find that the defendant committed perjury before making the upward adjustment." Id. (citing Dyer, 910 F.2d at 533).
In asking this court to reverse the district court's refusal to make an obstruction of justice adjustment, the government relies on United States v. Lange, 918 F.2d 707 (8th Cir.1990), in which this court reversed the district court's refusal to make an obstruction adjustment. In Lange, the defendant had admitted making false statements in open court and to the probation officer for the purpose of receiving a light sentence. Id. at 708-09. In this case, however, no such admission of perjury was made. Rather, we have a specific finding from the trial judge, who heard all of the testimony and saw all of the evidence, that the defendant's testimony was not perjury and that an obstruction of justice adjustment was not warranted.
I have no problem in finding that there was no perjury in the sense that there was a making of a case for perjury. In my mind there was a disagreement of facts that was presented to the jury for the jury to make a decision on and they did and they chose to believe the facts, if there is a dispute, they chose to believe the facts recited by the victim.
Sentencing transcript at 30. We do not find that the district court's finding of no perjury was clearly erroneous, and consequently its decision not to impose an upward adjustment for obstruction of justice must be affirmed.
The government also argues that T.L.'s pregnancy, with its tragic consequences, constitutes a "bodily injury" for which a specific offense characteristic increase should be made pursuant to U.S.S.G. § 2A3.1(b)(4). In the alternative, the government argues that the district court should have departed upward to account for these facts. The district court rejected both of the government's arguments.
Whether pregnancy resulting from forcible rape can be considered a bodily injury under the Guidelines appears to be a question of first impression. As the issue involves an interpretation of the scope of the guidelines, it is a question of law that this court reviews de novo. United States v. Werlinger, 894 F.2d 1015, 1016 (8th Cir.1990). At sentencing, the government requested that a two or three level specific offense characteristic increase be made pursuant to U.S.S.G. § 2A3.1(b)(4). Guideline § 2A3.1 provides that the base offense level of 27 for the crime of criminal sexual abuse should be increased if...
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