USA v. Bear Robe

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
WESTERN DIVISION
UNITED STATES OF AMERICA,
Plaintiff,
vs.
WILLIAM BEAR ROBE,
Defendant.
5:19-CR-50077-JLV
$0(1'('REPORT AND
RECOMMENDATION
INTRODUCTION
Defendant William Bear Robe is before the court on a four-count second
superseding indictment charging him with aggravated sexual abuse of a minor
(in violation of 18 U.S.C. §§ 1153, 2241(c), and 2246(2)(B) and (D)), and with
abusive sexual contact (in violation of 18 U.S.C. §§ 1153, 2241(c), 2244(a)(5),
and 2246(3)). 	Now pending before the court are two motions by Mr. Bear Robe
seeking the dismissal of three of the four counts against him on differing
theories. 	See Docket Nos. 111 and 113. 	The government opposes both
motions. 	See Docket Nos. 116, 117, & 129. 	This matter was referred to this
magistrate judge pursuant to 28 U.S.C. § 636(b)(1)(B) and the October 16,
2014, standing order of the Honorable Jeffrey L. Viken, United States District
Court Judge.
FACTS
The facts which are pertinent to the pending motions are as follows. 	The
government charges Mr. Bear Robe with criminal sexual acts with the same
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under-age-12 minor child in each of the four counts of the second superseding
indictment. 	See Docket No. 124. 	All four counts allege the criminal acts
between Mr. Bear Robe and the minor child took place between April 11, 2012,
and October 25, 2012, in Oglala, in Indian country, in the District of South
Dakota. 	Id.
At the time Mr. Bear Robe filed the instant motions, the applicable
charging document was Docket No. 89. 	After he filed his motions, the
government replaced the charging document at Docket No. 89 with a second
superseding indictment at Docket No. 124. 	Counts 1, 3, and 4 of both
charging documents remained identical, but the government substantially
revised the charge alleged in count 2. 	Counsel for both parties then submitted
supplemental briefing on the effect of the revision of count 2 on the arguments
presented in the motion to dismiss for multiplicity. 	See Docket Nos. 128, 129,
and 132. 	Because any irregularities with count two as contained in Docket
No. 89 are now moot, the court addresses only the arguments that continue to
present a live case and controversy as to the currently applicable charging
document at Docket No. 124.
The government’s charges as they now appear are as follows:
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
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 [minor child], a child who had not attained the age
of 12 years with an intent to abuse, humiliate, harass, degrade, or
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arouse or gratify the sexual desire of any person, all in violation of
18 U.S.C. §§ 1153, 2241(c), and 2246(2)(D).
Count II
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 in and cause and did attempt to knowingly engage in and
cause sexual contact with [minor child], that is: 	the intentional
touching, either directly or through the clothing, of the genitalia,
anus, groin, breast, inner thigh, or buttocks of [minor child] 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),
2244(a)(5), and 2246(3).
Count III
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: 	contact
between the penis and the mouth with [minor child], a child who
had not attained the age of 12 years, all in violation of 18 U.S.C.
§§ 1153, 2241(c), and 2246(2)(B).
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
[minor child], 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 No. 124 at pp. 1-2.
Each of the four counts of the indictment allege the same multi-month
time frame for the acts. 	Id. 	The government clarifies in its response in
opposition to Mr. Bear Robe’s motions that there were three separate occasions
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when Mr. Bear Robe is alleged to have committed his criminal acts. 	See Docket
No. 117 at p. 5. 	Counts I and IV occurred on the same evening, but the
government asserts they were distinct and separate acts. 	Id. at n.1. 	In the
minor child’s forensic interview, the government states she indicated that
Mr. Bear Robe removed her clothes on the night in question and touched her
bare vagina—the basis for count IV. 	Id. at p. 5. 	The government also asserts
the minor child stated Mr. Bear Robe then got on top of her and attempted to
put his “thing” in her vagina—the basis for count I. 	Id. at p. 6.
Because the allegations in the second superseding indictment allegedly
occurred on three separate occasions, and because the government has
clarified that count I and count IV occurred on the same evening, it follows that
counts II and III constitute two other separate occasions and that count I is
alleged to have occurred on a different day than count II.
Mr. Bear Robe moves to dismiss count IV because it fails to state an
offense, the statutes cited are ambiguous, and the rule of lenity dictates that
count IV be dismissed on that ground. 	See Docket No. 111. 	Mr. Bear Robe
moves to dismiss counts I, II and IV on the grounds that they are
multiplicitous. 	Docket No. 113. 	As indicated, the government opposes these
motions.
DISCUSSION
A. 	Multiplicity
“An indictment is multiplicitous if it charges the same crime in separate
counts.” 	United States v. Platter, 514 F.3d 782, 785 (8th Cir. 2008) (citing
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United States v. Chipps, 410 F.3d 438, 447 (8th Cir. 2005)). 	“The primary
problem is that the jury can convict on both counts, resulting in two
punishments for the same crime in violation of the Double Jeopardy Clause of
the Fifth Amendment.” 	Id. (quoting United States v. Ansaldi, 372 F.3d 118,
124 (2d Cir. 2004)). 	“If the same statutory offense is charged twice, the
operative ‘question is whether the facts underlying each count were intended
by Congress to constitute separate units of prosecution.’ ” 	Id. (quoting Ansaldi,
372 F.3d at 124). 	See also United States v. Grimes, 702 F.3d 460, 468 (8th
Cir. 2012) (same).
Where the two counts charge violations of the same statutory provision,
the court is required to decide “whether Congress intended to punish . . . a
course of conduct . . . or whether Congress sought to punish separately
individual acts.” 	Grimes, 702 F.3d at 468 (quoting Chipps, 410 F.3d at 448).
If the statute punishes only a course of conduct, courts “apply the so-called
‘impulse test’ ” to “determine how many courses of conduct [the defendant]
undertook.” 	Id. (citing Chipps, 410 F.3d at 449). 	“Under the impulse test, we
‘treat[] as one offense all violations that arise from that singleness of thought,
purpose or action, which may be deemed a single ‘impulse.’ ” 	Id. quoting
Chipps, 410 F.3d at 449). “In making this determination, we may ‘look to the
statutory language, legislative history, and statutory scheme to ascertain what
Congress intended the unit of prosecution to be,” resolving any doubt in favor
of the defendant. 	Id. (quoting Chipps, 410 F.3d at 448).
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Where, however, the two charges in question charge violations of
different statutory provisions or different subdivisions of the same statute, the
relevant inquiry is not the impulse test, but rather the Blockburger test: 	the
court asks whether each count requires proof of a fact which the other does
not. 	United States v. Bernhardt, 903 F.3d 818, 825 (8th Cir. 2018). 	If each
count “has at least one unique element, the two counts are not multiplicitous.”
Id.
1. 	Counts I and II
Counts I and II as now presented charge violations of different statutes.
Count I asserts a violation of §§ 2241(c) and 2246(2)(D) based on an allegation
of intentional contact, or attempted intentional contact, between Mr. Bear
Robe’s penis and the minor child’s vulva not through the clothing. 	See Docket
No. 124 at p. 1. 	Count II asserts a violation of §§ 2241(c), 2244(a)(5), and
2246(3) based on an allegation that Mr. Bear Robe engaged or attempted to
engage in intentional touching of one of several areas of the minor child’s body
either directly or through the clothing. 	Id. at pp. 1-2. 	Even on the face of it,
the two counts differ because count I alleges direct skin-on-skin contact while
count II alleges contact that was either direct or through the clothing. 	Id. 	They
also rely, in part, on different statutory provisions. 	Id.
Section 2241(c) makes it a crime to knowingly engage or attempt to
engage in a “sexual act” with a person under the age of 12 in the special
territorial jurisdiction of the United States. 	See 18 U.S.C. § 2241(c). 	The
reference to § 2246 merely points to the definition of “sexual act” the
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government relies on in count I. 	The “sexual act” alleged in connection with
§ 2241(c) is direct intentional touching of the genitalia of another person with
the intent to abuse, humiliate, harass, degrade or arouse or gratify the sexual
desire of any person. 	See § 2246(2)(D). 	Thus, count I alleges Mr. Bear Robe
directly touched the minor victim’s vulva with his penis.
Count II also alleges a violation of § 2241(c), but adds an allegation that
§ 2244(a)(5) was violated. 	See Docket No. 124 at p. 2. 	Here, the government
points to the definition at § 2246(3) to clarify what is being alleged. 	Section
2244(a)(5) makes it a crime to engage or cause sexual contact with another
person in the territorial jurisdiction of the United States if the sexual contact
had been a sexual act. 	See 18 U.S.C. § 2244(a)(5). 	“Sexual contact” is defined
as “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. 	See 18 U.S.C. § 2246(3).
Section 2246(3) makes no reference to the age of the victim. 	The
definition of “sexual act” as used in count I does include a requirement that the
victim be a minor. 	Compare 18 U.S.C. § 2246(1)(D), with § 2246(3). 	Thus, the
act alleged in count II is a crime that involves either direct contact or over-the-
clothing contact of a victim’s sensitive bodily areas where the victim is also a
minor child. 	Under the Blockburger test, then, there is an element that could
be unique under count II that is not present in count I—touching the minor
child over the clothing as opposed to direct skin-on-skin contact.
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The government asserts its evidence will show that the charged conduct
in counts I and II occurred on two separate occasions. 	Docket No. 117 at
pp. 5-6. 	Mr. Bear Robe now concedes that, under the government’s second
superseding indictment, counts I and II no longer present a multiplicity
problem on their face unless the facts adduced at trial reveal that only one
incident occurred in support of both counts. 	Docket No. 128 at p. 4. 	The
government asserts its evidence will show the conduct alleged in count I
occurred on a separate occasion from the conduct alleged in count II. 	Docket
No. 117 at pp. 5-6. 	As such, the court recommends denying Mr. Bear Robe’s
motion to dismiss count I and II as multiplicitous.
2. 	Counts I and IV
Counts I and IV of the second superseding indictment allege violations of
the same exact statute and subsections of those statutes. 	See Docket No. 124
at pp. 1-2. 	Count I alleges direct intentional contact between Mr. Bear Robe’s
penis and the child victim’s vulva. 	Id. at p. 1. 	Count IV alleges direct
intentional touching of the child victim’s genitalia by Mr. Bear Robe. 	Id. at
p. 2. 	Mr. Bear Robe argues that “genitalia” as used in § 2246(2)(D) includes
only reproductive organs, not the anus. 	Docket No. 114 at p. 4 (citing 18
U.S.C.. § 2256(2)(A)(v)). 	Therefore, count IV must refer to Mr. Bear Robe’s
touching of the child victim’s vulva, the same act alleged in count I under the
same statutes.
The government admits that count I and count IV occurred on the same
evening, but clarifies that the conduct alleged in count I was Mr. Bear Robe
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attempting to insert his penis into the minor child’s vulva while count IV
alleges Mr. Bear Robe touched the minor victim’s vulva with his hand. 	Docket
No. 117 at pp. 5-6. 	The government relies on United States v. Two Elk, 536
F.3d 890, 898-99 (8th Cir. 2008), and United States v. Bercier, 506 F.3d 625
(8th Cir. 2007), in support of its argument that two charges for the described
alleged conduct is not multiplicitous.
To reiterate, where two counts charge violations of the same statutory
provision, the court is required to decide “whether Congress intended to punish
. . . a course of conduct . . . or whether Congress sought to punish separately
individual acts.” 	Grimes, 702 F.3d at 468 (quoting Chipps, 410 F.3d at 448).
The applicable test here as to counts I and IV is the “impulse test,” not the
Blockburger test. 	Id. (citing Chipps, 410 F.3d at 449). 	“Under the impulse
test, we ‘treat as one offense all violations that arise from that singleness of
thought, purpose or action, which may be deemed a single ‘impulse.’ ” 	Id.
quoting Chipps, 410 F.3d at 449). “In making this determination, we may ‘look
to the statutory language, legislative history, and statutory scheme to ascertain
what Congress intended the unit of prosecution to be,” resolving any doubt in
favor of the defendant. 	Id. (quoting Chipps, 410 F.3d at 448).
In Two Elk, the defendant was charged with two counts of violating
§ 2241(c) based on injuries to the minor victim’s vagina and rectum. 	Two Elk,
536 F.3d at 894-95. 	The injuries were alleged to have been inflicted on a single
occasion—the late evening of October 15 or early morning hours of October 16.
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Id. 	The defendant confessed to having vaginal and anal sex with the minor
victim, lasting from 5 to 10 minutes total. 	Id. at 895.
Two Elk alleged that the two counts were multiplicitous and that he
should have only been charged with one count of violating § 2241(c). 	Id. at
897. 	The court noted that count I charged Two Elk with contact between his
penis and the minor victim’s vulva, while count II charged contact between his
penis and the minor victim’s anus. 	Id. at 898. 	The court noted “sexual act” as
used in § 2241(c) included contact between a defendant’s penis and the
victim’s vulva and also contact between a defendant’s penis and the victim’s
anus. 	Id. (citing §§ 2241(c) and 2246(2)(A)). 	The court articulated the issue
before it as the determination of “how many sex crimes . . . a defendant
commit[s] when he inflicts a series of distinct sexual offenses on the victim
during a single incident[.]” 	Id. (quoting Bercier, 506 F.3d at 634).
In order to answer the question, the court was required to determine
whether aggravated sexual abuse under § 2241(c) was a “course of conduct
offense or a separate-act offense.” 	Id. (quoting Chipps, 410 F.3d at 449). 	If the
statute charged a “course of conduct offense,” then the “impulse” test would be
applied to determine whether the defendant’s conduct arose from a “singleness
of thought, purpose or action, which may be deemed a single ‘impulse.’ ” 	Id. at
899 (quoting Chipps, 410 F.3d at 449). 	If Congress intended to create a
“separate-act offense,” however, the court stated that no Double Jeopardy
problem was raised. 	Id.
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Relying on the statute’s use of the phrase “a sexual act,” the court
readily concluded that § 2241(c) created a “separate-act offense.” 	Id. (emphasis
added). 	The court pointed out Congress had not used the words “sexual act or
acts” nor had Congress used the words “sexual course of conduct.” 	Id.
Furthermore, the court noted the definition of “sexual act” in § 2246(2)
described separate sexual acts and they were linked in the disjunctive. 	Id. 	The
court concluded it was clear “that engaging in multiple sexual acts (as listed in
§ 2246(2)) would amount to multiple violations of § 2241(c) and would leave the
perpetrator susceptible to multiple punishments thereunder.” 	Id.
The Two Elk case is dispositive here. 	Mr. Bear Robe is charged under
the exact same statute and the exact same subdivision of that statute as the
defendant in Two Elk was: 	18 U.S.C. § 2241(c). 	The government alleges the
two acts (contact between Mr. Bear Robe’s penis and the victim’s vulva and
contact between Mr. Bear Robe’s hand and the victim’s vulva) occurred on the
same evening. 	But § 2241(c) is a “separate-act offense” which permits such
charging decisions without raising any Double Jeopardy issues. 	Two Elk, 536
F.3d at 899. 	Therefore, under Two Elk, no multiplicity issues arise from
charging Mr. Bear Robe with separate counts for his commission of separate
“sexual acts” against the minor child. 	The court recommends denying Mr. Bear
Robe’s motion to dismiss count I or count IV as multiplicitous.
B. 	Failure to State a Crime
Mr. Bear Robe also moves to dismiss count IV on the grounds that the
second superseding indictment fails to allege a crime in that count. 	Docket
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No. 111. 	Mr. Bear Robe argues that the definition of “a sexual act” referenced
in the second superseding indictment—found at § 2246(2)(D)—references a
victim “who has not attained the age of 16 years,” but the second superseding
indictment alleges a victim under the age of 12. 	He asserts this creates
ambiguity and confusion and should result in dismissal of count IV.
But § 2246 is not the statute which contains the substantive crime which
count IV alleges Mr. Bear Robe has committed. 	The operative statute under
which he is charged is § 2241(c). 	See Docket No. 124 at p. 2. 	Under § 2241(c),
it is a crime to commit a sexual act with “a person who has not attained the
age of 12 years” (in the special territorial jurisdiction of the United States). 	18
U.S.C. § 2241(c). 	Thus, in order to correctly state a crime in count IV under
§ 2241(c), the second superseding indictment must allege the victim was under
the age of 12. 	Otherwise, if the indictment alleged the victim was less than 16
years old, no crime would be alleged under § 2241(c).
The second superseding indictment references § 2246(2)(D) merely to
define what “sexual act” of several different varieties of “sexual act” is alleged.
The sexual act the second superseding indictment alleges Mr. Bear Robe
committed in count IV was “the intentional touching, not through the clothing,
of the genitalia” of the minor victim. 	The fact that the definition of this type of
“sexual act” is broader that the type of sexual act criminalized under § 2241(c)
(i.e., the definition includes victims between the ages of 12-15 while § 2241(c)
does not), does not create ambiguity or confusion. 	The jury must be instructed
that they have to find the minor victim was under the age of 12 in order to
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convict Mr. Bear Robe of count IV. 	The indictment must allege this fact as
well.
An indictment must contain “a plain, concise, and definite written
statement of the essential facts constituting the offense charged” and it must
“give the official or customary citation of the statute, rule, regulation, or other
provision of law that the defendant is alleged to have violated.” 	FED. R. C RIM. P.
7(c)(1). 	“An indictment is legally sufficient on its face if it contains all of the
essential elements of the offense charged, fairly informs the defendant of the
charges against which he must defend, and alleges sufficient information to
allow a defendant to plead a conviction or acquittal as a bar to a subsequent
prosecution.” 	United States v. Carter, 270 F.3d 731, 736 (8th Cir. 2001).
Count IV of the second superseding indictment is a legally sufficient statement
of the charge of violating § 2241(c). 	Accordingly, the court recommends
Mr. Bear Robe’s motion to dismiss count IV be denied.
CONCLUSION
Based on the foregoing facts, law, and analysis, this magistrate judge
respectfully recommends denying in their entirety Mr. Bear Robe’s motions to
dismiss [Docket Nos. 111 & 113].
NOTICE TO PARTIES
The parties have fourteen (14) days after service of this report and
recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1),
unless an extension of time for good cause is obtained. 	Failure to file timely
objections will result in the waiver of the right to appeal questions of fact.
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Objections must be timely and specific in order to require de novo review by the
District Court. 	Thompson v. Nix, 897 F.2d 356 (8th Cir. 1990); Nash v. Black,
781 F.2d 665 (8th Cir. 1986).
DATED this 27th day of October, 2021.
BY THE COURT:
VERONICA L. DUFFY
United States Magistrate Judge
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