United States District Court, D. Montana, Great Falls Division
MORRIS UNITED STATES DISTRICT COURT JUDGE
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.
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).
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,
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.
The Jury Instruction
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
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).
Facts and Arguments Presented at Trial
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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