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United States v. Stamper

United States District Court, D. Montana, Great Falls Division

May 23, 2018

UNITED STATES OF AMERICA, Plaintiff/Respondent,



         This case comes before the Court on Defendant/Movant Stamper's motion to vacate, set aside, or correct his sentence under 28 U.S.C. § 2255. A jury convicted Stamper of sexual abuse in violation of 18 U.S.C. § 2242(2)(B). The Court sentenced Stamper on March 7, 2012, to 480 months of imprisonment followed by a life term of supervised release.

         The Court denied most of Stamper's claims for lack of merit on September 2, 2015. The United States filed an answer to the two remaining claims on October 21, 2015. The United States also moved to dismiss the remaining claims as having been untimely filed. After counsel was appointed to represent Stamper, the Court dismissed with prejudice as time-barred one of the two remaining claims, so that one of the claims remained. See Order (Doc. 163).

         On June 27, 2016, the Court granted Stamper's motion to amend his § 2255 motion to add a claim under Johnson v. United States, ___U.S. ___, 135 S.Ct. 2551 (2015). See Mot. to Amend (Doc. 156); Order (Doc. 158). But, since then, the Supreme Court has held that sentences imposed under the advisory guidelines scheme are not subject to Due Process challenges. See Beckles v. United States, ___U.S. ___, 137 S.Ct. 886, 890 (2017). Stamper's claim rested on his designation as a career offender under U.S.S.G. § 4B1.1 (Nov. 1, 2011). His Johnson claim, therefore, is denied.

         One claim remains. Stamper alleges that counsel provided ineffective assistance, both at trial and on appeal, when he failed to challenge a jury instruction that effectively deprived Stamper of the jury's decision on an element of the offense. See Supp. (Doc. 115) at 14 ¶ 8(h) (internal punctuation and quotation marks omitted) (emphasis added); see also Id. at 34 ¶ 22(c), 35 ¶ 23(b). The parties deposed trial counsel and have submitted briefs and responses on the merits.[1]

         I. The Jury Instruction

         Trial counsel agreed to the following instruction, taken from the Ninth Circuit Manual, on the elements of the alleged offense:

In order for the Defendant to be found guilty of sexual abuse as charged in the Indictment, the government must prove each of the following elements beyond a reasonable doubt:
First, the Defendant is an Indian person;
Second, the Defendant knowingly engaged in a sexual act with [K.];[2]
Third, [K.] was physically incapable of declining participation in, or communicating unwillingness to engage in that sexual act; and
Fourth, the crime occurred within the exterior boundaries of the Rocky Boy's Indian Reservation.

Jury Instrs. (Doc. 67) at 18; see also 2 Trial Tr. at 287:17-25; 9th Cir. Model Crim. Jury Instrs. 8.172 (2010).

         II. Facts and Arguments Presented at Trial

         The incident at issue at trial followed extended binge drinking at various locations, including Stamper's house, on January 22 and 23, 2011. In addition to K. and Stamper, Marlene Youpee and K.'s cousins R. and Ronnie Stump, Jr., were present at times. Stamper was older than everyone else, but age did not constitute an element of the crime. K. and the others knew Stamper through their families.

         The United States's theory of the case contended that Stamper had sex with K. while she was passed out due to alcohol intoxication. K., R., Ronnie, and Marlene all testified that the entire group, including Stamper, had been drinking a lot and smoking a little marijuana throughout January 22 and 23, 2011. K. said she also had consumed “Sparks, ” a drink “like a Red Bull with vodka in it.” The group eventually landed at Stamper's house. Ronnie and Marlene testified that K. passed out and that they had carried her down the hall and put her in a bed under a blanket. Ronnie and Marlene testified that K. did not wake up or respond in any way.

         Some time later, around 8:00 p.m., R. passed out on the couch in the living room. Stamper remained at the house while Ronnie and Marlene left to get more alcohol. When they returned, Ronnie went down the hall to check on K. Ronnie opened the door, turned on the light, and saw Stamper on top of K. having sex with her. Stamper was nude. K. was still wearing her shirt, but had no clothing from her waist down. Ronnie described K. as “dead limb” and “unconscious.” Ronnie testified that Stamper's penis was in K's vagina. Ronnie went back to R., roused him, and returned to the bedroom with R. to confront Stamper. Ronnie testified that when he and R. “barged into the room, ” Stamper was shaking K., trying to wake her, and saying “something about ‘she let me' or something, ” but K. “wasn't moving.” 1 Trial Tr. at 138:6-19.

         Stamper retreated, pursued by Ronnie and R., both of whom landed enough blows to leave traces of Stamper's blood in the living room. Marlene testified that she heard Ronnie cussing and heard Stamper say, “I didn't do it. I didn't do it.” Marlene entered the bedroom and helped K., who had awakened, to find her clothes so they could leave. The group left Stamper's house and took Stamper's car to a nearby relative's house. The group did not call the police. Stamper actually called the police to report Ronnie's and R.'s assault.

         Shortly after the group left Stamper's house, K. went to the hospital for a medical check. Medical personnel found Stamper's semen in swabs taken from K.'s vagina and labia. A forensic toxicologist testified that a urine sample taken from K. at 1:00 a.m., about two and a half hours after the incident, showed an alcohol concentration of 0.201 to 0.265 gram percent. The forensic toxicologist opined that K.'s level of intoxication at 10:00 p.m. would have been between 0.18 and 0.25 gram percent. K. also had a trace amount of marijuana metabolite in her blood and urine.

         K. testified that she had passed out and later awoke to find Stamper on top of her, penetrating her vagina with his penis. K. testified that she screamed for help and tried to throw him off. K. also testified, however, that for some period of time, she was “going in and out of consciousness” and did not remember what she did when she was “passed out.” See 1 Trial Tr. at 58:24-58:9, 74:18-75:14, 83:23-24. K. further testified that she “kept blacking out . . . at the hospital . . . due to alcohol.” See id. at 63:13-64:5. Neither the nurse nor the doctor who examined K. at the hospital suggested that she had “passed out” or appeared to them to be unconscious at any time. The nurse described K. as “articulate, ” “attentive, ” “very, very serious, ” and able to provide “good detail.” 1 Trial Tr. at 90:7-9, 103:7-10.

         FBI Agent McGrail testified regarding his interview with Stamper. Stamper claimed that K. had invited him to have sex with her when her cousins left the house. K. asked him to “go to a back room” and told him to “[h]urry up before Ronnie and R. get back.” Stamper also claimed that he was “a little bit less intoxicated” than R. and K. On a scale of 1 to 10, where 10 was “extremely drunk, ” Stamper placed K. at “around an 8.” Stamper did not claim that K. had passed out. The record remains unclear whether Stamper told Agent McGrail that K. had not passed out, or whether the subject of passing out simply had not been discussed. Stamper did tell Agent McGrail that “[K.] never said no or stopped him.” 2 Trial Tr. (Doc. 88) at 216:16-218:16.

         Stamper did not testify. His defense rested on his statement to Agent McGrail. See, e.g., 1 Trial Tr. at 30:11-18, 31:9-25; 2 Trial Tr. at 302:1-6, 302:20-22, 304:8-306:7. In other words, he contested only the third element of the pattern jury instruction: whether “K. . . . was physically incapable of declining participation in, or communicating unwillingness to engage in that sexual act.” Jury Instrs. (Doc. 67) at 18. Counsel emphasized in his closing argument evidence showing that K. could have done exactly what Stamper said she had done-invited him to have sex and participated willingly-without remembering that she had done so. See 2 Trial Tr. at 304:23-306:5. Counsel also argued that K. was not as drunk as most witnesses had testified. See id. at 310:7-311:7.

         The Ninth Circuit has not considered directly whether the defendant's knowledge of the victim's incapacity constitutes an element of 18 U.S.C. § 2242(2)(B). The facts of Stamper's trial squarely presented the question and his counsel's argument reflected this focus. Stamper did not deny having had sex with K. He did not claim that he had engaged in a sexual act “through ignorance, mistake, or accident.” See Jury Instrs. (Doc. 67) at 18, 19. Stamper instead cited evidence from which he claimed that a reasonable juror might find that K. appeared to others to have been conscious and “attentive, ” even “articulate” (as the hospital nurse said), when in fact she was “blacking out, ” unable to remember what she did or said, and not acting in a voluntary or willing way.

         III. Analysis

         The Court first addresses whether 18 U.S.C. § 2242(2)(B) requires the prosecution to prove that the defendant knew that the victim had been physically incapable of consent. In turn, this analysis forces the Court to consider whether Stamper received a fair trial that included effective assistance of counsel guaranteed by the Sixth Amendment for his defense. Strickland v. Washington, 466 U.S. 668 (1984), governs claims of ineffective assistance of counsel.

         Stamper first must prove that counsel's performance in failing to request a jury instruction that required the jury find that Stamper knew that K. had been incapacitated fell below an objective standard of reasonableness. Id. at 687-88. Stamper then must demonstrate that there exists “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 694. Counsel's strategic decisions warrant a strong measure of deference if they were based on reasonable investigation and knowledge of the law. Id. at 690-91.

         A. Counsel's Performance

         The United States correctly argues that counsel adopted a defense of consent. See U.S. Br. (Doc. 174) at 15; U.S. Resp. (Doc. 177) at 5. This defense comprises two components. Counsel argued that K. had not been as drunk as the witnesses described her. Stamper also argued that he believed that K. had consented and that he had no reason to know that K. had not been capable of meaning it.

         In his deposition in this case, counsel recalled arguing that Stamper did not know that K. had been incapacitated or incapable of communicating unwillingness to participate:

I said [to the jury], she told you that she did go in and out of consciousness and she doesn't remember much, but that doesn't mean my client was aware subjectively of what is ...

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