Untitled 1

United States v. Bordeaux, 1996 DSD 1

UNITED STATES OF AMERICA,
Plaintiff,
v.
SYLVESTER LOUIS BORDEAUX,
a/k/a Mano Bordeaux, Defendant.
[1996 DSD 1]

United States District Court
District of South Dakota - Western Division
CR. 95-50020

MEMORANDUM OPINION AND ORDER

Filed Jan 9, 1996

Richard L. Battey, District Judge

FACTS

[¶1] On April 13, 1995, defendant was indicted for the offense of attempted aggravated sexual abuse by force, in violation of 18 USC § 2241(a)(1). At trial, defendant requested the Court to also instruct the jury on abusive sexual contact by force in violation of 18 USC § 2244(a)(1). The Court, without objection from either defense counsel or the government, submitted the following lesser included instruction for abusive sexual contact by force: If your verdict under these instructions is not guilty, or if, after all reasonable efforts you are unable to reach a verdict, you should record that decision on the verdict form and go on to consider whether defendant is guilty of the crime of abusive sexual contact under this instruction. The crime of abusive sexual contact, a lesser included offense of the crime charged in the indictment, has the following essential elements, which are:

1. That on or about the 7th day of August, 1994, defendant knowingly engaged in or caused sexual contact with Jennifer Iron Teeth. 2. That the defendant is an Indian. 3. That the offense took place in Indian country. For you to find defendant guilty of abusive sexual contact, the government must prove all of these essential elements beyond a reasonable doubt; otherwise you must find the defendant not guilty of abusive sexual contact. Jury Instruction No. 8A.

[¶2] During jury deliberations, the jury submitted several questions to the Court evidencing the difficulty they were having in reaching a unanimous verdict on the attempted aggravated sexual abuse by force count (Docket # 77, 78, 79, 80). One such question set forth that, “instruction #8A states, in part, ... if, after all reasonable efforts you are unable to reach a verdict, you should record that decision on the verdict form and go on ... . The verdict form offers two choices, i.e. _NOT GUILTY _GUILTY--how is this decision to be recorded?” (Docket #79). The Court responded by informing the jury that if they were unable to reach a verdict on attempted aggravated sexual abuse by force to “record it by saying so in whatever manner you choose.” (Docket #80). Following the Court’s instruction, the jury set forth on the verdict form that “[a]fter all reasonable efforts, we, the jury, were unable to reach a verdict on the charge ‘Attempted Aggravated Sexual Abuse.’” The jury then returned a verdict of guilty on the offense of abusive sexual contact by force, 18 USC § 2244(a)(1).

[¶3] Prior to sentencing, the Court was informed by defense counsel that jury instruction 8A which set forth the elements for abusive sexual contact by force was erroneous in that it failed to include the necessary element of force. See 18 USC § 2244(a)(1). On October 19, 1995, a hearing was held in order to take issue with the erroneous instruction. At the hearing, it was established that the instruction was in fact erroneous, and additional concerns surfaced as to whether the Eighth Circuit’s decision of United States v. Amos, 952 F2d 992 (CA 8, 1991), could be construed to stand for the proposition that abusive sexual contact by force is not a lesser included offense for attempted aggravated sexual abuse by force. The Court further noted that although the defendant has not filed a motion for a retrial, the Court may move, sua sponte, for a retrial of the defendant. The defendant argues that a new trial on the charge of attempted aggravated sexual abuse by force would violate his Fifth Amendment double jeopardy rights. Both parties have briefed the double jeopardy issue; therefore, the Court will dispose of this matter.

DISCUSSION

[¶4] There are two issues for consideration before determining whether a new trial on the charge of attempted aggravated sexual abuse by force would violate defendant’s Fifth Amendment double jeopardy rights. First, the Court must determine whether abusive sexual contact by force as set forth in 18 USC § 2244(a)(1) is a lesser included offense of attempted aggravated sexual abuse by force as specified in 18 USC § 2241(a)(1). Second, if abusive sexual contact by force is a lesser included offense then the Court must resolve whether the jury’s guilty verdict on the erroneously instructed lesser offense coupled with its failure to reach a verdict on the greater charge of attempted aggravated sexual abuse by force constitutes an implied or implicit acquittal as to the greater offense. If the Court answers both issues in the affirmative, the government is foreclosed from further prosecution on the attempted aggravated sexual abuse by force charge.

A. LESSER INCLUDED OFFENSE

[¶5] The first issue to be resolved by the Court is whether abusive sexual contact by force as set forth in 18 USC § 2244(a)(1) is a lesser included offense of attempted aggravated sexual abuse by force as specified in 18 USC § 2241(a)(1). The resolution of this matter has significant implications given the general rule that a conviction on a lesser included offense implies an acquittal of the greater offense. Illinois v. Vitale, 447 US 410, 421, 100 SCt 2260, 2267, 65 LEd2d 228 (1980).

[¶6] It is well established that “[a]n offense is a lesser included offense if its elements form a subset of the elements of the charged offense.” United States v. Emmert, 9 F3d 699, 703 (CA 8, 1993) (citing United States v. Cavanaugh, 948 F2d 405, 409 (CA 8, 1991); Schmuck v. United States, 489 US 705, 716, 109 SCt 1443, 1450, 103 LEd2d 734 (1989)).

[¶7] The offense of aggravated sexual abuse is defined in 18 USC § 2241(a) as follows: § 2241. Aggravated sexual abuse (a) By force or threat.--Whoever, in the ... territorial jurisdiction of the United States ..., knowingly causes another person to engage in a sexual act-- (1) by using force against that other person; or (2) by threatening or placing that other person in fear that any person will be subjected to death, serious bodily injury, or kidnapping; or attempts to do so, shall be fined under this title, imprisoned for any term of years or life, or both. Defendant was charged in the indictment with attempted aggravated sexual abuse by force, in violation of this statute. The element of force as required by section 2241(a)(1) is distinguishable from the element of fear specified in section 2241(a)(2). Amos, 952 F2d at 994; United States v. Lauck, 905 F2d 15, 18 (2d Cir. 1990) (distinguishing the element of force from the element of fear)).

[¶8] The offense of abusive sexual contact is defined in 18 USC § 2244(a)(1) as follows: § 2244. Abusive sexual contact (a) Sexual contact in circumstances where sexual acts are punished by this chapter.--Whoever, in the ... territorial jurisdiction of the United States ... , knowingly engages in or causes sexual contact with or by another person, if so to do would violate-- (1) section 2241 of this title had the sexual contact been a sexual act, shall be fined under this title, imprisoned not more than ten years, or both... . At defendant’s trial, the Court included instruction 8A as the lesser included instruction for abusive sexual contact by force, in violation of § 2244(a)(1); however, the necessary element of force was not included in the Court’s instruction. In this the Court erred which permitted the jury to return a verdict in the absence of finding the existence of the element of force. As with attempted aggravated sexual abuse by force, there is no required showing of fear as specified in § 2241(a)(2) when the offense is abusive sexual contact by force.

[¶9] A “sexual act” is defined in 18 USC § 2246 as follows: § 2245. Definitions for chapter3. The Court notes that 18 USC § 2245 has since been renumbered § 2246 by Pub.L 103- 222, Title VI, § 60010(a)(1), Sept. 13, 1994, 108 Stat. 1972. However, for purposes of this decision, the Court will make reference to § 2245 since that was the proper codification at the time of the alleged wrongful conduct in this case.{fn3} As used in this chapter-- ... (2) the term “sexual act” means-- (A) contact between the penis and the vulva or the penis and the anus, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however slight; (B) contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus; or (C) 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... . (3) the term “sexual contact” means 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... .

[¶10] Defendant contends that the Eighth Circuit decision of United States v. Demarrias, 876 F2d 674 (CA 8, 1989), establishes that abusive sexual contact by force is a lesser included offense of aggravated sexual abuse by force. In that case, defendant Demarrias was indicted for two counts of aggravated sexual abuse, in violation of 18 USC § 2241(a), and two counts of sexual abuse of a minor, in violation of 18 USC § 2243(a). Id. at 675. The main focus of the Demarrias decision centered on the intent language appearing in the definitions of both “sexual act” and “sexual contact.” Id. at 676. The Eighth Circuit ultimately concluded that abusive sexual contact as defined in section 2244(a)(1) is a lesser included offense of aggravated sexual abuse as defined in section 2241(a) since it is not possible to commit a “sexual act” without engaging in “sexual contact.” Id. Similar issues again surfaced in United States v. Two Bulls, 940 F2d 380 (CA 8, 1991), a case in which the Eighth Circuit relying on its prior decision in Demarrias stated that, “[i]t is undisputed that abusive sexual contact is a lesser included offense of aggravated sexual abuse.” Two Bulls, 940 F2d at 381 (citing Demarrias, 876 F2d at 676). Defendant Two Bulls was convicted of aggravated sexual abuse of a minor in violation of 18 USC § 2241(c). Id. at 381. Two Bulls grounded his appeal on the trial judge’s failure to instruct the jury as to the lesser included offense of abusive sexual contact in violation of 18 USC § 2244(a)(1). Id. In affirming Two Bull’s conviction, the Eighth Circuit set forth that “[a]lthough it is obvious that any sexual act will necessarily involve sexual contact, an independent requirement, as stated in Schmuck, is to show the existence of evidence that would support a jury’s finding of sexual contact without finding that a sexual act resulted from the same conduct.” Id.

[¶11] The government contends that the underlying rationale of the Eighth Circuit’s decision in United States v. Amos, 952 F2d 992 (CA 8, 1991), establishes that abusive sexual contact by force is not a lesser included offense of aggravated sexual abuse by force. The government’s reliance on Amos is misplaced. In Amos, the defendant was convicted of aggravated sexual abuse by force in violation of 18 USC § 2241(a)(1). Id. at 993. Amos based his appeal on the trial judge’s failure to instruct the jury on what he purported to be the lesser included offense of sexual abuse, as set forth in of 18 USC § 2242(1). Id. at 994. The offense of sexual abuse is committed when a defendant causes a victim to engage in a sexual act by threatening or placing the victim in fear as specified in 18 USC § 2242(1). In concluding that sexual abuse was not a lesser included offense of aggravated sexual abuse by force, the Amos court set forth that Although threatening or placing the victim in fear is an element of sexual abuse, it is not a necessary element of aggravated sexual abuse by force. Unlike sexual abuse, aggravated sexual abuse by force can be committed without the kind of threat or fear required by 18 USC § 2242(1). Thus, the elements of sexual abuse are not a subset of the elements of aggravated sexual abuse by force. Id.

[¶12] By contrast, both attempted aggravated sexual abuse by force and abusive sexual contact by force require the necessary element of force, rather than the element of fear as required by the offense of sexual abuse. As previously set forth, aggravated sexual abuse by force is committed when a person knowingly uses force to engage in a sexual act with a victim. 18 USC § 2241(a)(1). Abusive sexual contact by force is committed when a person knowingly engages in or causes sexual contact with another person by the use of force. 18 USC § 2244(a)(1). Eighth Circuit precedent has established that any sexual act will necessarily involve sexual contact. Two Bulls, 940 F2d at 381. By definition the elements of abusive sexual contact by force as specified in section 2244(a)(1) do form a subset of the elements of aggravated sexual abuse by force as set forth in section 2241(a)(1). See Emmert, 9 F3d at 703 (citing Cavanaugh, 948 F2d at 409; Schmuck, 109 SCt at 1450 (establishing that an offense is a lesser included offense only if its elements form a subset of the elements of the charged offense)). Since abusive sexual contact by force is a lesser included offense, the Court must determine whether retrial on the hung charge of aggravated sexual abuse by force will violate the Double Jeopardy Clause.4. Since the Court has found abusive sexual contact by force to be a lesser included of aggravated sexual abuse by force, the Court need not address the proposition that even though two offenses are not strictly speaking greater and lesser included offenses, they may be sufficiently analogous to greater and lesser included offenses to trigger concerns under the Double Jeopardy Clause. See generally United States v. Dixon, US , 113 SCt 2849, 2857, 125 LEd2d 556 (1993) (opn. of Scalia, J., joined by Kennedy, J.); Vitale, 100 SCt at 2267; Harris v. Oklahoma, 433 US 682, 682-83, 97 SCt 2912, 2923, 53 LEd2d 1054 (1977) (cases discussing the concept of “species of lesser-included offense”). {fn4} See Richardson v. United States, 468 US 317, 324, 104 SCt 3081, 3085, 82 LEd2d 242 (1984) (recognizing that a retrial following a “hung jury” does not violate the Double Jeopardy Clause).

B. IMPLICIT ACQUITTAL

[¶13] Pursuant to the Double Jeopardy Clause, no person shall “be subject for the same offence [sic] to be twice put in jeopardy of life or limb ... .” US Const. amend. V. According to Chief Justice Rehnquist, “[d]espite its roots in antiquity, however, this guaranty [against double jeopardy] seems both one of the least understood and ... most frequently litigated provisions of the Bill of Rights.” Whalen v. United States, 445 US 684, 699, 100 SCt 1432, 1442, 63 LEd2d 715 (1980) (Rehnquist, J., dissenting). The Eighth Circuit Court of Appeals has recently set forth that “As an aid to the decision of cases in which the prohibition of the Double Jeopardy Clause has been invoked, the courts have found it useful to define a point in criminal proceedings at which the constitutional purposes and policies are implicated by resort to the concept of ‘attachment of jeopardy.’” Serfass v. United States, 420 US 377, 388, 95 SCt 1055, 1062, 43 LEd2d 265 (1975). The Supreme Court has held that “[i]n the case of a jury trial, jeopardy attaches when a jury is empaneled and sworn... .” See Ricketts v. Adamson, 483 US 1, 8, 107 SCt 2680, 2685, 97 LEd2d 1 (1987). It follows, of course, only if jeopardy has attached “does any subsequent prosecution of the defendant bring the guarantee against double jeopardy even potentially into play.” Crist v. Bretz, 437 US 28, 33, 98 SCt 2156, 2159, 57 LEd2d 24 (1978). Bally v. Kemna, 65 F3d 104, 106-07 (CA 8, 1995) (holding that a defendant’s guilty plea to the lesser included offense of driving while intoxicated did not constitute an implied acquittal of vehicular assault and manslaughter charges). In defendant’s case, jeopardy has clearly attached since in his first trial on the charge of attempted aggravated sexual abuse by force, the jury was both empaneled and sworn. However, the continuing jeopardy rule will permit a subsequent trial on the section 2241(a)(1) charge if the “‘criminal proceedings against [defendant] have not run their full course.’” United States v. Williams, 534 F2d 119, 121 (1976) (holding that a defendant’s guilty plea to the lesser included offense of bank robbery did not constitute an implied acquittal of the greater offense of aggravated bank robbery) (citing Price v. Georgia, 398 US 323, 326, 90 SCt 1757, 1759, 26 LEd2d 300 (1970); Green v. United States, 355 US 184, 189, 78 SCt 221, 224-25, 2 LEd2d 199 (1957)).

[¶14] Defendant asserts that the jury’s guilty verdict on the erroneously instructed lesser included abusive sexual contact by force offense coupled with its failure to reach a verdict on the attempted aggravated sexual abuse by force charge constitutes an implied or implicit acquittal as to the greater offense. To support his contention, defendant relies on the Supreme Court decisions of Green v. United States, 355 US 184, 78 SCt 221, 2 LEd2d 199 (1957) and Price v. Georgia, 398 US 323, 90 SCt 1757, 26 LEd2d 300 (1970). In Green, the defendant was charged with one count of arson and one count of first degree murder. Green, 78 SCt at 222. The trial judge instructed the jury that it could find defendant guilty of arson under the first count and guilty of either first degree murder or second degree murder under the second count. Id. Green was convicted of both arson and second degree murder. Id. at 223. The jury did not find defendant guilty on the charge of first degree murder; rather, “[i]ts verdict was silent on that charge.” Id. The conviction was reversed on appeal, and the government elected to retry Green on the charge of first degree murder. Id. At the second trial, Green was convicted of first degree murder. Id. The Supreme Court reversed the conviction, finding that the second trial for first degree murder placed Green in jeopardy twice for the same offense in violation of the Double Jeopardy Clause. Id. at 225. The Supreme Court reasoned that the jury’s dismissal in the first trial “without returning any express verdict” on the charge of first degree murder constituted an “implicit acquittal” on that charge. Id.

[¶15] In Price, defendant was charged with murder, and the jury returned a verdict of guilty to the lesser included offense of voluntary manslaughter. Price, 90 SCt at 1758. As was the case in Green, “[t]he jury’s verdict made no reference to the charge of murder.” Id. On appeal, the conviction was reversed due to an erroneous jury instruction and the case was remanded for new trial. Id., (citing Price v. State, 108 Ga. App. 581, 133 SE2d 916 (1963)). At the second trial, the jury was again instructed as to both murder and voluntary manslaughter, and likewise convicted Price of voluntary manslaughter. Id. Price appealed his conviction, asserting among other things that the murder charge induced the jury to find him guilty of the less serious offense of voluntary manslaughter rather than to continue the debate on his innocence. Id. at 1762. The Supreme Court ultimately reversed Price’s conviction, relying on its prior holding in Green to conclude that the second trial for murder placed Price in jeopardy twice for the same offense in violation of the Double Jeopardy Clause. Id. at 1760.

[¶16] This case is distinguishable from the Green and Price decisions, in light of the fact that the jury in defendant Bordeaux’s trial did return an express verdict as to the attempted aggravated sexual abuse by force charge. The verdict form explicitly set forth that “[a]fter all reasonable efforts, we, the jury, were unable to reach a verdict on the charge ‘Attempted Aggravated Sexual Abuse.’” The jury’s explicit verdict cannot be construed as an implicit acquittal; rather, it is clear from the verdict form that the jury was deadlocked as to the offense of attempted aggravated sexual abuse by force. It is well established that retrial following a “hung jury” does not violate the Double Jeopardy Clause. Richardson, 104 SCt at 3085 (see also Green, 78 SCt at 223) (quoting Wade v. Hunter, 336 US 684, 688-689, 69 SCt 834, 836-37, 93 LEd 974 (1949) (stating that “jeopardy is not regarded as having come to an end so as to bar a second trial in those cases where ‘unforeseeable circumstances ... arise during [the first] trial making its completion impossible, such as the failure of a jury to agree on a verdict.'”)). Therefore, under the circumstances of this case, the fact that the jury convicted defendant of abusive sexual contact by force, does not bar retrial of the offense of aggravated sexual abuse by force.

CONCLUSION

[¶17] Based on the previous analysis, the Court finds that abusive sexual contact by force as set forth in 18 USC § 2244(a)(1) is a lesser included offense of attempted aggravated sexual abuse by force as specified in 18 USC § 2241(a)(1). Since the jury instruction for abusive sexual contact by force was erroneous in that it failed to include the necessary element of force, defendant’s conviction must be set aside. The Court further finds that the jury’s explicit acknowledgment set forth on the verdict form that it was deadlocked on the offense of attempted aggravated sexual abuse by force does not warrant a finding that there was an implicit acquittal. Therefore, consistent with the above analysis, it is hereby

ORDERED that defendant’s conviction for the offense of abusive sexual contact by force be set aside.

IT IS FURTHER ORDERED that a retrial shall be scheduled for the charge of attempted aggravated sexual abuse by force in violation of 18 USC § 2241(a)(1).

IT IS FURTHER ORDERED that the trial shall be set to commence January 30, 1996, at 9 a.m.