United States v. Robert Plenty Chief

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 08-1121
___________

United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* District of South Dakota.
Robert Plenty Chief, *
*
Appellant. *
___________

Submitted: November 12, 2008
Filed: April 9, 2009
___________

Before MELLOY, BOWMAN, and SMITH, Circuit Judges.
___________

SMITH, Circuit Judge.

A jury convicted Robert Plenty Chief of aggravated sexual abuse against his
step daughter, in violation of 18 U.S.C. §§ 1153, 2241(c), and 2246(2) ("Count 1");
sexual abuse of a minor, in violation of 18 U.S.C. §§ 1153, 2243(a), and 2246(2)
("Count 2"); and abusive sexual contact, in violation of 18 U.S.C. §§ 1153,
2244(a)(3), and 2246(3) ("Count 3"). Count 1 referenced an incident that occurred in
2004, when the victim was 11 years old, while Counts 2 and 3 referenced an incident
that occurred in 2005, when the victim was 12 years old. Plenty Chief appeals, arguing
that his convictions on Counts 2 and 3 violate the Double Jeopardy Clause of the Fifth
Amendment because "18 U.S.C. § 2243(a) as charged in Count 2, and 18 U.S.C. §
2244(a)(3) as charged in Count 3 are nearly identical statutes, with nearly identical
elements." Additionally, he argues that insufficient evidence supports his convictions
on all three counts. We now affirm the judgment of the district court.1

I. Background
In 2004, Plenty Chief married Lynnelle Quinn in Eden, South Dakota. Quinn
had three children from previous relationships, including an 11-year-old daughter,
T.Q. Shortly after the marriage, Plenty Chief, Quinn, and her three children moved to
a home in Red Iron, South Dakota. Plenty Chief and Quinn slept in the basement,
while the three children all had separate bedrooms.

According to T.Q., one evening in 2004, while T.Q. was sleeping alone in her
bed, she was awakened when she heard her bedroom door shut. She looked toward the
door, where she saw Plenty Chief standing. Plenty Chief then walked toward T.Q.'s
bed, where he sat down. According to T.Q., Plenty Chief smelled strongly of alcohol
when he came near her. Eventually, Plenty Chief began rubbing T.Q.'s legs. At the
time, T.Q. was wearing a pair of shorts, a T-shirt, and a pair of underwear. T.Q.
recalled that, after Plenty Chief rubbed her legs and thighs, he placed one hand inside
her underwear, inserted his finger into her vagina, and started grabbing her chest with
his other hand. T.Q. stated that "[i]t hurted" when Plenty Chief inserted his finger
inside her vagina. T.Q. estimated that Plenty Chief was in her room for 20 to 25
minutes. The incident scared T.Q. and made her reluctant to leave her room. She did
not tell anyone about the incident.

In July 2005, when she was 12 years old, T.Q. was once again asleep in her
bedroom when she was awakened by the sound of the door slamming shut. According
to T.Q., the second incident proceeded much like the first incident. Plenty Chief sat
on T.Q.'s bed and began to rub her legs, thighs, and chest. In an effort to get away

1
The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.

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from Plenty Chief so that his finger would not penetrate her vagina, as in the first
incident, T.Q. "kept rolling over." T.Q. estimated that the second incident, like the
first, lasted approximately 20 to 25 minutes. As with the first incident, T.Q. did not
tell anyone. In October 2005, Plenty Chief and Quinn separated, and Plenty Chief
moved out of the house.

In April 2006, T.Q. disclosed Plenty Chief's molestation during a counseled
youth group session in which another teenager had recounted an incident of sexual
abuse. The group's counselor did not explore the issue in front of the group but later
interviewed T.Q. in greater detail. At that time, T.Q. told the counselor that Plenty
Chief had sexually abused her. The counselor reported the incident to her supervisor.

In May 2006, the Federal Bureau of Investigation (FBI) interviewed Plenty
Chief. Plenty Chief never denied inserting his finger into T.Q.'s vagina but instead
maintained that it was an accident. In a recorded statement, Plenty Chief recalled an
incident in 2005 in which he entered T.Q.'s bedroom one night when it was raining
and attempted to close her window. According to Plenty Chief, when he reached over
her bed, he may have rested his hand on her pelvic area. He told the FBI that his hand
may have "penetrated a little bit." Later in the interview, he also stated that his finger
may have penetrated T.Q.'s vagina up to his first knuckle.

Plenty Chief was charged in a superseding indictment with aggravated sexual
abuse, in violation of 18 U.S.C. §§ 1153, 2241(c), and 2246(2) ("Count 1"); sexual
abuse of a minor, in violation of 18 U.S.C. §§ 1153, 2243(a), and 2246(2) ("Count
2"); and abusive sexual contact, in violation of 18 U.S.C. §§ 1153, 2244(a)(3), and
2246(3) ("Count 3"). Count 1 referenced the incident that occurred in 2004, when T.Q.
was 11 years old, while Counts 2 and 3 referenced the incident that occurred in 2005,
when T.Q. was 12 years old.

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 At trial, during the government's case-in-chief, the jury heard T.Q.'s testimony,
as well as Plenty Chief's recorded statement to the FBI. Additionally, pursuant to
Federal Rule of Evidence 413, the jury heard testimony concerning another act of
sexual abuse Plenty Chief perpetrated on Quinn's other daughter.

At the close of the government's case-in-chief, Plenty Chief made a motion to
dismiss, arguing that the government "has not proven [its] case substantially in
accordance with Rule 29." Thereafter, the district court and the government engaged
in the following exchange:

THE COURT: Mr. Wright [government counsel], what—in the
superseding, in the superseding indictment, is it the Government's
position that counts two and three deal with the same alleged incident?

MR. WRIGHT: Yes. If I may, Your Honor?

THE COURT: Yes. Go ahead.

MR. WRIGHT: Count one deals with the first incident that [T.Q.]
labeled, which happened shortly after they moved into the blue house
that she thought was the summer of 2004 when she was 11. She testified
that the defendant walked in there, put his finger in her vagina. If that
evidence is believed, the jury could find the defendant guilty.

Counts two and three refer to the second incident, we believe, when the
defendant went into the bedroom and attempted a sexual act. Count two
charges a sexual act or an attempt, count three charges sexual contact.

Also, Your Honor, when the defendant was interviewed by Agent
Burdge [of the FBI], he did say he went in the bedroom and put his
finger in the vagina by accident, but he said it happened in May of 2005.
So if the jury thinks the defendant's recollection is better than [T.Q.'s],
then that incident occurred, a sexual act, in May of 2005. So there's a
difference between when she says the finger was in the vagina and when
the defendant says that. And it's an important difference because the law

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changed that September. She was 11 during the summer of 2004, she
turned 12 in the fall, and then the following incident occurred when she
was 12. So depending on who's correct as to when the finger was there,
they can find him guilty of count one or count two, or they can find him
guilty of all three counts if they believe count two was an attempted
sexual act, which the Government asserts that it was, and sexual contact.

THE COURT: So it's your position that the Government can charge a
defendant in connection with the same incident as either having sexual
contact or attempted sexual contact, and either attempting to commit a
sexual act or—well, obviously, there's no evidence that he did engage in
a sexual act the second time.

MR. WRIGHT: Other than his statement that it happened in May of
2005, which is within that time period—

THE COURT: Right.

MR. WRIGHT: —when his finger was in the vagina. And the jury could
think that his recollection as to when it actually happened is better than
hers. So we have to, we have to cover both time periods of the sexual act
because this is when she said it occurred and this is when he said it
occurred.

THE COURT: You think that the defendant can be convicted of both
counts two and three?

MR. WRIGHT: Yes. Yes, I do. If they find that in count one it was a
sexual act and [T.Q.] was correct about the date, and count two, it was
an attempted sexual act. An attempt at a sexual act.

THE COURT: Well, I'm skeptical about that, but we'll see. Well—

MR. WRIGHT: I don't expect—I'm sorry.

THE COURT: Excuse me. Go ahead.

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 MR. WRIGHT: I don't expect a guilty verdict on all three counts, but I,
but certainly I can see any combination depending on where they think
the testimony is accurate. And of course, the court can revisit this if there
is a conviction.

During the defense's case-in-chief, Plenty Chief testified that, in the spring of
2005, he entered T.Q.'s bedroom to shut her window because it was going to rain.
After entering T.Q.'s bedroom and approaching her bed, Plenty Chief testified as
follows:

I leaned across her bed as I usually did. She usually sleeps at the head of
the bed, but—and the window is by the foot of the bed. So when I leaned
over where I usually put my hand close to the window, she was laying
under the window. Either she was hot or she was cold; I don't know.
Because the heat register is right under the window, also. The heat was
on and the window was open. I had to choose one of the two. Since it
was going to rain and heat register is electric, I chose to shut the window.
This happened in a matter of about two or three seconds. Leaning over,
I was around 335 pounds at this time, so when I felt myself touch
[T.Q.'s] body, I pulled away, readjusted, shut the window, covered [T.Q.]
up, and I left the room. And I did not shut the door.

Plenty Chief further testified that while he did touch her in the pelvic area, his "finger
did not go in her vagina."

The jury found Plenty Chief guilty on all three counts.

II. Discussion
Plenty Chief makes two arguments on appeal. First, he claims that his
convictions on Counts 2 and 3 violate the Double Jeopardy Clause of the Fifth
Amendment because "18 U.S.C. § 2243(a) as charged in Count 2, and 18 U.S.C.
§ 2244(a)(3) as charged in Count 3 are nearly identical statutes, with nearly identical

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elements." Additionally, he asserts that Count 3 is a lesser included offense of
Count 2.

Second, he asserts that insufficient evidence supports his convictions on all
three counts because the jury convicted him "based solely on the testimony of the
alleged victim and the victim's sister. No corroborating evidence was presented, and
the victim's motive was suspect. Plenty Chief and the victim's mother were in the
process of a divorce."

In response, the government first argues that we must review Plenty Chief's
double jeopardy argument for plain error because he never asked the district court to
dismiss Count 2 or Count 3 based upon that claim. According to the government,
while some discussion occurred between the district court and the government
regarding whether Plenty Chief could be convicted on both counts, Plenty Chief never
moved to dismiss based on this argument or asked the district court for relief
regarding the alleged double jeopardy claim.

The government also maintains that it presented ample evidence to sustain
Plenty Chief's convictions on all three counts because the jury heard T.Q.'s testimony,
Plenty Chief's recorded admissions, and testimony that Plenty Chief sexually abused
T.Q.'s sister.

A. Double Jeopardy
We first address Plenty Chief's argument that his convictions on Counts 2 and
3 violate the Double Jeopardy Clause of the Fifth Amendment. Because our review

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of the record reveals that Plenty Chief never asked the district court to dismiss either
of these counts on such a ground,2 our review is limited to plain error.3

"'Under plain error review, [Plenty Chief] must prove that (1) there was an
error, (2) the error was plain, (3) it affects substantial rights, and (4) it seriously affects
the fairness, integrity, or public reputation of judicial proceedings.'" United States v.
Two Elk, 536 F.3d 890, 897–98 (8th Cir. 2008) (quoting United States v. Brandon,
521 F.3d 1019, 1027 (8th Cir. 2008)). "In considering the facts underlying the
allegedly multiplicitous convictions, this court accepts them in the light most
favorable to the verdict." Id. at 898.

The Double Jeopardy Clause of the Fifth Amendment states that "[n]o person
shall . . . be subject for the same offence to be twice put in jeopardy of life or limb."
U.S. Const. amend. V. This clause "proscribes the imposition of multiple punishments
for the same criminal offense." Two Elk, 536 F.3d at 898 (internal quotations,
alteration, and citation omitted). "Demonstrating that an indictment violates the double

2
Plenty Chief based his motion to dismiss on the ground that the government
failed to prove its case, meaning that insufficient evidence existed to support
convictions on all three counts.
3
We recognize that there are "two lines of cases" concerning whether a
defendant may raise a double jeopardy challenge for the first time on appeal. United
States v. Two Elk, 536 F.3d 890, 897 (8th Cir. 2008). In Two Elk, the defendant argued
that "this court reviews for plain error a double jeopardy challenge not raised in the
district court." Id. (citing United States v. Sickinger, 179 F.3d 1091, 1092–93 (8th Cir.
1999); United States v. Bercier, 506 F.3d 625, 633 (8th Cir. 2007)). In response, the
government argued that a defendant may not raise such a claim for the first time on
appeal. Id. (citing United States v. High Elk, 442 F.3d 622, 624 (8th Cir. 2006); United
States v. Goodwin, 72 F.3d 88, 91 (8th Cir. 1995); United States v. Garrett, 961 F.2d
743, 748 & n.7 (8th Cir. 1992)). We found it unnecessary to "reconcile these two lines
of cases" because we concluded that, even under plain error review, no such error
occurred. Id. In the present case, because the government argues that plain error
review applies, we once again need not resolve these two competing lines of cases.

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jeopardy clause requires the defendant to show that the two offenses charged are in
law and fact the same offense." Id. (internal quotations and citation omitted). In
deciding whether the offenses are the same, we "must scrutinize the statute in question
to determine whether Congress intended the facts underlying each count to make up
a separate unit of prosecution." Id. (internal quotations and citation omitted). We
determine Congress's intent from "the statutory language, legislative history, and
statutory scheme." Id. (internal quotations and citation omitted). If we are left in doubt
about that intent "(because, for example, Congress's intended unit of prosecution is not
clear and unambiguous), this court resolves doubt in favor of lenity for the defendant."
Id. (internal quotations, alterations, and citation omitted).

We have recognized that "while abusive sexual contact may be a lesser included
offense when a single criminal event is involved, aggravated sexual abuse is a
different crime, and each may be violated during a series of distinct criminal acts."
United States v. Bercier, 506 F.3d 625, 633–34 (8th Cir. 2007). In Bercier, we found
that the defendant's conduct "established that [the defendant] engaged in conduct that
violated each statute during the alleged assault." Id. at 634. First, we found that
"touching and kissing" the victim's breast constituted "abusive sexual contact" under
§ 2244(a). Id. at 634. Second, we concluded that "digital sex" was a "sexual act" "that
constituted aggravated sexual abuse when done by force or threat." Id. (citing 18
U.S.C. §§ 2241(a)(1), 2246(2)(B)).

But the "real question" in Bercier was "how many sex crimes does a defendant
commit when he inflicts a series of distinct sexual offenses on the victim during a
single incident?" Id. We explained that such a question turns on "'whether Congress
intended the facts underlying each count to make up a separate unit of prosecution.'"
Id. (quoting United States v. Chipps, 410 F.3d 438, 447 (8th Cir. 2005)). To answer
this question, we examine "whether Congress intended to punish [the crime] 'as a
course of conduct . . . or whether Congress sought to punish separately individual acts
within an [ ] episode.'" Id. (quoting Chipps, 410 F.3d at 448). "If the offense is a

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'course-of-conduct offense,' this court then applies 'the impulse test,' treating as one
offense all violations that arise from that singleness of thought, purpose or action,
which may be deemed a single 'impulse.'" Two Elk, 536 F.3d at 899 (internal
quotations and citation omitted). But if the offense constitutes a "separate-act offense,"
then "our inquiry is at an end because there is no double jeopardy problem." Id. In
Bercier, we concluded that the district court did not commit plain error, stating:

In this case, the district court instructed the jury, without objection, that
[the defendant] was charged with two offenses and that it must separately
consider the evidence pertaining to each offense. A number of cases have
held that state court convictions for multiple sex offenses did not violate
the Double Jeopardy Clause if, under state law, "a defendant may receive
multiple punishments for numerous sex offenses rapidly committed with
the sole aim of sexual gratification." Rhoden v. Rowland, 10 F.3d 1457,
1462 (9th Cir. 1993); see Holdren v. Legursky, 16 F.3d 57, 62 (4th Cir.),
cert. denied, 513 U.S. 831, 115 S. Ct. 106, 130 L. Ed. 2d 53 (1994);
State v. James, 643 S.E.2d 34, 37–38 (N.C. Ct. App. 2007); State v.
Cleveland, 237 Wis. 2d 558, 614 N.W.2d 543, 550–51 (2000). We have
not found a case thoroughly addressing this question in the context of the
federal sexual assault offenses here at issue. Cf. United States v. Torres,
937 F.2d 1469, 1471, 1475 (9th Cir. 1991); Pinson v. Morris, 830 F.2d
896, 897 (8th Cir.1987), cert. denied, 488 U.S. 829, 109 S. Ct. 83, 102
L. Ed. 2d 59 (1988). As there was sufficient evidence that [the
defendant] committed two distinct sex offenses during the assault, there
was no plain error. However, we leave the question open for further
development on remand.

506 F.3d at 634 (reversing the district court and remanding because statements made
shortly after encounter with defendant were not admissible as prior consistent
statements and treating physician's testimony regarding her interview with victim in
which she identified abuser were not admissible); see also Two Elk, 536 F.3d at 899
(holding that aggravated sexual abuse was a separate-act offense for purposes of
double jeopardy analysis and therefore various sex acts in violation of statute within
a single course of conduct were separate offenses for double jeopardy purposes).

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 In the present case, Count 2 charged Plenty Chief with sexual abuse of a minor
pursuant to 18 U.S.C. §§ 2243(a) and 2246(2). Section 2243(a) makes it a crime to
"knowingly engage[] in a sexual act" with a minor or to "attempt[] to do so." A
"sexual act" includes "the penetration, however slight, of the anal or genital opening
of another by a hand or finger or by any object, with an intent to abuse, humiliate,
harass, degrade, or arouse or gratify the sexual desire of any person." 18 U.S.C.
§ 2246(2)(C).

Count 3 charged Plenty Chief with abusive sexual contact pursuant to 18 U.S.C.
§§ 2244(a)(3) and 2246(3). Section 2244(a)(3) makes it a crime to "knowingly
engage[] in or cause[] sexual contact with or by another person, if so to do would
violate . . . subsection (a) of section 2243 of this title had the sexual contact been a
sexual act." "Sexual contact" is defined as "the intentional touching, either directly or
through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of
any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the
sexual desire of any person." 18 U.S.C. § 2246(3).

Under the government's theory, Plenty Chief's touching of T.Q.'s breasts and
thighs during the 2005 incident constituted the "sexual contact" forming the basis of
Count 3, while Plenty Chief's "attempted sexual act" upon T.Q. during the 2005
incident, as alleged in Count 2, was thwarted when T.Q. rolled way from him, to
prevent him from inserting his finger into her vagina, as he had previously done in
2004.

Here, "in light of Bercier's tone and its reference to the state decisions holding
various sex acts within a single course of conduct to be separate offenses," Two Elk,
536 F.3d at 899, we hold that the district court did not commit plain error by not
dismissing Counts 2 and 3 on the basis of double jeopardy. As discussed infra,
because "there was sufficient evidence that [Plenty Chief] committed two distinct sex
offenses during the assault, there was no plain error." Bercier, 506 F.3d at 634.

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 Furthermore, we note that attempted sexual abuse of a minor and abusive sexual
contact have different statutory elements. Attempted sexual abuse of a minor, 18
U.S.C. § 2243(a), requires an attempted sexual act, as defined in 18 U.S.C. § 2246(2).
In contrast, abusive sexual contact, 18 U.S.C. § 2244(a)(3), does not require the sexual
act or attempt and requires only sexual contact, as defined in 18 U.S.C. § 2246(3).4

B. Sufficiency of the Evidence
We now turn to Plenty Chief's argument that insufficient evidence exists to
support his convictions on all three counts. "We review the sufficiency of the evidence
supporting a conviction in the light most favorable to the Government and draw all
reasonable inferences in favor of the jury's verdict." United States v. Lohnes, 554 F.3d
1166, 1168 (8th Cir. 2009) (internal quotations and citations omitted). We will only
reverse "if we conclude that no reasonable jury could have found the accused guilty
beyond a reasonable doubt." Id. at 1168–69 (internal quotations and citations omitted).

"The crux of [Plenty Chief's] argument is that the evidence was insufficient
because the government's case consisted solely of testimony from [T.Q. and T.Q.'s
sister]." United States v. Fuller, __F.3d__, 2009 WL 529851, at *2 (8th Cir. Mar. 4,
2009). Plenty Chief "contends that reversal is warranted because no corroborating
evidence supported [T.Q. and her sister's testimony]." Id. He also argues that T.Q.'s
motive was suspect, given that Plenty Chief and her mother, Quinn, were in the
process of a divorce. But "the jury was fully apprised of the witnesses' backgrounds
and potential motives, and it was the jury's prerogative to decide whether to credit the
testimony." Id. "It is the sole province of the jury to weigh the credibility of a
witness." United States v. Cvijanovich, __F.3d__, 2009 WL 454717, at *5 (8th Cir.

4
Resolution of this issue is not without some doubt. The court in Bercier
recognized the difficult double jeopardy issues implicit in charging a defendant under
these two statutes. While we do not find the district court plainly erred because there
were two distinct acts, we leave for another day the final resolution of this issue in a
case in which the issue has been properly preserved.

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Feb. 25, 2009) (internal quotations and citation omitted). Here, the jury was permitted
to credit T.Q.'s testimony and reject Plenty Chief's testimony.

T.Q.'s testimony alone is sufficient to support Plenty Chief's convictions on all
three counts. Count 1 charged Plenty Chief with aggravated sexual abuse pursuant to
18 U.S.C. § 2241(c). Section 2241(c) prohibits a person from engaging in a "sexual
act" with a minor. A "sexual act" includes "the penetration, however slight, of the anal
or genital opening of another by a hand or finger or by any object, with an intent to
abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person."
18 U.S.C. § 2246(2)(C). T.Q. testified that, in 2004, Plenty Chief inserted his finger
in her vagina and that "[i]t hurted."

Count 2 charged Plenty Chief with sexual abuse of a minor pursuant to
18 U.S.C. §§ 2243(a) and 2246(2). A defendant violates this statute by "attempting"
to "knowingly engage[] in a sexual act" with a minor, 18 U.S.C. § 2243(a), which
includes "the penetration, however slight, of the anal or genital opening of another by
a hand or finger or by any object, with an intent to abuse, humiliate, harass, degrade,
or arouse or gratify the sexual desire of any person." 18 U.S.C. § 2246(2)(C). T.Q.
testified that, in 2005, Plenty Chief once again entered her bedroom and began
rubbing her thighs; she thwarted his efforts to penetrate her vagina with his finger, as
he had done in 2004, by rolling away from him several times during the incident.

Count 3, which also stemmed from the 2005 incident, charged Plenty Chief
with abusive sexual contact. A defendant violates this statute by "knowingly
engag[ing] in or caus[ing] sexual contact" with a minor, 18 U.S.C. § 2244(a)(3),
including "the intentional touching, either directly or through the clothing, of the
genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to
abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person."
18 U.S.C. § 2246(3). T.Q. testified that, in 2005, Plenty Chief entered her bedroom,
sat on her bed, and began rubbing her thighs and chest.

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 Based upon the evidence presented at trial, we conclude there was sufficient
evidence from which a reasonable jury could find that Plenty Chief committed each
of the alleged crimes.

III. Conclusion
Accordingly, we affirm the judgment of the district court.
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