IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 01-60721
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MIKE JOHN, JR.,
Defendant-Appellant.
_________________________
Appeal from the United States District Court for
the Southern District of Mississippi
_________________________
October 7, 2002
Before SMITH and BENAVIDES, Circuit der the age of twelve. Concluding that the dis-
Judges, and ENGELHARDT,* District trict court committed reversible error by failing
Judge. to instruct the jury that it could consider
evidence of John’s good character, we reverse
JERRY E. SMITH, Circuit Judge: and remand.
I.
Mike John, Jr., appeals his conviction on John, a Choctaw Indian, was alleged to
two counts of sexual contact with a minor un- have engaged in sexual contact with his elev-
en-year-old female foster child on the Choctaw
Indian Reservation. 18 U.S.C. § 1153, 18
*
District Judge of the Eastern District of U.S.C. § 2244(a)(1). After a one-day trial, a
Louisiana, sitting by designation. jury convicted John of both counts. He was
sentenced to thirty-seven months’ to engage in “sexual contact” with another
imprisonment and three years’ supervised person if in doing so it would violate § 2241
release. “had the sexual contact been a sexual act.”1
John argues that the phrase “had the sexual
The child testified that John made sexual contact been a sexual act” requires that the
contact with her on two occasions. The first government prove a sexual act, not merely
alleged incident occurred while she was sexual contact. John contends that because he
washing dishes; she testified that John came up was alleged to have engaged in only sexual
from behind her and placed his hand on her contact, he should have been sentenced for
right breast; he moved away when she told him violating § 2244(b), a misdemeanor.2
she would tell his wife Geraldine. The second
incident occurred approximately two weeks A.
later, when the child was alone in her room. Chapter 109A of title 18, entitled “Sexual
John allegedly entered the room, pushed her Abuse,” which encompasses 18 U.S.C.
onto the bed, and touched the frontal area §§ 2241-2248, differentiates between a sexual
between her legs on top of her clothing. He act and sexual contact. Section 2246(2)
left the bedroom when his daughter, Sara defines a sexual act, in part, as “the intentional
Lynn, called the child’s name from an
adjoining room. No third person witnessed
1
either incident. Section 2244(a)(1), entitled “abusive sexual
contact,” states:
John denied that the incidents occurred.
His defense strategy was twofold. He claimed (a) Sexual conduct in circumstances where
sexual acts are punished by this chapter.SS
the child fabricated both incidents as a way of
Whoever, in the special maritime and
obtaining release from the foster home because
territorial jurisdiction of the United States or
she thought she was assigned a in a Federal prison, knowingly engages in or
disproportionate share of household chores. causes sexual contact with or by another
One of her friends testified she had overheard person, if so to do would violateSS
a conversation in which the complainant and
another friend discussed framing John so that (1) section 2241 of this title had
she would be removed from the home. the sexual contact been a sexual
act, shall be fined under this title,
John introduced several witnesses who tes- imprisoned not more than ten
tified to his good character. Although the years, or both[.]
court permitted the introduction of this 2
evidence, it denied John’s request for a jury in- Section 2244(b) states:
struction regarding character.
(b) In other circumstances.SSWhoever, in
the special maritime and territorial
II. jurisdiction of the United States or in a
John argues that he was improperly Federal prison, knowingly engages in sexual
sentenced as a felon. The indictment charged contact with another person without that
a violation of § 2244(a)(1), which makes it a other person’s permission shall be fined
felony, punishable by ten years’ imprisonment, under this title, imprisoned not more than
six months, or both.
2
touching, not through the clothing, of the gen- B.
italia of another person.” On the other hand, We are mindful that this interpretation re-
sexual contact is defined as “intentional sults in two avenues for punishing the same
touching, either directly or through the conduct.3 In addition to § 2244(a)(1), § 2244-
clothing” of areas including the genitalia and (b), in concert with § 2244(c),4 punishes sex-
breasts. It is undisputedSSindeed the ual contact with minors under twelve years of
indictment only allegedSSthat both incidents age. Notably, a violation of § 2244(a)(1) qual-
qualified as “sexual contacts,” because the ifies as a felony, while a violation of § 2244(b)
child was touched through the clothing, not qualifies only as a misdemeanor. The fact that
directly. two provisions of § 2244 provide different
penalties for punishing the same conduct does
As we have said, § 2244(a)(1), under which not, however, create ambiguity.
John was indicted, prohibits sexual contact in
violation of § 2241 “had the sexual contact Although the rule of lenity requires that am-
been a sexual act.” Section 2241, the biguous statutes be construed in favor of crim-
subsection cross-referenced by § 2244(a)(1), inal defendants, United States v. Reedy, ___
is entitled “aggravated sexual abuse” and F.2d ___, ___ & n.13, 2002 U.S. App. LEXIS
generally prohibits sexual acts by aggravated 17668, at *20 & n.13 (5th Cir. Aug. 26,
means. Specifically, § 2241(c) punishes 2002), the rule applies “only when, after con-
defendants who engage in sexual acts with struing traditional canons of statutory con-
minors under twelve years of age. struction, [a court] is left with an ambiguous
statute.” United States v. Shabani, 513 U.S.
Section 2244(a)(1)’s use of the phrase “had 10, 17 (1994). The rule of lenity does not ap-
the sexual contact been a sexual act” ply in a case such as this, where two statutes
apparently was intended to incorporate § 2241 provide different penalties for the same
in its entirety, with the caveat that § 2241’s conduct. United States v. Batchelder, 442
use of the term “sexual act” be replaced by U.S. 114, 121-22 (1979). If the government
“sexual contact.” In other words, the plain
text of § 2244(a)(1) prohibits sexual contacts
“had the sexual contact” at issue “been a 3
This oddity could mean that Congress intended
sexual act” as described in § 2241. Therefore, § 2244(a)(1) to incorporate § 2241(a) and (b), but
§ 2241(c), which prohibits sexual acts with not (c). Yet, the plain text of § 2244(a)(1), which
minors under twelve, is incorporated by incorporates § 2241 in its entirety, suggests
§ 2244(a)(1) to punish sexual contact with otherwise.
minors under twelve. 4
Section 2244(c) provides that “[i]f the sexual
contact that violates this section is with an
We do not see how the plain text can be
individual who has not attained the age of 12 years,
interpreted any other way. In light of the fact the maximum term of imprisonment that may be
that § 2244 is entitled “abusive sexual imposed for the offense shall be twice that
contact,” it would make little sense if the otherwise provided in this section.” Presumably,
government were required to prove a sexual this permits one who violates § 2244(b) by
act to convict under § 2244(a)(1). engaging in sexual contact with a minor under
twelve years of age to be punished for not more
than one year, instead of for only six months.
3
does not attempt to punish a defendant for the the court should have given a character
same conduct under both § 2244(a)(1) and § instruction.
2244(b), it “has the discretion to prosecute
under either statute regardless of whether one The proposed instruction would have in-
allows a harsher sentence.” United States v. formed the jury it should consider evidence of
Thrasher, 569 F.2d 894, 895 (5th Cir. 1978).5 “good general reputation for truth and
veracity, or honesty and integrity, or [being a]
law abiding-citizen.” More importantly, the
III. instruction would have informed the jury that
The district court committed reversible er- character evidence “may give rise to a
ror in refusing John’s request for a character reasonable doubt, since you may think it
instruction. Unlike the situation in cases in improbable that a person of good character in
which we have found a character instruction respect to those traits would commit such a
unnecessary, character was a vital part of crime.” The court apparently rejected the
John’s theory of defense. Without any character instruction because it thought that
witnesses or other corroborating evidence John’s only proffered character evidence was
supporting the child’s accusations, guilt hinged the testimony of Sara Lynn John, and that her
entirely on credibility.6 Given these testimony alone was insufficient to warrant the
circumstances and the closeness of the case,7 instruction.8
A.
5
In addition, a principle of statutory A character instruction is warranted only if
construction provides that a specific provision the defendant first introduces admissible char-
takes precedence over a more general one. United
States v. Torres-Echavarria, 129 F.3d 692, 699
(2d Cir. 1997) (citation omitted). Section 2244(a)-
7
(1) punishes sexual contacts with minors under (...continued)
twelve years of age through its incorporation of § court had given an “Allen charge,” see, e.g.,
2241(c). Section 2244(b), the statute urged by United States v. McClatchy, 249 F.3d 348, 358-59
John, generally prohibits sexual contacts regardless (5th Cir.), cert. denied, 122 S. Ct. 217 (2001), in-
of age. Therefore, § 2244(a)(1) is the more structing the respective jurors to reconsider their
specific provision and would control if we were positions in light of the body’s inability to reach a
forced to choose between the two provisions. unanimous decision. This was a close case; at one
point, the prosecutor remarked that there was a
6
Indeed, the fact that sex offenses are often “relatively small quantum of proof” linking John to
unwitnessed and unsupported by evidence outside the crime.
the victim’s testimony means that they become
8
“unresolvable swearing matches.” United States v. The court, by referring to character evidence
Mound, 149 F.3d 799, 801 (8th Cir. 1998) (citing as “reputation” evidence and stating that Sara
140 Cong. Rec. H8991 (daily ed. Aug. 21, 1994) Lynn John’s testimony was the only “reputation”
(statement of Rep. Molinari)). evidence adduced at trial, overlooked the fact that
character evidence also may be proven by a
7
The jury deliberated for approximately 2 hours witness’s opinion of the defendant. FED. R. EVID.
and 15 minutes before reaching a verdict. After 405(a). As we will discuss, several witnesses tes-
about 1 hour and 45 minutes of deliberation, the tified to their opinion of John without mentioning
(continued...) his reputation in the community.
4
acter evidence. See United States v. Tanne- This character evidence, if believed, might
hill, 49 F.3d 1049, 1057-58 (5th Cir. 1995). have swayed the jury that John was incapable
An accused may offer evidence of a pertinent of engaging in sexual contact with his foster
character trait to prove action in conformity child. The fact that this testimony was given in
with that trait. FED R. EVID. 404(a)(1). In the the form of personal opinion, rather than
criminal context, a pertinent character trait is John’s reputation in the community, does not
one that is relevant to the offense charged. defeat its admissibility.
United States v. Hewitt, 634 F.2d 277, 279
(5th Cir. Unit A Jan. 1981). Where B.
admissible, proof of character may be made by A defendant may introduce character
testimony as to the defendant’s reputation or testimony to show that “the general estimate
by testimony in the form of an opinion. FED. of his character is so favorable that the jury
R. EVID. 405. may infer that he would not be likely to
commit the offense charged.” Michelson v.
John offered a host of admissible character United States, 335 U.S. 469, 476 (1948).
evidence. Geraldine John, his wife, testified Unlike an affirmative defense, character
that she and John had a good marriage and a evidence is never legally sufficient to render a
normal sexual relationship. Marion Wesley, a defendant not guilty. Standing alone,
social service worker, testified that she knew however, character evidence may create a
the Johns, had placed eight foster children with reasonable doubt regarding guilt. Edgington
them, and considered them to be “very good
parents [who were] willing to do whatever
needs to be done for t he children.” John 10
(...continued)
testified that he was fifty-one years old and community discussing John’s reputation for sexual
had never been accused of sexual misconduct.9 morality and decency, Sara Lynn John responded
Finally, Sara Lynn John, John’s thirty-three- “yes.” When asked whether John was a “good man
year-old daughter, testified that John had a or a bad man,” she responded “good.”
“good” reputation for sexual morality and
decency in the community.10 The government argues that her acknowledge-
ment on cross-examination that she gathered John’s
reputation only from the opinions of persons
9
We have located no authority stating that a connected to the case, and only after the com-
defendant’s own testimony cannot be considered plainant’s allegations were raised, defeats its
character evidence within the meaning of rule 404- admissibility. We disagree, noting that rule 405(a)
(a)(1). Instead, at least one court has concluded imposes no requirement beyond the limitation that
that it can. See United States v. Daily, 921 F.2d reputation be limited to the community in which
994, 1010-11 (10th Cir. 1991) (considering the one resides. “The defendant may introduce
defendant’s own testimony as character evidence). evidence of his reputation . . ., and such a witness
not only may but must base his testimony upon
10
A language barrier apparently prevented Sara hearsay, in effect summarizing what he has heard
Lynn John from initially comprehending defense in the community.” United States v. Duke, 492
counsel’s questions regarding John’s reputation for F.2d 693, 695 (5th Cir. 1974). We know of no au-
sexual morality and decency. After being asked thority suggesting that a “community” cannot be
three times whether she had heard people in the made up, in whole or in part, of persons interested
(continued...) in the case.
5
v. United States, 164 U.S. 361, 366 (1896). covered in the instructions.12 We are left to
“In some circumstances, evidence of good determine whether the omission of the
character may of itself create a reasonable character instruction “impaired the defendant’s
doubt as to guilt, and the jury must be ap- ability to present” his defense of good
propriately instructed.” Hewitt, 634 F.2d at character.
278 (citations omitted).11 C.
A defendant “is usually entitled to have the
We review for abuse of discretion the re- court instruct the jury on the defense’s ‘theory
fusal to give a defense-tendered instruction. of the case.’” United States v. Robinson, 700
United States v. Correa-Ventura, 6 F.3d 1070, F.2d 205, 211 (5th Cir. 1983) (internal citation
1076 (5th Cir. 1993). A court commits omitted).13 Importantly, in cases where we
reversible error where (1) the requested have determined that the lack of a character in-
instruction is substantially correct; (2) the struction did not impair the defendant’s ability
requested issue is not substantially covered in to present his defense, character was not his
the charge; and (3) the instruction “concerns main theory of defense.14
an important point in the trial so that the
failure to give it seriously impaired the
defendant’s ability to effectively present a 12
At no point did the court address the issue of
given defense.” United States v. Grissom, 645 character. See Daily, 921 F.2d at 1010 (finding
F.2d 461, 464 (5th Cir. Unit A May 1981). that a jury instr uction failing specifically to men-
tion character “cannot be reasonably construed as
The government does not argue that the addressing the issue” of character). The court told
instruction is an improper statement of the law the jury that in determining the facts of the case, it
or that the issue of character was otherwise should consider “only the evidence presented
during the trial, including the sworn testimony of
the witnesses and the exhibits.” The court also told
the jury, however, that in weighing the testimony of
witnesses, it should consider the witness’s
11
The importance of character evidence is fur- relationship with the defendant. Without the
ther demonstrated by the fact that on at least two benefit of being told that character evidence could
occasions, we have reversed convictions after the raise a reasonable doubt as to the defendant’s guilt,
district court had instructed the jury that character the jury might have inferred that it should disregard
evidence “should not constitute an excuse to acquit character evidence, in light of the fact that it was
the defendant if you, the jury, after weighing all of elicited mainly from witnesses close to John.
the evidence in the case, is convinced beyond a
reasonable doubt that he defendant is guilty of the 13
At least the Tenth Circuit has recognized that
offenses charged in the indictment.” United States a defendant is ordinarily “entitled” to a character
v. Leigh, 513 F.2d 784, 785 (5th Cir. 1975); instruction if he affirmatively makes character an
accord United States v. Harris, 533 F.2d 306, 307 issue and presents evidence of traits relevant to the
(5th Cir. 1976). “Seizing on this sentence, the jury charged offense. Daily, 921 F.2d at 1010.
could easily have formed the impression that
reputation evidence could only be used to tip the 14
See Oertle v. United States, 370 F.2d 719,
scales in defendant’s favor if the case was 727 (10th Cir. 1967) (“It is important in this case
otherwise close; this is precisely the contention that the [defendants], for their defense, did not rely
rejected by the Supreme Court in Edgington . . . .” solely on good character evidence; such evidence
513 F.2d at 786. (continued...)
6
For instance, in United States v. Baytank The fact that character evidence may create
(Houston), Inc., 934 F.2d 599 (5th Cir. 1991), a reasonable doubt as to guilt, Edgington, 164
in holding that a character instruction was un- U.S. at 366, is most compelling in cases such
necessary where a defendant company accused as this, where the only evidence linking the de-
of violating environmental regulations offered fendant to the crime is the victim’s word.
character evidence, we stressed that it did “not Therefore, under these narrow circumstances,
appear that character evidence was central or the court’s treatment of character as a non-
crucial.”15 Id. at 614. Similarly, in United issue was tantamount to impairing John’s abil-
States v. Hunt, 794 F.2d 1095 (5th Cir. 1986), ity to present his defense. Grissom, 645 F.2d
we found a character instruction unnecessary at 464. Given the closeness of the case, had
where the defendant was convicted of mail the jury been told that character evidence
fraud. In that case, the defendant argued good might create a reasonable doubt as to guilt, the
faith as his main theory of defense and did not outcome may well have been different.
deny that he had solicited customers through
mail, but contended only that he lacked the IV.
specific intent to defraud.16 Id. Although we reverse John’s conviction, we
also address his contention that the district
By contrast, Jo hn’s theory of defense was court engaged in prohibitive “double-
that he did not commit the act at all. counting” when it sentenced him.17 John was
Character was necessarily a vital part of that sentenced pursuant to U.S.S.G. § 2A3.4(a),
defense, along with the credibility of the which applies only to offenses committed in
victim. Without corroborating evidence or an violation of § 2244(a)(1),(2),(3). U.S.
eyewitness, the case boiled down to a SENTENCING GUIDELINES MANUAL § 2A3.4
“swearing-match” between the victim and the cmt. statutory provisions (2001). After
accused. Indeed, defense counsel argued, in assigning John a base offense level of 10 under
his opening statement and closing argument, § 2A3.4(a)(3),18 the court imposed a six-level
that John’s character made it unlikely that he
would have engaged in sexual contact with his
foster child. 17
The sentencing guidelines should be
interpreted in a way that does not result in
cumulative punishment for the same conduct.
14
(...continued) United States v. Lamere, 980 F.2d 506, 516-17
was, in fact, only incidental to the prime (8th Cir. 1992).
defenses.”).
18
Under § 2A3.4, a base offense level of 16 is
15
In Baytank, 934 F.2d at 614 n.26, we also assigned to § 2244(a)(1) so far as it covers offens-
called into question whether a corporate or es “committed by the means set forth in 18 U.S.C.
institutional defendant is even entitled to present § 2241(a) or (b) [but not (c)].” U.S. SENTENCING
character evidence. GUIDELINES MANUAL § 2A3.4(a)(1) (2001). A
base offense level of 12 is assigned to § 2244(a)-
16
In United States v. Lamp, 779 F.2d 1088 (5th (2), which incorporates crimes committed “by the
Cir. 1986), we merely found that the court was means set forth in 18 U.S.C. § 2242.” Id.
entitled to conclude that the proffered character § 2A3.4(a)(2). All remaining offenses, which in-
witnesses were insufficiently acquainted with the clude only § 2244(a)(3) and § 2244(a)(1) so far as
defendant to render character testimony. (continued...)
7
enhancement pursuant to § 2A3.4(b)(1) is that the victim had attained the age of
because the victim had not attained the age of twelve years but had not attained the age of
twelve. sixteen years.” Id. cmt. background.
John contends that age was factored twice It cannot be that age was factored into the
in the overall calculation of base offense level computation of base offense level 10 as
16SSonce in the calculation of base offense applied to § 2244(a)(3) but not to §
level 10, and subsequently in the six-level en- 2244(a)(1).19 Although the commentary does
hancement. Because the enhancement not explicitly state that § 2244(a)(1) is exempt
undoubtedly was based on the victim’s age, we from an age enhancement,20 the commentary
must decide whether the guideline’s drafters does not control our interpretation of the
factored age in calculating base offense sentencing guidelines where it is plainly
level 10. erroneous or otherwise inconsistent with the
guidelines. United States v. Urias-Escobar,
Two observations, viewed in tandem, com- 281 F.3d 165, 167 (5th Cir.), cert. denied, 122
pel the conclusion that the court engaged in S. Ct. 2377 (2002).
prohibited double-counting. First, as we have
discussed, John’s violation of § 2244(a)(1) re- It would be inconsistent to find that age
quired that the age of the victim be under was factored into the computation of base lev-
twelve. In other words, age is an element of el 10 when applied to § 2244(a)(3) but not to
§ 2244(a)(1). Second, by process of
elimination, there are only two offenses
covered by § 2A3.4 that are assigned a base 19
Other courts have used similar reasoning in
offense level of 10: §2244(a)(1) insofar as it
determining that double-counting did not occur
incorporates § 2241(c), and § 2244(a)(3).
where a defendant received a sentence enhancement
because of the age of the victim after being
John was convicted of violating § 2244- sentenced under U.S.S.G. § 2A3.1 for violating 18
(a)(1). The other offense covered by § 2A3.4, U.S.C. § 2241(c), which criminalizes aggravated
which is § 2244(a)(3), punishes sexual contact sexual assault. E.g., United States v. Wimberly,
with child-victims between the ages of twelve 60 F.3d 281, 288 (7th Cir. 1995); United States v.
and sixteen. Bearing in mind that age is an el- Balfany, 965 F.2d 575, 584 (8th Cir. 1992). Key
ement of both § 2244(a)(1) and § 2244(a)(3), to the reasoning in these cases was the fact that
the sentencing guidelines commentary § 2242, another offense covered under § 2A3.1,
specifically exempts only § 2244(a)(3) from an does not require that the victim be less than twelve
age enhancement: “The [age] enhancement years old, even though § 2241(c) does so require.
under subsection (b)(2) does not apply . . . 20
One possible explanation for the lack of an
where the base offense level is determined un-
age enhancement exemption for § 2244(a)(1) is
der subsection (a)(3) because an element of that Congress did not foresee § 2244(a)(1)’s being
the offense to which that offense level applies used to prosecute defendants through § 2241(c).
As discussed supra part II, we are bound by
§ 2244(a)(1)’s incorporation of § 2241 in its en-
18
(...continued) tirety and will not speculate as to whether Congress
it incorporates § 2241(c), are assigned a base of- intended a meaning at odds with the plain text of §
fense level of 10. Id. § 2A3.4(a)(3). 2244(a)(1).
8
§ 2244(a)(1). There is only one base offense
level 10. The district court engaged in double-
counting when it enhanced John’s sentence be-
cause of the victim’s age.
The judgment of conviction and sentence is
REVERSED and REMANDED for further
proceedings consistent with this opinion.
9