Appeal from the United States District Court for the District of South Dakota.
The opinion of the court was delivered by: Murphy, Circuit Judge.
Submitted: March 17, 2011
Before WOLLMAN, MURPHY, and GRUENDER, Circuit Judges.
A jury convicted Jeffrey Betone of two counts of sexual abuse, and the district court*fn1 sentenced him to 151 months. Betone challenges his sentence and the sufficiency of the evidence supporting his convictions. We affirm.
In 2005 Betone was 19 years old and lived on the Cheyenne River Indian Reservation. He was homosexual but not "out" to his family or community. One evening in March 2005, Betone and Tate Jensen were guests at a drinking party at the home of Sherry Turning Heart. The other guests left in the early hours of the next day, but Jensen and Betone spent the night because they were both too drunk to go home. Jensen slept on the living room couch and Betone on the floor beside him. The only other people in the house were Turning Heart and her ten year old son, who were both sleeping upstairs.
At this point the men's accounts diverge. Betone testified that he and Jensen talked as they lay in the dark and that he believed Jensen was "coming on" to him. Betone began fondling Jensen's thigh and genitals. Jensen undid his own belt and pants, and Betone fellated him. After a few minutes, a light came on and footsteps could be heard. Jensen pushed Betone away. Turning Heart's son came into the room, followed by Turning Heart. Jensen testified that he passed out on Turning Heart's couch and awoke only when the light came on. He says he never consented to oral sex. At some point after Turning Heart came downstairs, Jensen assaulted Betone. Betone then fled the house.
Tribal police found Betone walking home drunk and barefoot, his mouth bloody and his nose broken. He claimed to have fallen down, but the skeptical police took him to an emergency room. Two months later Turning Heart told a tribal officer friend that she had seen Jensen and Betone doing "something [she] did not want to see," but no one investigated further until 2008. Jensen claims he was too ashamed to report the incident.
Three years later, Betone had sex with Valance Blue Arm, a 30 year old man. The two met when Betone drove up to Blue Arm on the street and offered him a ride. Even though Blue Arm was just down the street from his home, he accepted. Betone offered Blue Arm a beer and a cigarette and then drove to his own home instead of Blue Arm's.
Blue Arm has diminished mental capacity. According to Blue Arm's sister, he "is always scared" and functions "like a little boy," watching children's television programs every day. A tribal officer had noticed Blue Arm around the reservation, "always . . . talking to himself." On the day of his encounter with Betone, Blue Arm was wearing many layers of clothes and underwear as customary with him. Betone later acknowledged that Blue Arm "might have been slow."
Betone cajoled Blue Arm into entering his house. Once inside, Betone fellated Blue Arm twice and later they had anal sex. According to Betone, Blue Arm kissed him back, confirmed that he wanted to have sex, put condoms on Betone, and was sexually aroused. Blue Arm claimed to the contrary that Betone told him he "was not allowed to go anywhere" and locked the door behind him. Blue Arm says he did not resist Betone's sexual advances because he was afraid he would get in trouble if he attacked Betone before "the police were informed." Blue Arm said that he was afraid to resist or leave and that he never consented.
Later that day Blue Arm checked himself into an emergency room. Hospital employees prepared a rape kit from Blue Arm and called police. After interviewing Blue Arm, federal agents learned from tribal police of the earlier incident with Jensen. While in custody, Betone told police he had "thought [oral sex with Jensen] was consensual, but I guess it wasn't" and that Jensen had not moved during the encounter.
The government charged Betone with three counts of sexual abuse:
(1) knowingly engaging in a sexual act with Jensen while Jensen was "incapable of appraising the nature of the conduct" or "physically incapable of declining participation in, or communicating unwillingness to engage in, that sexual act," 18 U.S.C. § 2242(2);
(2) knowingly causing Blue Arm to engage in oral sex "by threatening or placing [him] in fear (other than . . . fear [of anyone's] death, serious bodily ...