IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-50520
Summary Calendar
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
CARLOS DION MATTHEWS,
Defendant-Appellant.
_________________________________________________________________
Appeal from the United States District Court for the
Western District of Texas
(W-95-CR-20)
_________________________________________________________________
July 15, 1996
Before JOLLY, JONES, and STEWART, Circuit Judges.
PER CURIAM:*
Carlos Dion Matthews appeals his jury convictions for
aggravated sexual abuse and kidnaping in violation of 18 U.S.C. §§
1201(a)(2), 2241(a)(1) and 2246. Matthews raises two arguments on
appeal. He first argues that the district court committed
reversible error by failing to instruct the jury that the lack of
a victim's consent is an essential element to the crime of
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
aggravated sexual abuse. Second, Matthews claims that there is
insufficient evidence to prove that the acts occurred at Fort Hood,
Texas, a location subject to the special maritime and territorial
jurisdiction of the United States. We affirm the convictions.
I
At trial, two government witnesses testified that they were
the victims of Matthews's sexual attacks. One witness, a fifteen-
year-old female, testified that she met Matthews one night at a
dance club and agreed to drive with him to a store. Instead,
Matthews drove her to a secluded country road, parked the car and,
following a struggle, raped her. Matthews then drove the victim
back to the dance club and released her at about 4:00 a.m. Early
that morning, the victim directed local police and military
officers to the site of her attack. Both groups of investigators
agreed that the attack site was within the boundaries of Fort Hood
and testified accordingly at trial.
The government's second witness testified that she met
Matthews at a dance club and that, on the pretext of driving to a
restaurant, he drove her to a field. Matthews parked the car on a
dirt road and began making sexual advances toward the witness. She
testified that a struggle ensued, and she managed to escape. The
next day, she directed a Fort Hood criminal investigator to the
attack site. The investigator testified at trial that the location
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was within Fort Hood's boundaries.
A jury convicted Matthews of one count of aggravated sexual
abuse and two counts of kidnapping on a federal reservation. He
was sentenced to 210 months of imprisonment, which is to be
followed by five years of supervised release.
II
Matthews argues that the district court erred by not
instructing the jury that the victim's lack of consent was an
essential element to proving the crime of aggravated sexual abuse.
The record indicates, however, that defense counsel expressly
stated at trial that he had no objections to the proposed jury
charge. In the light of Matthews's failure to object, this issue
is subject to the plain error standard of review. FED. R. CRIM. P.
52(b).
In reviewing for plain error, an appellate court has
discretion to correct unobjected-to errors only when the appellant
has shown that there is an error, the error is "clear" or "obvious"
and it affects substantial rights. United States v. Calverley, 37
F.3d 160, 162-64 (5th Cir. 1994) (en banc) (citing United States v.
Olano, 507 U.S. 725, 731-37 (1993)), cert. denied, 115 S.Ct. 1266
(1995). Based on our review of the record and our reliance on
persuasive precedent, we hold that Matthews has failed to show any
error regarding the district court's failure to instruct the jury
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on a victim's lack of consent in connection with the sexual abuse
charges against Matthews.
In reaching our conclusion, we adopt the reasoning of the
Ninth Circuit in United States v. Rivera, 43 F.3d 1291, 1297-98
(9th Cir. 1995). In that case, the Ninth Circuit held that a
district court's jury charge fairly and adequately covered the
issues presented at trial notwithstanding the court's refusal to
instruct the jury that consent was a defense to the crime of
aggravated sexual abuse under 18 U.S.C. § 2241(a). The Ninth
Circuit noted that the legislative history of the sexual abuse
statute "reveals that `[l]ack of consent by the victim is not an
element of the offense, and the prosecution need not introduce
evidence of lack of consent or of victim resistance.'" Rivera, 43
F.3d at 1298 (quoting H.REP.NO. 594, 99th Cong., 2d Sess. 14,
reprinted in 1986 U.S.C.C.A.N. 6186, 6194).
In this case, the district court's instruction fairly and
adequately tracked the language of section 2241(a)(1), which does
not include lack of consent as an element of the offense. Id.; 18
U.S.C. § 2241(a)(1) (West Supp. 1996). Matthews, who failed to
object to the district court's proposed jury instructions when he
was given the opportunity, has no ground for now claiming
reversible error.
III
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Matthews also argues that there was insufficient evidence to
prove that the offenses occurred within the territorial boundaries
of Fort Hood. Without citing authority to support his position,
Matthews argues that the government failed to prove its case (and
that the federal district court therefore lacked jurisdiction)
because surveys and original land grants were not used to establish
the location of the offenses.
Matthews moved for a judgment of acquittal after the
government rested its case in chief but failed to renew his motion
at the close of all the evidence. In this procedural posture, we
can review his challenge to the sufficiency of the evidence only to
determine whether there was a manifest miscarriage of justice.
United States v. Shaw, 920 F.2d 1225, 1230 (5th Cir.), cert.
denied, 500 U.S. 926 (1991). "Such a miscarriage would exist only
if the record is devoid of evidence pointing to guilt, or . . .
because the evidence on a key element of the offense was so tenuous
that a conviction would be shocking." United States v. Pierre, 958
F.2d 1304, 1310 (5th Cir.) (en banc) (internal quotations and
citations omitted), cert. denied, 506 U.S. 898 (1992).1
1
This court has questioned whether the "miscarriage of
justice" standard is distinguishable from the "sufficiency of
evidence" standard employed if a defendant does make a motion for
acquittal at the conclusion of the trial. See United States v.
Pennington, 20 F.3d 593, 597 n.2 (5th Cir. 1994). However, because
only the court sitting en banc can reverse precedent, Matthews's
insufficiency claim must be reviewed under the "miscarriage of
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Both victims and three investigating officers (one from the
local police and two from the military) testified regarding the
locations of the offenses. Each officer testified that the
offenses occurred within the boundaries of Fort Hood. In addition,
a senior civil engineer and registered land surveyor for the Fort
Hood Engineering Branch testified that the locations indicated by
the victims as the attack sites were within Fort Hood's boundaries.
In sum, this record is replete with--rather than devoid of--
evidence that the offenses occurred on Fort Hood.
Accordingly, Matthews's claims are denied and his convictions
are
A F F I R M E D.
justice" standard. See United States v. Laury, 49 F.3d 145, 151 &
n.15 (5th Cir.), cert. denied, 116 S.Ct. 162 (1995).
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