United States v. Villarreal
| Decision Date | 22 February 2013 |
| Docket Number | No. 12–1831.,12–1831. |
| Citation | 707 F.3d 942 |
| Parties | UNITED STATES of America, Plaintiff–Appellee v. Leo VILLARREAL, Defendant–Appellant. |
| Court | U.S. Court of Appeals — Eighth Circuit |
OPINION TEXT STARTS HERE
Gary G. Colbath, Jr., AFPD, argued and on the brief, Scott D. McGregor, on the brief, Rapid City, SD, for appellant.
Eric D. Kelderman, AUSA, argued and on the brief, Rapid City, SD, for appellee.
Before LOKEN, BEAM, and SMITH, Circuit Judges.
Leo Villarreal was charged in a three-count indictment with aggravated sexual abuse, in violation of 18 U.S.C. §§ 2241(a)(1), 2246(2)(A), and 1153 (“Count I”); aggravated sexual abuse, in violation of 18 U.S.C. §§ 2241(a)(1), 2246(2)(D), and 1153 (“Count II”); and sexual abuse, in violation of 18 U.S.C. §§ 2242(2), 2246(2)(C), and 1153 (“Count III”). A jury found Villarreal not guilty on Count I and guilty on Counts II and III. On appeal, Villarreal argues that the district court 1 erroneously denied his (1) motion to dismiss the indictment for violation of the Speedy Trial Act, 18 U.S.C. § 3161 et seq.; (2) motion to dismiss Count II of the indictment for failure to state an offense; (3) motion for judgment of acquittal or, in the alternative, new trial, on Count III due to insufficient evidence; and (4) motion for judgment of acquittal on Count III based on a variance between Count III and the evidence. We affirm.
A. Offense
On March 9, 2010, Villarreal attended a party that Travis Lone Hill hosted at his home in Manderson, South Dakota, which is located within the exterior boundaries of the Pine Ridge Indian Reservation (“Pine Ridge”). Travis shares the home with his mother, Lisa Lone Hill, and his sisters, Marissa Two Lance and L.L.H. On that date, Marissa was 21 years old and L.L.H. was 14 years old. They were both home during the party, but Lisa was not. Villarreal arrived to the party intoxicated, yet he continued to drink more as the evening progressed.
Around midnight, Marissa and L.L.H. went to a friend's house. Upon their return, they went to the bedroom that they shared and slept in the same bed. Marissa wore jeans and a shirt to bed, while L.L.H. wore a tank top with pajama pants. L.L.H. awoke to Villarreal touching her leg. According to L.L.H., he then touched her breasts and vagina, under her clothing. Villarreal penetrated L.L.H.'s vagina with his fingers. Marissa awoke when she heard L.L.H. say “owie,” and she saw Villarreal with his head between L.L.H.'s legs. Marissa reacted to protect her sister by throwing her arm and leg over L.L.H., causing Villarreal to back away from L.L.H. Marissa did not force Villarreal out of the room because she feared him.
Marissa went back to sleep but was awakened again by Villarreal. At trial, Marissa testified, in pertinent part:
Q. At some point after that did you go back to sleep?
A. Yes.
Q. And did something awaken you?
A. Yes.
Q. What do you wake up to find?
A. My pants and my underwear being pulled down.
Q. Who was there?
A. Leo [Villarreal].
Q. What about his hands? Where were his hands?
A. They were touching my vagina and rubbing his hand, his finger back and forth.
* * *
Q. (BY [the government] ) What else happened with his hand?
A. He put his finger inside my vagina.
Q. Was he doing this—was it one hand or both?
A. One.
Q. Were you fully awake?
A. Yes.
Q. Well, were you just coming out of sleep?
A. Yes.
On cross-examination, Marissa testified, in relevant part, as follows:
Q. So when you woke up the second time by somebody pulling your pants down, I assume because you had just been awake, you woke up pretty quickly. I mean, that caused you to wake up, that feeling of your pants being down, is that true?
A. Yes.
Q. And again, because he was still in the room, when you went to sleep the first time you could see with the black light; you knew right away it was Leo again; he hadn't left; he was still there, is that true?
A. Yes.
Q. And you described for us yesterday how at that point he rubbed—once your pants got down, he rubbed your vagina; then he put his fingers in you. How you can tell us about that is you were awake to see that and to feel that and to know that it was him doing that to you, weren't you?
A. Yes.
On redirect examination, Marissa testified, in relevant part, as follows:
Q. (BY [the government] ) When you were in the bed earlier the first time during the night, there's a little confusion. Your pants were being pulled down or were pulled down and you testified yesterday that Leo's finger was in your vagina, is that right?
A. Yes.
Q. And so that's—I mean, are you testifying from your memory of what happened?
A. Yes.
In the morning, Marissa woke her sister up for school. She then left the bedroom to tell Travis that Villarreal, who was still in their bedroom, was doing something to L.L.H. Unfortunately, Travis was passed out at the kitchen table.
When Marissa left the room, Villarreal approached L.L.H. and pulled down her pants while holding her arms with one hand. Villarreal used his other hand to take off his own pants and underwear, as well as her underwear. According to L.L.H., Villarreal put his penis in her vagina, causing her pain. When Marissa re-entered the room, she could see Villarreal having sex with L.L.H. Her entrance interrupted Villarreal, who removed himself from L.L.H., pulled his pants up, and left the bed. He did not, however, leave the room. L.L.H. immediately left the bedroom and went into the bathroom to shower. After L.L.H. showered, she and Marissa went to a friend's house. Thereafter, L.L.H. went to school.
When Marissa returned home, she went to her mother's bedroom. But she eventually went back to her own bedroom to get ready for the day, and Villarreal was still on the bed in her room. As she opened the curtain to her closet, Villarreal said, “Did you know if you tell, Patty and Frances 2 would be really mad at you[?]” Villarreal then pulled Marissa onto the bed. Marissa told Villarreal that she would not tell. Villarreal held Marissa's arms and said, Continuing to hold Marissa's arms, Villarreal unbuttoned his jeans and then pulled his own pants down. Marissa struggled against Villarreal and called for Travis. Villarreal put his penis inside of Marissa as she struggled. She again called for her brother, and Villarreal stopped, stating, “I am f[* *]king drunk” and moving backwards. Marissa went into the bathroom and waited for Villarreal to leave.
Marissa later disclosed to another sister what Villarreal had done to L.L.H., and law enforcement was contacted. Federal Bureau of Investigation (FBI) Special Agent Charles Blackburn was assigned to investigate the sexual-abuse allegations against Villarreal. On March 18, 2010, Agent Blackburn traveled to Pine Ridge to collect evidence from the residence and speak with the alleged victims. Marissa spoke to Agent Blackburn about Villarreal's sexual abuse of her and L.L.H., originally telling him only about Villarreal's initial touching of her. A week before trial, Marissa revealed to Agent Blackburn and one of the prosecutors the additional sexual abuse that Villarreal had committed when she had returned to her room to get ready for the day. She explained that she did not divulge this abuse initially “[b]ecause [she] thought just by saying he touched [her] was good enough” and “[b]ecause [she] was embarrassed” and “scared.”
During his initial visit to Pine Ridge, Agent Blackburn collected a bed sheet that was on Marissa and L.L.H.'s bed at the time of the alleged assault. Sometime later, he received L.L.H.'s underwear from a tribal law enforcement officer. Agent Blackburn examined the bed sheet and underwear using an alternate light source. He observed several areas that showed fluorescence, indicating the possible presence of bodily fluids.
On June 16, 2010, Agent Blackburn obtained a search warrant to collect two saliva samples from Villarreal. He collected those samples from Villarreal on June 21, 2010, by means of buccal swabs.
Approximately a month later, the government filed the three-count indictment against Villarreal. After the district court denied his motion to dismiss the indictment for violation of the Speedy Trial Act, Villarreal proceeded to trial on June 21, 2011. The jury found Villarreal guilty of Counts II and III. It found him not guilty of Count I.
Villarreal filed post-trial motions for judgment of acquittal or, in the alternative, new trial under Federal Rules of Criminal Procedure 29 and 33. He also renewed his motion made at trial to dismiss Count II of the of the indictment pursuant to Federal Rule of Criminal Procedure 12(b)(3)(B) for failure to state an offense. The district court denied Villarreal's motions.
On appeal, Villarreal argues that the district court erred in denying his (1) motion to dismiss the indictment for violation of the Speedy Trial Act; (2) motion to dismiss Count II of the indictment for failure to state an offense; (3) motion for judgment of acquittal or, in the alternative, new trial, on Count III based on insufficiencyof the evidence; and (4) motion for judgment of acquittal based on a variance between Count III and the evidence.
On August 17, 2010, the government filed the three-count indictment against Villarreal. He was arrested on August 23, 2010. On August 24, 2010, Villarreal made his initial appearance, was arraigned, had counsel appointed, and was detained pending trial. The district court set the trial for November 2, 2010.
On October 4, 2010, Agent Blackburn took five pieces of evidence—a bed sheet, underwear, a buccal swab from Marissa, a buccal swab from L.L.H., and a buccal swab from Villarreal—to the South Dakota Division of Criminal Investigation Forensic Laboratory (SDFL). Agent Blackburn instructed the SDFL staff to conduct DNA testing on the evidence. He also requested a comparative analysis of Marissa's and...
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