United States v. A.S., 19-9900

• Decision Date: 17 September 2019
• Docket Number: No. 19-9900,19-9900
• Citation: 939 F.3d 1063
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. A.S., A Juvenile Male, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

939 F.3d 1063

UNITED STATES of America, Plaintiff-Appellee,

v.A.S., A Juvenile Male, Defendant-Appellant.

No. 19-9900

United States Court of Appeals, Tenth Circuit.

FILED September 17, 2019

Steven W. Creager, Jacquelyn Mather Hutzell, Mark Stoneman, Office of the United States Attorney, Western District of Oklahoma, Oklahoma City, for Plaintiff - Appellee.

Jeffrey M. Byers, Susan M. Otto, Office of the Federal Public Defender, Western District of Oklahoma, Oklahoma City, OK, for Defendant - Appellant.

Before HOLMES, McKAY, and KELLY, Circuit Judges.

HOLMES, Circuit Judge.

A.S. was adjudicated a juvenile delinquent under the Federal Juvenile Delinquency Act ("FJDA"), 18 U.S.C. §§ 5031 – 5043, after the district court concluded that, when he was seventeen years old, he knowingly engaged in a sexual act with a victim, K.P., while she was incapable of appraising the nature of the conduct in violation of 18 U.S.C. § 2242(2)(A).¹ The court ordered A.S. to be committed to eighteen months’ custodial detention to be followed by twenty-four months’ juvenile-delinquent supervision.

On appeal, A.S. raises three challenges. First, he argues that the district court erred in limiting cross-examination and excluding extrinsic evidence concerning a prior allegation of sexual assault that K.P. made. We reject this argument because the court’s actions accorded with the Federal Rules of Evidence and did not violate A.S.’s constitutional rights. Second, A.S. argues that the evidence was insufficient to demonstrate that he knew that K.P. was incapable of appraising the nature of the sexual conduct, which he says was an element of the offense. However, we conclude that there was ample evidence for a reasonable factfinder—i.e., the court—to determine that this purported element was established, notably, evidence that A.S. engaged in sexual conduct with K.P. while he knew she was asleep and drunk. Third and finally, A.S. argues that the district court erred in imposing a dispositional sentence on him of custodial detention, but we conclude that the court’s sentence did not constitute an abuse of its broad sentencing discretion. Thus, exercising jurisdiction under 28 U.S.C. § 1291, we affirm the district court’s judgment.

I

A

A.S., who hailed from a non-state territory of the United States, moved to Oklahoma to live with his cousin. When the events at issue here occurred, he was seventeen years old (albeit four months shy of his eighteenth birthday). A.S. and his cousin lived on the Fort Sill military base two houses away from a neighbor who was from the same American territory as them. One evening, the neighbor hosted a party that A.S. and other neighbors attended. Among those neighbors were K.P., the victim in this case, and C.P., her husband. The partygoers drank alcohol and danced. And K.P. had four drinks that night containing eight percent alcohol and got drunk.² As the party wound

down, K.P. told C.P. that she was tired and that it was time to return home and go to bed. Once they were home, K.P. fell asleep quickly, but C.P. eventually returned to the party.

K.P. remained asleep in the bedroom. She testified that she "woke up to what [she] thought was [her] husband [i.e., C.P.] having ... intercourse with [her]." R., Vol. II, at 96 (Bench Trial Tr.). She explained that the individual who was having intercourse with her "was kissing [her] weird, and [she] just thought [her husband] was very drunk." Id. at 97. She "kept trying to turn [her] face away." Id. She testified that she "was saying [her] husband’s name," but that the individual having sexual intercourse with her did not use her husband’s name but, rather, uttered (what was later revealed to be) a variant of A.S.’s name, apparently his nickname. Id. at 98–99. She thought her husband was "messing with [her]," and eventually she "went back to sleep." Id. at 97–98. An indeterminate amount of time later, she was awakened again by the individual having sexual intercourse with her. But when the individual "asked [her] if [she] wanted a baby," she realized the individual was not her husband. Id. at 97; Suppl. R. at 7. She exclaimed, "[C.P.,] is that you?" and shoved the man off. Suppl. R. at 7. The individual pulled on his pants and ran away. K.P. ran out of her bedroom and found C.P. at the neighbor’s party. She asked whether he had been in their bedroom having sex with her, and he denied this.

K.P. and C.P. later drove to the hospital where K.P. was examined by a nurse. The nurse took DNA from K.P.’s vagina and face. Several days later, law enforcement investigators interviewed A.S. Contrary to his later testimony before the district court, A.S. told them that he "never touched, [or] kissed" K.P. and "denied ever being inside her residence." R., Vol. I, at 88 (Presentence Investigation Report). He provided law enforcement, however, with "a buccal swa[b] for DNA comparison." Id.

Law enforcement subsequently learned that the "DNA recovered from a vaginal swab of K.P. matched the sample taken from A.S." Id. (bold-faced font omitted). And the parties would later stipulate that "[t]he major DNA profile [from the vaginal swab] matches [A.S.]." R., Vol. I, at 48 (Stipulation).

B

The government filed an information alleging that A.S. "committed an act of juvenile delinquency, to wit: knowingly engaging in a sexual act with another person [i.e., K.P.], while K.P. was incapable of appraising the nature of the conduct." R., Vol. I, at 8 (Juvenile Information).

Defense counsel moved to introduce evidence of a separate allegation of sexual assault made by K.P. Specifically, three weeks prior to the above sexual assault, K.P. and C.P. attended a party with an individual that we refer to here as D.M. K.P. alleged that D.M. forced her to perform oral sex on him at the party. Later that same night, both K.P. and C.P. fell asleep on couches in D.M.’s home. She alleged that, while they were asleep on the couches, D.M. attempted to assault her again. Early the following morning, K.P. told C.P. about both assaults, and they reported the incidents to the police department of Lawton, Oklahoma, a municipality near Fort Sill. When law enforcement questioned him, D.M. initially denied having any sexual contact with K.P., but—after being asked to provide DNA—he admitted to both acts, although he claimed they were consensual. D.M. later agreed to take a polygraph, which provided a result of "Deception Indicated" when D.M. denied that he had forced K.P. to perform the sex acts. Nevertheless, K.P. decided not to go forward with the case for reasons that the record does not disclose.

The court held a hearing to decide whether evidence concerning this prior allegation of sexual assault would be admitted. At the outset, the court said it was "inclin[ed] ... to not allow a mini trial on the issue of these other accusations." Id. , Vol. II, at 12. Defense counsel explained that A.S. wanted to call the alleged perpetrator of the prior alleged assault, introduce other evidence about the allegation, and cross-examine K.P. about the allegation. The government argued that the cross-examination and admission of extrinsic evidence concerning this prior allegation would not be appropriate under Federal Rule of Evidence 412 and that there was no evidence that the prior allegation was false. Defense counsel acknowledged that they could not "prove that [the] prior allegation [was] true or false." Id. at 17. After the parties’ arguments, the court ruled as follows:

What I’m going to do, I think there is some relevance as far as—to her credibility. I’m going to let you [i.e., defense counsel] question the witness about the prior allegations. I am not going to allow you to conduct a mini trial on it, but I will allow you to question the witness.

Id. at 18. In other words, the court authorized cross-examination of K.P. concerning the prior alleged sexual assault but declined to allow defense counsel to introduce extrinsic evidence about the incident. Defense counsel "appreciate[d] the ability to ask her [i.e., K.P.] questions about it" and, "notwithstanding" the court’s ruling, proffered certain extrinsic evidence that counsel would have offered into evidence, if permitted to do so—specifically, "recordings [of interviews] provided from the Lawton Police Department in reference to that [prior] allegation as well as the polygraph examination report that contains a detailed interview of this other individual [i.e., D.M.]." Id.

The parties proceeded with the bench trial. The government called K.P., C.P., the nurse who evaluated K.P., the neighbor who hosted the party, and an investigator. A.S. testified in his own defense. The testimony largely conveyed the facts laid out above; however, we note two portions of the trial record particularly relevant to the issues on appeal.

First, at the end of the government’s direct examination of K.P., the court initiated a bench conference. The court said:

I am going to let you [i.e., defense counsel] go into the other incident but not the details of that. If you want to go into her accusations about what happened, you can do that. But I don’t want you to go into the details.

Id. at 102. To "make sure that [defense counsel] underst[oo]d what [the judge was] saying," counsel stated the defense intended "to ask [K.P.] about the party at the other house in Lawton," intended "to ask her if there was an incident at that party involving another man other than [C.P.] and that it involved sexual contact," and intended "to ask her if there was a report at the Lawton Police Department." Id. Counsel did not "intend to ask her about fellatio or anything like that." Id. The court said those questions were "fine," and defense counsel did not propose any other questions on this issue, nor did defense counsel object to the scope of cross-examination that the court ultimately defined. Id.

Second, A.S. testified that K.P. had asked him "[i]f [he] could come ... inside her house." Id. at 168. He said this was the first thing...