United States v. Bear

• Decision Date: 06 September 2018
• Docket Number: No. 17-3202,17-3202
• Citation: 903 F.3d 704
• Parties: UNITED STATES of America, Plaintiff-Appellee v. Robert FOOL BEAR, Sr., Defendant-Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

903 F.3d 704

UNITED STATES of America, Plaintiff-Appellee

v.Robert FOOL BEAR, Sr., Defendant-Appellant

No. 17-3202

United States Court of Appeals, Eighth Circuit.

Submitted: June 15, 2018

Filed: September 6, 2018

Counsel who presented argument on behalf of the appellant and appeared on the appellant brief was Kent Michael Morrow, of Bismarck, ND.

Counsel who presented argument on behalf of the appellee and appeared on the appellee brief was Gary Lee Delorme, AUSA, of Bismarck, ND.

Before KELLY, ARNOLD, and STRAS, Circuit Judges.

KELLY, Circuit Judge.

Following a two-day trial, Robert Fool Bear, Sr., was convicted of Attempted Aggravated Sexual Abuse of a Child, Aggravated Sexual Abuse of a Child, Aggravated Sexual Abuse of a Child by Force, and Incest in Indian Country. He was sentenced to 360 months in prison. He now appeals.

I.

Following an investigation by the Standing Rock Sioux Bureau of Indian Affairs and the Federal Bureau of Investigation, Fool Bear was charged with sexually abusing his minor niece. A grand jury returned a five-count indictment. Fool Bear proceeded to trial.

At trial, Fool Bear’s niece testified that she and her brother moved into Fool Bear’s home on the Standing Rock Sioux Indian Reservation after their father died when she was seven or eight years old. She lived with Fool Bear on and off until she was sixteen. Count 1 (Attempted Aggravated Sexual Abuse of a Child): She testified that one day—"[a]bout when [she] was ten"—she stayed home from school because she was sick. Fool Bear was the only other person home. She testified that he asked her to lie down with him in his bedroom. He took off his clothes and asked her to touch his penis and he touched her buttocks and rubbed her vagina. Fool Bear told her not to tell anyone. Count 2 (Aggravated Sexual Abuse of a Child): The niece testified that a couple of months later she was again home from school and went into the living room, looking for Fool Bear. She testified that Fool Bear then "grabbed [her] hand and he led [her] back into his bedroom." He started kissing her, "and then he kind of gently pushed [her] down onto the bed." Fool Bear removed both of their pants and underwear and inserted his penis into her vagina. She testified that it hurt and her vagina later bled as a result of this penetration. Count 5 (Incest in Indian Country): After that, "something like this" type of sexual conduct would happen "once or twice every month." Count 3 (Aggravated Sexual Abuse of a Child by Force): She described one last sexual encounter, which occurred in October or November 2015 when she was sixteen. She said that Fool Bear "had laid [her] on the bed and had started taking advantage of [her]." Shortly thereafter, she reported the ongoing sexual abuse to her aunt.

After trial, the jury convicted Fool Bear on four of the five counts.¹ Fool Bear appeals, arguing that two of the charged offenses were multiplicitous, that the district court erred in instructing the jury, and that the evidence was insufficient to support his convictions.

II.

Fool Bear first argues that we must set aside either his conviction on Count 2 (Aggravated Sexual Abuse of a Child) or Count 5 (Incest in Indian Country) because the two counts are multiplicitous. The Double Jeopardy Clause of the Constitution "protects against multiple punishments for the same offense." United States v. Anderson, 783 F.3d 727, 738–39 (8th Cir. 2015) (quoting North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) ). We refer to charges that violate this principle as "multiplicitous." United States v. Benton, 890 F.3d 697, 713 (8th Cir. 2018). Because the application of this rule is limited to cases where the court would impose a greater punishment than the legislature intended, "determining whether multiple punishments for the same offense violate the Double Jeopardy Clause is a matter of ascertaining legislative intent." Anderson, 783 F.3d at 739 (citing Garrett v. United States, 471 U.S. 773, 778, 105 S.Ct. 2407, 85 L.Ed.2d 764 (1985) ). Where this intent is not readily apparent, "we ask ‘whether each [charged offense] requires proof of a fact which the other does not.’ " Id. (quoting Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932) ). If so, the offenses are not multiplicitous.

Quite simply, each of these offenses requires proof of a fact that the other does not.² Aggravated sexual abuse of a child under 18 U.S.C. § 2241(c) includes the element that the victim must have been under the age of 12 at the time of the offense. Incest, on the other hand, requires proof that the victim was a sufficiently close relative of the defendant that a marriage between them would be considered incestuous. See 18 U.S.C. § 1153(b) ; N.D. Cent. Code § 12.1-20-11. Therefore, we conclude, these two charges were not multiplicitous.³

III.

Fool Bear next challenges the jury instruction for aggravated sexual abuse of a child. Although "[w]e typically review a challenge to jury instructions for an abuse of discretion," in cases "[w]here a party fails to timely object to an instruction at trial ... we review only for plain error." United States v. Poitra, 648 F.3d 884, 887 (8th Cir. 2011). We affirm if "the instructions, taken as a whole and viewed in light of the evidence and applicable law, fairly and adequately submitted the issues in the case to the jury." United States v. Carlson, 810 F.3d 544, 554 (8th Cir. 2016).

The court instructed the jury that in order to find Fool Bear guilty of aggravated sexual abuse of a child, it must find that (1) "[Fool Bear] knowingly engaged in a sexual act with [his niece]; that is, the penetration, however slight, of the vulva of [his niece] by a penis"; (2) "at the time of the sexual act, [the niece] was under the age of 12"; (3) "[Fool Bear] is an Indian/Native American"; and (4) "the offense occurred within Indian Country." Fool Bear did not object to this instruction. Fool Bear now argues that the jury instruction was deficient because it omitted an essential element of the offense—that the defendant acted "with the intent to abuse, arouse, and gratify the sexual desire of any person." But that is not an element of this offense. "To prove aggravated sexual abuse of a minor, the government needed to show that [Fool Bear] (1) knowingly engaged in a sexual act with a person under the age of 12, (2) is an Indian, and (3) the offense occurred in Indian Country." United States v. DeCoteau, 630 F.3d 1091, 1093 n.2 (8th Cir. 2011) (citing 18 U.S.C. §§ 1153, 2241(c) ). All of these elements were reflected in the jury instruction.⁴

IV.

Fool Bear asserts the evidence was insufficient to convict him of three of the four charges. "This court reviews the sufficiency of the evidence de novo, viewing evidence in the light most favorable to the jury’s verdict, resolving conflicts in the government’s favor, and accepting all reasonable inferences that support the verdict." United States v. Tillman, 765 F.3d 831, 833 (8th Cir. 2014) (cleaned up). We reverse "only if no reasonable jury could have found the defendant guilty beyond a reasonable doubt." Id. (quotation omitted).

Count 1: Attempted Aggravated Sexual Abuse of a Child

The parties agree that Count 1 was based exclusively on the first occasion of sexual conduct by Fool Bear toward his niece. The government concedes that the evidence at trial did not show "penetration, however slight, by a penis of the vulva of" his niece, so the evidentiary support for this count turns on whether Fool Bear’s actions on that occasion can be considered an attempt to engage in such conduct. We conclude that—even under our deferential standard of review—the evidence of attempt was insufficient to support this conviction.

"The requisite elements of attempt are: ‘(1) an intent to engage in criminal conduct, and (2) conduct constituting a "substantial step" toward the commission of the substantive offense which strongly corroborates the actor’s criminal intent.’ " United States v. Plenty Arrows, 946 F.2d 62, 66 (8th Cir. 1991) (quoting United States v. Joyce, 693 F.2d 838, 841 (8th Cir. 1982) ). Based on the charge in this case, therefore, the government was required to show that Fool Bear’s conduct during that first encounter was sufficient to establish, beyond a reasonable doubt, that it was Fool Bear’s intent to engage in penetration of his niece’s vulva by his penis, and that his conduct constituted a substantial step toward that conduct. Fool Bear argues the government presented no evidence—in his niece’s testimony or elsewhere—to demonstrate that, on that day, he intended to engage in penile penetration.

The government concedes that there was no direct evidence that Fool Bear intended to engage in the conduct the indictment alleges he attempted on that day. Rather, the government asks us to infer that this was Fool Bear’s intent based on the fact that "every single sexual assault after the first one involved penile-vaginal sex." While this evidence was admissible, see Fed. R. Evid. 404(b)(2) ; Fed. R. Evid. 413(a) ; Fed. R. Evid. 414(a), that does not answer whether it was sufficient to support a reasonable inference of Fool Bear’s intent, beyond a reasonable doubt. On this first occasion, unlike during the later incidents of abuse, Fool Bear stopped short of penetration, and the government introduced no evidence that this abandonment was triggered by some external event. And unlike in the cases cited by the dissent, there is no evidence that Fool Bear had engaged in penile penetration with his niece or another victim prior to this date. See United States v. Geddes, 844 F.3d 983, 990 (8th Cir. 2017) (witness’s testimony about the defendant’s "earlier use of force against her" was relevant to intent); United States v. Brumfield, 686 F.3d 960, 963 (8th Cir. 2012) (testimony that the defendant, a month prior to discovery of child pornography in his possession, had "propositioned a minor to have sex with him and...