United States Court of Appeals

FOR THE EIGHTH CIRCUIT

_______________

No. 09-1612

_______________

United States of America, * 

*

Appellee, *

* Appeal from the United States

v. * District Court for the 

* District of North Dakota.

Galen G. Robertson, *

* 

Appellant. *

_______________

Submitted: February 8, 2010 

Filed: June 7, 2010

_______________

Before LOKEN, Chief Judge,1

 COLLOTON and GRUENDER, Circuit Judges.

_______________

GRUENDER, Circuit Judge.

A jury convicted Galen G. Robertson of attempted aggravated sexual abuse

(Count I) and attempted abusive sexual contact (Count II) in Indian country, in

violation of 18 U.S.C. §§ 2241(a)(1), 2244(a)(1) and 1153. Robertson argues that the

district court abused its discretion in granting the Government a continuance on the

eve of trial, plainly erred in admitting hearsay evidence, improperly instructed the

jury, and erred in denying his motion for judgment of acquittal. He also argues that

1

The Honorable James B. Loken stepped down as Chief Judge of the United

States Court of Appeals for the Eighth Circuit at the close of business on March 31,

2010. He has been succeeded by the Honorable William Jay Riley.
his being convicted of both offenses violates the Double Jeopardy Clause of the Fifth

Amendment. We affirm Robertson’s conviction on Count I, reverse Robertson’s

conviction on Count II, and remand to the district court with instructions to vacate

Robertson’s conviction and sentence on Count II.

I. BACKGROUND

Robertson is an enrolled member of the Spirit Lake Sioux Tribe. On the

morning of September 16, 2007, Robertson, then thirty years old, was driving a

pickup truck with his friend, Grant Cavanaugh, on the Spirit Lake Reservation in

North Dakota. Robertson saw a seventeen-year-old girl, F.S., walking along the side

of the road toward the nearby community of Fort Totten. Robertson, a friend of F.S.’s

mother, stopped the truck to offer F.S. a ride. F.S. had been drinking alcohol at

various parties throughout the night and early morning and was on her way home. 

She accepted the ride, gave Robertson $20 for gas, and asked to be taken home. 

Instead of driving F.S. directly home, Robertson stopped to buy beer and then drove

to a ranch owned by Duane Smith. At the ranch, F.S. stayed in the truck while

Robertson and Cavanaugh worked in a nearby field for about an hour. Robertson,

Cavanaugh, and F.S. then drove to another location on Smith’s ranch where they

entered a bus that had been converted into a camper. Inside the bus, the three drank

beer and talked. F.S. did not object to stopping at the ranch or getting on the bus.

After a couple of hours, Cavanaugh exited the bus, leaving Robertson and F.S.

alone. Robertson took F.S. to the back of the bus, where there was a makeshift bed. 

F.S. testified at trial that she went to the back of the bus willingly but that she turned

around to return to the front of the bus when she saw the bed. When F.S. turned

around, she saw that Robertson was standing directly in front of her, so she backed

away from him and sat on the bed. Robertson sat down next to F.S. and reached for

her belt. F.S. tried to push his hand away, and a struggle ensued. After forcibly

removing F.S.’s belt, Robertson pulled F.S.’s pants and underwear down below her

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knees while she kicked, screamed, and repeatedly told him to stop. Ignoring her

protests, Robertson got on top of F.S., who was now lying on her back, and began

pushing against her with his body. Throughout the encounter, F.S. was “screaming

and crying” and “telling him to stop.” Robertson stopped and backed away only after

F.S. told Robertson that her dad was going to kill him. 

Cavanaugh returned to the bus a few minutes later. F.S. testified at trial that she

did not mention the assault to Cavanaugh because she felt embarrassed and ashamed. 

The group eventually got in Robertson’s pickup truck and began to drive away. In a

nearby pasture, they came upon Smith and Tribal Judge William Cavanaugh in

another truck. Robertson stopped the truck and began talking to Smith and Judge

Cavanaugh. During the ensuing ten-minute conversation, F.S. could not see the

occupants of the other truck, but she testified that she was upset and scared and that

she began yelling loudly that she wanted to go home. After driving away, Robertson

dropped Grant Cavanaugh off and then took F.S. to her mother’s house.

Robertson followed F.S. inside, where her mother, Rayone, was waiting. F.S.

was crying hysterically when she walked in the door. She told her mother, “He done

something to me,” and then looked at Robertson and demanded, “Tell her what you

did to me.” Robertson repeatedly denied any wrongdoing and then said to F.S., “I’m

your friend.” F.S. retreated to her mother’s bedroom, where she continued crying

until she fell asleep. Meanwhile, Robertson spoke with Rayone in the kitchen. 

During their conversation, Robertson put his head in his hands and said, “I could get

into a lot of trouble for this, right?” Robertson told Rayone that he had kissed F.S.,

and he asked Rayone not to tell his wife.2

 Rayone testified that Robertson stayed for

about an hour and a half and that he was very nervous during their conversation.

2

Robertson was not married at the time but lived with a woman whom he

apparently referred to as his wife.

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After Robertson left, Rayone went to her bedroom to speak with F.S. She saw

that F.S.’s pants had been ripped and asked what had happened. According to

Rayone, F.S. responded, “He raped me.” After speaking with F.S., Rayone sought the

advice of her brother, Lavern Littlewind, a Bureau of Indian Affairs (“BIA”) police

officer. Rayone found Littlewind, who was off-duty that evening, told him about the

situation, and drove him back to her house. Littlewind called the police, and BIA

Officer Leo Belgarde arrived to investigate. Officer Belgarde, Littlewind, and Rayone

asked F.S. to explain what had happened. Rayone excused herself from the

conversation to get some fresh air. When she stepped outside, Robertson called out

to her from a neighbor’s yard. Rayone approached Robertson, who asked her why the

police were involved. Robertson then suggested that Rayone bring F.S. outside so that

they could “go for a drive” and “work something out.” Rayone refused and returned

to her house. 

Officer Belgarde decided to take F.S. to the hospital to be examined. When F.S.

learned that Robertson was outside, however, she became frightened and refused to

leave the house. She eventually agreed to go to the hospital after Officer Belgarde

assured her that she would be safe. Once Officer Belgarde drove away with F.S.,

Robertson approached Littlewind and told him that F.S. had “come on to him” and

that she had told him she was eighteen. Robertson called Littlewind three times in the

next twenty-four hours to inquire about the investigation.

At the hospital, F.S. complained of soreness in her vaginal area and was

examined for evidence of rape. A nurse who helped examine F.S. testified that she

saw no visible injuries on F.S.’s body, but she acknowledged that some injuries, such

as bruising, are not immediately visible to the naked eye. Photographs of F.S. taken

a few days later at the police station showed bruises and scratches on her inner thighs. 

An FBI laboratory analysis of the evidence collected during F.S.’s examination

revealed the presence of semen containing Robertson’s DNA on F.S.’s underwear.

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A federal grand jury returned an indictment charging Robertson with attempted

aggravated sexual abuse, in violation of 18 U.S.C. §§ 2241(a)(1) and 1153 (Count I),

and attempted abusive sexual contact, in violation of 18 U.S.C. §§ 2244(a)(1) and

1153 (Count II). A jury found Robertson guilty on both counts, and the district court

sentenced him to 144 months’ imprisonment on Count I, a concurrent term of 120

months’ imprisonment on Count II, concurrent five-year terms of supervised release,

and a $100 special assessment on each count. Robertson appeals. 

II. DISCUSSION

Robertson first argues that abusive sexual contact (Count II) is a lesser-included

offense of aggravated sexual abuse (Count I) and that his being convicted on both

Counts I and II therefore violates the Fifth Amendment’s prohibition against double

jeopardy. Robertson failed to raise this issue at trial. There is a conflict in our circuit

over whether a defendant may raise a double jeopardy claim for the first time on

appeal. See United States v. Plenty Chief, 561 F.3d 846, 851 n.3 (8th Cir. 2009)

(recognizing the conflict); United States v. Two Elk, 536 F.3d 890, 897 (8th Cir. 2008)

(same). We have held in some cases that double jeopardy claims raised for the first

time on appeal are waived, see, e.g., United States v. Bentley, 82 F.3d 222, 223 (8th

Cir. 1996), but in other cases we have reviewed double jeopardy claims raised for the

first time on appeal for plain error, see, e.g., United States v. Sickinger, 179 F.3d 1091,

1092-93 (8th Cir. 1999). 

“When we are confronted with conflicting circuit precedent, the better practice

normally is to follow the earliest opinion, as it should have controlled the subsequent

panels that created the conflict.” T.L. ex rel. Ingram v. United States, 443 F.3d 956,

960 (8th Cir. 2006). Our refusal to review double jeopardy claims raised for the first

time on appeal has the longer history in our precedents. See, e.g., United States v.

Conley, 503 F.2d 520, 521 (8th Cir. 1974) (refusing to consider a double jeopardy

claim raised for the first time on appeal and observing that “immunity from double

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jeopardy is a personal right which if not affirmatively pleaded by the defendant at the

time of trial will be regarded as waived” (quoting Ferina v. United States, 340 F.2d

837, 838 (8th Cir. 1965))). But the Supreme Court’s intervening decision in United

States v. Olano, 507 U.S. 725 (1993), “arguably justified the [subsequent] departure”

from that line of cases, see Ingram, 443 F.3d at 960 (“[I]t is well settled that a panel

may depart from circuit precedent based on an intervening opinion of the Supreme

Court that undermines the prior precedent.”). In Olano, the Supreme Court clarified

the difference between waiver and forfeiture, 507 U.S. at 733-34, defining forfeiture

as “the failure to make the timely assertion of a right,” id. at 733, and waiver as “the

intentional relinquishment or abandonment of a known right,” id. (quoting Johnson

v. Zerbst, 304 U.S. 458, 464 (1938)). The Court then held that Federal Rule of

Criminal Procedure 52(b) allows appellate courts to review forfeited claims for plain

error. Id. at 732-35. Because there is no evidence in this case that Robertson

intentionally relinquished his double jeopardy claim, see Olano, 507 U.S. at 733, we

will review his claim for plain error.3

 

To establish plain error, Robertson must demonstrate that (1) there is “an error

or defect . . . that has not been intentionally relinquished or abandoned”; (2) the error

is “clear or obvious, rather than subject to reasonable dispute”; and (3) the error

“affected [his] substantial rights, which in the ordinary case means . . . that it ‘affected

3

After Olano, our sister circuits have reviewed double jeopardy claims not

raised in the district court for plain error. See United States v. Polouizzi, 564 F.3d

142, 153-54 (2d Cir. 2009); United States v. Kelly, 552 F.3d 824, 829 (D.C. Cir.

2009); United States v. Henry, 519 F.3d 68, 71 (1st Cir.), cert. denied, 555 U.S. ---,

129 S. Ct. 423 (2008); United States v. Lewis, 492 F.3d 1219, 1221-22 (11th Cir.

2007) (en banc); United States v. Jackson, 443 F.3d 293, 301 (3d Cir. 2006); United

States v. Hernandez-Guardado, 228 F.3d 1017, 1028-29 (9th Cir. 2000); United States

v. Lankford, 196 F.3d 563, 577 (5th Cir. 1999); United States v. Contreras, 108 F.3d

1255, 1261 (10th Cir. 1997); United States v. Branham, 97 F.3d 835, 842 (6th Cir.

1996); United States v. Penny, 60 F.3d 1257, 1261 (7th Cir. 1995); United States v.

Jarvis, 7 F.3d 404, 409-10 (4th Cir. 1993). 

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the outcome of the district court proceedings.’” Puckett v. United States, 556 U.S. ---,

129 S. Ct. 1423, 1429 (2009) (alteration in original) (quoting Olano, 507 U.S. at 732-

34). “[I]f the above three prongs are satisfied, the court of appeals has the discretion

to remedy the error—discretion which ought to be exercised only if the error

‘seriously affect[s] the fairness, integrity or public reputation of judicial

proceedings.’” Id. (second alteration in original) (quoting Olano, 507 U.S. at 736).

We first examine whether the district court erred in failing to recognize that

convicting Robertson on Counts I and II violated the Double Jeopardy Clause. The

double jeopardy bar applies “where the two offenses for which the defendant is

punished or tried cannot survive the ‘same-elements’ test.” United States v. Dixon,

509 U.S. 688, 696 (1993). “The same-elements test, sometimes referred to as the

‘Blockburger’

4

 test, inquires whether each offense contains an element not contained

in the other; if not, they are the ‘same offence’ and double jeopardy bars additional

punishment and successive prosecution.” Id. Robertson argues that abusive sexual

contact is a lesser-included offense of aggravated sexual abuse because every element

of abusive sexual contact is also an element of aggravated sexual abuse. See Brown

v. Ohio, 432 U.S. 161, 168 (1977) (stating that a “lesser included offense . . . requires

no proof beyond that which is required for conviction of the greater” and that “[t]he

greater offense is therefore by definition the ‘same’ for purposes of double jeopardy

as any lesser offense included in it”).

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.” 18 U.S.C.

§ 2241(a)(1). A “sexual act” is defined to include “contact between the penis and the

vulva,” which is deemed to occur “upon penetration, however . . . slight.” 18 U.S.C.

§ 2246(2)(A). A person commits abusive sexual contact if he “knowingly engages in

or causes sexual contact with or by another person, if so to do would

4

Blockburger v. United States, 284 U.S. 299 (1932).

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violate—subsection (a) or (b) of section 2241 of this title had the sexual contact been

a sexual act.” 18 U.S.C. § 2244(a)(1). “Sexual contact” is defined as “the intentional

touching, either directly or through the clothing, of the genitalia, anus, groin, breast,

inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass,

degrade, or arouse or gratify the sexual desire of any person.” 18 U.S.C. § 2246(3). 

We have held that “abusive sexual contact is a lesser-included offense of aggravated

sexual abuse.” United States v. No Neck, 472 F.3d 1048, 1054 (8th Cir. 2007)

(quoting United States v. Two Bulls, 940 F.2d 380, 381 (8th Cir. 1991) (per curiam)). 

Indeed, “it is obvious that any sexual act will necessarily involve sexual contact.” 

Two Bulls, 940 F.2d at 381. 

Our analysis does not end there, however, for “while abusive sexual contact

may be a lesser included offense when a single criminal event is involved, aggravated

sexual abuse is a different crime, and each may be violated during a series of distinct

criminal acts.” See United States v. Bercier, 506 F.3d 625, 633-34 (8th Cir. 2007). 

In Bercier, the defendant was convicted of abusive sexual contact and aggravated

sexual abuse for first touching and kissing the victim’s breasts and then forcibly

performing oral sex on her. Id. at 628-29. We found no double jeopardy violation

because “there was sufficient evidence that Bercier committed two distinct sex

offenses during the assault.” Id. at 634. Similarly, in United States v. Plenty Chief,

561 F.3d 846 (8th Cir. 2009), the defendant challenged his convictions for attempting

to engage in a sexual act with a minor in violation of 18 U.S.C. § 2243(a), and abusive

sexual contact, in violation of 18 U.S.C. § 2244(a)(3), on double jeopardy grounds,

Plenty Chief, 561 F.3d at 852-53. We upheld both convictions because we concluded

that the defendant’s rubbing the victim’s chest and thighs constituted abusive sexual

contact and that his forcibly attempting to penetrate the victim’s vagina with his finger

constituted a distinct attempted sexual act. Id. at 853-55. 

In this case, we must determine whether Robertson’s actions constituted distinct

attempts to cause sexual contact with F.S. by force and to engage in a sexual act with

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F.S. by force. Robertson clearly attempted to forcibly penetrate F.S.’s vulva, but the

trial record contains no evidence that he attempted to touch her breasts or otherwise

cause sexual contact apart from his attempt to engage in a single sexual act with her

by force. On these facts, we are compelled to conclude that the district court erred in

failing to recognize a double jeopardy violation. In light of our holdings in No Neck

and Two Bulls, we further conclude that this error was “clear and obvious” under

current law, see Sickinger, 179 F.3d at 1093. Robertson has thus satisfied the first two

prongs of the plain error test. 

To obtain relief on plain error review, Robertson also bears the burden of

showing that he was prejudiced by the double jeopardy violation. United States v.

Abdullahi, 520 F.3d 890, 896 (8th Cir. 2008) (“To show that he is entitled to plain

error relief, [the defendant] bears the burden of showing prejudice—that is, he must

show a reasonable probability that the outcome would have been different absent the

alleged error.” (alteration in original) (internal quotation marks omitted) (quoting

United States v. Smith, 508 F.3d 861, 865 (8th Cir. 2007))). Robertson correctly notes

that his sentences are not entirely concurrent because each conviction carries a

mandatory special assessment. See Ray v. United States, 481 U.S. 736, 737 (1987)

(per curiam) (concluding that “petitioner is not in fact serving concurrent sentences”

because he was ordered to pay multiple special assessments). In light of the double

jeopardy violation, the additional $100 special assessment subjects Robertson to

multiple punishments for the same offense. See United States v. Christner, 66 F.3d

922, 927 (8th Cir. 1995) (concluding that multiple statutory special assessments

constituted “multiple punishments, within the meaning of the double jeopardy clause”

(citing United States v. Grubbs, 829 F.2d 18, 19 (8th Cir. 1987) (per curiam))). We

conclude that this additional punishment prejudiced Robertson. See United States v.

Jones, 403 F.3d 604, 607 (8th Cir. 2005) (“[T]he $100 statutory special assessment

that [the defendant] received for his second conviction is a collateral consequence of

his conviction that constitutes actual prejudice.”); see also Ball v. United States, 470

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U.S. 856, 865 (1985)(“The separate conviction, apart from [a purportedly] concurrent

sentence, has potential adverse collateral consequences that may not be ignored.”). 

“Failing to remedy [such] a clear violation of a core constitutional principle

would be error ‘so obvious that our failure to notice it would seriously affect the

fairness, integrity, or public reputation of [the] judicial proceedings and result in a

miscarriage of justice.’” United States v. Ogba, 526 F.3d 214, 238 (5th Cir. 2008)

(first alteration in original) (quoting United States v. Fortenberry, 914 F.2d 671, 673

(5th Cir. 1990)) (reversing a conviction on plain error review after finding a double

jeopardy violation in part because the defendant was subjected to multiple special

assessments). Accordingly, we conclude that the double jeopardy violation is a plain

error, warranting reversal of Robertson’s conviction and sentence on Count II. See

Rutledge v. United States, 517 U.S. 292, 302-03 (1996) (vacating a second conviction

because the $50 assessment on the second count “amounts to cumulative punishment

not authorized by Congress”); Ball, 470 U.S. at 865 (“[T]he second conviction, even

if it results in no greater sentence, is an impermissible punishment.”); United States

v. Tann, 577 F.3d 533, 539-40 (3d Cir. 2009) (“Following Ball and Rutledge,

numerous courts of appeals . . . have concluded that a defendant’s substantial rights

are affected by the additional, unauthorized conviction, even when the immediate

practical effect may not increase the defendant’s prison term, or may only be a

negligible assessment.”); United States v. Parker, 508 F.3d 434, 436, 440-41 (7th Cir.

2007) (reversing a conviction on plain error review where the defendant was subjected

to “an additional $100 special assessment”).5

 

5

We reached the opposite conclusion in United States v. Bailey, 206 Fed. App’x

650 (8th Cir. 2006) (per curiam), holding that “[t]he special assessment, though an

additional punishment, ‘is not serious enough to be described as a miscarriage of

justice and thus constitute plain error,’” id. at 652 (quoting United States v. McCarter,

406 F.3d 460, 464 (7th Cir. 2005)). We are not bound by Bailey, however, since

unpublished opinions have no precedential value in our circuit. See 8th Cir. R. 32.1A;

United States v. Marston, 517 F.3d 996, 1004 n.5 (8th Cir. 2008). In Bailey, we relied

on McCarter, which the Seventh Circuit expressly overruled in Parker, 508 F.3d at

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Robertson contends that vacating his conviction and sentence on Count II is an

inadequate remedy and that we must remand for a new trial because the district court’s

failure to provide a lesser-included offense instruction sua sponte could have

prejudiced him “by suggesting to [the jury] that [he] . . . committed not one but [two]

crimes,” see United States v. Sue, 586 F.2d 70, 71 (8th Cir. 1978) (per curiam) (second

alteration in original) (quoting United States v. Ketchum, 320 F.2d 3, 8 (2d Cir.

1963)). We disagree. Instruction No. 2 charged the jury to “consider each count

separately . . . and return a separate verdict for each count.” On plain error review,

Robertson’s speculative assertion that the jury might have disregarded the court’s

instructions and convicted him based on the “psychological effect” of the

multiplicitous indictment is insufficient to show a reasonable probability that the

outcome would have been different but for the error. We have held that “[t]he

‘principal danger that the multiplicity doctrine addresses’ is the risk that a defendant

might receive multiple punishments for a single offense.” United States v. Roy, 408

F.3d 484, 492 (8th Cir. 2005) (quoting United States v. Webber, 255 F.3d 523, 527

(8th Cir. 2001)). Accordingly, we conclude that reversing Robertson’s conviction on

Count II and remanding to the district court with instructions to vacate his conviction

and sentence on that count is an adequate remedy for the constitutional violation. 

Robertson next argues that the district court erred in denying his motion for

judgment of acquittal on Count I because the Government failed to prove that he had

the intent to commit attempted aggravated sexual abuse. According to Robertson, the

Government failed to establish that he attempted to engage in a sexual act with F.S.

436 (concluding that McCarter is “inconsistent with Supreme Court precedent and out

of step with other circuits”). Because Bailey conflicts with Rutledge and Ball, we

decline to follow it. Cf. United States v. King, 554 F.3d 177, 180 (1st Cir.) (“One

might contend that even if the double conviction were plain error and prejudicial, the

extent of prejudice—a nominal second conviction with concurrent sentence and a

$100 assessment—does not meet the ‘miscarriage of justice’ requirement. Yet

[Rutledge and Ball] reach the opposite result . . . .” (internal citation omitted)), cert.

denied, 556 U.S. ---, 129 S. Ct. 2169 (2009).

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by force because the evidence at trial merely tended to suggest that he attempted to

have consensual sex with her. “We review de novo the denial of a motion for

judgment of acquittal, viewing the evidence in the light most favorable to the

government and accepting all reasonable inferences supporting the jury’s verdict . . . .” 

United States v. Hilliard, 490 F.3d 635, 640 (8th Cir. 2007) (internal citation omitted). 

“We reverse only if no reasonable jury could have found the defendant guilty beyond

a reasonable doubt.” United States v. Serrano-Lopez, 366 F.3d 628, 634 (8th Cir.

2004) (quoting United States v. Frank, 354 F.3d 910, 916 (8th Cir. 2004)).

“An attempt requires ‘(1) an intent to engage in criminal conduct, and (2)

conduct constituting a substantial step toward the commission of the substantive

offense which strongly corroborates the actor’s criminal intent.’” United States v.

Wahlstrom, 588 F.3d 538, 543 (8th Cir. 2009) (quoting United States v. Lucas, 499

F.3d 769, 781 (8th Cir. 2007) (en banc)). Here, the Government presented evidence

that Robertson forcibly removed the victim’s belt, pulled down her pants and

underwear, and repeatedly pushed against her on the bed, leaving semen on her

underwear. Throughout the encounter, F.S. struggled with Robertson and pleaded

with him to stop. When F.S. returned home, she was crying hysterically. Rayone

discovered that F.S.’s pants had been ripped, and bruises and scratches became visible

on F.S.’s inner thighs over the next few days. A laboratory analysis of F.S.’s

underwear performed by the FBI revealed the presence of Robertson’s semen. Based

on this evidence, a reasonable jury could easily find beyond a reasonable doubt that

Robertson intended to penetrate F.S.’s vulva by force and that he took “unequivocal”

steps “calculated to bring the desired result to fruition,” see United States v. Plenty

Arrows, 946 F.2d 62, 66 (8th Cir. 1991) (quoting Fryer v. Nix, 775 F.2d 979, 993 (8th

Cir. 1985)). In fact, “[i]t is difficult to understand what further act [the defendant]

could have performed toward the goal of forced penetration, short of actual

completion of the [substantive offense].” See United States v. Crowley, 318 F.3d 401,

408 (2d Cir. 2003).

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Robertson next challenges the jury instructions on three grounds. First, he

argues that the district court committed reversible error by defining “knowingly” in

Instruction No. 10. We generally review challenges to jury instructions for abuse of

discretion, United States v. Rush-Richardson, 574 F.3d 906, 910 (8th Cir. 2009), but

our review is for plain error where, as here, the defendant failed to object to the

offending instruction at trial, see United States v. Gianakos, 415 F.3d 912, 921 (8th

Cir. 2005). 

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.” 18 U.S.C.

§ 2241(a)(1). In this case, Count I charged Robertson with attempted aggravated

sexual abuse, which is a specific intent crime. Cf. United States v. Kenyon (Kenyon

II), 481 F.3d 1054, 1070 (8th Cir. 2007) (holding that “attempted sexual abuse is a

specific intent crime”). “[U]nder its usual definition, specific intent is ‘[t]he intent to

accomplish the precise criminal act that one is later charged with.’” Cherichel v.

Holder, 591 F.3d 1002, 1012 (8th Cir. 2010) (second alteration in original) (quoting

Black’s Law Dictionary 882 (9th ed. 2009)), petition for cert. filed, 78 U.S.L.W. 3629

(U.S. Apr. 12, 2010) (No. 09-1235). “In contrast, general intent is [the] ‘intent to

perform an act even though the actor does not desire the consequences that result[,]’

and often ‘takes the form of recklessness . . . or negligence.’” Id. at 1013 (second

alteration in original) (quoting Black’s Law Dictionary, supra, at 882). Under the

Model Penal Code, “a person who causes a particular result is said to act purposefully

if he consciously desires that result, whatever the likelihood of that result happening

from his conduct, while he is said to act knowingly if he is aware that that result is

practically certain to follow from his conduct, whatever his desire may be as to that

result.” United States v. Dougherty, 763 F.2d 970, 974 n.8 (8th Cir. 1985) (internal

quotation marks omitted) (quoting United States v. Bailey, 444 U.S. 394, 404 (1980)). 

Thus, in contemporary legal parlance, “‘purpose’ corresponds loosely with the

common-law concept of specific intent, while ‘knowledge’ corresponds loosely with

the concept of general intent.” Bailey, 444 U.S. at 405.

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Although the crime of attempted aggravated sexual abuse requires proof that

the defendant specifically intended to engage in a sexual act with the victim by the use

of force, the indictment in this case included the term, “knowingly,” which connotes

general intent. Thus, Count I alleged that Robertson “did knowingly attempt to cause

[F.S.], a juvenile, to engage in a sexual act . . . by the use of force against her.” 

Instruction No. 10, “KNOWINGLY,” informed the jury that “[a]n act is done

knowingly if the defendant is aware of the act and does not act through ignorance,

mistake, or accident.” According to Robertson, this instruction permitted the jury to

convict him “on an incorrect and lesser” mens rea standard. In reviewing this claim,

we do not examine Instruction No. 10 in isolation; we must instead determine

“whether the instructions as a whole accurately and adequately state[d] the relevant

law,” see United States v. Lewis, 593 F.3d 765, 771 (8th Cir. 2010) (emphasis added)

(quoting United States v. Stymiest, 581 F.3d 759, 763 (8th Cir. 2009), cert. denied,

559 U.S. ---, 2010 WL 891331 (Apr. 5, 2010)), petition for cert. filed, --- U.S.L.W. ---

(U.S. Apr. 27, 2010) (No. 09-10476). 

Instruction No. 19, “ATTEMPT - DEFINED,” informed the jury that Robertson

“may be found guilty of an attempt if he intended to engage in a sexual act . . . and

voluntarily and intentionally carried out some act which was a substantial step toward

that sexual act.” This instruction accurately described the mens rea standard of

specific intent for an attempt crime. See Wahlstrom, 588 F.3d at 543. We reject

Robertson’s argument that the definition of “knowingly” in Instruction No. 10 allowed

the jury to apply a “lesser” mens rea standard. Unlike Instruction No. 19, which listed

the elements of the crime in conjunction with the definition of “attempt,” Instruction

No. 10 merely defined “knowingly,” a term that turned out to be superfluous. 

Instruction No. 10 did not suggest that Robertson could be found guilty if he was

merely “aware of the act[s]” he committed. Nor did it undermine the clear statement

in Instruction No. 19 that the crime of attempt requires specific intent to commit the

substantive offense—here, aggravated sexual abuse. “It is axiomatic ‘that jurors are

presumed to follow the court’s instructions.’” United States v. Wisecarver, 598 F.3d

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982, 989 (8th Cir. 2010) (quoting United States v. Espinosa, 585 F.3d 418, 429 (8th

Cir. 2009)). Because nothing in the instructions permitted the jury to disregard the

mens rea standard of specific intent described in Instruction No. 19, we conclude that

the instructions, taken as a whole, accurately and adequately stated the relevant law

with respect to the mens rea standard. 

Robertson next argues that Jury Instruction No. 19 constructively amended the

indictment because it did not require the jury to find that Robertson intended to use

force against F.S. “A constructive amendment occurs when the essential elements of

the offense as charged in the indictment are altered in such a manner—often through

the evidence presented at trial or the jury instructions—that the jury is allowed to

convict the defendant of an offense different from or in addition to the offenses

charged in the indictment.” United States v. Whirlwind Soldier, 499 F.3d 862, 870

(8th Cir. 2007). “In reviewing an appeal based on a claim of constructive amendment,

we consider whether . . . the jury instructions created a ‘substantial likelihood’ that the

defendant was convicted of an uncharged offense.” Id. (quoting United States v.

Novak, 217 F.3d 566, 575 (8th Cir. 2000)).

Instruction No. 19 informed the jury that “[a] person may be found guilty of an

attempt if he intended to engage in a sexual act, that is, cause contact between his

penis and the vulva of [F.S.] and voluntarily and intentionally carried out some act

which was a substantial step toward that sexual act.” Viewed in isolation, this

instruction is troublesome because it fails to mention the element of force. Again,

however, we must determine whether the instructions as a whole accurately and

adequately stated the relevant law. Lewis, 593 F.3d at 771.

In this instance, the jury instructions as a whole adequately informed the jury

that it could find Robertson guilty on Count I only if it concluded that he attempted

to engage in a sexual act with F.S. by force. Instruction No. 14, “AGGRAVATED

SEXUAL ABUSE - ESSENTIAL ELEMENTS,” unambiguously stated that in order

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to return a guilty verdict, the jury had to find beyond a reasonable doubt that

Robertson “attempted to engage in a sexual act with [F.S.], that is, contact between

the penis and the vulva of [F.S.] by the use of force against her.” (Emphasis added.) 

Additionally, Instructions No. 11 and No. 19 informed the jury that Count I charged

Robertson with attempted aggravated sexual abuse of F.S. by the “use of force.” And

Instruction No. 16 defined “force” to include “the use of physical force sufficient to

overcome, restrain, or injure a person; or a threat of harm sufficient to coerce or

compel submission by the victim.” The instructions, taken as a whole, leave no doubt

that force was a required element of the crime. 

Significantly, the record indicates that the jury actually deliberated about the

issue of force. The jury posed a single question to the district court during

deliberations: “In Jury Instruction number 16, force defined, we are questioning if

such force can be implied force or if it must be an actual physical motion or verbal

statement.” Cf. United States v. Vu Anh Le, 512 F.3d 128, 133 (5th Cir. 2007)

(considering a question posed by the jury in determining whether the jury was

confused by supplemental instructions). This question shows that the jury did not

ignore the element of force; the jury plainly understood that finding force was a

necessary prerequisite for returning a guilty verdict. In light of the jury’s question,

as well as the accuracy of the instructions as a whole, we conclude that there was no

“substantial likelihood” that the defendant was convicted of an uncharged offense. 

We therefore reject Robertson’s argument that Instruction No. 19 constructively

amended the indictment.

In his final challenge to the jury instructions, Robertson argues that the district

court abused its discretion in denying his request for an intoxication instruction. See

United States v. McCourt, 468 F.3d 1088, 1093-94 (8th Cir. 2006) (“We review for

an abuse of discretion the district court’s refusal to give a specifically worded theoryof-defense instruction.”). “A defendant charged with a specific intent crime is entitled

to an intoxication instruction when ‘the evidence would support a finding that [the

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defendant] was in fact intoxicated and that as a result there was a reasonable doubt

that he lacked specific intent.’” Kenyon II, 481 F.3d at 1070 (alteration in original)

(quoting United States v. Fay, 668 F.2d 375, 378 (8th Cir. 1981)). In other words, an

intoxication instruction “is required if there is ‘some evidence’ [the defendant] ‘was

drunk enough to completely lack the capacity to form the requisite intent.’” Id.

(alteration in original) (quoting United States v. Nacotee, 159 F.3d 1073, 1076 (7th

Cir. 1998)). However, “mere evidence that the defendant had been drinking is not

enough to show that the district court abused its discretion in declining to give the

instruction.” Id. (citing United States v. Phelps, 168 F.3d 1048, 1056 (8th Cir. 1999)). 

Thus, we have held that “[a]n intoxication instruction should not be given if it lacks

evidentiary support or is based on mere speculation.” Phelps, 168 F.3d at 1056 (citing

United States v. Lavallie, 666 F.2d 1217, 1219 (8th Cir. 1981)).

Based on the evidence presented at trial, it would be speculative to conclude

that Robertson was so intoxicated on the day of the alleged offense that he lacked the

capacity to form the specific intent to engage in a sexual act with F.S. by force. Grant

Cavanaugh testified that he and Robertson were “drinking some beers” in the

morning, that they went on “a beer run” with F.S. before driving to Smith’s ranch, and

that he and Robertson drank beer with F.S. on the bus for an “hour or two.” F.S.

agreed that she was on the bus with Robertson and Cavanaugh for approximately two

hours and that “everybody was drinking.” But the record is devoid of evidence about

how much alcohol Robertson consumed, and there is no indication in the record that

Robertson was even moderately intoxicated, much less that he lost the capacity to

form the requisite intent to engage in a sexual act with F.S. by force. Accordingly, the

district court did not abuse its discretion in denying the proposed instruction. 

We now turn to Robertson’s claim that he was prejudiced by the improper

admission of several hearsay statements. Because Robertson did not object to any of

these statements at trial, we review their admission into evidence for plain error. See

United States v. Hyles, 521 F.3d 946, 959 (8th Cir. 2008), cert. denied, 555 U.S. ---,

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129 S. Ct. 941 (2009). On plain error review, we reverse “only if the error prejudices

the substantial rights of a party and would result in a miscarriage of justice if left

uncorrected.” United States v. Spencer, 592 F.3d 866, 880 (8th Cir. 2010) (quoting

United States v. Waldman, 310 F.3d 1074, 1078 (8th Cir. 2002)). 

Robertson first challenges three statements the Government elicited from F.S.’s

mother, Rayone. Rayone testified that when F.S. came into the house crying,

followed closely by Robertson, F.S. said, “Mom, he done something to me.” F.S. then

allegedly turned to Robertson and demanded, “Tell her what you did to me.” And

after Robertson left, F.S. allegedly told Rayone, “He raped me.” The Government

does not dispute that these out-of-court statements were improperly admitted hearsay

but maintains that the testimony was not prejudicial because it was cumulative of

F.S.’s testimony. See United States v. Londondio, 420 F.3d 777, 789 (8th Cir. 2005)

(“The admission of hearsay evidence that is cumulative of earlier trial testimony by

the declarant . . . is not likely to influence the jury and is therefore harmless error.”). 

As to the first two statements, the Government is clearly correct that they were

cumulative. F.S. testified that as soon as she came in the door of her mother’s house

she started “crying and yelling and telling [her] mom what had happened.” F.S. then

testified that she looked at Robertson and screamed, “Galen, tell her what you did.” 

Rayone’s testimony merely reiterated F.S.’s own testimony about making such

statements. In light of the strength of the other evidence of Robertson’s guilt, we

conclude that the admission of these cumulative statements was harmless error, see

United States v. Gettel, 474 F.3d 1081, 1090 (8th Cir. 2007), and, a fortiori, not

prejudicial, see United States v. Gomez, 580 F.3d 94, 103 (2d Cir. 2009); see also

United States v. Hollingsworth, 257 F.3d 871, 877 n.9 (8th Cir. 2001), overruled on

other grounds by United States v. Diaz, 296 F.3d 680, 684-85 (8th Cir. 2002) (en

banc). 

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The third statement is more troublesome because F.S. did not testify that

Robertson raped her. At trial, F.S. testified that Robertson forcibly removed her belt,

pulled down her pants and underwear, and repeatedly pushed against her on the bed

while she kicked and screamed. F.S. did not, however, testify that Robertson

penetrated her vulva during the struggle, nor could she say whether he removed any

of his clothes during the assault. Robertson is thus correct that Rayone’s testimony

that F.S. said, “He raped me,” was not cumulative of F.S.’s testimony and was

improperly admitted. It does not necessarily follow, however, that the admission of

this statement rises to the level of plain error. Although F.S. did not testify that

Robertson raped her, her testimony described at least an attempted sexual assault. 

Moreover, the record is replete with evidence that F.S.’s encounter with Robertson at

the back of the bus was not consensual. F.S. returned home crying hysterically, and

she challenged Robertson to tell Rayone “what [he] did.” Robertson behaved

nervously and acknowledged to Rayone that he might get into trouble for what he had

done. After Robertson left, Rayone noticed that F.S.’s pants had been ripped. 

Photographs taken a few days later at the police station revealed bruises and scratches

on F.S.’s inner thighs. In light of the strength of the Government’s evidence that

Robertson attempted to engage in a sexual act with F.S. by force, we are convinced

that the erroneous admission of F.S.’s alleged statement, “He raped me,” did not

prejudice Robertson’s substantial rights. See Spencer, 592 F.3d at 880; see also

United States v. Nutall, 180 F.3d 182, 189 (5th Cir. 1999). 

Robertson next challenges portions of Littlewind’s testimony, also on hearsay

grounds. First, Littlewind testified that Rayone told him that “she had something to

tell me . . . and [that] cops were going to be involved.” Robertson theorizes that this

testimony improperly “vouched” for Rayone’s testimony that F.S. said, “He raped

me,” and that it bolstered F.S.’s credibility by suggesting that Robertson had sexually

assaulted F.S. As an initial matter, we doubt that this statement was hearsay. See

Londondio, 420 F.3d at 788-89 (concluding that statements “offered to show the

reason for police action, rather than to prove the truth of the matter asserted” are not

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hearsay); see also United States v. Running Horse, 175 F.3d 635, 638 (8th Cir. 1999)

(“Preliminary information concerning the origin of an investigation, admitted only for

that purpose, is not hearsay.”). Even assuming that this statement was hearsay, it did

not prejudice Robertson’s substantial rights. The jury had already heard that Rayone

called Littlewind to report what she learned from F.S. In testifying that Rayone called

him, Littlewind did not express an opinion about whether Rayone had testified

truthfully or whether F.S. had been raped; his testimony merely confirmed that

Rayone reported that something had happened to F.S. requiring police investigation. 

This testimony added little, if anything, to the evidence of Robertson’s guilt. Thus,

even if the district court erred in admitting this testimony, we conclude that the error

was not prejudicial, see Nutall, 180 F.3d at 189.

Littlewind further testified that F.S. refused to go to the hospital and said, “I am

not going outside,” after she learned that Robertson was in the neighbor’s yard. 

Robertson argues that this too was prejudicial hearsay. Again, we disagree. 

Littlewind’s testimony about F.S.’s reaction to the news that Robertson was outside

simply reiterated F.S.’s testimony about her fear of encountering Robertson: “I was

scared to leave my house, to go out because Galen was next door.” We have held that

“[w]here the evidence is at most ‘an extra helping of what the jury had heard before,’

the evidence is merely cumulative and its admission does not result in reversible

error.” United States v. Ramos-Caraballo, 375 F.3d 797, 803 (8th Cir. 2004) (quoting

United States v. Simonelli, 237 F.3d 19, 29 (1st Cir. 2001)). Because the Government

presented ample evidence of Robertson’s guilt apart from this statement, we conclude

that, even assuming the challenged statement was hearsay, Robertson has failed to

demonstrate prejudice. See id. at 804.

Robertson also argues that Officer Belgarde’s testimony contained improper

hearsay. Officer Belgarde testified that when he arrived at Rayone’s house to

investigate, he asked Rayone “why she thought her daughter had been raped or what

led up to this point.” Even assuming this statement was hearsay, we conclude that

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admitting it into evidence did not prejudice Robertson’s substantial rights. Officer

Belgarde’s testimony merely suggested that he attempted to learn the basis of

Rayone’s report that her daughter had been raped—it did not imply that Officer

Belgarde had reached the conclusion that F.S. had been raped. Here again, this

testimony added little, if anything, to the evidence of Robertson’s guilt. Surely it

would come as no surprise to the jury to learn that Officer Belgarde, in response to a

reported sexual assault, asked the person who reported the crime to explain the basis

for her report. We conclude that the admission of this testimony was not prejudicial.

In sum, Robertson has not met his burden of showing that any improperly

admitted hearsay statements prejudiced his substantial rights, see Spencer, 592 F.3d

at 880, nor has he established that the admission of these statements “seriously

affect[ed] the fairness, integrity or public reputation of judicial proceedings,” see

Puckett, 129 S. Ct. at 1429 (quoting Olano, 507 U.S. at 736). Accordingly, plain error

relief is not warranted.6

Robertson also challenges the district court’s decision to grant the Government

a continuance of the trial date. “A ‘district court has broad discretion in deciding

whether to grant a continuance,’ and we review that decision for abuse of discretion.” 

United States v. Johnson, 535 F.3d 892, 898 (8th Cir. 2008) (quoting United States

v. Banks, 494 F.3d 681, 686 (8th Cir. 2007)). 

On September 25, 2008, the Government disclosed a three-page FBI lab report

identifying Robertson as the source of DNA found in a sample of semen taken from

the underwear F.S. was wearing on the day of the assault. Because the trial was set

for October 14, 2008, Robertson moved to exclude the DNA evidence. The

6

Robertson challenges four other “statements” on hearsay grounds. Because the

statements he identifies were not out-of-court statements “offered in evidence to prove

the truth of the matter asserted,” we conclude that they were not hearsay. See Fed. R.

Evid. 801(c). 

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Government admitted that it had received the lab report weeks earlier and claimed that

its failure to disclose the report to the defense was an oversight. The Government

asked the district court to continue the trial to give Robertson time to retain an expert

to analyze the evidence. Following an evidentiary hearing, the district court granted

a three-week continuance. Robertson argues that this decision was an abuse of

discretion. 

As an initial matter, Robertson argues that district courts are prohibited by

statute from granting continuances based on the Government’s mistake. See 18

U.S.C. § 3161(h)(7)(C) (“[N]o continuance under subparagraph (A) of this paragraph

shall be granted because of . . . lack of diligent preparation . . . on the part of the

attorney for the Government.”). This argument lacks merit. Section 3161(h) sets out

“periods of delay [which] shall be excluded” from the seventy-day speedy trial clock. 

See 18 U.S.C. § 3161(c)(1). Subparagraph (A) then states that the district court may

grant a continuance, and exclude the time from the speedy trial clock, if “the ends of

justice served by taking such action outweigh the best interest of the public and the

defendant in a speedy trial,” 18 U.S.C. § 3161(h)(7)(A). The limitation described in

§ 3161(h)(7)(C) applies only to “continuance[s] under subparagraph (A).” Read in

context, § 3161(h)(7)(C) does not absolutely prohibit the district court from granting

a continuance based on a prosecutor’s lack of diligent preparation—it simply prohibits

the district court from relying on § 3161(h)(7)(A) to exclude any delay caused by such

“lack of diligent preparation” from the speedy trial clock. Here, Robertson has not

raised a claim based on the Speedy Trial Act, so his reliance on § 3161(h)(7)(C) is

misplaced. 

Robertson also argues that the district court abused its discretion in continuing

the trial date because it failed to consider all relevant factors. See United States v.

Ware, 890 F.2d 1008, 1010 (8th Cir. 1989) (noting that courts should consider the

“time required and already permitted for trial preparation, diligence of the moving

party, conduct of the other party, the effect of delay, and the reasons movant gives for

-22-
needing a continuance”). We presume that “trial judges know the law and . . . apply

it in making their decisions.” See Walton v. Arizona, 497 U.S. 639, 653 (1990),

overruled on other grounds by Ring v. Arizona, 536 U.S. 584, 609 (2002). During the

evidentiary hearing, the district court addressed the Government’s culpability for the

tardy disclosure, the significance of the DNA evidence, and the number of days

remaining on the speedy trial clock. Although the district court did not specifically

discuss all five of the factors identified in Ware in announcing its decision, we

conclude that, under the circumstances, the district court adequately considered the

issue and did not abuse its “substantial discretion” in continuing the trial date. See

United States v. Tauil-Hernandez, 88 F.3d 576, 580 (8th Cir. 1996). 

Finally, Robertson contends that the cumulative effect of the district court’s

errors requires us to reverse and remand for a new trial. “We may reverse where the

case as a whole presents an image of unfairness that has resulted in the deprivation of

a defendant’s constitutional rights, even though none of the claimed errors is itself

sufficient to require reversal.” United States v. Eizember, 485 F.3d 400, 405 (8th Cir.

2007) (quoting United States v. Riddle, 193 F.3d 995, 998 (8th Cir. 1999)). Here, we

are convinced that the cumulative effect of any errors did not result in a miscarriage

of justice and that a new trial is therefore unnecessary. See United States v. Samples,

456 F.3d 875, 887 (8th Cir. 2006).

III. CONCLUSION

For the foregoing reasons, we affirm Robertson’s conviction on Count I, reverse

Robertson’s conviction on Count II, and remand to the district court with instructions

to vacate Robertson’s conviction and sentence on Count II.

______________________________

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