United States v. Harry, CR 10-1915 JB

• Decision Date: 14 October 2014
• Docket Number: No. CR 10-1915 JB,CR 10-1915 JB
• Parties: UNITED STATES OF AMERICA, Plaintiff, v. MYRON JIM HARRY, Defendant.
• Court: U.S. District Court — District of New Mexico

UNITED STATES OF AMERICA, Plaintiff, v. MYRON JIM HARRY, Defendant.

No. CR 10-1915 JB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO

October 14, 2014

MEMORANDUM OPINION AND ORDER

THIS MATTER comes before the Court on the Defendant's Objections to Prosecution's Requested Jury Instructions, filed May 5, 2013 (Doc. 159)("Objections"). The Court heard these Objections during trial on May 6, 2013. The primary issue is whether 18 U.S.C. § 2242 requires that the Plaintiff United States of America prove only that the Defendant Myron Harry knew that he was engaging in a sexual act with Jane Doe, or whether the United States must also prove that Harry knew that Doe was physically incapable of declining participation in, or communicating an unwillingness to engage in, the sexual act. Because the Supreme Court of the United States has construed similar statutes in a manner that requires the mens rea of an offense to attach to every element of that offense, because there is a presumption that the mens rea of a crime attaches to every element that would make otherwise traditionally innocent conduct criminal, because requiring the United States to prove only that Harry knew that he was engaging in a sexual act -- and not that he knew that Doe was incapable of communicating an unwillingness to engage in that sexual act -- is inconsistent with 18 U.S.C. §§ 2241 and 2243, and because the Court's construction of 18 U.S.C. § 2242(2) is consistent with the precedent of the United States Court of Appeals forthe Tenth Circuit as well as the precedent of other United States Circuit Courts of Appeals, the Court will sustain Harry's Objections in part and overrule the Objections in part.¹

FACTUAL BACKGROUND

The United States accuses Harry of sexually abusing Doe during a party on the night of May 5, 2010, and the morning of May 6, 2010, in Shiprock, New Mexico. See Indictment at 1, filed June 24, 2010 (Doc. 14)("Indictment"). The Court previously made findings of fact for Harry's Motion to Suppress Evidence Based on Spoliation or Incompleteness, filed June 26, 2012 (Doc. 75). See Memorandum Opinion and Order at 2-16, filed February 19, 2013 (Doc. 114). The Court incorporates those findings of fact by reference herein.

PROCEDURAL BACKGROUND

On June 24, 2010, a grand jury indicted Harry for having knowingly engaged in a sexual act with Doe, who was physically incapable of declining participation and could not communicate her unwillingness to engage in the sexual act, in violation of 18 U.S.C. §§ 1153, 2242(2), and 2246(A). See Indictment at 1. Trial in this matter is presently set for May 6, 2013, at 9:00 a.m. See Agreed Order to Vacate and Reset Trial and Extend the Time for the Filing of Pre-Trial Motions at 4, filed February 28, 2013 (Doc. 12).

The United States provided the Court with the following offense elements, which the United States requests the Court include in the preliminary instructions to the jury:

First: that on or about May 6, 2010, the defendant knowingly engaged in a sexual act with Jane Doe;

Second: that Jane Doe could not communicate unwillingness to engage in the sexual act;

Third: defendant is Indian;

Fourth: the offense was committed in Indian Country; and

Fifth: the offense was committed in New Mexico.

United States' Requested Jury Instructions, Government's Requested Instruction No. 1, at 5-6, filed April 30, 2013 (Doc. 146)("U.S. Instructions"). The United States requests that the Court give the following final instruction to the jury:

First: that the defendant knowingly engaged in a sexual act with Jane Doe;

Second: that Jane Doe could not communicate unwillingness to engage in the sexual act;

Third: defendant is an Indian;

Fourth: the offense was committed in Indian Country; and

Fifth: the offense was committed in New Mexico.

U.S. Instructions, Government's Requested Instruction No. 11, at 18.

Harry objects to the United States' proposed instructions. See Objections at 1-2. Harry asserts that these instructions misstate 18 U.S.C. § 2242(2)'s elements, because the United States has left out that Harry must have "knowledge that Jane Doe was physically incapable of declining participation in and could not communicate unwillingness to engage in the sexual act." Objections ¶ 2, at 1-2. Harry contends that the Supreme Court has held that "'the presumption in favor of a scienter requirement should apply to each of the statutory elements that criminalizeotherwise innocent conduct.'" Objections ¶ 2, at 2 (quoting United States v. X-Citement Video, Inc., 513 U.S. 64, 71-72 (1994)). Harry asserts that 18 U.S.C. § 2242 is a general, not specific, intent crime, and that the requirement of knowledge in conjunction with the second element of the crime is consistent with the Tenth Circuit's definition of general intent. See Objections ¶ 2, at 2 ("[A] general intent crime . . . requires an 'act was done voluntarily and intentionally, and not because of mistake or accident.'" (quoting United States v. Blair, 54 F.3d 639, 642 (10th Cir. 1995)). Harry asserts that his interpretation of 18 U.S.C. § 2242(2) is consistent with the Tenth Circuit's holding in a previous sexual abuse case, United States v. Smith, 606 F.3d 1270, 1281 (10th Cir. 2010). See Objections ¶ 2, at 2. Harry points out that the United States Court of Appeals for the Eighth Circuit, in a recent opinion that was vacated en banc, held that 18 U.S.C. § 2242(2) requires a defendant to have knowledge that an alleged victim of sexual abuse was incapacitated to be subject to criminal liability under the statute. See Objections ¶ 2, at 3 (citing United States v. Rouillard, 701 F.3d 861 (8th Cir. 2012), vacated, reh'g granted (Mar. 4, 2013)). Harry requests that the Court include, during the preliminary and final jury instructions, the following as the second element necessary to find him guilty of Sexual Abuse: "Defendant had knowledge that Jane Doe was physically incapable of declining participation in and could not communicate unwillingness to engage in the sexual act." Objections ¶¶ 2, 6, at 3-5.

Harry makes additional objections to the United States' proposed instructions. Harry requests that the instructions "only be presented to the jury before Closing Arguments, not before evidence has begun." Motion ¶ 1, at 1. To accommodate this request, Harry suggests the Court include the following language in the preliminary instruction instead of stating the elements of the charged offense:

During the course of the trial, you will receive all the evidence you properly may consider to decide the case. After you have heard all the evidence on both sides, Iwill instruct you on the rules of law, which you are to use in reaching your verdict. The final part of trial occurs when then [sic] Government and Defense will each be given time for their final arguments.

Objections ¶ 1, at 1. Harry also objects to the manner in which the United States summarizes the Indictment. See Objections ¶ 3, at 3. In the United States' Requested Instruction No. 1, the United States summarized the Indictment by stating:

The indictment charges the defendant with knowingly engaging in a sexual act with Jane Doe, who could not communicate unwillingness to engage in the sexual act, or was incapable of appraising the nature of the conduct. The indictment charges the defendant with engaging in the sexual act of contact between the Defendant's penis and the vulva of Jane Doe.

U.S. Instructions at 3. Harry requests that the Indictment be summarized as:

The indictment charges the defendant [sic] knowingly engaging in a sexual act with Jane Doe knowing that Jane Doe was physically incapable of declining participation in and could not communicate unwillingness to engage in the sexual act. The sexual act alleged is the penetration of the genital opening of Jane Doe by the defendant's penis.

Objections ¶ 3, at 3. Harry requests, in agreement with the United States, "that the final instructions be presented to the jury before Closing Arguments." Objections ¶ 3, at 4. Harry also requests that the following language be included in the preliminary instructions:

During the course of the trial, you will receive all the evidence you properly may consider to decide the case. After you have heard all the evidence on both sides, I will instruct you on the rules of law, which you are to use in reaching your verdict. The final part of trial occurs when then [sic] Government and Defense will each be given time for their final arguments.

Objections ¶ 3, at 4.

The United States' Requested Instruction No. 8 states:

During the trial you heard the testimony of Julie Kysar, a Sexual Assault Nurse Examiner, who expressed opinions concerning the nature of the injuries to Jane Doe that were identified during the sexual assault examination Jane Doe submitted to the day of the charged crimes. You also heard testimony from Erin Higgins and Erin Daniel, Criminalists with the Arizona Department of Public Safety, who expressed opinions regarding the serology and DNA testing related to this case.

U.S. Instructions at 15. Harry suggests the following language instead: "Julie Kysar, a nurse, expressed opinions concerning the examination she performed on Jane Doe. You also heard testimony from Erin Higgins and Erin Daniel, who expressed opinions regarding the serology and DNA testing related to this case." Objections ¶ 4, at 4.

The United States' Requested Instruction No. 9 states: "An attorney has the right to interview a witness for the purpose of learning what testimony the witness will give. The fact that the witness has talked to an attorney does not reflect adversely on the truth of such testimony." U.S. Instructions at 16. The United States argues that the Court gave this same instruction in United States v. Chaco, No. CR 10-3463 JB (D.N.M. Aug. 10, 2011). See U.S. Instructions at 16. Harry argues that this instruction is "clearly a self-serving affirmation entirely favoring one side, and improperly bolsters that side's position."...