United States v. James

810 F.3d 674

UNITED STATES of America, Plaintiff–Appellant,

v.Christopher JAMES, Defendant–Appellee.

No. 13–10543.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 11, 2015.

Filed Jan. 14, 2016.

Dimitra H. Sampson (argued), Assistant United States Attorney; John S. Leonardo, United States Attorney; Mark S. Kokanovich, Deputy Appellate Chief, Phoenix, AZ, for Plaintiff–Appellant.

Keith J. Hilzendeger (argued), Assistant Federal Public Defender; Jon M. Sands, Federal Public Defender, Phoenix, AZ, for Defendant–Appellee.

Before: ALEX KOZINSKI and RICHARD C. TALLMAN, Circuit Judges and LAWRENCE L. PIERSOL,^* Senior District Judge.

Opinion by Judge TALLMAN

; Dissent by Judge KOZINSKI.

OPINION

TALLMAN, Circuit Judge:

Federal law lacks a generic statute addressing nonconsensual rape, as every state has. Instead, 18 U.S.C. § 2241 prohibits aggravated forcible sexual assault. 18 U.S.C. § 2242(2) covers the less frequent scenario where an assailant sexually assaults a victim who is (A) mentally incapable of understanding what is happening, or (B) physically incapable of resisting the assault. Under § 2242(2)(A), sexually assaulting a person whose mental capacity is such that one cannot form the necessary consent in many ways mirrors state statutory rape laws. The other subsection, § 2242(2)(B), however, covers the even more infrequent scenario where the victim who is sexually assaulted may have mental capacity to consent but is incapable of communicating a refusal of unwanted intercourse. We review the latter in greater depth today on a record of heart-wrenching facts.

The district court granted a motion for acquittal after the jury rendered a guilty verdict against Christopher James on two counts of sexual abuse of a severely disabled woman under 18 U.S.C. § 2242(2)(B). The court found insufficient evidence that the victim was "physically incapable" of resisting or declining to participate in the sexual assault by James. We hold that the district court erred in granting that acquittal, although we acknowledge that determining what constitutes physical incapacity under § 2242(2)(B) is a difficult issue of first impression in our circuit. Applying the familiar standard under Jackson v. Virginia, 443 U.S. 307, 320, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979), we hold, contrary to the district court's decision, that there was sufficient evidence to support the jury's determination by proof beyond a reasonable doubt that James violated the statute under which he was found guilty.

I

T.C.¹ is severely disabled by cerebral palsy. Although T.C. was twenty-eight years old at the time of the sexual assault, she cannot care for herself and needs assistance from others with all of the major activities of daily living, including eating, grooming, and using the bathroom. She cannot walk without assistance. She must be lifted in and out of her wheelchair, into which she is fastened with a seatbelt in order to keep her from falling out when her limbs spasm uncontrollably. When T.C. is in the wheelchair, she can only use her feet to move around. When not in the wheelchair, she "can scoot herself kind of Army style on the floor, or she sits with her legs outward and she'll hop." She has no use of her hands and is incapable of lifting heavy objects.

It is difficult even for those who know T.C. to communicate with her or to understand her attempts at speech. T.C.'s tongue is enlarged and her voice box is thicker than normal, thus making her largely non-verbal. She communicates primarily through nodding her head yes or no in response to questions and grunting. Her full time caretaker of eight and one-half years testified that her responses are frequently inappropriate or nonsensical to the questions or situation. Her uncle testified that T.C. sometimes "gets mad" and "kind of like growls and give[s] you the mean look" if he changes a channel away from a program she prefers watching on television. T.C.'s caretaker testified she "kn[ew] about" an instance where T.C. bit a person she did not like, and that T.C. can cry and express anger. When T.C. finishes using the toilet, she will moan or grunt to indicate she is done. These examples are reflective of the extent of T.C.'s communicability.

On August 3, 2011, a family member caught James having sex with T.C. on the porch of her grandparents' home, covered with only a blanket. The incident occurred inside the boundaries of the Fort Apache Reservation within Indian Country. Because James was adopted by the victim's grandparents—who also raised T.C. following the death of her mother during childbirth—T.C. is legally James' niece. The aunt who discovered James lying on top of T.C. called for an ambulance, which rushed T.C. to the nearest clinic for a medical examination. A sexual assault nurse examiner conducted a vaginal examination and observed that T.C. had torn tissue and was bleeding from a laceration. The nurse testified that T.C. was unresponsive to her efforts at the clinic to obtain a medical or event history.

James admitted to investigators that he had sex with T.C. During interviews with an agent from the Bureau of Indian Affairs ("BIA"), James confessed to removing T.C. from her wheelchair and lifting her onto a bed, after which he took off her pants and underpants, pulled down his pants, and penetrated her vaginally with his digit and penis. James also said he had been drinking, he was "ashamed," and it was not the victim's fault. In a written statement—introduced at trial—James wrote: "I'm ashamed and confusted [sic]. I don't know what made me do what I did.... I will not forgive me [sic] but I do ask God for forgiveness. [T.C.] is not to bleame [sic] either. She was incent [sic] of all things." When a BIA agent questioned James about the statement, James responded: "It was intercourse, but it wasn't like sex, you know? ... [W]ith her, she's just laying there but, I mean, you are inside her and you are moving up and down." James also informed the BIA agent that T.C. cannot talk, only "ma[ke] noises."

Because the sexual assault took place on the Fort Apache Indian Reservation, James could be indicted only by the federal government since the state of Arizona has no jurisdiction there. See United States v. Mitchell, 502 F.3d 931, 946 (9th Cir.2007) (noting that enacted statutes have given the federal government limited jurisdiction over certain major crimes committed on Native American land); cf. 18 U.S.C. § 1162 (noting Arizona is not one of the six enumerated states that have "jurisdiction over offenses committed by or against Indians in the areas of Indian country"). On November 1, 2011, a federal grand jury returned an indictment charging James with two counts of sexual abuse in violation of 18 U.S.C. § 2242(2)(B). For reasons unknown, the Government did not charge James in the indictment under § 2242(2)(A), nor did it offer an expert at trial to establish her cognitive impairments, relying instead on lay testimony from family members, caregivers, the nurse, and the BIA agent.

A three-day jury trial began on July 30, 2013. The investigating BIA agent testified that he was unable to ask T.C. about the event because he could not communicate with her, but he videotaped his contact with her and that was shown to the jury during the trial.² The jury returned a guilty verdict on both counts of sexual abuse. Though James moved for a judgment of acquittal under Federal Rule of Criminal Procedure 29(a) both at the close of the Government's case and again at the close of trial, the district court reserved its ruling on both occasions to await the jury's verdict. The jury convicted. After post-trial briefing and oral argument, the district court granted James' Rule 29 motion and entered its Judgment of Acquittal on September 26, 2013. The Government timely appealed. We have jurisdiction under 28 U.S.C. § 1291, and we reverse.

II

We review de novo a district court's ruling on a motion for acquittal. United States v. Sanchez, 639 F.3d 1201, 1203 (9th Cir.2011). We review evidence presented against the defendant in the light most favorable to the Government to determine whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Mincoff, 574 F.3d 1186, 1192 (9th Cir.2009) (internal quotation omitted).

III

Congress promulgated 18 U.S.C. § 2242 in 1986 as part of its effort to "modernize and reform Federal rape statutes." H. Rep. No. 99–594, at 6 (1986). It states in relevant part:

Whoever, in the special maritime and territorial jurisdiction of the United States³ ... knowingly—

(1) causes another person to engage in a sexual act by threatening or placing that other person in fear (other than by threatening or placing that other person in fear that any person will be subjected to death, serious bodily injury, or kidnapping); or

(2) engages in a sexual act with another person if that other person is —

(A) incapable of appraising the nature of the conduct; or

(B) physically incapable of declining participation in, or communicating unwillingness to engage in, that sexual act;

or attempts to do so, shall be fined under this title and imprisoned for any term of years or for life.

18 U.S.C. § 2242 (emphasis added).⁴ Because the Government indicted James under only subsection (2)(B)—physical incapacity—rather than subsection (2)(A)—mental incapacity—the jury could convict James only if it deemed T.C. physically incapable of resisting or communicating her lack of consent.

This case turns on the breadth of the "physically incapable" standard in § 2242(2)(B) for punishing a sexual act with an individual with the physical incapacity to decline participation in or communicate unwillingness to engage in the act.⁵ The statutory definitions provided in 18 U.S.C. § 2246 do not define "physically incapable," nor did Congress provide context for this term in the legislative history. While no federal court has definitively addressed the issue, we...