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United States of America v. Leo Villarreal

March 2, 2012

UNITED STATES OF AMERICA,
PLAINTIFF,
v.
LEO VILLARREAL,
DEFENDANT.



The opinion of the court was delivered by: Jeffrey L. VIKEN United States District Judge

ORDER DENYING DEFENDANT'S MOTION FOR JUDGMENT OF ACQUITTAL OR NEW TRIAL AND MOTION TO DISMISS

INTRODUCTION

On June 23, 2011, a jury found defendant Leo Villarreal guilty of one count of aggravated sexual abuse and one count of sexual abuse. (Docket 92). Mr. Villarreal moves the court for a judgment of acquittal or, in the alternative, for a new trial on both counts and for dismissal of the count of aggravated sexual abuse. (Docket 101). The government resists the motion in its entirety. (Docket 115). This matter has been fully briefed and is ripe for resolution. See Dockets 102, 115, & 121. For the reasons set forth below, the court denies Mr. Villarreal's motion in its entirety.

FACTUAL AND PROCEDURAL HISTORY

The court limits its recitation to those facts necessary to resolve the pending motion. In its discussion of the merits of the motion, the court shall provide additional facts as needed.

On August 17, 2010, the government indicted Mr. Villarreal on two counts of aggravated sexual abuse (Counts I and II) and one count of sexual abuse (Count III). (Docket 1). Count I of the indictment alleged as follows: On or about March 10, 2010, at Manderson, in Indian country, in the District of South Dakota, the defendant, Leo Villarreal,*fn1 an Indian, did knowingly engage and attempt to engage in a sexual act, to-wit, contact between the penis and the vulva, by using force against [L.L.H.], all in violation of 18 U.S.C. §§ 2241(a)(1), 2246(2)(A) and 1153. (Docket 1 at p. 1). Count II of the indictment alleged as follows:

On or about March 10, 2010, at Manderson, in Indian country, in the District of South Dakota, the defendant, Leo Villarreal, an Indian, did knowingly engage and attempt to engage in a sexual act, to-wit, the intentional touching, not through the clothing, of the genitalia of [L.L.H.], a person who had not attained the age of 16 years, with the intent to abuse, humiliate, harass, degrade and arouse and gratify the sexual desire of Leo Villarreal, by using force against [L.L.H.], all in violation of 18 U.S.C. §§ 2241(a)(1), 2246(2)(D) and 1153.

Id. at pp. 1-2. Finally, Count III of the indictment alleged as follows:

On or about March, 10, 2010, at Manderson, in Indian country, in the District of South Dakota, the defendant, Leo Villarreal, an Indian, did knowingly engage and attempt to engage in a sexual act with Marissa [Two Lance],*fn2 to-wit, penetration, however slight, of the genital opening by the finger, with the intent to abuse, humiliate, harass, degrade, arouse and gratify the sexual desire of Leo Villarreal, at a time when Marissa [Two Lance], was incapable of appraising the nature of the conduct and physically incapable of declining participation in, and communicating an unwillingness to engage in the sexual act, all in violation of 18 U.S.C. §§ 2242(2), 2246(2)(C) and 1153.

Id. at p. 2. Mr. Villarreal pled not guilty to the charges and proceeded to trial. (Docket 4).

A jury trial commenced on June 21, 2011. The court received testimony from various witnesses including L.L.H. and Marissa Two Lance. On June 23, 2011, the government rested its case-in-chief. (TT 337:21-23).*fn3 The court held a hearing outside the presence of the jury to hear any defense motions. (TT 337:24-25; 338:1-11). Counsel for Mr. Villarreal, Assistant Federal Public Defender Gary Colbath, moved for judgment of acquittal and/or to dismiss on all three counts. (TT 338:12-17). The court denied the motion with respect to all three counts. (TT 351:15-19; 355:1-3; 358:17-19). Mr. Villarreal then presented his case to the jury. (TT 360:22-25; 361:1-2).

After both sides rested, the court held a hearing outside the presence of the jury to settle the final jury instructions. (TT 402:17-22). During the hearing, Mr. Colbath renewed his motion for judgment of acquittal and/or motion to dismiss on all three counts. (TT 403:4-11). The court denied the motions without prejudice to renewal post-trial in the event of conviction. (TT 411:9-25; 412:1-25).

After the parties presented their closing arguments and the court read its final instructions to the jury, the jury deliberated on all three counts of the indictment. On June 23, 2011, the jury returned a verdict of not guilty on Count I and guilty on Counts II and III. (Docket 92).

On August 1, 2011, Mr. Villarreal timely filed a motion for judgment of acquittal or, in the alternative, for a new trial on Counts II and III of the indictment and for dismissal of Count II of the indictment. (Docket 101). He moves for judgment of acquittal and/or a new trial on the basis the evidence is insufficient to support convictions under Counts II and III. He moves for the dismissal of Count II on the basis it fails to state an offense. The government resists the motion in its entirety. (Docket 115). The court shall address each count in turn, but first provides a summary of the relevant standards of review.

STANDARDS OF REVIEW

A. Judgment of Acquittal

Fed. R. Crim. P. 29(c) gives the district court authority to set aside a guilty verdict and enter an acquittal upon a defendant's post-trial motion. "A district court has very limited latitude in ruling upon a motion for judgment of acquittal." United States v. Baker, 367 F.3d 790, 797 (8th Cir. 2004) (citation and internal quotation marks omitted). "A motion for judgment of acquittal should be granted only if there is no interpretation of the evidence that would allow a reasonable jury to find the defendant guilty beyond a reasonable doubt." United States v. Boesen, 491 F.3d 852, 855 (8th Cir. 2007) (citations and internal quotation marks omitted). This standard is very strict, and the court should not overturn a jury verdict lightly. Id.

The district court must enter an acquittal if the evidence presented at trial is insufficient to sustain a conviction. Id. Evidence may be direct or circumstantial. Baker, 367 F.3d at 798. "Evidence supporting a conviction is sufficient if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Boesen, 491 F.3d at 856 (citation and internal quotation marks omitted). The district court must not weigh the evidence or assess the credibility of witnesses. Baker, 367 F.3d at 797; see also Boesen, 491 F.3d at 857 ("In ruling on a motion for a judgment of acquittal, the role of the court is not to weigh the evidence . . . but rather to determine whether the Government has presented evidence on each element to support a jury verdict.") (citations and internal quotation marks omitted) (ellipses in original). The district court "views the entire record in the light most favorable to the government, resolves all evidentiary conflicts accordingly, and accepts all reasonable inferences supporting the jury's verdict." Boesen, 491 F.3d at 856. In short, the court upholds the jury verdict if "drawing all reasonable inferences in favor of the verdict, there is an interpretation of the evidence that would allow a reasonable minded jury to find the defendant[] guilty beyond a reasonable doubt." Id. (citations and internal quotation marks omitted; alteration in original).

B. New Trial

Fed. R. Crim. P. 33(a) gives the district court authority to vacate a judgment and grant a new trial in the interest of justice and only upon a defendant's post-trial motion. The decision to grant or deny a Rule 33 motion "is within the sound discretion of the [district] court." United States v. Campos, 306 F.3d 577, 579 (8th Cir. 2002). The court's discretion is both broad and limited. Id. It is broad to the extent the court "can weigh the evidence, disbelieve witnesses, and grant a new trial even where there is substantial evidence to sustain the verdict." Id. (citation and internal quotation marks omitted). Additionally, "the court need not view the evidence most favorably to the verdict." United States v. Worman, 622 F.3d 969, 977 (8th Cir. 2010); United States v. Lacey, 219 F.3d 779, 783-84 (8th Cir. 2000) (In determining whether to grant a Rule 33 motion, "the court need not view the evidence in the light most favorable to the government, but may instead weigh the evidence and evaluate for itself the credibility of the witnesses.").

The court's discretion is limited to the extent the court must allow the jury's verdict to stand unless it determines a miscarriage of justice will occur. Id.; see also United States v. McCraney, 612 F.3d 1057, 1064 (8th Cir. 2010) ("Where a defendant moves for a new trial on the grounds that the verdict is contrary to the weight of the evidence, the district court should grant the motion if the evidence weights heavily enough against the verdict that a miscarriage of justice may have occurred.") (citation and internal quotation marks omitted); Worman, 622 F.3d at 978 ("A district court will upset a jury's finding only if it ultimately determines that a miscarriage of justice will occur."); United States v. Camacho, 555 F.3d 695, 705 (8th Cir. 2009) ("[A] new trial motion based on insufficiency of the evidence is to be granted only if the weight of the evidence is heavy enough in favor of acquittal that a guilty verdict may have been a miscarriage of justice."). Because a motion for new trial based on the weight of the evidence is "generally disfavored," the district court should use its authority to grant a Rule 33 motion "sparingly and with caution." Campos, 306 F.3d at 579 (citations and internal quotation marks omitted).

C. Dismissal for Failure to State an Offense Fed. R. Crim. P. 12(b)(3)(B) gives the district court authority to dismiss

an indictment or parts thereof if it fails to state an offense. A defendant may challenge an indictment on this basis at any time while the case is pending. United States v. Jenkins-Watts, 574 F.3d 950, 968 (8th Cir. 2009); see also Fed. R. Crim. P. 12(b)(3)(B) ("[A]t any time while the case is pending, the court may hear a claim that the indictment or information fails to invoke the court's jurisdiction or to state an offense."). The court "may only consider the four corners of an indictment to determine whether it states an offense." United States v. Murillo, No. CR 07-2026-MWB, 2008 WL 697160 at *1 (N.D. Iowa March 13, 2008); see also United States v. Galvan, No. 8:11CR304; 2011 WL 6303249 at *1 (D. Neb. Nov. 10, 2011) (same).

An indictment "must be a plain, concise, and definite written statement of the essential facts constituting the offense charged" and, for each count, "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. Crim. P. 7(c)(1). "An indictment is legally sufficient on its face if its 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). An indictment is insufficient if it fails to allege an essential element of the charged offense. Jenkins-Watts, 574 F.3d at 968. "[I]n determining whether an essential element has been omitted, a court may not insist that a particular word or phrase appear in the indictment when the element is alleged in a form which substantially states the element." Id. (citation and internal quotation marks omitted); see also United States v. Buchanan, 574 F.3d 554, 565 (8th Cir. 2009) ("An indictment need not use the precise language in the statute as long as the Indictment, 'by fair implication,' alleges an offense recognized by the law.") (citation omitted).

When a defendant challenges an indictment after jeopardy attaches,*fn4 the court will uphold an indictment "unless it is so defective that by no reasonable construction can it be said to charge the offense." United States v. White, 241 F.3d 1015, 1021 (8th Cir. 2001) (citation and internal quotation marks omitted); see also Carter, 270 F.3d at 736 ("An indictment will ordinarily be held sufficient unless it is so defective that it cannot be said, by any reasonable construction, to charge the offense for which the defendant was convicted." If a defendant challenges an indictment after jeopardy attaches, the court will liberally construe the indictment in favor of sufficiency. United States v. Davis, 103 F.3d 660, 675 (8th Cir. 1996).

DISCUSSION

A. Count II of the Indictment

Mr. Villarreal moves for judgment of acquittal or to dismiss Count II of the indictment, which charges the offense of aggravated sexual abuse against L.L.H., in violation of 18 U.S.C. §§ 2241(a)(1), 2246(2)(D), and 1153. (Docket 102 at pp. 4-8). Mr. Villarreal argues the "language of [Count II of] the indictment was materially at odds with the statute and failed to state an offense." Id. at p. 4. Mr. Villarreal also argues the court's final jury instructions constructively amended Count II by tracking the language of the statute, § 2241(a)(1), rather than the language of the indictment. Id. at pp. 7-8. Alternatively, Mr. Villarreal moves for a new trial on Count II on the same grounds. Because the three motions implicate different standards of review, the court shall address each motion separately.

1. Motion for Judgment of Acquittal

Mr. Villarreal does not challenge the sufficiency of the evidence with respect to Count II. Therefore, judgment of acquittal is not the proper vehicle to remedy the error alleged by Mr. Villarreal. Accordingly, the court denies Mr. Villarreal's motion for judgment of acquittal on Count II.

2. Motion to Dismiss

In relevant part, Count II of the indictment alleged Mr. Villarreal "did knowingly engage and attempt to engage in a sexual act" with L.L.H. by using force against her. (Docket 1 at pp. 1-2). The charging statute, § 2241(a)(1), penalizes a person who "knowingly causes another person to engage in a sexual act" by the use of force "or attempts to do so." 18 U.S.C. § 2241(a)(1); see also United States v. Robertson, 606 F.3d 943, 951 (8th Cir. 2010) ("A person commits aggravated sexual abuse if he knowingly causes another person to engage in a sexual act--by using force against that other person.") (citation and internal quotation marks omitted). With respect to Count II, the court instructed the jury the first essential element of the offense of aggravated sexual abuse was "[t]hat on or about March 10, 2010, Leo Villarreal knowingly caused [L.L.H.] to engage in a ...


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