Appeal from the United States District Court for the Eastern District of Wisconsin. No. 99-CR-169--Rudolph T. Randa, Judge.
Before Posner, Ripple, and Kanne, Circuit Judges.
The opinion of the court was delivered by: Kanne, Circuit Judge
Argued September 24, 2001
A jury found Michael A. Peters ("Peters"), a/k/a Tony Boots, guilty of one count of knowingly engaging in a sexual act with Barbara House at a time when Peters knew that Barbara was physically incapable of declining participation in the sexual act in violation of 18 U.S.C. sec.sec. 2242(2)(B) and 1153. Peters filed a motion for judgment of acquittal or in the alternative for a new trial, challenging the sufficiency of the evidence presented against him. On May 26, 2000, the district court denied Peters' post-trial motions and imposed a sentence of 135-months imprisonment, followed by three years of supervised release. Peters filed a timely notice of appeal. On appeal, Peters argues that the district court erred in denying his motion for judgment of acquittal because the government failed to sufficiently prove that Barbara was physically incapable of declining participation in the sexual act with Peters and because the government failed to sufficiently prove that Peters knew Barbara was physically incapable of declining participation in the sexual act. Further, Peters contends that his conviction should be reversed because the government improperly commented on his failure to testify during its closing argument and therefore impinged upon his Fifth Amendment right to remain silent. We agree with Peters' sufficiency of the evidence challenge. Thus, we reverse and remand with instructions to grant Peters' motion for judgment of acquittal.
Both Peters (age 36) and Barbara (age 21) are enrolled members of the Menominee Indian Tribe. The events relevant to this appeal occurred on the Menominee Indian Reservation in Wisconsin. Peters was married to Diane House, Barbara's older sister, but the two were separated at the time the events relevant to this appeal transpired. Peters and his three children were living at 102 School View, in the City of Keshena on the Menominee Indian Reservation. The residence at 102 School View belonged to Jonnie House, Barbara and Diane's other sister. Jonnie was allowing Peters and his three children to live at the residence during the summer of 1999.
At trial, Barbara testified that on the evening of August 11, 1999, she, Peters, her brother Keith House (age 19), and two of her cousins (ages 13 and 14) had a party at 102 School View. Barbara testified that over the course of three to four hours, the group played cards, and that she consumed about twelve beers. Further, Barbara explained that later in the evening her cousins were lying on the living room floor and that Keith was lying on the couch in the living room when she decided to lie down on the living room floor. Barbara stated that she did not know where Peters was because she "passed out right away" on the living room floor. Barbara further testified that the next thing she remembers is her sister attempting to put some clothes on her. She stated that she was in the rear bedroom, but that she did not remember how she got there. She testified that she was wearing only a t-shirt and bra and that she did not remember taking off her pants. She said that she felt sick when she woke up and that she vomited in a bucket about three times. Barbara then stated that she did not remember having sex with Peters, that she does not remember consenting to have sex with Peters, and that she would never have consented to having sex with Peters. On cross-examination, Barbara testified that she drinks until she passes out about three times a month. She admitted that when she drinks, sometimes she remembers what she did the night before, and sometimes she does not.
Keith was the only other person present at the party on August 11, 1999, who also testified at trial. Keith testified that Peters flirted with Barbara during the evening and that Barbara did not like Peters' advances. Keith stated that he fell asleep on the couch in the living room at about 10:30 p.m. and at that time both Barbara and Peters were still awake. Keith also testified that he remembers Peters asking Barbara, while she was passed out on the living room floor, to go to the back bedroom at about 11:00 p.m.*fn1 He further stated that the next thing he remembers is waking up and seeing police officers standing in the living room.
Jonnie testified that around midnight on August 11, she picked up her mother, Donna House, from a casino. Jonnie was accompanied by her boyfriend Osborn Crowe. According to Jonnie, Donna planned to drop Jonnie and Crowe off at 102 School View. Jonnie explained that she, Donna, Crowe, and her Aunt entered the residence at 102 School View at about 12:30 a.m. Jonnie stated that she believed that a party had taken place and that there were many beer cans around the house. She testified that she saw Keith, her two cousins, and Peters' children, but that she did not immediately see Barbara. Jonnie further testified that the door to the rear bedroom was locked. After jimmying the door open, Jonnie stated that she found Barbara lying on the bed with her young son sleeping next to her. Jonnie testified that she pulled the covers off of Barbara and discovered that Barbara was wearing only a t-shirt and that Barbara had nothing on below her waist. Jonnie attempted to wake Barbara, but did not initially succeed. Jonnie testified that she yelled for Donna and then that she started looking for Peters in the other bedrooms.
Donna testified that after Jonnie called her into the bedroom, Donna opened the closet door and found Peters in the closet wearing only his boxer shorts and a white t-shirt. Donna testified that she then said, "That's it Tony. I am calling the Police." Donna admitted that she knew that on occasion Barbara would drink to the point of passing out. Donna also indicated that Barbara was able to function after a night of heavy drinking and would return home and into Donna's house or have someone bring her in. She then admitted that Barbara could not always recall what she did the previous night when she drank.
The first officer on the scene, Officer Bernard L. Smith, Jr., testified that when he arrived at 102 School View, Jonnie and Donna reported a possible sexual assault. Officer Smith explained that he was shown to the rear bedroom and that he unsuccessfully attempted to wake Barbara by shaking her foot and calling her name. Officer Smith then escorted Peters to a squad car in front of the house. Officer Smith stated that when Barbara did eventually wake up, he could tell that she was intoxicated because she was unbalanced and her eyes were glassy.
Sergeant Louis Moses was the second officer to arrive on the scene. Sergeant Moses testified that he also unsuccessfully attempted to wake Barbara by calling her name and shaking her shoulder. He explained that while he was calling the emergency medical technicians because he was concerned that Barbara might have alcohol poisoning, Barbara started to wake up. Sergeant Moses explained that he then told Donna to dress Barbara.
Barbara was taken to Shawano Hospital and was given a sexual assault examination. While the parties stipulated that there was a DNA match between samples taken from Peters and the semen recovered from the vaginal area of Barbara, the examination revealed no physical or medical evidence indicating that Barbara had been the victim of a non-consensual sexual assault. While there was redness on the cervical area, a nurse from the Shawano Medical Center testified that this type of redness could result from both non-consensual and consensual sexual intercourse.
Peters' defense at trial was that the sexual act was consensual. Several individuals testified to a purported pre vious relationship between Peters and Barbara. None of the individuals who testified on Peters' behalf were present on the evening and early ...