Beem v. State of Kansas

F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
JAN 27 2003
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT

STEVEN D. BEEM,

Petitioner - Appellant,

v. No. 00-3224

DAVID R. MCKUNE, Warden,
Lansing Correctional Facility; CARLA
STOVALL, Kansas Attorney General,

Respondents - Appellees.

DONALD HENSON, JR.,

Petitioner - Appellant,

v.
No. 00-3249
DAVID R. MCKUNE, Warden,
Lansing Correctional Facility; CARLA
STOVALL, Kansas Attorney General,

Respondents - Appellees.

APPEALS FROM THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF KANSAS
(D. Ct. Nos. 98-CV-3158-DES and 98-CV-3246-DES)

Michael S. Holland (Michael S. Holland II, with him on the brief), Holland and
Holland, Russell, Kansas, for Petitioners-Appellants.
Kristafer R. Ailslieger, Assistant Attorney General, Criminal Litigation Division,
Topeka, Kansas, for Respondents-Appellees.

Before TACHA , Chief Judge, McKAY, SEYMOUR, EBEL, KELLY, HENRY,
LUCERO, MURPHY, HARTZ , and O’BRIEN , Circuit Judges. *

TACHA , Chief Circuit Judge.

Petitioners-appellants Steven D. Beem and Donald H. Henson, Jr. sought

habeas corpus relief in federal district court, 28 U.S.C. § 2254, arguing that the

Kansas state courts violated their federal constitutional rights by sentencing them

for aggravated incest – a crime for which they had never been charged, tried, or

convicted. The district court denied the petitions for habeas corpus and the

petitioners’ requests for certificates of appealability. Both petitioners appealed,

and their cases were consolidated for our review. A divided panel of this court

decided in petitioners’ favor, vacating their convictions and sentences. We now

consider the cases as an en banc court. We exercise jurisdiction pursuant to 28

U.S.C. §§ 1291 and 2253, GRANT petitioners’ requests for certificates of

appealability, and AFFIRM the district court’s denial of the habeas petitions.

I. Background

*
Judge Briscoe heard oral argument, but subsequently recused.

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 Beem was charged in the District Court of Reno County, Kansas, with one

count of indecent liberties with a child, Kan. Stat. Ann. § 21-3503. In 1989, a

jury found him guilty, and the court sentenced him to 15 to 60 years

imprisonment. 1
Beem appealed his conviction, and the Kansas Court of Appeals

affirmed in 1991. Beem later filed a state habeas corpus petition, Kan. Stat. Ann.

§ 60-1507, arguing that because he was related to his victim, he should have been

charged with aggravated incest rather than indecent liberties with a child pursuant

to a state law rule announced in State v. Williams , 829 P.2d 892 (Kan. 1992). 2
In

1995, the trial court vacated Beem’s sentence for indecent liberties with a child

and ordered resentencing, in accordance with the Kansas Supreme Court’s

decision in Carmichael v. State , 872 P.2d 240 (Kan. 1994). 3
At resentencing, the

court imposed a sentence of 9 to 30 years, which conforms to the sentencing

range for aggravated incest. Beem appealed the new sentence, arguing that the

1
Beem was also charged and convicted of one count of aggravated assault,
Kan. Stat. Ann. § 21-3410, but his conviction and sentence for this crime are not
at issue in this appeal.

Under Williams, where a defendant is related to his victim, the State must
2

charge him with the more “specific” offense of aggravated incest rather than the
more “general” offense of indecent liberties with a child. 829 P.2d at 897. The
Williams rule is considered at length in section II(C)(1), infra.
3
Under Carmichael, where a defendant suffered a Williams violation but
fails to raise the issue until after he has been tried and convicted, the proper
remedy is to remand for resentencing in accordance with the allowable penalty
range for aggravated incest. 872 P.2d at 247. We consider the Carmichael
remedy in section II(C)(1), infra.

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court had violated his rights to due process and to a jury trial. The Kansas Court

of Appeals affirmed, and the Kansas Supreme Court denied review.

Henson was charged in the District Court of Miami County, Kansas, with

three counts of rape, Kan. Stat. Ann. § 21-3502. In 1992, a jury found him guilty

on all three counts, and the court sentenced him to three consecutive sentences of

7 to 20 years each. Henson appealed, and the Kansas Court of Appeals held that,

because the victim was his step-daughter, he should have been charged with

aggravated incest – rather than rape – under Williams . Following Carmichael , the

court vacated his sentence and remanded for resentencing in accordance with the

penalty range for aggravated incest. The district court reduced the original

sentences to 3 to 7 years each.

Beem and Henson filed petitions for writs of habeas corpus with the United

States District Court for the District of Kansas. Petitioners challenged the

constitutionality of the Carmichael remedy, arguing that it amounts to

imprisonment for aggravated incest – an offense for which neither was ever

charged, tried, or convicted – in violation of the Sixth Amendment’s jury-trial

guarantee and the Fourteenth Amendment’s Due Process Clause. The district

court denied the habeas petitions and the petitioners’ requests for certificates of

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appealability. 4
On appeal, a divided panel of this court held that the Carmichael

remedy violated petitioners’ constitutional rights, vacated their convictions and

sentences, and noted that double jeopardy did not bar new trials on the charge of

aggravated incest. We granted the State’s request for en banc rehearing.

II. Discussion

A. Certificates of Appealability

Petitioners ask us to grant certificates of appealability to appeal the district

court’s denial of their habeas petitions. This court will only grant a certificate of

appealability to a petitioner who makes “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2). Because the district court “has

rejected the constitutional claims on the merits, . . . petitioner[s] must

demonstrate that reasonable jurists would find the district court’s assessment of

the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473,

484 (2000).

A divided panel of this court originally granted petitioners habeas relief,

and we subsequently granted the State’s request for en banc review. These

developments satisfy us that reasonable jurists would find the district court’s

4
Although Henson had not exhausted his remedies in state court before
filing his federal habeas petition, the district court excused the exhaustion
requirement because the state courts’ resolution of Beem’s case made it futile for
Henson to seek relief in state court.

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assessment of the petitions’ constitutional claims “debatable,” and we therefore

grant petitioners certificates of appealability. See id. We have jurisdiction over

this appeal pursuant to 28 U.S.C. § 2253(a).

B. Standard of Review

In evaluating the district court’s denial of a habeas corpus petition, we

review legal conclusions de novo and factual findings for clear error. See Davis

v. Executive Dir. of Dep’t of Corrs., 100 F.3d 750, 756 (10th Cir. 1996). To

obtain habeas relief, petitioners must establish that the state court decisions were

“contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States; or . . .

[were] based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2).

C. Analysis of the Constitutional Claim

1. The Williams Rule and the Carmichael Remedy

The appeals before us stem from the Kansas courts’ application of a state

law rule announced in State v. Williams , 829 P.2d 892 (Kan. 1992), and

Carmichael v. State , 872 P.2d 240 (Kan. 1994). In Williams , the Kansas Supreme

Court considered the interplay between two offenses: “Indecent liberties with a

child” under Kan. Stat. Ann. § 21-3503 and “Aggravated incest” under Kan. Stat.

Ann. § 21-3603. Id. at 894. In Williams , the State had charged the defendant

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with taking indecent liberties with his 14-year-old step-granddaughter. Id. at 893.

Before trial, the defendant moved to dismiss the criminal complaint. Id. at 894.

He argued that when a defendant is related to the alleged victim, as set forth in

the aggravated incest statute, Kan. Stat. Ann. § 21-3603, “ the State must charge a

defendant with aggravated incest rather than indecent liberties with a child.” Id.

The Kansas Supreme Court agreed. Id. at 897. Although the two statutes

both prohibited the alleged conduct, aggravated incest had a kinship requirement

not present in indecent liberties with a child. Id. at 894, 897. 5
Specifically,

aggravated incest requires that the victim be “known to the offender to be related

to the offender . . . .” Kan. Stat. Ann. § 21-3603(1). Because of this additional

requirement, the court concluded that aggravated incest was a “specific” offense,

5
When Williams was decided, as well as at the time of petitioners’ trials,
Kansas defined aggravated incest as “marriage to or engaging in any prohibited
act . . . with a person who is under 18 years of age and who is known to the
offender to be related to the offender . . . .” Kan. Stat. Ann. § 21-3603(1).
“Prohibited acts” under the statute included “[s]exual intercourse, sodomy or any
unlawful sex act” and “any lewd fondling or touching of the person of either the
child or the offender, done or submitted to with the intent to arouse or to satisfy
the sexual desires of either the child or the offender or both.” Id. § 21-
3603(2)(a)-(b). This definition of aggravated incest thus included acts also
prohibited by the statutes prohibiting indecent liberties with a child, Kan. Stat.
Ann. § 21-3503, and rape, Kan. Stat. Ann. § 21-3502. The Kansas Legislature
has since altered the definition of aggravated incest to exclude acts that are
covered by the statutes prohibiting rape and indecent liberties with a child. See
1993 Kan. Sess. Laws, ch. 253, § 15 (amending Kan. Stat. Ann. § 21-3603).

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as compared to indecent liberties with a child, a more “general” offense. 6 Id. at

897. Under Kansas rules of statutory construction, “‘a special statute prevails

over a general statute unless it appears that the legislature intended to make the

general act controlling.’” Id. at 895 (citation omitted). Accordingly, the court

held that “where a defendant is related to the victim . . . the State may charge the

defendant with aggravated incest for engaging in the acts prohibited [by the

aggravated incest statute] but not with indecent liberties with a child.” Id. at 897.

In Carmichael v. State , the Kansas Supreme Court considered the

appropriate remedy where the prosecution violated the Williams rule but the

defendant raised the issue only after conviction and sentencing for rape.

Carmichael , 872 P.2d 240, 242 (Kan. 1994). The defendant argued that because

he met the kinship element under the aggravated incest statute, Williams required

that the court set aside his rape convictions. Id. at 241-42. The Kansas Court of

Appeals had agreed, concluding that “‘the judgment against [the defendant] for

the offense of rape where the court was without jurisdiction to decide the issue is

void.’” Id. at 242.

The Kansas Supreme Court reversed. Id. at 247. The court held that the

charging error did not deprive the trial court of jurisdiction and rejected the

6
“A statute which relates to persons or things as a class is a general law,
while a statute which relates to particular persons or things of a class is specific.”
Williams, 829 P.2d at 897 (citation omitted).

-8-
notion that Williams required it to vacate the defendant’s underlying rape

convictions. Id. at 243-44, 247. In other words, the court held that the defendant

did not suffer illegal convictions. Rather, the court identified the harm as “the

imposition of an erroneous sentence,” basing its conclusion on the Kansas

legislature’s intent to impose a less severe punishment for identical conduct

perpetrated by a person related to the victim. Id. at 244 (emphasis added).

Accordingly, the court relied on its statutory authority to “correct an illegal

sentence at any time,” Kan. Stat. Ann. § 22-3504, and remanded the case with

instructions “to vacate the sentence imposed for rape and resentence the petitioner

for aggravated incest.” Id. at 247.

2. Characterization of the Carmichael Remedy

According to petitioners, the Carmichael remedy amounts to a court finding

them guilty of and sentencing them for aggravated incest – an offense for which

they were not charged, tried, or convicted. A divided panel of this court accepted

this characterization of the Carmichael remedy. We disagree.

Under Carmichael, where (1) the prosecution violated the Williams rule,

but (2) the defendant failed to raise any objection until after conviction and

sentencing, “the proper remedy is to vacate the sentence imposed for rape and

resentence the petitioner for aggravated incest.” Carmichael, 872 P.2d at 247.

This language – “for aggravated incest” – creates some ambiguity in the

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Carmichael remedy. Resolution of this case requires us to consider whether the

Carmichael remedy truly results in a sentence for aggravated incest – which

would require jury findings on all elements of that crime – or whether instead the

remedy merely results in a reduced sentence for the crime of conviction – rape or

indecent liberties with a child 7 – albeit one that is determined by reference to the

penalty range for aggravated incest.

Under petitioners’ interpretation, the Carmichael remedy involves (1)

vacating the sentence for the general sex crime and (2) imposing a sentence for

aggravated incest without an underlying conviction for aggravated incest. Under

this construction, the court assumes the missing conviction, and petitioners argue

that this assumption violates due process. Alternatively construed, Carmichael is

merely a sentence-reduction remedy. Under this construction, the Carmichael

remedy (1) leaves intact the conviction for the general sex crime and (2) reduces

the sentence for the general sex crime by reference to the allowable penalty range

for aggravated incest . A close analysis of Carmichael leads us to adopt the latter

characterization.

First, in Carmichael, the Kansas Supreme Court did not disturb the

defendant’s underlying convictions for rape. Id. at 241, 247 (rejecting

7
We refer to rape and indecent liberties with a child generically as “general
sex crimes” or “general sex offenses” in conducting our analysis.

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defendant’s request that the court set aside his jury convictions for rape). The

court made clear that Williams did not call into question the validity of the rape

convictions. Id. Rather, the court remedied what it deemed “an erroneous

sentence” under Kansas law. Id. at 244 (emphasis added). Consistent with

Carmichael, petitioners conceded at oral argument that their recorded convictions

are rape and indecent liberties with a child – not aggravated incest.

Second, in fashioning its remedy, the Carmichael court relied on its

statutory authority to “‘correct an illegal sentence.” Id. at 245 (citing Kan. Stat.

Ann. § 22-3504). The Kansas Supreme Court apparently understood its holding to

be a correction of “a sentence which [did] not conform to the statutory provision,

either in the character or the term of punishment authorized.” Id. (internal

quotation marks and citation omitted). 8

Third, this characterization of the Carmichael remedy is consistent with

Williams’ underlying rationale. The Williams court based its conclusion on the

Kansas legislature’s intent to punish less severely those sex-crime offenders who

were related to their victim. 829 P.2d at 895. Carmichael adheres to this

legislative intent by imposing “less serious” punishment on perpetrators who are

8
Under Kansas law, an “illegal sentence” also results if a sentence is
“imposed by a court without jurisdiction” or “is ambiguous with respect to the
time and manner in which it is to be served.” Carmichael, 872 P.2d at 245
(internal quotation marks and citation omitted). However, neither of these
circumstances is present here.

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convicted of general sex crimes but are related to their victims. Cf. id. It is

irrelevant whether we agree or disagree with the propriety of the Kansas courts’

decision to decide the appropriate sentence for a general sex offense conviction

by reference to the allowable penalty range for aggravated incest; the question is

one of Kansas state law and Kansas statutory interpretation.

3. Constitutional Analysis

We must next consider whether the Kansas state courts committed

constitutional error in determining the appropriate sentences for general sex

offenses by reference to the allowable penalty for aggravated incest. We

acknowledge that, in determining whether the petitioners were entitled to the

Carmichael remedy, the Kansas state courts were required to determine whether

petitioners met the kinship requirement set forth in the aggravated incest statute,

Kan. Stat. Ann. § 21-3603. Crucial to our constitutional analysis, however, is the

fact that the Carmichael remedy resulted in a reduction to petitioners’ sentences.

The Due Process Clause only requires that aggravating sentencing factors

be proven at trial. Apprendi v. New Jersey, 530 U.S. 466, 481-82 (2000). As the

Supreme Court has stated, “[o]ther than the fact of a prior conviction, any fact

that increases the penalty for a crime beyond the prescribed statutory maximum

must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490

(emphasis added); see also Harris v. United States, 122 S. Ct. 2406, 2418 (2002)

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(“[O]nce the jury finds all those facts [required for the maximum sentence],

Apprendi says that the defendant has been convicted of the crime; the Fifth and

Sixth Amendments have been observed; and the Government has been authorized

to impose any sentence below the maximum.”). In applying this constitutional

rule, “the relevant inquiry is one not of form, but of effect – does the required

finding expose the defendant to a greater punishment than that authorized by the

jury’s guilty verdict?” Id. at 494 (emphasis added). With respect to petitioners’

cases, the answer is plainly no. Accordingly, the Kansas state courts’ application

of the Carmichael remedy comported with due process.

Petitioners’ reliance on Cole v. Arkansas , 333 U.S. 196 (1948), is

misplaced. In Cole , the Supreme Court held that “[t]o conform to due process of

law, [criminal defendants are] entitled to have the validity of their convictions

appraised on consideration of the case as it was tried and as the issues were

determined in the trial court.” Id. at 202. In Cole, the petitioners had been tried

and convicted of promoting, encouraging, or aiding an unlawful assemblage, and

they challenged the constitutionality of the statutory section defining that offense.

Id. at 199-200. The Supreme Court of Arkansas, however, refused to address the

constitutionality of the statutory provision of conviction and instead affirmed the

appellants’ convictions on the ground that they had violated a different section of

the same statute. Id. at 200. That section defined a distinct crime of participating

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in an unlawful assemblage, which included an element of force or violence; no

element of force or violence, however, had been presented to the jury as a

necessary element for conviction. Id. at 199-201. The U.S. Supreme Court

reversed, because the state court “ha[d] not affirmed these convictions on the

basis of the trial petitioners were afforded.” Id. at 201.

In contrast to Cole, petitioners’ cases did not involve affirmation of a

conviction based on one offense, where the underlying conviction was for a

separate and distinct offense. Rather, the Kansas courts “affirmed [the

petitioners’] convictions on the basis of the trial petitioners were afforded.” See

id. at 201. Accordingly, petitioners’ cases are outside the ambit of Cole .

Petitioners’ reliance on our decision in Von Atkinson v. Smith , 575 F.2d

819 (10th Cir. 1978), 9
is equally unavailing. In Von Atkinson, the State had

charged the defendant with sodomy under a Utah sodomy statute that did not

require proof of force. Id. at 820. Under this statute, the offense carried the

possibility of 3 to 20 years in prison. Id.

Following the sodomy charge but before the defendant’s guilty plea or

9
We recognize that habeas relief is only proper where a state court decision
was “contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States.” 28
U.S.C. § 2254(d)(1) (emphasis added). Nevertheless, we consider our decision in
Von Atkinson as it informs our analysis of petitioners’ constitutional claims under
Apprendi and Cole .

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sentencing, Utah revised its sodomy law, creating two distinct offenses: (1)

misdemeanor sodomy, which did not require force and was punishable by up to 6

months imprisonment, and (2) forcible sodomy, a felony punishable by 1 to 15

years imprisonment. Id. Utah law “require[d] that [the defendant] be given the

benefit of the reduced penalt[ies] provided by the new statute.” Id. at 821.

Accordingly, Utah law prohibited application of the allowable sentence under the

prior sodomy statute.

The Utah state court sought to impose the harsher sentence permitted under

the new forcible sodomy statute. Id. at 820. Over the defendant’s objection, the

court “conducted a ‘hearing’ to determine whether force had been employed in

accomplishing the act of sodomy.” Id. After concluding that the defendant had

used force, the state court sentenced the defendant under the forcible sodomy

statute. Id.

We vacated the Utah court’s judgment, characterizing its action as “a trial

and conviction for an uncharged crime.” Id. at 821. The defendant had pled

guilty to sodomy under the old Utah statute – an offense which did not require the

use of force. Id. Under applicable Utah law, non-forcible sodomy carried a

possible penalty of no more than 6 months. Id. at 820. The Utah state court,

however, sentenced defendant for the distinct offense of forcible sodomy – an

offense carrying a possible penalty of 1 to 15 years. Id. at 821. We noted that

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“due process does not permit one to be tried, convicted or sentenced for a crime

with which he has not been charged or about which he has not been properly

notified.” Id. (citations omitted). Accordingly, we reversed, relying on Cole.

We also dismissed as “irrelevant” the state’s argument that the forcible

sodomy statute carried a less severe penalty than did the old Utah sodomy statute

under which the defendant was charged. Id. State law plainly mandated

sentencing according to the new statute and prohibited the old statute’s harsher

sentence. Id. at 820-21. Accordingly, for constitutional purposes we were

required to consider the allowable sentences under the two newly defined

offenses: up to 6 months for misdemeanor sodomy versus 1 to 15 years for

forcible sodomy. So construed, this aspect of Von Atkinson case presented a

straightforward application of the principle later articulated in Apprendi . As in

Apprendi , the Utah state court’s hearing, in which it concluded that the defendant

used force, “expose[d] the defendant to a greater punishment than that authorized

by the [defendant’s guilty plea].” Apprendi, 530 U.S. at 494.

With this guidance, we consider the course of events in the Kansas state

courts. P etitioners do not contend that they suffered any constitutional

deprivation when the State charged them with general sex crimes rather than

aggravated incest. Nor do they provide us with any basis to conclude, as a matter

of Kansas law or federal constitutional law, that violation of a state law charging

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rule invalidates the resulting conviction or precludes the imposition of a

sentence. 10
It is only the Kansas state courts’ application of the Carmichael

10
Indeed, Carmichael explicitly rejected the defendant’s request to set aside
his convictions. 872 P.2d at 242, 247 (reversing the Kansas Court of Appeals’
grant of the defendant’s motion to set aside his convictions). Accordingly, even
if we were to agree with petitioners that the Carmichael remedy violated their
constitutional rights, we could not vacate their convictions. To do more than
return the petitioners to the position they occupied prior to the alleged
constitutional violation would require us to fashion both (1) a constitutional
remedy and (2) a state law remedy. We are vested with the limited authority to
address the former.

Our review of state court decisions is limited to consideration of questions
of federal and constitutional law. The underlying violation that led to the
Carmichael remedy was one of purely state law. Ultimately, then, even assuming
the Carmichael remedy were found to be unconstitutional, this court could not
formulate an alternative remedy. Rather, we would vacate the reduced sentence
and remand for further proceedings. What other remedy, if any, should apply in
the absence of the Carmichael remedy would be a matter for the Kansas courts.
Since the original convictions stand under Carmichael, it is quite possible that
such a result would merely lead to reinstatement of the original sentences.

Significantly, it appears likely that defendants have waived any right under
Kansas law to request that a court vacate their convictions. In Williams, the
Kansas Supreme Court only addressed the situation before it: the defendant
objected to the complaint “at the conclusion of the preliminary examination.”
State v. Sims, 862 P.2d 359, 364 (1993). Generally, under Kansas law, the failure
to challenge defects in the charging instrument before trial constitutes a waiver.
Id. at 365 (citing Kan. Stat. Ann. § 22-3208(3), which provides: “Defenses and
objections based on defects in the institution of the prosecution or in the
complaint, information or indictment other than that it fails to show jurisdiction in
the court or to charge a crime may be raised only by motion before trial. . . .
Failure to present any such defense or objection as herein provided constitutes a
waiver thereof, but the court for cause shown may grant relief from the waiver.”);
see also Kan. Stat. Ann. § 22-3208(4) (“A plea of guilty or a consent to trial upon
a complaint, information or indictment shall constitute a waiver of defenses and
(continued...)

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remedy that the petitioners contend violated their due process rights.

Because the Carmichael remedy only affected petitioners’ sentences, our

constitutional analysis turns upon the “effect” of the state court’s action. See

Apprendi , 530 U.S. at 494. Here, the petitioners’ underlying convictions for

general sex crimes remain intact and their sentences are less “ than that authorized

by the jury’s guilty verdict.” See id. We fail to see how this result falls short of

the requirements of the Due Process Clause. When federal law mandates no

remedy at all for a state law violation, but state law nonetheless provides a

remedy in the form of a reduced sentence, we cannot conclude that federal law

requires (or even permits) a federal court to order that state law provide a more

generous remedy. Accordingly, we reject petitioners’ request that we vacate their

reduced sentences based on their convictions for rape and indecent liberties with a

child.

(...continued)
10

objections based upon the institution of the prosecution or defects in the
complaint, information or indictment other than that it fails to show jurisdiction in
the court or to charge a crime.”). Notwithstanding the waiver statutes, a
defendant can attack the charging instrument for lack of jurisdiction or failure to
charge a crime, in a motion to arrest judgment, which must be filed within ten
days of the verdict. Sims, 862 P.2d at 365 (citing Kan. Stat. Ann. § 3502).
However, a defendant cannot use a motion to arrest judgment if, under Williams,
he was incorrectly charged with a general rather than a specific sex crime. Id. at
367. The Carmichael remedy thus gives the defendant the benefit of aggravated
incest’s lesser penalty, even though the defendant failed to object to the charging
instrument at the proper point in the proceedings.

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 III. Conclusion

Petitioners challenge the Kansas courts’ remedy for a violation of a state

law rule. The remedy reduced the sentences that petitioners otherwise would have

served. We cannot conclude that because the Kansas courts in their discretion

have provided some remedy for the violation of state law, the federal Constitution

requires that they provide a more sweeping remedy. Under these circumstances,

petitioners have failed to show that the Kansas courts’ disposition of their claims

was “contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States; or . . . was

based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2).

We therefore AFFIRM the district court’s denial of the petitions for habeas

corpus.

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 No. 00-3224, Beem v. McKune, et al.

No. 00-3249, Henson v. McKune, et al.

O’BRIEN, Circuit Judge, concurring, with whom KELLY and HARTZ,

Circuit Judges, join.

I fully concur with the result reached by the majority and have no quarrel

with its reasoning or the grounds upon which it rests the decision. I write

separately only because addressing these appeals on the merits cloaks the

arguments with undeserved dignity. This case is not about guilt or innocence;

without question, these defendants molested children. It is not about process;

both men have enjoyed a full measure. It is about Justice, writ large. It tests

systemic resistance to abuse. It exceeds elastic limits.

Judicial estoppel is the appropriate basis for decision on these facts. It is a

discretionary remedy courts may invoke “to prevent the perversion of the judicial

process.” New Hampshire v. Maine, 532 U.S. 742, 750 (2001) (quoting In re

Cassidy, 892 F.2d 637, 641 (7th Cir. 1990)). Several factors aid a court in

determining when to apply judicial estoppel. “First, a party’s later position must

be ‘clearly inconsistent’ with its earlier position.” Id. (citations omitted).

Second, “whether the party has succeeded in persuading a court to accept that

party’s earlier position so that judicial acceptance of an inconsistent position in a

later proceeding would create ‘the perception that either the first or the second
court was mislead.’” Id. (quoting Edwards v. Aetna Life Ins. Co., 690 F.2d 595,

599 (6th Cir. 1982)). Third, “whether the party seeking to assert an inconsistent

position would derive an unfair advantage or impose an unfair detriment on the

opposing party if not estopped.” Id. at 751.

Although New Hampshire is a civil case, the discussion and application of

judicial estoppel does not appear so limited. Id. at 749-51. The type of case was

not mentioned as a defining factor. To the contrary, the New Hampshire opinion

freely cites both civil and criminal cases. See e.g., Russell v. Rolfs, 893 F.2d

1033 (9th Cir. 1990) (criminal case); Davis v. Wakelee, 156 U.S. 680 (1895) (civil

case); United States v. Hook, 195 F.3d 299 (7th Cir. 1999) (criminal case); Allen

v. Zurich Ins. Co., 667 F.2d 1162 (4th Cir. 1982) (civil case); United States v.

McCaskey, 9 F.3d 368 (5th Cir. 1993) (criminal case). Judicial estoppel should

be universally available because its “underlying purposes . . . are the same in both

civil and criminal litigation—to protect the integrity of the judicial process and to

prevent unfair and manipulative use of the court system by litigants.” McCaskey,

9 F.3d at 379.

The arguments of Messrs. Beem and Henson beg for a summary response.

Their actions easily satisfy the three-part test announced in New Hampshire.

First, their current position (the element of kinship necessary for incest was not

alleged and proved) is the antipode of their previous position (they were, in fact,

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related to their respective victims in the very way they now claim lacks record

support). Next, their actions would certainly leave even the most casual observer

to conclude “that either the first or the second court was misled.” New

Hampshire, 532 U.S. at 750 (quoting Edwards, 690 F.2d at 599). Messrs. Beem

and Henson successfully convinced Kansas courts of the filial relationship they

now seek to negate in the federal courts. Finally, were they to succeed in this

charade, they would “derive an unfair advantage” and “impose an unfair

detriment.” Id. at 751. In 1989, a jury convicted Mr. Beem of taking indecent

liberties with a child. In 1995, his sentence was reduced based solely upon his

argument that he was related to his victim and should have been treated

accordingly. In 1992, a jury convicted Mr. Henson of raping his step-daughter.

He also played the kinship card, which yielded a reduced sentence for him in

1994.

Now, more than a decade after their convictions, both men seek to vacate

those convictions and sentences in spite of a fully adequate decision by the

Kansas Supreme Court resolving the anomaly in Kansas law. Carmichael v.

Kansas, 872 P.2d 240 (Kan. 1994). Granting habeas relief would leave the State

with the Hobson’s choice of dismissing the case entirely or retrying them for

aggravated incest. See Beem v. McKune, 278 F.3d 1108, 1114 (10th Cir. 2002).

A retrial on these facts is singularly inopportune because (1) it “imposes

-3-
significant social costs” of time and money, (2) convictions become more

improbable with each passing year because of “erosion of memory” and

“dispersion of witnesses,” and (3) “society’s interest in the prompt administration

of justice” is frustrated. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)

(quotations and citations omitted). Implied, but not directly mentioned, in the

Brecht analysis is another form of decay; inertia, along with prosecutorial zeal, is

lost on a ten year old case when the state’s resources are fully occupied with new

crimes and still writhing victims. The systemic burdens are palpable and in no

way tempered by offsetting benefits since the arguments are unencumbered by

credible claims of innocence.

For years, this circuit has taken a minority position in rejecting the

principle of judicial estoppel. United States v. 162 Megamania Gambling

Devices, 231 F.3d 713, 726 (10th Cir. 2000); United States v. 49.01 Acres of

Land, More or Less, Situate in Osage County, Okla., 802 F.2d 387, 390 (10th Cir.

1986). Now is the time to embrace the invitation extended by the Supreme Court

in New Hampshire and join other circuits in reining in those litigants who play

“fast and loose with the courts.” Sperling v. United States, 692 F.2d 223, 227 (2d

Cir. 1982) (Graafeiland, J., concurring) (“Sperling II”). 1

The majority opinion for Sperling II consists both of Judge Timbers
1

“majority” portion and Judge Van Graafeiland’s concurrence. As Judge Timbers
(continued...)

-4-
 Sperling successfully argued that a conspiracy count was a lesser included

offense of continuing criminal enterprise. United States v. Sperling, 560 F.2d

1050 (2d Cir. 1977) (“Sperling I”). Buoyed with success he returned to the

district court with a 28 U.S.C. § 2255 petition seeking to have the enterprise

count vacated upon grounds inconsistent with his former arguments. Sperling II

at 225, 228. His inconsistency did not resonate with the Second Circuit.

“Whether we base our holding on a theory of estoppel, waiver, preclusion, or

abuse of writ, we should not permit such piecemeal, inconsistent, and mutually

exclusive attacks on a judgment of conviction as have occurred in this case.” Id.

at 228-29.

Likewise, a district court would not permit a criminal defendant who

successfully argued in one proceeding to specifically enforce his plea agreement,

to later argue the entire plea agreement, including his guilty plea, should be set

aside. United States v. Velez Carrero, 140 F.3d 327 (1st Cir. 1998). The First

Circuit affirmed upon the able opinion of the district court, but it went out of its

way to articulate four additional reasons for rejecting the defendant’s arguments,

among them was judicial estoppel. It reasoned when a defendant prevails upon a

1
(...continued)
explained, “[s]ince I agree with Judge Van Graafeiland’s concurring opinion . . .
and he agrees with mine, the two opinions together constitute the majority view of
this court.” Sperling II, 692 F.2d at 224 n.*.

-5-
stated position and later attempts to take unfair advantage by inconsistently

arguing against that prior successful position, “[s]uch an arbitrary about-face

cannot be countenanced.” Id. at 330.

In light of New Hampshire, we can no longer categorically eschew judicial

estoppel. We should exercise our discretion to reject perverse argument, husband

our resources, and protect the integrity of the judicial system.

-6-
 No. 00-3224, Beem v. McKune, et al.

No. 00-3249, Henson v. McKune, et al.

McKAY, Circuit Judge, dissenting, with whom SEYMOUR, HENRY, and

LUCERO, Circuit Judges, join.

I respectfully dissent. Pursuant to Kansas law as stated in State v.

Williams, 829 P.2d 892 (Kan. 1992), Petitioners were incorrectly charged, tried,

and convicted of a crime. Williams, citing Kansas Statute § 21-3603 (in effect at

the time), holds that when a defendant is related to his victim he “must be

charged with aggravated incest and not indecent liberties with a child.”

Carmichael v. State, 872 P.2d 240, 246 (Kan. 1994) (emphasis added). It is

undisputed that Petitioners should have been charged from the beginning with

aggravated incest. To reduce this case to merely remedying an erroneous

sentence, as the majority has done, is to ignore the fact that the sentence is

erroneous because Kansas law prohibits the charge upon which the sentence is

based.

This case turns on Carmichael because it is the last definitive statement

from the Kansas Supreme Court. In Carmichael, the Kansas Supreme Court stated

that “[i]n [State v. Moore, 748 P.2d 833 (Kan. 1987)], . . . [w]e held [that]

aggravated incest is not a lesser included crime of rape. . . . [E]ach crime
required proof of an element not required by the other, and therefore, aggravated

incest is not a crime which is necessarily proved if the crime of rape is charged

and proved.” Carmichael, 872 P.2d at 245 (emphasis added). The Carmichael

court referred with approval to cases from other jurisdictions, which are cited in

Moore, holding that rape and incest are separate and independent crimes. “The

basic rationale in these cases is that rape and incest have different elements and

therefore are distinct offenses.” Id. at 246 (emphasis added).

In discussing the fact that Williams in effect overruled Moore, referring to

procedural aspects of the case, the Carmichael court said:

In so doing, we did not embrace the rationale that there
is one wrongful act, i.e., forcible sexual intercourse, and
where incestuous, the crime of incest is included in and
merges with the crime of rape. Nor do we do so now.
Although the conduct prohibited in aggravated incest
and rape can be identical, i.e., sexual intercourse, the
offenses are not. Aggravated incest requires the
additional elements of a victim under 18 years of age,
kinship, and that the offender be aware of the kinship.
Rape requires force; aggravated incest does not. For
that reason, we have held that aggravated incest is not
included in nor merges with the offense of rape.

Carmichael, 872 P.2d at 246 (emphasis added). While there is language in

Carmichael stating that it overruled Moore, the Kansas Supreme Court is clearly

referring to the procedural fact that, pursuant to Kansas law, a person cannot be

charged with both aggravated incest and indecent liberties with a child or with

both aggravated incest and rape where the two charges grow out of the same set

-2-
of facts. Id. at 246-47.

Carmichael further holds that the appropriate remedy for a Williams’

violation is “to vacate the sentence imposed for rape and resentence the petitioner

for aggravated incest.” Id. at 247. However, Carmichael did not overturn

Williams. Instead, Carmichael affirmed the Williams’ principle that when a

defendant is related to his victim he “must be charged with aggravated incest and

not indecent liberties with a child.” Id. at 246 (emphasis added). The Carmichael

court relied on its statutory authority to “correct an illegal sentence.” Id. at 245.

However, as stated above, it is not just the sentence that is invalid. This case

involves more than merely an illegal sentence. Petitioners were incorrectly

charged, tried, and convicted of a crime. Pursuant to Kansas law as interpreted by

Williams and Carmichael, Petitioners were charged and convicted under the

wrong statute. As drafted by the Kansas legislature, and interpreted by the

Kansas Supreme Court, indecent liberties with a child and aggravated incest are

two separate crimes. 1

Kansas’ proposed solution in Carmichael directly violates the law set forth

by the United States Supreme Court in Cole v. Arkansas, 333 U.S. 196 (1948). In

1
We further note that these two different crimes are defined in two separate
sections of the Kansas statutes. Additionally, there is no language in the statutes
suggesting that § 21-3603 (aggravated incest) is a subset of, or a mere sentencing
factor for, § 21-3503 (indecent liberties with a child).

-3-
Cole, the defendants were convicted of promoting an unlawful assembly under

Section Two of a state statute. On appeal, the Arkansas Supreme Court held that

the information filed against the defendants also violated Section One of the same

statute and affirmed the defendants’ convictions based solely on Section-One

grounds. The United States Supreme Court reversed, stating:

We therefore have this situation. The petitioners read
the information as charging them with an offense under
§ 2 of the Act, the language of which the information
had used. The trial judge construed the information as
charging an offense under § 2. He instructed the jury to
that effect. He charged the jury that petitioners were on
trial for the offense of promoting an unlawful
assemblage, not for the offense “of using force and
violence.” Without completely ignoring the judge’s
charge, the jury could not have convicted petitioners for
having committed the separate, distinct, and
substantially different offense defined in § 1. Yet the
State Supreme Court refused to consider the validity of
the convictions under § 2, for violation of which
petitioners were tried and convicted. It affirmed their
convictions as though they had been tried for violating
§ 1, an offense for which they were neither tried nor
convicted.

No principle of procedural due process is more clearly
established than that notice of the specific charge, and a
chance to be heard in a trial of the issues raised by that
charge, if desired, are among the constitutional rights of
every accused in a criminal proceeding in all courts,
state or federal. . . . It is as much a violation of due
process to send an accused to prison following
conviction of a charge on which he was never tried as it
would be to convict him upon a charge that was never
made.

-4-
 Id. at 200-01. The Court reversed the Arkansas Supreme Court on

Fourteenth Amendment due process grounds.

In the present case, the majority has ignored the Supreme Court’s mandate

in Cole. Mr. Henson was charged, tried, and convicted of rape, and Mr. Beem

was charged, tried, and convicted of indecent liberties with a minor. As the

Kansas Court of Appeals in these cases held (based on Carmichael), under Kansas

law, both should have been charged, tried, and convicted of aggravated incest.

Vacating Mr. Henson’s and Mr. Beem’s sentences and then sentencing them

instead for aggravated incest (because their conduct also violates that statute)

clearly violates Petitioners’ due process rights because they were never charged,

tried, nor convicted of aggravated incest. As this court previously stated, “[w]hat

. . . is before us now is the fundamental due process question of whether one can

be sentenced for a crime not charged and to which no plea of guilty has been

entered. The answer is an unequivocal no.” Von Atkinson v. Smith, 575 F.2d

819, 821 (10th Cir. 1978) (applying Cole) (emphasis added).

The primary elements of due process–notice of the charge and an

opportunity to defend against the charge–are not present here even though it is

now undisputed that Petitioners were related to their victims. Courts are

forbidden from directing verdicts against criminal defendants on any element of a

crime. See Sullivan v. Louisiana, 508 U.S. 275, 277 (1993) (“[A]lthough a judge

-5-
may direct a verdict for the defendant if the evidence is legally insufficient to

establish guilt, he may not direct a verdict for the State, no matter how

overwhelming the evidence.”). This court is prohibited from taking judicial

notice of any element of the crime of aggravated incest, regardless of how easily

the particular element could have been proven. This prohibition includes taking

judicial notice of the relationship between the Petitioners and their victims.

It is immaterial that the new sentences imposed on the Petitioners expose

them to less punishment than their sentences for rape or indecent liberties with a

minor. “It is irrelevant that the sentence for the uncharged crime is less than that

for the one charged.” Von Atkinson, 575 F.2d at 821. Allowing the State to re-

sentence Mr. Henson and Mr. Beem for crimes for which they were not charged,

tried, or convicted violates a basic tenet of our judicial system. All criminal

defendants are considered innocent until proven guilty after a full and fair trial.

In my view, this case has nothing to do with Apprendi v. New Jersey, 530

U.S. 466 (2000). Apprendi deals solely with aggravating sentencing factors

which result in a sentence in excess of the statutory maximum for the crime which

is properly the basis of a valid conviction. It merely holds that the Due Process

Clause requires that such aggravating sentencing factors must be proven at trial.

Apprendi has to do with the due process effect of a sentencing statute which

results in the imposition of a sentence for the crime of conviction. The

-6-
Carmichael remedy is an attempt to remedy an invalid conviction by re-sentencing

for a different crime with different elements requiring definition by a different

criminal statute. In my view, it is clear from the Kansas cases construing the

Kansas statutory scheme that the crime of incest is distinct from the crimes of

conviction in these two cases. “[A]ggravated incest is not a lesser included crime

of rape. . . . [E]ach crime require[s] proof of an element not required by the

other, and therefore, aggravated incest is not a crime which is necessarily proved

if the crime of rape is charged and proved.” Carmichael, 872 P.2d at 245

(emphasis added).

Apprendi is irrelevant to the cases before us because these are not simply

sentencing statutes, they are separate crimes. 2 There is nothing to suggest that

Apprendi has either overturned or superceded Cole, even in a case like the one

before us where the State has applied an Apprendi-like remedy where the

underlying conviction is for the wrong crime.

The majority is persuaded that the Carmichael remedy is merely a

sentencing reduction remedy because Petitioners’ convictions for indecent

2
The majority has essentially treated Apprendi as a harmless error rule by
holding that where the “effects” of the state court action result in a sentence less
“than that authorized by the jury’s guilty verdict” the requirements of the Due
Process Clause are met. Maj. Op. at 17 (quoting Apprendi, 530 U.S. at 494).
This is inapposite. Apprendi requires due process in imposing an aggravated
sentence; it does not excuse a lack of due process simply because a lighter
sentence is imposed.

-7-
liberties with a child still stand. That is a mistaken reading of what the Kansas

court has done. It is unmistakably clear that Kansas has instead tried to apply a

sentencing remedy in order to correct an admittedly erroneous conviction. It is

constitutionally impermissible to let stand a crime that was charged and tried in

error by the mere expedient of reducing the sentence to the level of the one that

should have been charged and tried.

In sum, it is clear from reading the definitive Kansas cases that the Kansas

Court of Appeals (and the Kansas Supreme Court in Carmichael) concluded that

Defendants were tried and convicted for the wrong crime but were of the view

that they were at constitutional liberty to cure the problem by sentencing

Defendants for the crime for which they should have been charged without the

benefit of either trial or conviction of essential elements of the correct crime. No

matter how strong the evidence of the non-charged, non-tried, and non-convicted

crime, Cole makes it abundantly clear that they may not do so.

The constitutional error of vacating the Defendants’ sentences and

sentencing them for a crime for which they were not charged, tried, or convicted

cannot constitute harmless error. While it may not be structural error to leave an

element out of the indictment, surely it is error to indict, try, and convict of the

wrong offense. This is not a simple case where an element was omitted; instead,

Defendants were indicted, tried, and convicted of the whole wrong crime.

-8-
Harmless error deals with errors in the trial process. In the instant case, the error

infects the entire series of events from indictment to trial to conviction.

Defendants were indicted under charges that did not include all necessary

elements of aggravated incest–in fact, they were not charged with aggravated

incest at all. 3 Additionally, Defendants did not proffer a defense regarding the

missing elements and their juries were not instructed as to all elements of

aggravated incest. Finally, Defendants were convicted of crimes of which Kansas

law dictates they cannot properly be convicted, and these convictions still stand.

The only conceivable way we could permit a sentence for aggravated incest

to be entered against Mr. Henson and Mr. Beem is to take judicial notice of the

essential element of kinship–an impermissible endeavor–and ignore the fact that

they continue to serve sentences for crimes which Kansas says they cannot be

convicted. This court must not jettison its responsibility to vigilantly protect the

inviolate right of all defendants to be charged, tried, and convicted of the crime

for which they are imprisoned.

This situation differs markedly from cases in which an uncharged element

relates to a sentencing enhancement or inclusive offense and the court applies

3
The harmless error inquiry might be different if the convictions for rape
and indecent liberties with a child had been vacated along with decreasing
Defendants’ sentences. However, Defendants’ original illegal convictions still
stand. It is impossible and inconceivable that illegal convictions could constitute
harmless error under any reading of that doctrine.

-9-
harmless error to evaluate the sufficiency of the evidence. See United States v.

Cotton, 535 U.S. 625 (2002) (evaluating sufficiency of evidence to justify

sentencing enhancement for possession of over fifty grams of cocaine when

defendant was charged with “detectable amount” of cocaine). In the present case,

the Defendants were charged with a crime that is entirely separate from the ones

for which they were sentenced, as determined by the Kansas courts: “[T]he

crimes of incest and rape in Kansas . . . have been considered to be separate and

independent crimes.” Carmichael v. State, 872 P.2d at 245. Because Neder v.

United States, 527 U.S. 1 (1999), does not involve separate crimes but rather

involves only a missing element, materiality, in the instructions for the charged

crime, it is not relevant to our inquiry. Neder simply concludes that “the omission

of an element is an error that is subject to harmless-error analysis.” Id. at 15.

Because the crime charged and the crime of conviction are separate and

independent, Sullivan v. Louisiana, 508 U.S. 275, 277 (1993), and Rose v. Clark,

478 U.S. 570, 578 (1986), are implicated. Since there has been no jury verdict

within the meaning of the Sixth Amendment, the premise for harmless-error

analysis is absent. Sullivan’s reasoning applies equally to our case:

[T]he illogic of harmless-error review in the present
case [is] evident. Since . . . there has been no jury
verdict within the meaning of the Sixth Amendment, the
entire premise of [harmless-error] review is simply
absent. There being no jury verdict of guilty-beyond-a-
reasonable-doubt [for aggravated incest], the question

-10-
 whether the same verdict of guilty-beyond-a-reasonable-
doubt would have been rendered absent the
constitutional error is utterly meaningless. There is no
object, so to speak, upon which harmless-error scrutiny
can operate. The most an appellate court can conclude is
that a jury would surely have found petitioner guilty
beyond a reasonable doubt–not that the jury's actual
finding of guilty beyond a reasonable doubt would surely
not have been different absent the constitutional error.
That is not enough. . . . The Sixth Amendment requires
more than appellate speculation about a hypothetical
jury’s action, or else directed verdicts for the State
would be sustainable on appeal; it requires an actual jury
finding of guilty.

Sullivan, 508 U.S. at 280 (emphasis in original).

The imprisonment of an individual for a crime for which they were not

charged, tried, and convicted cannot be considered harmless error. Sentencing a

defendant for a crime that is totally discrete (i.e. not related as being a lesser or

greater offense or as a sentencing factor) from the crime for which he was

indicted violates due process. This falls within the “limited class of fundamental

constitutional errors that defy analysis by harmless error standards. Errors of this

type are so intrinsically harmful as to require automatic reversal without regard to

their effect on the outcome.” Neder, 527 U.S. at 7 (internal quotations and

citations omitted) (emphasis added). There is a “defect affecting the framework

within which the trial proceeds, rather than simply an error in the trial process

-11-
itself.” Id. at 8 (quoting Arizona v. Fulminante, 499 U.S. 279, 310 (1991)). 4

The judicial estoppel issue, as applied in these circumstances, is novel and

has not been raised or briefed. While there may be some comfort in the we-all-

know-they-are-guilty argument, we are sitting as a court of law in a criminal case,

not as a court of equity. The judicial estoppel argument was not raised or argued

by the parties and is too novel a notion in this case to be addressed without the

benefit of briefing.

The concurrence argues that we should apply judicial estoppel and convict

these Defendants of something in the name of “Justice, writ large.” Concurrence

at 1. While the concurrence appropriately notes that this circuit has rejected

judicial estoppel, see, e.g., McGuire v. Continental Airlines, Inc., 210 F.3d 1141,

1145 n.7 (10th Cir. 2000) (Kelly, J.) (“[I]t is well established that judicial

estoppel does not exist in the Tenth Circuit.”), it urges this court to reject its

“minority” view and adopt the doctrine sua sponte. While I can imagine a

4
The inquiry, in other words, is not whether, in a trial
that occurred without the error, a guilty verdict would
surely have been rendered, but whether the guilty verdict
actually rendered in this trial was surely unattributable
to the error. That must be so, because to hypothesize a
guilty verdict that was never in fact rendered–no matter
how inescapable the findings to support that verdict
might be–would violate the jury-trial guarantee.

Sullivan, 508 U.S. at 279 (emphasis in original).

-12-
situation in which this circuit could revisit its categorical rejection of judicial

estoppel, this is not it.

The concurrence notes that the Supreme Court has recently endorsed the

notion of judicial estoppel. In New Hampshire v. Maine, 532 U.S. 742 (2001),

the Court invoked judicial estoppel to prevent the State of New Hampshire from

changing its argument as to the precise location of its border with the State of

Maine. Id. at 755. While that was a civil case, the concurrence notes that the

Supreme Court “freely cites both civil and criminal cases.” Concurrence at 2.

However, none of the criminal cases cited reaches the conclusion that the

concurrence suggests. Most importantly, in none of those three cases is judicial

estoppel applied against a criminal defendant. In each case, the respective courts

dutifully described what judicial estoppel is, but in none of them did they apply

the doctrine as the concurrence would like to do here.

In Russell v. Rolfs, 893 F.2d 1033 (9th Cir. 1990), the State of Washington

had argued to the federal district court that the defendant should be denied federal

relief because “he had an adequate and available state remedy,” id. at 1038

(quotations omitted), yet it argued before the federal appellate court that the

defendant=s appeal for relief must be denied because he was procedurally barred

in state court. The Ninth Circuit applied judicial estoppel against the State. In

United States v. Hook, 195 F.3d 299 (7th Cir. 1999), the defendant tried to claim

-13-
that the government should be judicially estopped from prosecuting him, because

the government had taken an inconsistent position in a related case. The court

rejected that argument, doing so entirely on the basis that the government's

positions in the two cases were not inconsistent. Thus, even if judicial estoppel

were available for use against the government (which the court did not

definitively address), it would not have helped the defendant.

Finally, in United States v. McCaskey, 9 F.3d 368 (5th Cir. 1993), the

defendant again tried to apply judicial estoppel against the government. The

government, notably, argued that judicial estoppel should not apply in criminal

cases. The court did not reach that issue, because it held that the defendant had

waived any claim of judicial estoppel by not raising it below. “Assuming without

deciding that judicial estoppel can apply to the government in criminal cases, we

believe that the underlying purposes of the doctrine are the same in both civil and

criminal litigation–to protect the integrity of the judicial process and to prevent

unfair and manipulative use of the court system by litigants.” Id. at 379

(emphasis added). In other words, although it used broad language, the most the

court was willing to consider was applying judicial estoppel against the

government in a criminal case–but it did not even do that.

The Supreme Court in New Hampshire was therefore, by all appearances,

simply collecting cases in which judicial estoppel was discussed, not where it was

-14-
applied. Moreover, the First Circuit case on which the concurrence relies heavily,

United States v. Velez Carrero, 140 F.3d 327 (1st Cir. 1998), does not apply

judicial estoppel to criminal cases. “Just as the companion doctrines of judicial

estoppel and election of remedies preclude parties in civil litigation from

asserting legal or factual positions inconsistent with the positions that they took in

prior proceedings, so, too, a criminal defendant ordinarily must raise claims in a

timely fashion, consistent with his prior positions in the case, or suffer the

consequences.” Id. at 330 (citation omitted) (emphasis added). The First Circuit

thus argues, at most, that there is a general analogy to judicial estoppel for

criminal cases; but it does not adopt judicial estoppel in that case. In fact, that

court relied on contract doctrine for its holding, because the issue at hand was a

plea agreement.

The concurrence does find a fractured opinion from the Second Circuit that

invokes judicial estoppel against a criminal defendant, and perhaps there are other

examples–though none that the Supreme Court cited. The point here, though, is

that it would not only be unwise, but actually quite radical, to invoke judicial

estoppel against a criminal defendant without–at least–having heard oral argument

and having been briefed extensively before embarking upon such a sea change.

Furthermore, the issue of judicial estoppel has no relevance at this stage of

the proceedings. As the concurrence notes, the first and most important

-15-
requirement in invoking judicial estoppel is to prevent a party from adopting a

position which is “clearly inconsistent” with its earlier position. Concurrence at

1. The concurrence asserts that the Defendants’ “current position (the element of

kinship necessary for incest was not alleged and proved) is the antipode of their

previous position (that they were, in fact, related to their respective victims in the

very way they now claim lacks record support).” Id. at 2.

Neither Mr. Beem nor Mr. Henson have ever argued or claimed that they

are not related to the victim but have merely claimed that since they are related to

the victim their charge was invalid. Therefore, there is no inconsistent position to

be estopped at this stage of the proceedings. If judicial estoppel were to apply at

all, it would be at a subsequent trial. That matter, of course, is not before us.

In addition, I do not believe that the Defendants have in fact asserted an

inconsistent position. At the very least, that threshold issue merits full briefing

and argument before we make a decision based on that assumption. It is fully

consistent for Defendants to come to this court and say that because they are

related to their victims they cannot legally be imprisoned for the crimes of which

they stand convicted. They do not ask us to believe that there are no familial

relationships. Quite to the contrary, they ask us to recognize those relationships

and to hold that Kansas’ response to those relationships violates due process.

Stating that kinship was not “alleged and proved” by the State, or more

-16-
fundamentally that Defendants were not even charged with a crime that would call

for that relationship to be alleged and proved, is not at all inconsistent with

Defendants’ representations to the Kansas courts.

The concurrence goes on to note the second element of a judicial estoppel

claim: “[J]udicial acceptance of an inconsistent position in a later proceeding

would create the perception that either the first or the second court was misled.”

Id. at 1 (quotations and citation omitted). Yet, a decision here in favor of

Defendants need not create such a perception. We are not being hoodwinked

when we recognize that the State of Kansas has imprisoned two bad men for the

wrong crimes.

I would reverse and remand with directions to grant the writ of habeas

corpus.

-17-
 No. 00-3224, Beem v. McKune, et al.

No. 00-3249, Henson v. McKune, et al.

HENRY, Circuit Judge, dissenting, with whom SEYMOUR and

LUCERO, Circuit Judges, join.

I join completely in Judge McKay’s dissent. I write separately to

emphasize several additional aspects of this case that are particularly troubling to

me.

Seldom has Justice Holmes’ warning that “hard cases make bad law” been

more true. We are faced with two defendants who certainly appear to be guilty of

something, in all likelihood aggravated incest. They stand, according to the

majority, still convicted of another crime, in one case indecent liberties, and in

the other rape. (The majority does admit that it is unclear whether the convictions

were actually vacated. Opinion at 9.) Both the majority and the concurrence,

rightly concerned with the defendants’ apparent guilt, struggle to save the

convictions. 1 Neither of these efforts, however, can withstand constitutional

scrutiny.

Judge McKay admirably details the error of the Kansas courts, and his

1
I am confident, especially with the evidence of kinship on which the
majority focuses, that the state will be able to mount a vigorous prosecution of
each defendant for the proper crime.
refutations of the majority opinion’s arguments are compelling. I am also

troubled, however, by the majority opinion’s characterization of one of the

defendants’ statements at oral argument. The opinion describes as a “concession”

the statement that the defendants remain convicted of their original crimes.

Opinion at 11 (“[P]etitioners conceded at oral argument that their recorded

convictions are rape and indecent liberties with a child – not aggravated incest.”).

I do not see how that is a concession, since it is the very basis of the defendants’

appeal: they are asserting that the Kansas courts have held that they cannot be

convicted of the crimes for which they remain convicted. That the state courts

either showed a modicum of mercy by reducing the sentences or simply followed

the legislative intent as to the severity of these crimes does not make the

constitutional violation go away--indeed, it worsens it, because the reduction in

sentences was informed explicitly by the appropriate sentences for different

crimes.

In addition, I simply cannot understand or adopt the majority opinion’s

attempt to distinguish this case from Cole v. Arkansas, 333 U.S. 196 (1948). The

majority concludes that the Cole scenario is not before us, but rather “[i]n

contrast to Cole, petitioners’ cases did not involve affirmation of a conviction

based on one offense, where the underlying conviction was for a separate and

distinct offense.” Opinion at 14. In Cole, the state court said, in essence, “You

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are not guilty of Crime A, but we find you guilty of Crime B.” Here, the state

court said, “You cannot be guilty of crime A, but we will continue to say that you

are guilty of Crime A while we sentence you for Crime B.” If there is a

distinction there, it seems to be one without a difference.

The majority also argues that when “state law nonetheless provides a

remedy in the form of a reduced sentence, we cannot conclude that federal law

requires (or even permits) a federal court to order that state law provide a more

generous remedy.” Id. at 18. The proper resolution of this case, however, cannot

be to reduce the defendants’ sentences, because any sentences imposed for the

crimes of which they have been convicted are illegal sentences. Our concern is

with constitutionality, not generosity.

While I have no doubt that there has been an error here, I was originally

convinced that we could judge that error to be harmless. Judge McKay’s dissent

makes it very clear that such a solution is not available to us. Although Neder v.

United States, 527 U.S. 1 (1999), is therefore not controlling in this case, Justice

Scalia’s dissent in Neder should make us seriously reconsider our decision here.

In that dissent, Justice Scalia quoted from one of Alexander Hamilton’s

Federalist Papers to remind us just how central juries are to the American

criminal justice system:

[T]he friends and adversaries of the plan of the
convention, if they agree in nothing else, concur at least

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 in the value they set upon the trial by jury: Or if there is
any difference between them, it consists in this, the
former regard it as a valuable safeguard to liberty, the
latter represent it as the very palladium of free
government.

Id. at 31 (Scalia, J., dissenting) (citing The Federalist No. 83, at 426 (M. Beloff

ed.1987)).

Justice Scalia went on: “Perhaps the Court is so enamoured of judges in general,

and federal judges in particular, that it forgets that they (we) are officers of the

Government, and hence proper objects of that healthy suspicion of the power of

government which possessed the Framers and is embodied in the Constitution.”

Id. at 32 (parenthetical in original). What we are doing in this decision, I fear,

seriously undermines one of our most important safeguards to liberty.

Regarding judicial estoppel, I would add to Judge McKay’s remarks only

that this circuit’s refusal to date to adopt that doctrine has not been mere

oversight. We have previously considered adopting judicial estoppel and have

thoughtfully rejected it in both civil and criminal contexts for arguably good

reasons. See, e.g., Rascon v. U.S. West Communications, Inc., 143 F.3d 1324,

1330-1332 (10th Cir. 1998) (“The Tenth Circuit . . . has rejected the doctrine of

judicial estoppel as being inconsistent with the spirit of the Federal Rules of Civil

Procedure.”) I continue to believe that there might be situations in which

something like judicial estoppel would be appropriate, but I hope that we will not

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invoke the doctrine sua sponte, because we should allow interested and motivated

parties to present the best arguments available for and against applying the

doctrine to civil and/or criminal cases. (I emphasize in particular that, in one of

the criminal cases discussed in both the concurrence and the dissent, it was the

government that argued against applying judicial estoppel to criminal cases.

United States v. McCaskey, 9 F.3d 368, 378 (5th Cir. 1993)).

No matter how unsettling the results, we do not have one Constitution for

good people and another for bad people. The decision that we write today has to

cover not only the obviously unsympathetic defendants we have before us. What

we say to these bad people will also apply to other less bad people, and even a

few good people. The majority’s approach reaches a result that is bound to come

back to haunt us until we surely repudiate it in the future.

I respectfully dissent.

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