The Honorable Gary A. Fenner, District Judge for the Western District o f 1 Missouri, sitting by designation. Section 2241(a)(1) provides in relevant part: 2
(a) By f

orce or threat.—Whoever, in the special maritime an d territo rial jurisdiction of the United States or in a Federal prison ,

United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 96-3968

___________ United States of America, *
* Plaintiff-Appellee, *
* Appeal from the United States
v. * District Court for the
* District of South Dakota. Sylvester Louis Bordeaux, also known * as Mano Bordeaux, *
* Defendant-Appellant. *

___________ Submitted: June 11, 1997 Filed: August 6, 1997

___________ Before LOKEN and LAY, Circuit Judges, and FENNER, District Judge. 1

___________ LAY, Circuit Judge. Sy lvester Louis Bordeaux, a.k.a. Mano Bordeaux, was originally charged fo r attemptedaggravated sexual abuse by force in violation of 18 U.S.C. § 2241(a)(1). 2knowingly causes another person to engage in a sexual act—
(1) by using force against that other person . . . o r attempts to do so, shall be fined under this title, imprisoned for any term of years or life, or both.

For purposes of this very serious offense, "sexual act" is defined in 18 U.S.C. § 2246(2) as:
(A) contact between the penis and th e

vulva or the penis and the anus, and fo r pu rposes of this subparagraph contac t in volving the penis occurs upon penetration , however, slight;
(B) contact between the mouth and th e penis, the mouth and the vulva, or the mout h and the anus;
(C) the penetration, however slight, o f the an al or genital opening of another by a hand o r finger or by any object, with an intent to abuse, humili ate, harass, degrade, or arouse or gratify the sexual desire of any person; or (D) the intentional touching, not through the clothi ng, of the genitalia of another person who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade,
or arouse or gratify the sexual desire of an y person. Upo n the defendant's request at trial, the district court submitted withou t objection jury i nstructions on the lesser included offense of abusive sexual contact by force under 18 U.S.C. § 2244(a)(1). Section 2244(a)(1) provides:
-2-(a) Sexual conduct in circumstances where sexual acts are p unished

by t his chapter.—Whoever, in the special maritime and territoria l jurisdiction of the United States or in a Federal Prison, knowi ngly engages in or causes sexual contact with or by another person, if so to do would violate—
(1) section 2241 of this title had the sexual contac t been a sexual

act, shall be fined under this title, imprisoned not more than ten years, or both.

The term "sexual

contact" is defined to include "the intentional touching, either direct ly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, o r 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). Although it is not asserted on app eal, the government argued before the district 3
cou rt that abusive sexual contact is not a lesser included offense of attempte d agg ravated sexual abuse. The district court rejected the government's argument , holding as follows:

As previously set forth, aggravated sexual abuse by force is committe d when a pe rson knowingly uses force to engage in a sexual act with a victi m. 18 U.S.C. § 2241(a)(1). Abusive sexual contact by force i s committed when a person knowin gly engages in or causes sexual contact with another person by the u se of force. 18 U.S.C. § 2244(a)(1). Eighth Cir cuit precedent has established that any sexual act will necessaril y in volve sexual contact. Two Bulls , 940 F.2d at 381. By definition th e eleme nts of abusive sexual contact by force as specified in sectio n 2244(a)(1) do form a subset of the elements of aggravated sexual abuse by force as set forth in section 2241(a)(1). See Emmert , 9 F.3d at 70 3
-3- On the charge of attempted aggravated sexual ab use, the jury returned the verdict form with a note s tating, "After all reasonable efforts, we, the jury, were unable to reach a verdict on the charge 'Attempted Aggravated Sexual Abuse.'" However, the jury did find the defendant guilty of the lesser included offense of abusive sexual contact b y force in violation of 18 U.S.C. § 2244(a)(1). While sentencing was pending, the 3( citing C avanaugh , 948 F.2d at 409; Schmuck , 109 S. Ct. at 145 0

(establ ishing that an offense is a lesser included offense only if it s elements form a subset of the elements of the charged offense)). As the district court observed, our opinion in United States v. Two Bulls , 940 F.2d 380 (8t h Cir. 1991), points out the obvious that any sexual act will necessarily involv e sexual contac t. See also United States v. Demarrias , 876 F.2d 674, 676 (8th Cir

. 1989).
-4- Un itedStates (government) notified the district court that the jury instruction on th e lesser i ncluded offense failed to include the essential element of force. On this basis, the court sua sponte granted a new trial; it vacated Bordeaux's conviction as to th e lesser included offense and ordered a new trial on the attempted aggravated sexua l abuse count. Bordeaux appealed. On August 14, 1996, this court found that th e district court lacked the

authority to order a new trial since the order was made by the court beyond seven days after the verdict. United States v. Bord eaux , 92 F.3d 606 (8th Cir. 1996); see Fed. R. Crim. P. 33.
Upon remand from this court, the distric t court held a hearing and sentenced the defendant to the maximum of ten years under the lesser included offense conviction

. Bordeaux now appeals both his conviction and sentence.

B o rdeaux initially claims that the district court's failure to include the essential element of force in the jury instruction on the lesser included offense violated hi s substantial right to a fair trial. Bordeaux did not file a motion for a new trial nor did his

counse lobject to the instruction at trial. On appeal he asserts that the district court' s erroneous instruction constituted plain error and requires reversal of th e conviction. The government concedes, as it did in the distr ict court below, that the failure to include the element of force in the lesser included offense instruction constituted plainThe D ouble Jeopardy Clause of the Fifth Amendment provides: "[N]or shal l 4 any person be subject for the same offense to be twice put in jeopardy of life or limb."
-5- error, and the government concedes Bordeaux's argument that he is entitled to a new trial. H owever, the government urges that Bordeaux should be retried on the original charge of attempted aggravated sexual abuse. On the other hand, Bordeaux argues that a remand by this court for a new trial should be for the lesser included offense only and argues that to subject him to a second trial on the greater offense of aggravated sexual abuse would constitute double jeopardy in violation of the Fifth Amendment to th e United States Constitution. 4

The Motion for a New Trial Testim ony at the original trial demonstrated that on August 7, 1994, Bordeau x intercepted the victim and her boyfriend. After the victim's boyfrien d proceeded beyond Bordeau x's trailer, Bordeaux held the victim by the wrist and took her inside to th e bedroom. It was claimed that the victim was intoxicated at the time. Bordeaux told her to undress but she refused. The evidence showed that Bordeauxtouched and kissed her neck. The parties dispute whether Bordeaux touched and kissed her breasts, an d whether Borde aux was ever on top of the victim holding her wrists. The polic e thereafter arrived and Bordeaux was arrested.

Both the defendant and the government urge that the district court committed plai n
error in failing to include the element of force in the jury instruction for the lesse r incl udedoffense. Under Federal Rule of Criminal Procedure 52(b), this court ma y notice an error not raised below if (1) there is an error, (2) that is "plain," and (3) that "affect[s] s ubstantial rights." United States v. Olano , 507 U.S. 725, 732 (1993). I n addition, the error may only be noticed if it "seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings." Johnson v. United States , 11 7 S. Ct. 1544, 1549 (1997) (citations om

itted). In this case, we must agree that giving the instruction without including the element of force was plain error that warrants reversalInsubmitting the case to the jury with instructions on the greater offense o f 5 attempted aggravated sexual abuse as well as on the lesser includ ed offense, the district court instructed:

If your ve rdict under these instructions is not guilty, or if, after al l
reas onable efforts you are unable to reach a verdict, you should recor d that decision on the verdict form and go on to con sider whether defendant is guilty of the crime of abusive sexual contact under this instruction.

Th e above instruction has been generally approved for use in this circuit. Se e Un ited States v. Hanson , 618 F.2d 1261, 1265-66 (8th Cir. 1980); Catches v. United States , 582 F.2d 453, 458-59 (8th Cir. 1978); see also United States v. Tsanas , 57 2 F.2d 340 (2d Cir. 1 978). However, we note by way of illustration that in California a trial cou rt must instruct a jury that it “may not return a verdict on the lesser offens e unless it has agreed . . . that defendant is not guilty of the greater crime charged. ” People v. Fields , 914 P.2d 832, 844 (Cal. 1996) (quoting People v. Kur tzman , 758 P.2d 572, 576 (Cal. 1988). This approach is necessitated by statutory law in Californi a which bar s a new trial on a greater offense following a hung jury on a greater offense and a conviction of a lesser offense. Fields , 914 P.2d at 840-41.
-6- of the conviction. See United States v. Webster , 84 F.3d 1056, 1067 (8th Cir. 1996);

see also Unit ed States v. Voss , 787 F.2d 393, 398 (8th Cir. 1986) (describing a n instruction that permitted the jury to convict without properly finding each element of the crime as "gra

ve error"). Because of the omission of the essential element of force, the continued dispute regarding the facts of the all eged incident, and the jury's difficulty in reaching a verdict in the first trial, we "find it necessary to exercise our discretio n under Rule 52(b)." Webster , 84 F.3d at 1067.
Double Jeopardy The more difficult i ssue before us is whether the verdict returned in Bordeaux's first t rial bars the government from retrying him on the greater offense originall y charg ed, that of attempted aggravated sexual abuse. Bordeaux argues that th e 5 government is precluded under principles of double jeopardy from retrying him for the greater offense on the basis that he has been convicted of the lesser included offenseJustice Marshall, then a circuit judge , observed in United States ex rel. Hetenyi 6
v. W ilkins , 348 F.2d 844 (2d Cir. 1965), that to conclude that a blank verdict for m constitutes an “implied acquittal” as to the greater charge is an assumption which i s premised only on conjecture. In Wilkins , the accused was originally convicted o f second degree murder, although he was charged with first degree murder. I n discussing whether the state was barred from retrying the defendant for first degree murder , Justice M arshall points out that the failure of the jury to return a verdict on the firs t degree murder charge—the verdict form was left blank as to that charge—suggested fourposs ibilities. One was an implied acquittal. Justice Marshall disavows thi s assumpti on on the ground that there are other possibilities, one being that the jur y simply could not agree as to the first degree murder charge and there was no unanimous judgment of proof beyond a reaso nable doubt that the defendant was guilty. The third alternative was that

it was an expression of sympathy showing that the jury wanted to return the second degree charge because they felt sorry for him. The fourth possibility
was that the jury didn't understand the difference between the two counts. Justic e Ma rshall then adduced from all of this that because each presented a reasonabl e possibility, there really was “only one certainty—the s tate had tried but failed to obtain a conviction for that first degree murder.” Id. at 857.
-7- of abusive sexual contact. Generally, the Double Jeopardy Clause “affords a defendant protect ionagainst a second prosecution for the same offense after acquittal or afte r conviction, and protection against multiple punishments in the same proceeding for the

same o ffense.” United States v. Cavanaugh , 948 F.2d 405, 414 (8th Cir. 1991 ) (citations omitted).

Bordeaux relies principally upon Green v. United States , 355 U.S. 184 (1957), and Price v. Georgia , 398 U.S. 323 (1969). In both of these cases in the original trial the jury left the verdict form blank as to the greater offense but returned a guilty verdict on the le sser included offense. Under the circumstances, the Supreme Court assumed there had been an implied acquittal as to the greater offense. See Green , 355 U.S. a t 190; Price , 398 U.S. at 329. In Green , the defendant was charged with first degre e 6 murder but the jury returned a guilty verdict only for second degree murder. On appeal the conviction was reversed and the case remanded for a new trial. At the new trial,-8-

Green was again tried for first degree murder. The Supreme Court concluded that the second trial for first degree murder placed Green in jeo pardy twice for the same offense in violation of the Constitution. Ba sed on its conclusion that there had been an implied acquittal, the Court stated:
After the original trial, but prior to his appeal, it is indisputable that Green could no t have been tried again for first degree murder for the death resulting f rom the fire. A plea of former jeopardy would have absolutely barred a new prosecution even though it might have been convincingl y demonstratedthat the jury erred in failing to convict him of that offense. And eve n after appealing the conviction of second degree murder he still could not h ave been tried a second time for first degree murder had hi s appeal been unsuccessful.

Green , 355 U.S. 184 at 191.
In summarizing its holding in Green , the Court in Price observed:

The Court in the Green case reversed the first-degree murder conviction obtained at the retrial, holding that the petitioner's je opardy for first-degree murder came to an end when the jury was discharged at the end of his first trial. This conclusion rested on two pre mises. First, the Court considered the first jur

y's verdict of guilty on the second-degree murder charge to be an "impli cit acquittal" on the charge of first-degree murder. Second, and more broadly, the Court reasoned that petitioner's jeopardy on the greater charge had ended when the first jury "was given a full opportunity t o return a verdict" on that charge and ins tead reached a verdict on the lesser charge. 355 U.S. at 191.

Price , 398 U.S. at 328-29.-9-

Bordeaux a lso argues that Brown v. Ohio , 432 U.S. 161 (1977), supports hi s argument that once he was convicted of the lesser included offense he could not b e retried on the greater

offense. However, we find Brown distinguishable from the facts of this case because the greater offense and the lesser included offe nse were not brought ag ainst Bordeaux in successive prosecutions. In Brown , the defendant pleaded guilty to the charge of joyriding, served his punishment, and the state subsequently indicted him for auto theft, arising from the same incident. The Supreme Court held tha t prosecution of the auto theft charge was barred by the Double Jeopardy Clause since the defendant had previously been convicted in a separate proceeding of jo yriding which

was a les ser included offense of auto theft. The Court concluded: “Whatever th e sequence may be, the Fifth Ame ndment forbids successive prosecution and cumulative pun ishment

for a greater and lesser included offense.” Id. at 169 (footnote omitted)

. Thi s fundamental protection of the Double Jeopardy Clause prohibiting successiv e prosecutions for the “same offense,” while firmly established, see In re Nielsen , 13 1 U.S. 176, 18 7 (1889), simply does not apply where the charges are not brought i n separate pros ecutions. See Ohio v. Johnson , 467 U.S. 493, 501 (1984) (distinguishing Br own from a case where a defendant is charged with greater and lesser include d offenses an d prosecuted for those offenses in a single trial, and rejecting the argument that “a determination of guilt and punishment on one count of a multicount indictment immediately raises a double jeopardy bar to continued prosecution on any remainin g counts that are greater or lesser included offenses of the charge just concluded”).

The g overnment urges that the controlling law is found in United States v

. Richardson , 468 U.S. 317 (1984). In Richardson , the defendant was acquitted on one count but th e jury was not able to agree on two other counts, so the district cour t declared a mistrial as to the remaining counts and scheduled a retrial. The defendan t argued that such

a retrial was barred by the Double Jeopardy Clause, but the Supreme Court rejected that

argument, emphasizing that once a jury is unable to reach a verdict and a declaration of mistrial has been made by the court, the hung jury is not th e equivalent of an acquittal. The Court relied on a long line of cases, starting with the-10-

opinion of Justice Story in United States v. Perez , 22 U.S. (9 Wheat.) 579 ( 1824), which hold that “a failure of the jury to agree on a verdict [is] an instance of < manifes t necessity' which permit[s] a trial judge to terminate the first trial a nd retry the defendant, because < the ends of public justice would otherwise be defeated. '” Richardson , 468 U.S. at 32 3-24 (quoting Perez , 9 Wheat. at 580). Here, of course, rather than returning a blank verdict form, the jury wrote on the form, “After all reasonable efforts, we, th e jury, were unable to reach a verdict on the charge < Attempted Aggravated Sexua l Abuse.'"
In resolving this complex question, we begin with what is cert ain. First, jeopardy did not termin ate on the greater offense because the jury could not agree as to tha t offense and the district court therefo re declared a mistrial. See Richardson , 468 U.S. at 323-25. Se cond, jeopardy did not terminate on the lesser included offense because of the establishe d rule that a person can be retried for an offense when a prior conviction for the same offense is set

aside for trial error. See Burks v. United States , 437 U.S. 1, 15 (1978). Here, we are reversing the lesser included of fense conviction because of the defective jury instruction and there fore Bordeaux can be retried for that offense. Thus, it would appear the issue is not whether the original jeopardy on the greater charge is

c o ntinuing, but whether the jury's verdict of guilt on the lesser charge, by implication, acquits the defendant of the greater charge.
Initially, we find some support for Bordeaux's position in Green and Price . I n Green and P rice , the Court's holdings were not based only on the "implied acquittal " inferred from the blank verdict. A second basis for prohibiting retrial on the greate r offense in that situation was that the jury, given the opportunity to convict on the greater

o f fense, had been dismissed after returning a verdict only as to the lesser offense. As stated in Price , "[T]his Court has consistently refused to rule that jeopardy for a n off ense continues after an acquittal, whether that acquittal is express or implied by a conviction on a lesser included offense when the jury was given a full opportunitySuch prosecution of the greater offense is barred under Maryland common law. 7 See Griffiths v. State , 611 A.2d 1025 (Md. Ct. Spec. App. 1992).
-11- to return a verdict on the greater charge." Price , 398 U.S. at 329 (footnote omitted) (our emphasis).

However, after further analysis, we think that neither of the bases for invokin g the double jeopardy bar in Green and Price can be applied here. The jury's expres s statement that it could not agree on a verdict as to the greater offense obviousl y precludes the inference that there was an implied acquittal. The second basis for those ruli ngs comes from the general rule that if a trial court discharges a jury, ove r defendant's objection, before a verdict is reached, then the defendant cannot be retried. See Green , 355 U.S. at 188. However, there are exceptions to this rule, and th e paradigmatic exception, consistently recognized by the Supreme Court, allows dismissal of the jury an d retrial of the defendant when there is a hung jury. See Richardson , 468 U.S. a t 324-25; Green , 355 U.S. at 188; Wade v. Hunter , 336 U.S. 684, 689 (1949)

. Therefore, t

he fact that the district court declared a mistrial based on a hung jury as to the greater offense m akes the second basis for the holding in Green and Price likewise inapplicable.

We have been unable to find any federal case confronting the identical issu e presented here. We discovered two state cases which analyze whether a conviction for a lesser included offens e bars a new trial on the greater offense where the original jury

was un able to agree on a verdict as to the greater offense. See People v. Fields , 91 4 P.2d 832 (Cal. 1996); Mauk v. State , 605 A.2d 157 (Md. Ct. Spec. App. 1992). 7 Although these cases include discussions of a bar to retrial on the greater offense under the laws of their respective states, they both conclude that retrial is not barred by th e Fifth Amendment's Double Jeopardy Clause.-12-

While we t ake very seriously the prospect of an accused having to run th e gauntle t of a criminal trial a second time, we find no basis in the Double Jeopard y Clause, and its long line of case law, to bar the retrial of Bordeaux on the greate r offense

. We find support for this decision in dictum from the Supreme Court i n Selvester v. United States , 170 U.S. 262, 269 (1898), where the Court observed:

Doubtless, where a jury, although convicting as to some, are silent as to other counts in an indictment, and are discharged without the consent of the accused, . . . the effect of such discharge is “equivalent to acquittal,” bec ause, as the record affords no adequate legal cause for the discharg e of the jury, any further attempt to prosecute would amount to a secon d jeopardy, as to the charge with reference to whi ch the jury has been silent. But such obviously is not the case, where a jury ha[s] not been silent as to a particula r count, but where, on the contrary, a disagreement is formally entered on the record. The effect of such entry justifies the discharge of the ju ry, and therefore a subsequent prosecution for the offence as t o which the jury has disagreed and on account of which i t has been regularly discharged, would not constitute second jeopardy.
In conclusion, although in light of Green and Price we find the question difficult, we hold that where the jury expressly indicates that it is unable to reach an agreement

on the greater charge, a conviction on a lesser included offense does not constitute an implied acqui ttal of the greater offense and presents no bar to retrial on the greate r offense. Under these circumstances, we find controlling the mandate of the Supreme Court that a retrial follow ing a hung jury does not violate the Double Jeopardy Clause. As R ichardson points out, “the protection of the Double Jeopardy Clause by its terms app lies only if there has been some event, such as an acquittal, which terminates th e orig inal jeopardy." 468 U.S. at 325 (citations omitted). We believe this rule must b e applied even though the jury convicted the defendant on the lesser included charge.

On the basis of the above analysis, we find that jeopardy did not terminate b y reason of the mistrial on the greater offense or by the guilty verdict returned on theIn this appeal, Bordeaux alternatively raised evidentiary issues as well as serious 8 chall enges to the court's application of the Sentencing Guidelines. In the event that a retria l results in a conviction, we make clear that questions relating to the evidentiary rulings in the new trial, i f they are repeated, are reserved and not waived. We reserve judgment under the facts proven by the government as to the propri ety and applicability of the charge of attempted aggravated sexual abuse, which carri es a maximum sentence of life imprisonment. Similarly, we reserve judgment as to the district court' s application of the Sentenci ng Guidelines, particularly the use of the cross-reference of § 2A3. 4(c). See U.S.S.G. App. C, Amendment 444 (stating the cross-reference i s designed f

or "serious" sexual abuse cases). By the use of the cross-reference of § 2A3.4(c), and the two level upw ard adjustment for "physical restraint" in § 3A1.3, the offe nse level rose from 16 to 33 under the guidelines, enabling the district court t o increase th e defendant's sentence from the range of 41-51 months to the statutor y maximum of ten years.
-13- l e sser included offense. On this basis, we reverse the conviction of the defendant on 8 the lesser included charge and rema nd to the district court for a new trial on attempted aggravated sexual abuse.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.