United States v. Wells

38 F.4th 1246

UNITED STATES of America, Plaintiff - Appellee,

v.David Sidney WELLS, Defendant - Appellant.

No. 20-1228

United States Court of Appeals, Tenth Circuit.

FILED July 6, 2022

Ty Gee (Jenny Braun with him on the briefs), Haddon, Morgan and Foreman, P.C., Denver, Colorado, for Defendant-Appellant.

Jeffrey K. Graves, Assistant U.S. Attorney (Jason R. Dunn, United States Attorney, with him on the brief), Durango, Colorado, for Plaintiff-Appellee.

Before MATHESON, MURPHY, and MORITZ, Circuit Judges.

MURPHY, Circuit Judge.

I. INTRODUCTION

David Wells brutally assaulted his wife, V.W. A grand jury issued an indictment charging Wells with committing: (1) aggravated sexual abuse in "Indian country,"¹ in violation of 18 U.S.C. §§ 2241(a)(1) and 1153 ; (2) assault with the intent to commit aggravated sexual abuse in Indian country, in violation of 18 U.S.C. §§ 113(a)(1) and 1153 ; (3) assault resulting in serious bodily injury in Indian country, in violation of 18 U.S.C. §§ 113(a)(6) and 1153 ; and (4) assault with a dangerous weapon in Indian country, in violation of 18 U.S.C. §§ 113(a)(3) and 1153. After a petit jury convicted Wells on all four counts, the district court sentenced him to a lengthy term of incarceration. Wells appeals, challenging his convictions and sentence. None of Wells's challenges to his conviction are meritorious. At sentencing, however, the district court erred in adjusting upward Wells's total offense level on the basis Wells obstructed justice when he violated an order directing that he have no contact with V.W. See U.S.S.G. § 3C1.1. Accordingly, this court exercises jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a) and remands the matter to the district court for the narrow purpose of vacating Wells's sentence and conducting any further necessary proceeding with regard to the § 3C1.1 obstruction-of-justice adjustment.

II. GENERAL BACKGROUND²

Wells and V.W. are married and considered "Indians" under federal law. See supra n.1. On March 9, 2019, Wells and V.W. were alone at Wells's house on the Ute Mountain Ute Indian Reservation. Wells accused V.W. of being pregnant by another man. Frightened, V.W. told Wells she wanted to leave. Wells responded: "get the fuck out of my house, bitch." When V.W. tried to flee through the kitchen, Wells tackled her in the doorway. Wells dragged V.W. by her hair through the kitchen and into a back bedroom filled with children's toys (the "toy room"). Wells told V.W. she "wasn't leaving, and that he was going to kill [her]." Once in the toy room, V.W. broke free from Wells and, again, tried to escape through the kitchen door. Wells caught her and, for a second time, dragged her by her hair through the kitchen to the toy room. This same pattern of events then repeated for a third time.

During V.W.'s third escape attempt, Wells retrieved a wooden "club" from the kitchen.³ Once secluded in the toy room with V.W., Wells struck her repeatedly with the club, telling her "[she] wasn't making it out of there walking or alive." Wells beat V.W.'s head and legs with the club until she was bloody. The beating caused V.W. to suffer intense pain. Wells eventually pushed V.W. onto the floor of the toy room. Wells then repeatedly kicked V.W. in the stomach, telling her if there was "any chance [she] was pregnant that the baby would be dead." As V.W. lay on the floor, bloody and beaten, Wells ripped off her pants. He attempted to shove the wooden club inside her vagina, asking if "that's how it felt" when she was with her "little boyfriend." Next, Wells inserted his fingers into V.W.'s vagina. Finally, Wells climbed on top of V.W., placed his hands around her neck, and said "[h]e was going to kill [her]." V.W. eventually lost consciousness.

After an unknown amount of time, V.W. awoke on the floor of the toy room in a pool of her own blood, naked from the waist down. V.W. dressed, washed the blood from her face, walked to a neighbor's house, and called the police. A Bureau of Indian Affairs ("BIA") officer responded to the call. The officer immediately noticed injuries to V.W. and called an ambulance. V.W. told the officer Wells "beat her up" using a wooden object. V.W. testified she did not report the sexual abuse at that time because "it was too shameful." An ambulance took V.W. to a hospital in Cortez, Colorado. The BIA officer found Wells at a nearby residence. Wells tried to hide in a bedroom and gave a false name. His shorts and shoes were covered in blood and he had noticeably swollen knuckles. Later that day, while being driven to Shiprock, New Mexico, for medical clearance, Wells said "I fucked up. ... I'm sorry, I didn't mean to do that."

A BIA Special Agent spoke to V.W. at the hospital. V.W. described Wells's attack consistently with her trial testimony, but again omitted Wells's acts of sexual abuse because of shame. Due to the severity of V.W.'s injuries, doctors cut the interview short to life-flight V.W. to St. Anthony's Hospital in Lakewood, Colorado. Upon her arrival at St. Anthony's, V.W. was examined by Dr. Rebecca Vogel, a trauma surgeon. V.W. told Vogel her injuries were the result of the attack by Wells and said she "hurt all over." Vogel noted the existence of numerous traumatic injuries, including bruising, swelling, and bleeding all over V.W.'s body. A CAT scan of V.W.'s face revealed a broken orbital bone with bone fragments and blood in her sinus cavity. A scan of V.W.'s abdomen and pelvis showed "a lot of inflammation as well as some blood in the area and swelling" in the duodenum. Vogel admitted V.W. to the hospital's intensive care unit. V.W. remained at the hospital for three days, undergoing "[c]ontinued examinations of her abdomen, as well as ensuring that she could tolerate food and water and drinking." V.W. consented to an exam by a qualified sexual assault nurse examiner. The nurse documented a host of injuries, including a 1.5-centimeter laceration on V.W.'s labia minora consistent with blunt force trauma inflicted at the time of Wells's attack.

A federal grand jury issued a four-count indictment charging Wells with aggravated sexual abuse, assault with the intent to commit aggravated sexual abuse, assault resulting in serious bodily injury, and assault with a dangerous weapon. See supra Section I (setting out the charges against Wells). Following a jury trial, Wells was convicted on all four counts. During sentencing proceedings, the district court concluded Wells's advisory guidelines range under the United States Sentencing Guidelines was a term of life imprisonment. Despite labeling Wells a "habitual violent domestic abuser" whose criminal history was "substantially understated and underrepresented" by the advisory guidelines range, the district court varied downward to a sentence of 360 months' imprisonment after analyzing the factors set out in 18 U.S.C. § 3553(a).

III. ANALYSIS

A. Challenges to Convictions

1. Waived/Invited Claims of Error

Wells argues that the district court erred in instructing the jury on the elements of the §§ 2241(a)(1) and 113(a)(1) charges. Wells invited both of these alleged instructional errors and has, therefore, waived appellate review of the propriety of both instructions.

a. § 2241(a)(1) Instruction

Section 2241(a)(1) prohibits "knowingly caus[ing] another person to engage in a sexual act[ ] by using force against that other person." Prior to trial, the parties submitted to the court a package of stipulated jury instructions. R. Vol. I at 204-41.⁴ As relevant here, stipulated Instruction No. 9 provided as follows:

To find defendant guilty of this crime, the government must prove each of the following five (5) essential elements beyond a reasonable doubt:

First : that defendant caused [V.W.] to engage in a sexual act; and,

Second : that defendant acted knowingly in causing [V.W.] to engage in the sexual act; and,

Third : that defendant did so by using force against [V.W.]; and,

Fourth : that defendant is an Indian under federal law; and,

Fifth : that the act occurred within the exterior boundaries of the Ute Mountain Ute Indian Reservation.

R. Vol. I at 222. Immediately prior to the formal charging conference, the district court noted it would not take long to review the proposed jury instructions "[b]ecause many of the instructions are, in fact, stipulated." R. Vol. VIII at 679. The district court did note, however, that the stipulated instructions "may be slightly massaged or tweaked by the Court." Id. During the formal charging conference, the district court inquired whether either party had any objections to proposed Instruction No. 12, the district court's version of the parties' stipulated Instruction No. 9, and both defense counsel and the government disclaimed any objection. Thus, with only the most trivial stylistic changes, the district court provided to the jury the parties' stipulated elements instruction.

For the first time on appeal, Wells asserts the district court committed plain error in misinstructing the jury as to the essential elements of a § 2241(a) charge. According to Wells, the district court should have instructed the jury that not only did the government have to prove that Wells acted knowingly in causing V.W. to engage in a sexual act, but also that he did so by knowingly using force. Because Wells invited the alleged error, he has waived appellate review. "Under the invited error doctrine, this [c]ourt will not engage in appellate review when a defendant has waived his right to challenge a jury instruction by affirmatively approving it at trial. A party that has forfeited a right by failing to make a proper objection may obtain relief for plain error; but a party that has waived a right is not entitled to appellate relief." United States v. Cornelius , 696 F.3d 1307, 1319 (10th Cir. 2012) (quotation and alteration omitted).

Wells claims he did not waive his asserted instructional error because the record does not demonstrate that his attorney affirmatively stipulated to...