United States v. Dana Lee Cobenais

United States Court of Appeals
For the Eighth Circuit
___________________________

No. 16-3420
___________________________

United States of America

lllllllllllllllllllll Plaintiff - Appellee

v.

Dana Lee Cobenais

lllllllllllllllllllll Defendant - Appellant
____________

Appeal from United States District Court
for the District of Minnesota - St. Paul
____________

Submitted: May 12, 2017
Filed: August 22, 2017
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Before SMITH, Chief Judge, COLLOTON and KELLY, Circuit Judges.
____________

SMITH, Circuit Judge.

A jury convicted Dana Lee Cobenais of one count of aggravated sexual abuse,
in violation of 18 U.S.C. §§ 1151, 1153(a), 224l(a)(l), 2246(2)(A), and 2246(2)(C).
On appeal, Cobenais argues that the theory-of-defense jury instruction mentioning
consent inaccurately stated the elements of the offense and the defense theory of the
case. He also argues that the district court improperly curtailed his closing argument.
We hold that the district court1 neither abused its discretion in giving the consent
instruction nor in refusing counsel’s request for additional time to complete closing
argument and therefore affirm the judgment of the district court.

I. Background
Cobenais, an Indian, was charged with one count of aggravated sexual abuse
against A.J., who lived on the Red Lake Indian Reservation. At trial, the government’s
theory of the case posited that when A.J. rebuffed Cobenais’s demand for sex, “[h]e
would not take no for an answer” and proceeded to backhand A.J., remove her clothes,
and “shove[] his fingers into her vagina causing her injuries.” Cobenais’s theory of the
case—as shown during his counsel’s opening statement—asserted that “[t]he blood and
the injuries in this case was the result of a consensual sexual encounter between [A.J.]
and Dana Cobenais . . . . It wasn’t the result of a rape. It wasn’t the result of forced
sex.” (Emphasis added.) Cobenais’s counsel argued that Cobenais “didn’t force himself
on [A.J.], and the bleeding was the result of this consensual sexual act.” (Emphasis
added.) Cobenais’s counsel told the jury that Cobenais would describe the event “as
a consensual sexual encounter which resulted in blood in this case.” (Emphasis added.)
Cobenais’s counsel ended his opening statement by stating that “Cobenais did not rape
[A.J.] and he didn’t force himself on her. This happened as the result of two
participants engaging in a consensual sexual act.” (Emphasis added.)

A. Trial Testimony
During trial, A.J. testified to the events of March 13–14, 2015. On March 13,
A.J. went to the home of her uncle, Lester Lussier, and Cobenais was there. A.J. had
seen Cobenais approximately four or five times before. Later that night, the three drove
to Cobenais’s grandmother’s house in A.J.’s car so that Cobenais could visit his cousin.
After arriving, Lussier left with someone else. Cobenais entered his grandmother’s

1
The Honorable Richard H. Kyle, United States District Judge for the District
of Minnesota.

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house, while A.J. waited outside. Cobenais soon came back outside, and he and A.J.
“sat around outside and . . . were drinking a little bit.” According to A.J., she drank “a
couple mixes,” and remained there about 20 to 30 minutes.

At approximately 2:00 a.m., A.J. got into her car, and Cobenais
followed—uninvited. A.J. asked Cobenais to get out of the car and told him that she
wanted to go home. Cobenais refused. A.J. waited, but Cobenais still refused to get out
of the car. A.J. testified that she “decided to drive off because [Cobenais] wasn’t, like,
trying to be touching [her] or doing anything.” Cobenais told A.J. “that he was going
to have somebody else pick him up” at an intersection, so A.J. stopped at the stop sign.
A.J. became suspicious though, “because [Cobenais] didn’t call anybody for a ride.”
A.J. again asked Cobenais to get out of her car, but he again refused.

At that point, A.J. testified, Cobenais assaulted her. She testified, “[Cobenais]
slapped me and he pulled my pants down. And I told him to stop, but he wouldn’t
stop. . . . He put his hands inside me. . . . He was like slapping me [in the face] and he
told me to shut up.” A.J. defended herself “[b]y pushing him and kicking him.” A.J.
told him no and attempted to fight him off. She testified, “I didn’t consent to any of it.”
A.J. could not recall much of what happened thereafter. She “remember[ed] coming
to . . . in the passenger seat, and [Cobenais’s] hands were up like (indicating) and [A.J.]
was . . . really bleeding.” Cobenais “had . . . blood all up his hands,” and his hands had
been “inside” of A.J. She was bleeding “[b]ecause [Cobenais] used his whole hand”
“[t]o hurt [A.J.], to go inside [her].” A.J. testified that Cobenais injured her by forcibly
putting his hand inside her vagina. A.J. did not know why Cobenais stopped the
assault, but after he stopped, he got out of the car. A.J. then left to go home.

A.J. ran out of gas while driving home. Her car stopped in the middle of the
road. She called 911 and reported that her car ran out of gas. A.J. explained that she did
not tell the 911 operator about the sexual assault because she was scared. Red Lake
Police Officer Rennel Parish responded to the scene. She testified that in addition to

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her experience as a police officer, she has 16 years’ experience as an emergency
medical technician. After A.J. exited the car, Officer Parish noticed a sawed-off
shotgun underneath the driver’s seat. Officer Parish “grabbed the gun and . . . backed
up.” Officer Parish then noticed that A.J. was bleeding profusely. Officer Parish
testified, “There was so much blood that was coming out of her and I didn’t know
where it was coming from.” Officer Parish asked A.J. what happened and where the
blood was coming from, and A.J. responded that she did not know. Officer Parish
asked A.J. “if she had been shot because there was so much blood, just it was like
turning on a faucet.” Officer Parish then asked her whether she was on her period or
having a miscarriage, and A.J. responded no. Finally, Officer Parish asked her again
what happened, and A.J. told Officer Parish that she was raped. “She was very upset
when she said that. The more questions [Officer Parish] asked her, the more upset she
was getting.” At first, A.J. said that her boyfriend raped her, but then she said it was
someone else. She quit answering questions because she was upset. Officer Parish
believed that A.J. went into shock.

A.J. told the officer that she wanted to go home, but Officer Parish instead called
for an ambulance. Officer Parish followed the ambulance to Red Lake Hospital. A.J.
was crying and “pretty upset.” At one point, she passed out. She was distraught and
hysterical. At the hospital, A.J. gave an account of the episode to Officer Parish
involving “two men wearing dark clothing.” Officer Parish testified that she did not
believe this account. After that, A.J. stopped talking to Officer Parish.

The registered nurse who attended A.J. in the emergency room (ER) at Red Lake
Hospital testified that A.J. was “bleeding heavily” when she saw her and that “[i]t was
astonishing” to see “a patient in this condition.” According to the nurse, A.J. “was
bleeding. She was clotting. There w[ere] large clots, which was amazing to
see. . . . [They were] around maybe 6, 7 centimeters or inches in diameter.” The nurse
had “never seen anything like this in [her] years of nursing.” While in the ER, A.J.
tried to get off the gurney to go home, but she collapsed. The nurse testified that A.J.

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“was in shock. Confused, wanting to go home. Kept covering her face. Didn’t want
people to see her. Going in and out of crying. And then just talking words like we
couldn’t understand what she was saying. And then just being quiet again.”

While at Red Lake Hospital, A.J. continued bleeding. She was so seriously
injured that she was transferred to the Bemidji Hospital for “specialized care.” Upon
A.J.’s arrival to the Bemidji Hospital, she was seen by a Sexual Assault Nurse
Examiner (SANE). The SANE testified that A.J. was “acutely injured,” having a
“laceration on the outside of her body and . . . bleeding acutely vaginally. She had large
clots that were present.” The SANE had never seen an injury like A.J.’s injury before.
She “called the [ER] doctor in to come and see [A.J.] due to the extent of the injury.”
Thereafter, the ER doctor called in an obstetrician/gynecologist who had to surgically
repair the vaginal lacerations.

Upon examination by Special Agent Jonathan Tjernagel of the Federal Bureau
of Investigation (FBI), Cobenais admitted having sex with A.J. in the backseat of her
car. According to Agent Tjernagel, Cobenais explained that he and A.J. had driven to
his mother’s house in A.J.’s car and sat outside of his mother’s home in that car.
Cobenais reported that after he and A.J. “hung out for a while” and drank alcohol, they
then had sex. Cobenais told Agent Tjernagel “that while they were having sex [A.J.]
began to start bleeding so he stopped. He said that she asked him why he had stopped
and [Cobenais] told [Agent Tjernagel] it was because she was bleeding.” Cobenais
additionally told Agent Tjernagel that A.J. “asked him to continue having sex with
her.” Cobenais told Agent Tjernagel that he declined to continue.

Minnesota Bureau of Criminal Apprehension Investigator Philip Hodapp, who
examined A.J.’s car, testified to finding blood on the driver’s seat and on the front
passenger’s seat. Although he could not testify as to the amount of blood, he testified
that a blood pattern appeared on the driver’s seat and on the floor board of the driver’s
side. He also found a blood pattern on the front passenger’s seat. He found no blood

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on the backseat cushion. He found a droplet of blood in the center console in the
backseat.

Cobenais also testified at trial. He testified that he and A.J. sat in her car outside
of his mother’s home “[f]or a number of hours” drinking, listening to music, and
talking. He confirmed that they “started talking about having sex” and then drove to
the “telephone building” to have sex, which is “on the way to [Cobenais’s]
grandmother’s house.” Cobenais testified that while at the telephone building,

[w]e get in the back seat. She takes her off her pants and underwear. I
take off my pants and underwear. And I start feeling her up. I got my
fingers in there. Got my hand in there. We keep going for a while. I see
some blood. I stop. She asked me why I stop. I told her. So she hops in
the front seat, passenger. I jump in the driver’s seat and I drive to my
grandma’s and we go inside. She goes in the basement. She said she’s
going to go to sleep. So I make something to eat. And then I think she
might have come back up, went to the bathroom or something. When I sit
on the couch she comes over and sits on the couch; and I end up going to
sleep there and that’s where I wake up.

Cobenais testified that upon awaking in the morning, A.J. was gone. He then
discovered that his cell phone and $20 was missing.

Cobenais described the encounter as consensual. Specifically, he confirmed that
he and A.J. “both took off [their] clothes together,” “talked about [it] before it
happened,” and participated in the act. Cobenais admitted to putting his “whole fist”
inside of A.J. without her “put[ting] up any fight.” At no time did he “force [himself]
into her vagina” or “use any force to get into her vagina.” He confirmed that once A.J.
started bleeding, he stopped. Cobenais testified that A.J. never told him that the
insertion of his entire fist into her vagina hurt, despite her incurring three lacerations.

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 B. Jury Instructions
During the final charge conference, the court reviewed the proposed jury
instructions with the parties. The parties ultimately agreed on the elements-of-the-
offense instruction, which provided in pertinent part:

The crime of aggravated sexual abuse has four essential elements,
each of which the Government must prove beyond a reasonable doubt.
The [first two of the] four essential elements are:

One, the Defendant knowingly caused Jane Doe to engage
in a sexual act;

Two, the Defendant caused Jane Doe to engage in a sexual
act by using force . . . .

***

If all of these essential elements[2] have been proved beyond a
reasonable doubt, you must find the Defendant guilty; otherwise you must
find him not guilty.

The term “sexual act,” as used in essential elements One and Two,
means the penetration, however slight, of the genital opening of another
by hand or finger.

The term “force,” as used in essential element Two, means the use,
or threatened use, of physical force sufficient to overcome, restrain, or
injure a person.

2
The parties stipulated that Cobenais is an Indian and that the alleged offense
occurred “within the exterior boundaries of the Red Lake Indian Reservation, which
is ‘Indian Country.’” These stipulations established the third and fourth essential
elements, making them immaterial to this appeal.

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 Cobenais did, however, object to the theory-of-defense instruction that the
district court proposed sua sponte. The instruction provided:

It is the Defendant’s position that on the morning of March 14,
2015, he and Jane Doe had consensual sexual relations and that he did not
use force against her to engage in sexual intercourse. There is no consent
if the sexual act was accomplished against the will of Jane Doe by the use
of force, coercion, or threats. Consent may be verbal or implied based on
the facts, circumstances, and evidence presented to you.

Cobenais’s counsel objected to the instruction as follows:

The first sentence is correct. But the rest of it, I mean, you know, part of
the problem here with this—it’s not a problem—is that the elements in
the statute—and I think that particularly if the Court gives the instruction
tapered the way that I requested is what the law is. And we don’t need to
tell the jury what the law is, you know, isn’t. And there isn’t anything in
the elements about what consent is or isn’t.

And this is going to get to be kind of a messy thing because of this
precise issue I’ve tried to identify is that the issue is whether he caused
her to engage in a sexual act by using force, not that force was used
during the sexual act. And then we get this thing—you throw this thing
about consent in here, which I don’t even think is—I don’t think it’s
appropriate in the case. I’m not even sure it’s accurate. You’re giving a
definition of something that’s not an element of the offense. I think it’s
unnecessary and confusing.

(Emphasis added.) The court took the matter under advisement. Cobenais’s counsel
characterized the theory-of-defense instruction as inaccurate, inappropriate,
unnecessary, and not the law. The district court overruled the objection.

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 C. Closing Argument
Immediately before the final charge conference, the court asked counsel how
long they needed for their closing arguments. The trial had lasted one-and-a-half days.
The government asked for 15 minutes for closing and five minutes for rebuttal.
Cobenais’s counsel asked for one hour for closing. The district court gave each party
one hour and told counsel that the court intended to limit them to their requested time.

During closing argument, the government argued that Cobenais used force
against A.J, stating:

[N]ot only did [A.J.] testify that [Cobenais] used force against her by
backhanding her, slapping her, she was trying to fight him off, and he
continued and would not take no for an answer. But the injuries inside her
vagina, those three lacerations that required a surgery to close, are
evidence of force.

The government also argued that the nature of the act itself corroborated A.J.’s
testimony that she did not willingly agree to Cobenais’s aggression. The government
argued that the extent of A.J.’s injuries and the nature of the sex act were factors for
the jury to consider in determining whether Cobenais used force against A.J.

By contrast, defense counsel argued that while Cobenais did engage in a sexual
act with A.J. “result[ing] in blood and injury,” Cobenais did not “use force” against
A.J. Defense counsel argued that A.J. “was a willing participant.” Defense counsel
asserted that A.J. was not telling the truth and that if the jury had “doubt about
[whether] what [A.J. was] telling [the jury] is the truth and the whole truth in terms of
how this all got started, if [the jury] ha[s] a doubt, it’s a reasonable doubt, then the
result is not guilty.” Defense counsel then detailed his theory of the case in light of the
evidence. Counsel painted A.J. as a liar, stating, “You have to rely on this liar as a
person that you believe beyond a reasonable doubt in this case.” After noting that
Cobenais’s testimony differed significantly from A.J.’s testimony, defense counsel

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argued, “And if you can’t decide, . . . if you’re having a hard time making a decision
about how the sex act all got started, that’s a reasonable doubt.”

Defense counsel then began repeating his earlier arguments. After a short time,
the district court alerted defense counsel that he had three minutes left in his hour-long
closing argument. Defense counsel then discussed, among other things, the
presumption of innocence. The district court informed defense counsel that his hour
had expired. Defense counsel asked for “a minute to wrap up.” The district court gave
defense counsel “30 seconds to wrap up.” Defense counsel then discussed the
presumption of innocence and proof beyond a reasonable doubt. The district court then
informed defense counsel to “bring it to a close.” Defense counsel then made the
following summation:

The evidence in this case, the Government did not prove its case beyond
a reasonable doubt. Mr. Cobenais told you the truth. He’s not guilty of
this offense. And I’m going to sit down and I trust that you—Mr.
Wardlaw is going to, you know, have some responses. I would have
responses but I don’t get the last word. I’m asking you to do the right
thing in this case and the right thing with this evidence before you is to
return a verdict of not guilty because the proof isn’t there and Mr.
Cobenais told you the truth.

The court then stated, “Mr. Olson. I have warned you about three times now. Bring it
to a close.” Defense counsel concluded, “I would ask that you return a verdict of not
guilty. Thank you.”

During its charge to the jury, the district court instructed the jury on both the
presumption of innocence and the requirement that the government prove its case
beyond a reasonable doubt. The jury returned a guilty verdict.

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 II. Discussion
On appeal, Cobenais argues that the theory-of-defense jury instruction on
consent inaccurately stated the elements of the offense and the defense theory of the
case. He also argues that the district court improperly curtailed his closing argument.

A. Theory-of-Defense Instruction on Consent
Cobenais argues that the district court erred by sua sponte giving the jury an
inaccurate, confusing, and misleading theory-of-defense instruction on consent—a
term not found anywhere in 18 U.S.C. § 2241(a)(1), the aggravated sexual abuse
statute. Cobenais argues that the instruction permitted the jury to convict him if it
found that A.J. did not agree to be injured during the course of the sexual act. Cobenais
maintains that the consent instruction effectively “told the jury . . . there can be ‘no
consent’ when injurious force is used during the course of the sex act; since force was
equated with injury, there could be no consent if injury occurred.” As a result,
Cobenais asserts, “consent was not possible in this case even if [the jury] found [that
he] and A[.]J[.] had engaged in mutually voluntary sexual activity up to the point of
the noncoital injurious sex act.” Because Cobenais “testified that the sex act did occur
and caused A[.]J[.]’s injuries,” Cobenais argues that the jury “was permitted, if not
required, to conclude then there was no way to negate the essential elements of
knowingly engaging in sexual activity by use of force.” In summary, Cobenais
contends that the “instruction misstated the elements of the offense, misstated the
defendant’s theory of defense, deprived Mr. Cobenais of a fair trial, and [this] requires
reversal for a new trial.”

“Generally, when evaluating jury instructions, we review for abuse of
discretion.” United States v. Gill, 513 F.3d 836, 849 (8th Cir. 2008). We review the
district court’s “interpretation of the law de novo.” United States v. Thetford, 806 F.3d
442, 446 (8th Cir. 2015), cert. denied, 137 S. Ct. 187 (2016). “In conducting such
review, this court must determine whether the instructions, taken as a whole and
viewed in light of the evidence and applicable law, fairly and adequately submitted the

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issues in the case to the jury.” United States v. Janis, 810 F.3d 595, 598 (8th Cir. 2016)
(quoting United States v. Beckman, 222 F.3d 512, 520 (8th Cir. 2000)).

Cobenais was convicted of violating 18 U.S.C. § 2241(a)(1), which provides that
“[w]hoever. . . knowingly causes another person to engage in a sexual act . . . by using
force against that other person . . . or attempts to do so, shall be fined under this title,
imprisoned for any term of years or life, or both.” “The elements of aggravated sexual
abuse are (1) the defendant did knowingly cause and attempt to cause another to
engage in a sexual act, (2) by the use of force or threat of force, (3) the defendant is an
Indian, and (4) the offense occurred in Indian Country.” United States v. Youngman,
481 F.3d 1015, 1020 (8th Cir. 2007).

Cobenais does not argue that the district court improperly instructed the jury on
the essential elements of the offense. Instead, Cobenais argues that the district court
erred by sua sponte giving the following theory-of-defense instruction on consent:

It is the Defendant’s position that on the morning of March 14,
2015, he and Jane Doe had consensual sexual relations and that he did not
use force against her to engage in sexual intercourse. There is no consent
if the sexual act was accomplished against the will of Jane Doe by the use
of force, coercion, or threats. Consent may be verbal or implied based on
the facts, circumstances, and evidence presented to you.

(Emphasis added.) Below, Cobenais conceded that “[t]he first sentence is
correct.”3 Cobenais took issue only with the remainder of the instruction—whether

3
While counsel argued at oral argument that he “inappropriately said the first
sentence is okay,” we hold counsel to his concession. Cf. Sensient Techs. Corp. v.
SensoryEffects Flavor Co., 613 F.3d 754, 763–64 (8th Cir. 2010) (“In light of
SensoryEffects’ concession before the district court on this point, we need not
consider its arguments on appeal challenging the strength of Sensient Flavors’
name.”). We note that counsel’s concession is in line with Cobenais’s theory of the

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“consent [exists] if the sexual act was accomplished against the will of Jane Doe by the
use of force, coercion, or threats.” We will therefore focus on the second sentence of
the theory-of-defense instruction.

First, Cobenais maintains that the instruction was improper because consent is
not an element of the offense. It is true that “the language of section
2241(a)(1) . . . does not include lack of consent as an element of the offense.” United
States v. Matthews, 1996 WL 457413, at *2, 95 F.3d 50, 50 (5th Cir. July 15, 1996)
(per curiam) (unpublished table decision). But the legislative history of § 2241(a)(1)
shows that Congress chose to remove lack of consent as an element because it wanted
to eliminate the doctrine of “resistance”; elimination of this doctrine was for the benefit
of the victim, not the perpetrator. See H.R. Rep. No. 99-594 at 10–11 (1986), as
reprinted in 1986 U.S.C.C.A.N. 6186, 6190–91 (“H.R. 4745 modernize[d] and
reform[ed] Federal rape provisions by . . . abandoning the doctrine[] of
resistance . . . .”). In summary, the government is not required “to show that the victim
did not consent to the sexual act” or that “the victim resisted” to prove a violation of
§ 2241. Id. at 13.

But Congress’s elimination of the traditional rape law doctrine of consent does
not mean that consent is irrelevant. “[A]ctual consent is relevant [in a trial under
§ 2241] to the extent it negates the required causation.” United States v. Martin, 528
F.3d 746, 753 (10th Cir. 2008).4 Section 2241(a)(1)’s “manifest purpose . . . is to

case, as evidenced by his counsel’s opening statement (calling the sexual act or
encounter “consensual” at least four times); Cobenais’s own testimony describing the
sexual act as consensual; and his counsel’s closing argument (calling A.J. a “willing
participant”).
4
In Martin, the defendant argued that a jury instruction setting forth the
elements of the offense “misstate[d] the law because [it] d[id] not make clear that the
statute applies only to non-consensual sex.” 528 F.3d at 752. The court acknowledged
that “the instructions do not use the word ‘consent,’” yet it was undisputed that “the

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criminalize sexual acts engaged in with a person whose will is not actually engaged but
is overcome by violence.” Norquay, 987 F.2d at 478. We have recognized that “[i]t will
. . . be a rare case indeed where the defense of reasonable mistake will be available,
since the need to employ force will necessarily indicate, as a general matter, a lack of
consent.” Id. (emphasis added) (holding reasonable mistake is an affirmative defense
requiring defendant to introduce some evidence of a reasonable basis for having made
a mistake).

Cobenais’s defense is predicated on A.J.’s alleged consent. He argues that she
agreed to have sex with him and that her injuries were not caused maliciously but as
the unintended consequence of the vigorous sexual activity that they pursued together.
“Force is an element of the offense of aggravated sexual abuse. The requisite force is
established ‘if the defendant overcomes, restrains, or injures the victim or if the
defendant uses a threat of harm sufficient to coerce or compel submission.’” United
States v. Gabe, 237 F.3d 954, 961 (8th Cir. 2001) (citation omitted) (quoting United
States v. Eagle, 133 F.3d 608, 610 (8th Cir. 1998)) (holding sufficient evidence existed
for a reasonable jury to conclude beyond a reasonable doubt that defendant used force
to accomplish sexual abuse when victim “testified that [defendant] forced her to have
sexual intercourse without her consent”). A.J.’s injuries, together with her testimony
about the perpetrator’s conduct, suffice to prove that Cobenais used sufficient force to
violate § 2241(a)(1). In summary, although consent is not an element, consent is
certainly relevant as its presence would negate the causal element under § 2241(a)(1),
and the need to employ force will necessarily indicate a lack of consent.

statute could [not] be applied to violent sex acts that are nonetheless consensual
between the parties.” Id. (citing United States v. Norquay, 987 F.2d 475, 478 (8th Cir.
1993), partially abrogated on other grounds, United States v. Thomas, 20 F.3d 817,
823 (8th Cir. 1994) (en banc). “Nonetheless,” the court held that “the instructions
taken as a whole correctly convey that the sex must be nonconsensual.” Id. The court
explained, “By requiring the government to prove that threat or force caused the
sexual act, the instructions correctly stated the law under § 2241(a).” Id. at 753.

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 Second, Cobenais argues that the second sentence of the district court’s
instruction improperly led the jury to find that no consent exists if Cobenais
accomplished an otherwise consensual act by force; that is, if both parties wanted to
engage in the inherently forceful act of “fisting.” We reject Cobenais’s reading of the
instruction. According to the instruction, a lack of consent exists “if the sexual act was
accomplished against” the victim’s will “by the use of force, coercion, or threats.”
(Emphases added.) But the theory-of-defense instruction must be read in conjunction
with the elements-of-the-offense instruction. Cf. Janis, 810 F.3d at 598. “[S]exual act”
is defined in the elements-of-the-offense instruction as “the penetration, however
slight, of the genital opening of another by hand or finger.” Thus, properly read, the
second sentence of the theory-of-defense instruction provides that there is no consent
if the penetration of A.J.’s genital opening by Cobenais’s hand or finger was
accomplished against A.J.’s will by Cobenais’s use of force, coercion, or threats. The
sexual act is therefore “accomplished” once the definition of sexual act is satisfied.

Furthermore, the instruction provides that the sexual act must be accomplished
“against the will” of the victim; this means that the victim did not want to engage in
the act. “[F]orce, coercion, or threats” modifies “against the will” of the victim. The
particular force used therefore lacks the victim’s consent. The second sentence of the
theory-of-defense instruction is consistent with the essential-elements instruction,
which advises the jury that it had to find that Cobenais “caused [A.J.] to engage in a
sexual act by using force.” (Emphases added.)

Finally, although Cobenais never requested a theory-of-defense instruction on
consent, the record demonstrates that consent formed the basis of his defense. In his
counsel’s opening statement, counsel for Cobenais called the sexual act or encounter
between A.J. and Cobenais “consensual” four times. In his own testimony, Cobenais
described the sexual act as consensual. And in closing argument, Cobenais’s counsel
referred to A.J. as a “willing participant.”

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 Because the instructions taken as a whole in this case clearly and adequately
explained the applicable law to the jury, we hold that the district court did not abuse
its discretion in providing the theory-of-defense instruction on consent.

B. Closing Argument
Cobenais also argues that the district court abused its discretion in refusing his
counsel’s reasonable request for additional time to complete closing argument, thus
depriving the jury of his full explanation of the presumption of innocence and proof
beyond a reasonable doubt.

“The limitation of time for arguments of counsel is within the sound discretion
of the trial judge.” United States v. Bednar, 728 F.2d 1043, 1049 (8th Cir. 1984). A
district court has “discretion in setting the time for closing argument based on its
assessment of the complexity of issues and evidence involved.” United States v. Alaniz,
148 F.3d 929, 935 (8th Cir. 1998). “A reversal may be required where counsel is
restricted within unreasonable bounds so that he is unable to fully and fairly present
his case.” Batsell v. United States, 403 F.2d 395, 401 (8th Cir. 1968) (quoting Butler
v. United States, 317 F.2d 249, 257 (8th Cir. 1963)). We have previously held that a
district court’s “limiting of counsel to one hour of argument on each side was
not . . . an abuse of discretion.” Id.

Here, we conclude that the district court did not abuse its discretion in holding
Cobenais’s counsel to the amount of time that he told the court he needed for closing
argument—one hour. See id. (“Here, the limiting of counsel to one hour of argument
on each side was not, in our opinion, an abuse of discretion. In granting additional time
thereafter, the court exercised substantial liberality with defense counsel . . . .”). The
district court advised counsel that it would hold him to that limit. The court did exactly
what it told defense counsel it would do—enforce the time limit. But the district court
even showed leniency by permitting defense counsel to go beyond that hour for the
purpose of concluding his closing argument. Furthermore, the record shows that before

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being urged to wrap up his closing argument, defense counsel had already discussed
the reasonable-doubt standard throughout his closing and had tied it to specific trial
evidence and issues. And, after the district court permitted counsel to wrap up his
closing, defense counsel discussed the presumption of innocence. After the district
court again informed defense counsel that his time was up and that he had 30 seconds
to conclude his argument, defense counsel reiterated the presumption of innocence and
reasonable-doubt standard. Finally, the total amount of time afforded to Cobenais’s
counsel was reasonable for a day-and-a-half trial.

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

KELLY, Circuit Judge, dissenting.

Because I believe that it was error for the district court to give a theory-of-
defense instruction on consent, I respectfully dissent.

The district court sua sponte, and over the strenuous objection of the defense,
drafted and gave the following instruction to the jury:

It is the Defendant’s position that on the morning of March
14, 2015, he and Jane Doe had consensual sexual relations
and that he did not use force against her to engage in sexual
intercourse. There is no consent if the sexual act was
accomplished against the will of Jane Doe by the use of
force, coercion, or threats. Consent may be verbal or
implied based on the facts, circumstances, and evidence
presented to you.

The court concedes that consent is not an element of the charge of aggravated
sexual abuse under 18 U.S.C. § 2241(a)(1). See United States v. Rivera, 43 F.3d 1291,
1298 (9th Cir. 1995). A defendant cannot “be convicted simply on a finding of

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non-consensual sexual activity.” United States v. Jones, 104 F.3d 193, 197–98 (8th
Cir. 1997). Rather, the defendant must cause the victim to engage in the sex act by
using force. Id. at 198. For the same reason, consent is not necessarily a total defense
to the charge. See Rivera, 43 F.3d at 1297–98. The most that can be said is that
“consent is relevant to the extent it negates the required causation.” Martin, 528 F.3d
at 753. But the jury instruction never explained the narrow relationship of consent to
the elements of the charge. Without such an explanation, there is a substantial risk that
the jury rested its verdict on an improper finding that A.J. did not consent. I believe
it was error for the district court to instruct on the concept of consent without
explaining how “consent related to the elements the jury was required to find.” Id.
(rejecting defendant’s proposed consent instruction because it “does not correctly
describe the role of consent in a trial under 18 U.S.C. § 2241”).

Properly defining consent was crucial in this case because Cobenais’ defense
was that he did not use force to coerce or compel sex; instead, the force used was
inherent in the consensual sexual act. Only the former is sufficient to convict under
§ 2241(a)(1). See United States v. Fire Thunder, 908 F.2d 272, 274 (8th Cir. 1990)
(“The force requirement of section 2241(a)(1) is met when the ‘sexual contact resulted
from a restraint upon the other person that was sufficient that the other person could
not escape the sexual contact.” (quotation omitted)).

The first sentence of the instruction confuses Cobenais’ theory. It states that
“[i]t is the Defendant’s position that” Cobenais “did not use force against [A.J.] to
engage in sexual intercourse.” The instructions elsewhere defined “force,” in part, as
“the use . . . of physical force sufficient to . . . injure a person.” Read together, these
instructions misrepresent Cobenais’ position, and he properly objected.5 In

5
The court concludes that Cobenais conceded that the first sentence of the
instruction was correct. After defense counsel’s initial objections, which are quoted
in the court’s opinion, the district court took the instructions under advisement. At a
follow up conference later that day—which the court does not quote from—the district

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contradiction with the instruction, and in support of his defense that the force itself was
consensual, Cobenais testified that he used physical force that injured A.J. while the
two engaged in a sexual act. Yet, the jury was told that Cobenais’ position was
contrary to his own testimony. By setting out a theory that defendant did not request
and asserting that the defendant supported it despite his objection and contrary
testimony, I believe the instruction misled the jury. See United States v. White, 863
F.3d 784, 790 (8th Cir. 2017) (en banc) (“We will reverse if the instructions contained
errors that misled the jury or had a probable effect on the jury’s verdict.” (internal
quotation omitted)); see also Quercia v. United States, 289 U.S. 466, 470 (1933) (trial
court’s “deductions and theories not warranted by the evidence should be studiously
avoided” (internal quotation omitted)).

The second sentence of the consent instruction is equally, if not more,
problematic. Instead of giving the jury a definition of consent, the second sentence is
framed in the negative, describing what would constitute a lack of consent. Again
reading in the definition of force, it states: “There is no consent if the sexual act was
accomplished against the will of [A.J.] by the use of [physical force sufficient to
injure], coercion, or threats.”6 The court focuses on the inclusion of the phrase

court asked for objections as to each instruction. At that time, defense counsel made
clear that he objected to the instruction in its entirety, stating: “I don’t think it’s
necessary. I don’t think it’s the law. I don’t think it’s accurate. I don’t think it’s
appropriate.”
6
The second sentence includes a misstatement of the law. Without narrowing
definitions, neither bare coercion nor simple threats are sufficient to warrant a
conviction under § 2241(a)(1). See Jones, 104 F.3d at 198 (holding that “the inclusion
of threats as a basis for conviction was error” in a jury instruction that was, in relevant
part, identical to the second sentence here); Fire Thunder, 908 F.2d at 274 (“Section
2241(a)(1) envisions actual force.”). By including these erroneous elements, the
instruction inserted “a false issue of magnitude sufficient to nullify proper
consideration of the issues” by the jury, and “a conviction so based cannot stand.”
Michaud v. United States, 350 F.2d 131, 134 (10th Cir. 1965).

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“accomplished against the will.” I agree that this language touches on the central
relationship between force and causation, but it fails to provide any meaningful
guidance to the jury.

This sentence—and the court—incorrectly suggest that there is no consent, i.e.,
that Cobenais’ purported defense fails, if the sexual act was accomplished by the use
of physical force and resulted in unwanted injury. But § 2241(a)(1) does not
criminalize those who willingly engage in forceful, or even violent, sexual activity with
other willing adults, even if that activity results in injury. Rather, the defendant must
“knowingly cause[] another person to engage in a sexual act . . . by using force against
that other person,” 18 U.S.C. § 2241(a)(1), such that the “other person could not escape
the sexual contact,” Fire Thunder, 908 F.2d at 274 (quotation omitted). The court
asserts that the second sentence is saved by the inclusion of the phrase “against the
will,” which it asserts is modified by the term “force.” But the court omits the
instructions’ definition of force, which includes “physical force . . . sufficient to injure
a person.” If the jury found only that the injury resulting from the sexual act was
“against [A.J.’s] will”—a reasonable conclusion, to be sure—such a finding is
insufficient to convict Cobenais for aggravated sexual abuse. Because the second
sentence of the jury instruction misstates the law and fails to explain the crucial
relationship of consent, force, and causation, I believe it was error to provide it to the
jury. See J. C. Carlile Corp. v. Farmers Liquid Fertilizer, Inc., 346 F.2d 91, 94 (8th
Cir. 1965) (“[A]n instruction which ignores a material issue in a case about which the
evidence is conflicting and allows the jury to find a verdict without considering that
issue, is misleading and prejudicial even though another instruction which correctly
presents that issue is contained in other parts of the charge.”).

Finally, although the government never raised harmless error, I conclude the
erroneous jury instruction was prejudicial to Cobenais, warranting a new trial. This is
not a case that presented overwhelming evidence of Cobenais’ guilt: A.J. told
numerous versions of the events of that night that were contradicted by Cobenais. By

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focusing the jury on consent, the district court’s instruction distracted the jury from the
elements of the charge and Cobenais’ actual defense. See United States v. Fykes, 678
F. App’x 677, 686 (10th Cir. 2017) (prejudice can be found “when an erroneous
instruction allowed the jury to improperly circumvent the defendant’s trial theory”).
The government exploited the misconceptions created by the consent instruction by
stating several times during closing—over Cobenais’ objection—that the use of
physical force during the sexual act meant the act was non-consensual and thus
Cobenais was guilty. T. Tr. 271 (“The issue here in this case boils down to this one
element. Was physical force used to perform the sexual act.”); id. at 275 (“[N]obody
is going to consent to having a fist shoved up their vagina and it rips them inside.
That’s what this case is about.”). The risk that the jury accepted the government’s
interpretation of the consent instruction is simply too significant to overlook in this
case. See United States v. Simpson, 845 F.3d 1039, 1061–62 (10th Cir. 2017) (finding
a likelihood of prejudice when the prosecutor invited the jury to consider the evidence
in a way that likely caused the jury to rely on the error in the jury instructions).
Because the erroneous instruction was prejudicial, I would reverse and remand for a
new trial.
______________________________

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