USA v. Bear Robe

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
WILLIAM BEAR ROBE,
Defendant.
CR. 19-50077-JLV
ORDER
INTRODUCTION
Pending before the court are defendant’s motions to dismiss counts I and
IV as multiplicitous and to dismiss count IV for failure to state an offense.
(Dockets 111 & 113). 	The government opposes both motions. 	(Dockets
116 & 117). 	Pursuant to 28 U.S.C. § 636(b)(1)(B) and the court’s October 14,
2014, standing order, defendant’s motions were referred to Magistrate Judge
Veronica L. Duffy for a report and recommendations. 	After the defendant filed
his motions, a grand jury issued a second superseding indictment. 	(Docket
124). 	The magistrate judge ordered supplemental briefing. 	(Docket 126).
Following the parties’ supplemental briefing, the magistrate judge issued an
amended report and recommendation (“R&R”). 	(Docket 135). 	The magistrate
judge recommended defendant’s motions be denied. 	Id. at p. 13. 	Defendant
timely filed objections to the R&R. 	(Docket 137). 	For the reasons stated
below, defendant’s objections are granted in part and denied in part and the
R&R is adopted in part and rejected in part consistent with this order.
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DEFENDANT’S OBJECTION
Defendant filed two objections to the R&R. 	Id. 	Those objections are
summarized as follows:
1. 	Multiplicity challenges to the indictment must be examined
in light of the language of the indictment and not the
government’s factual assertions; and
2. 	Count IV fails to state a cause of action.
Id. at pp. 1-2 & 6.
Under the Federal Magistrate Act, 28 U.S.C. § 636(b)(1), if a party files
written objections to the magistrate judge’s proposed findings and
recommendations, the district court is required to “make a de novo determination
of those portions of the report or specified proposed findings or recommendations
to which objection is made.” 	Id. 	The court may “accept, reject, or modify, in
whole or in part, the findings or recommendations made by the magistrate judge.”
Id. 	See also Fed. R. Crim. P. 59(b)(3). 	The court completed a de novo review of
those portions of the R&R to which objections were filed.
For the reasons given below, the defendant’s objections are granted in part
and denied in part and the R&R is adopted in part and rejected in part
consistent with this order.
ANALYSIS
The defendant did not object to the magistrate judge’s statement of fact
in the R&R. 	(Docket 137 at p. 1) (referencing Docket 135 at pp. 1-2). 	The
court adopts the R&R’s brief statement of facts. 	(Docket 135 at pp. 1-2).
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While Mr. Bear Robe asserted a number of challenges to the first
amended indictment, some of those challenges were resolved by the second
superseding indictment (identified as the “indictment”) and withdrawn by the
defendant in his objections to the R&R. 	See id. at pp. 2 & 3). 	The only two
counts of the indictment to which Mr. Bear Robe continues his objections
relate to counts I and IV. 	Id. 	Each of those objections will be separately
addressed.
1. 	MULTIPLICITY CHALLENGES TO THE INDICTMENT MUST
BE EXAMINED IN LIGHT OF THE LANGUAGE OF THE
INDICTMENT AND NOT THE GOVERNMENT’S FACTUAL
ASSERTIONS
Mr. Bear Robe objects to the magistrate judge’s consideration of the
government’s “explanation underlying the alleged factual occurrences that are
the subject of Count I and IV.” 	(Docket 137 at p. 3). 	Defendant argues “[t]he
question is whether the allegations as stated in Counts I and IV . . . are
multiplicitous not whether the allegations as now sought to be clarified by the
prosecution are multiplicitous.” 	Id. at p. 4. 	Mr. Bear Robe also objects to the
magistrate judge’s application of United States v. Two Elk, 536 F.3d 890 (8th
Cir. 2008), in concluding counts I and IV “are not multiplicitous.” 	Id. at p. 5.
In addressing defendant’s objections to the R&R, the indictment, in
relevant part, charges Mr. Bear Robe with the following criminal offenses.
Count I
On or about between April 11, 2012, and October 25, 2012, in
Oglala, in Indian country, in the District of South Dakota, the
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defendant, William Bear Robe, an Indian person, did knowingly
engage and attempt to engage in a sexual act, that is: the intentional
contact between the penis and the vulva, not through the clothing,
of [C.R.N.], a child who had not attained the age of 12 years with an
intent to abuse, humiliate, harass, degrade, or arouse or gratify the
sexual desire of any person, all in violation of 18 U.S.C. §§ 1153,
2241(c), and 2246(2)(D).
. . . and
Count IV
On or about between April 11, 2012, and October 25, 2012, in
Oglala, in Indian country, in the District of South Dakota, the
defendant, William Bear Robe, an Indian person, did knowingly
engage and attempt to engage in a sexual act, that is: the intentional
touching, not through the clothing, of the genitalia of [C.R.N.], a
child who had not attained the age of 12 years with an intent to
abuse, humiliate, harass, degrade, or arouse or gratify the sexual
desire of any person, all in violation of 18 U.S.C. §§ 1153, 2241(c),
and 2246(2)(D).
(Docket 124 at pp. 1-2)
In its response to the defendant’s motions to dismiss, the government’s
pre-R&R submission asserts counts I and IV occurred during the same
evening, but that “they were distinct and separate acts.” 	(Docket 135 at p. 4)
(referencing Docket 117 at p. 5 n.1). 	The government contends the first act
C.R.N. reported that night was Mr. Bear Robe removing the child’s clothing and
touching “her bare vagina—the basis of count IV.” 	Id. (referencing Docket
117 at p. 5). 	The magistrate judge accepted the government’s representation
that its evidence would prove for purposes of count IV that “Mr. Bear Robe
touched [C.R.N.’s] vulva with his hand.” 	Id. at p. 9 (referencing Docket 117 at
pp. 5-6). 	According to the government, the second sexual act the same night
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was Mr. Bear Robe getting on top of C.R.N. and attempting “to put his ‘thing’ in
her vagina—the basis for count I.” 	Id. (referencing Docket 117 at p. 5).
Count I is clear that Mr. Bear Robe is accused of engaging in “intentional
contact between [his] penis and [C.R.N.’s] vulva.” 	See Docket 124 at p. 1.
Concluding § 2241(c) implicates “separate-act offense[s],” the magistrate
judge found no double jeopardy issue exists between counts I and IV. 	Id. at
p. 11 (citing Two Elk, 536 F.3d at 899). 	Accepting the rationale of Two Elk,
the magistrate judge concluded “no multiplicity issues arise from charging Mr.
Bear Robe with separate counts for his commission of separate ‘sexual acts’
against the minor child.” 	Id.
“The Double Jeopardy Clause of the Fifth Amendment states that ‘[n]o
person shall . . . be subject for the same offence to be twice put in jeopardy of
life or limb.’ ” 	United States v. Plenty Chief, 561 F.3d 846, 851 (8th Cir. 2009)
(citing U.S. Const. amend. V]. 	The Double Jeopardy Clause prohibits “the
imposition of multiple punishments for the same criminal offense.” 	Two Elk,
536 F.3d at 898 (internal quotations, alteration, and citation omitted).
The multiplicity doctrine bars prosecution of crimes that violate the
Double Jeopardy Clause.
An indictment is multiplicitous if it charges the same crime in two
counts. 	Where the same act or transaction constitutes a violation
of 	two 	distinct 	statutory 	provisions, 	the 	test 	to 	be 	applied 	to
determine whether there are two offenses or only one is whether
each provision requires proof of a fact which the other does not.
Unless the two offenses each contain an element not found in the
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other, they are the same offense and double jeopardy bars additional
punishment.
United States v. Bernhardt, 903 F.3d 818, 825 (8th Cir. 2018) (internal
quotations and citations omitted). 	“Demonstrating that an indictment violates
the double jeopardy clause requires the defendant to show that the two
offenses charged are in law and fact the same offense.” 	Plenty Chief, 561 F.3d
at 851–52 (internal quotations and citation omitted). 	See also United States v.
Roy, 408 F.3d 484, 491 (8th Cir. 2005) (To show multiplicity, “a defendant
must show that the two offenses charged are in law and fact the same offense.”)
(internal quotation omitted).
Both counts I and IV charge aggravated sexual abuse of a minor in
violation of 18 U.S.C. §§ 2241(c) and 2246(2)(D). 	(Docket 124 at pp. 1& 2).
Mr. Bear Robe is accused of violating § 2241(c) which provides:
Whoever . . . in the . . . territorial jurisdiction of the United States
. . . knowingly engages in a sexual act with another person who has
not attained the age of 12 years . . . or attempts to do so, shall be
fined under this title and imprisoned for not less than 30 years or
for life.
18 U.S.C. § 2241(c). 	The sexual act described in count I is “the intentional
contact between [Mr. Bear Robe’s] penis and [C.R.N.’s] vulva, not through the
clothing.” 	(Docket 124 at p. 1).
While penetration of an assailant’s penis into a victim’s vulva, however
slight, is a “sexual act” described in § 2246(2)(A), count I charges a violation of
§ 2246(2)(D), that is the “sexual act” involving “the intentional touching, not
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through the clothing, of the genitalia of another person who has not attained
the age of 16 years with an intent to abuse, humiliate, harass, degrade, or
arouse or gratify the sexual desire of any person.” 	Compare 18 U.S.C.
§ 2246(2)(D) & Docket 124 at p. 1. 	In other words, “intentional contact
between [the defendant’s] penis and [C.R.N.’s] vulva, not through not through
the clothing” without an allegation of penetration required by § 2246(2)(A).
(Docket 124 at p. 1).
Count IV is less clear as how the sexual act was accomplished. 	The
language of count IV asserts Mr. Bear Robe “engage[d] and attempt[ed] to
engage in a sexual act, that is: the intentional touching, not through the
clothing, of the genitalia of [C.R.N.], a child who had not attained the age of 12
years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify
the sexual desire of any person, all in violation of 18 U.S.C. §§ . . . 2241(c), and
2246(2)(D).” 	(Docket 124 at p. 2) (emphasis added). 	In other words, Mr. Bear
Robe is accused of using some part of his body to intentionally touch the
child’s genitalia, not her vulva.
“The criminal acts charged in the indictment are anatomically specific.”
United States v. No Neck, 472 F.3d 1048, 1052 (8th Cir. 2007) (referencing
United States v. Plenty Arrows, 946 F.2d 62, 65 (8th Cir. 1991)). 	“The
definition of ‘sexual act’ contained in section 2246(2)(D) is not . . . specific—it
merely requires the government to prove the ‘intentional touching, not through
the clothing, of the genitalia of another person.’ ” 	Id. at 1052 n.3. 	“Section
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2246(2)(D) does not require the government to prove specifically that [the
defendant] used his hand[].” 	Id. at 1053. 	“[W]hile abusive sexual contact
may be a lesser included offense [to aggravated sexual abuse] when a single
criminal event is involved, aggravated sexual abuse is a different crime, and
each [subsection of § 2246(2)] may be violated during a series of distinct
criminal acts.” 	Plenty Chief, 561 F.3d at 852 (citing United States v. Bercier,
506 F.3d 625, 633-34 (8th Cir. 2007)).
Defendant acknowledges that a female’s “vagina and . . . vulva are not
the same thing[.]” 	(Docket 137 at p. 3). 	“Various sex acts within a single
course of conduct . . . [are] separate offenses.” 	Plenty Chief, 561 F.3d at 853
(citing Two Elk, 536 F.3d at 899). 	While Bercier and Two Elk were plain error
review cases, the district court does not commit error when it refuses to
dismiss these two distinct counts, counts I and IV, “on the basis of double
jeopardy.” 	Id.
Defendant’s first objection to the R&R is overruled.
2. 	COUNT IV FAILS TO STATE A CAUSE OF ACTION
Defendant argues because count IV alleges the minor was less than 12
years of age as opposed to less than 16 years of age, the charge fails to state a
cause of action. 	(Docket 137 at p. 6). 	Defendant acknowledges that “[t]he
magistrate is correct to allege in an offense under section 2241(c) an
indictment must allege the victim is under the age of 12.” 	Id. (referencing
Docket 135 at p. 12). 	Because the government chose subsection D of
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§ 2246(2), which references 16 years of age, as the sexual act for the offense
charged in count IV, defendant contends there are “[n]o grounds . . . to amend
this statute in the indictment to an age of 12.” 	Id. 	“Because the indictment
ignores language in section 2246(2)(D) defining the sexual act with which the
prosecution chose to charge Bear Robe, it necessarily does not . . . constitute a
legally sufficient indictment.” 	Id. at p. 7. 	On this basis, Mr. Bear Robe
believes the R&R should be rejected and count IV should be dismissed. 	Id.
(referencing Docket 135 at p. 13).
Section 2246 is a definitions statute describing what constitutes a sexual
act. 	It does not establish the punishment for committing a sexual act,
§ 2241(c) does that. 	Section 2241(c) is the operative statute which defines the
substantive crime.
Whoever . . . in the . . . territorial jurisdiction of the United States
. . . knowingly engages in a sexual act with another person who has
not attained the age of 12 years . . . or attempts to do so, shall be
fined under this title and imprisoned for not less than 30 years or
for life.
18 U.S.C. § 2241(c).
The court disagrees with the magistrate judge’s conclusion that “Count
IV . . . is a legally sufficient statement of the charge of violating § 2241(c).”
(Docket 135 at p. 13). 	The magistrate judge mistakenly concluded the sexual
act alleged in count IV was adequately stated. 	The indictment properly cited
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§ 2246(2)(D) but conflated the age requirement from 16 to 12 years of age.
There is no legal basis to amend § 2246(2)(D) to 12 years of age. 	Count IV
does not constitute a legally sufficient offense.
The R&R must be rejected on this issue. 	Count IV must be dismissed.
Defendant’s second objection to the R&R is granted.
ORDER
Based on the above analysis, it is
ORDERED that defendant’s objection (Docket 137) is granted in part and
denied in part.
IT IS FURTHER ORDERED that the report and recommendation (Docket
135) is adopted in part and rejected in part consistent with this order.
IT IS FURTHER ORDERED that defendant’s motion to dismiss (Docket 111)
is granted.
IT IS FURTHER ORDERED that defendant’s motion to dismiss (Docket 113)
is denied.
IT IS FURTHER ORDERED that count IV of the second superseding
indictment (Docket 124) is dismissed without prejudice.
IT IS FURTHER ORDERED that a scheduling order shall be issued
forthwith.
Dated January 11, 2022.
BY THE COURT:
/s/ Jeffrey L. Viken
JEFFREY L. VIKEN
UNITED STATES DISTRICT JUDGE
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