The Honorable Ortrie D. Smith, United States District Judge

for the Western District of Missouri, sitting by designation.

 The Honorable Charles B. Kornmann, United States District

Judge for the District of South Dakota.

___________

No. 96-1820

___________

United States of America, *

*

Appellee, *

* Appeal from the United

v. * States District Court for

* the District of South

Lawrence “Speedy” Goodlow, * Dakota.

*

Appellant. *

___________

Submitted: December 10, 1996

Filed: January 28, 1997

___________

Before BOWMAN and HEANEY, Circuit Judges, and SMITH, District Judge. 1

___________

SMITH, District Judge.

Following a jury trial, Lawrence “Speedy” Goodlow (“Appellant”) was

convicted of two counts of aggravated sexual abuse in violation of 18

U.S.C. §§ 1153 and 2241(a). On appeal, Appellant alleges that (1) there

was insufficient evidence to support his conviction, (2) the prosecutor

engaged in improper argument, and (3) the District Court abused its

2

discretion in allowing “repeated” leading questions of the victim. For the

reasons set forth below, we affirm Appellant’s conviction.
 Claims for insufficiency of the evidence require this Court

to examine the evidence in the light most favorable to the

government, giving it the benefit of all reasonable inferences. 

E.g., United States v. Suppenbach, 1 F.3d 679, 681-82 (8th Cir.

1993).

 “Tr. at __” is a reference to the transcript of the trial. 

“C.Tr. at __” is a reference to the transcript of the closing

argument.

2

I. BACKGROUND

When viewed in the light most favorable to the government, evidence 3

at trial demonstrated that during the Spring and early Fall of 1994,

Appellant and his wife (Katie Goodlow) lived next door to his mother-inlaw’s (Cecilia Cook) house. Both houses are located within the boundaries

of the Crow Creek Indian Reservation. Robert Cook (Katie’s brother

and Cecilia’s son) lived with Cecilia. Robert was 38 years old at the time

of the events at issue, but is borderline mentally retarded and has the IQ

consistent with that of a someone between the ages of ten and thirteen.

Tr. at 75-79. On August 1, 1994, Cecilia was temporarily admitted to a

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nursing home. While admitted, Cecilia arranged for Robert to stay with

Appellant and his wife. At the time, one of Katie’s sisters (Loyalee

Flute) and her husband (David Flute) were also living with Appellant and

his wife.

On August 26, 1996, Appellant and Robert engaged in oral and anal

sex. Robert testified that Appellant “raped me, and pulled down my pants,

and threatened to kill me.” Tr. at 90. He also testified that he did not

want to engage in sex with Appellant, but Appellant held him down and made

him participate. Tr. at 91, 93. At one point, Robert ran outside the

house, but Appellant ran after him, caught him and hit him. Tr. at 92, 93.

Appellant also told Robert that he would kill him if he told anyone what

they had done. Tr. at 93.
 Appellant does not appeal the admissibility of his

statement.

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Robert told Loyalee about the incident, and she and her husband took

Robert to the police station. Tr. at 98. Later that evening, Loyalee and

a police officer from the Bureau of Indian Affairs (Victor Ziegler) took

Robert to the emergency room at the Mid Dakota Hospital. Robert was

examined and asked questions by a nurse (Janet Lutter) and a doctor

(Theodore Matheny). Robert told Nurse Lutter that his brother-in-law raped

him and threatened to kill him, Tr. at 108-09, and told Doctor Matheny that

he had been threatened, but did not say who had made the threat. Tr. at

133. Both Nurse Lutter and Dr. Matheny observed a rash or bruise on the

right side of Robert’s rectal area, Tr. at 124, 132, 135. Dr. Matheny

opined that the rash/bruise was consistent with sexual abuse over a period

of time and that Robert was the victim of sexual assault. Tr. at 132-35.

On March 30, 1995, Special Agent Paul Pritchard of the FBI commenced

his investigation into this case. On April 7, Agent Pritchard contacted

Appellant for the purpose of interviewing him; with Appellant’s assent, the

two drove to the police department for this purpose. Appellant admitted5

engaging in oral and anal sex with Robert, and that he “intimidated” Robert

into agreeing to have sex. Appellant elaborated by explaining that Robert

liked to drink beer, and that Appellant withheld beer in order to persuade

Robert to have sex with him. Tr. at 40-44. However, Appellant denied

threatening Robert in any way in order to force him to engage in sex.

Agent Pritchard asked Appellant if he would be willing to sign a written

statement; Appellant agreed to sign, but not actually write, a statement.

Agent Pritchard wrote a statement for Appellant to sign; the statement

declares, inter alia, that Appellant and Robert “had oral sex numerous

times, and anal sex twice,” that the first incident of anal sex occurred

in Spring 1994 and the second occurred in August 1994, and that all the

incidents occurred in a house located on the Creek Indian Reservation. The
 More specifically, § 1153 includes among a list of crimes

any “felony under chapter 109A,” and § 2241 is the first section

in chapter 109A.

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statement also declared that Appellant was an American Indian. Finally,

the statement related Appellant’s explanation about his use of beer to

persuade/encourage Robert to engage in sex and his denial that force was

ever used. Appellant read and signed the statement after Agent Pritchard

finished writing it.

II. DISCUSSION

A. Sufficiency of the Evidence

The substance of the crime with which Appellant was convicted is

found in 18 U.S.C. § 2241(a), which makes it a crime to cause another

person to engage in a sexual act through the use of force or through

threats of death, serious bodily injury or kidnaping. The provisions of

§ 2241(a) are applicable in this case by virtue of 18 U.S.C. § 1153, which

provides that any Indian who commits a crime under § 2241(a) “within the 6

Indian country, shall be subject to the same laws and penalties as all

other persons committing” that offense. The interplay of these two

sections establishes that the elements of the crime were (1) Appellant was

an Indian, (2) he caused another to engage in a sexual act, (3) he used

force or the threat of force to cause the other individuals to engage in

the sexual act, and (4) the events occurred on Indian land.

Appellant does not dispute the sufficiency of the evidence with

respect to the first, second or fourth of these elements; indeed, evidence

supporting these elements was presented in Appellant’s testimony and in the

statement he provided to Agent Pritchard. Instead, Appellant contends that

there was insufficient evidence to prove beyond a reasonable doubt that he

used force or the threat of force. His argument is predicated on the fact

that Robert contradicted himself during his testimony, and at times
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admitted that Appellant had not made him do things he did not want to do

and that the only threats Appellant made related to the withholding of

beer. Appellant also contends that the victim was scared of his sister,

Loyalee, that Loyalee not only disliked Appellant but had a motive to

create legal difficulties for him, and that Robert had been coached and

coerced by her to make claims and deliver testimony against Appellant. 

It is true that Robert gave contradictory answers. It is also true

that there is some evidence that would have permitted the jury to believe

that Loyalee disliked Appellant. However, it is the jury’s job -- not ours

-- to decide issues that relate to the credibility of witnesses. “The

verdict must be upheld if there is an interpretation of the evidence that

would allow a reasonable jury to conclude guilt beyond a reasonable doubt.

Decisions regarding the credibility of witnesses are to be resolved in

favor of the jury's verdict.” United States v. Uder, 98 F.3d 1039, 1045

(8th Cir. 1996)(citation omitted). The jurors were made aware of all

factors bearing on the credibility of witnesses and made a decision as to

what to believe. After reviewing the record in the light most favorable

to the verdict, we cannot conclude that reasonably minded jurors must have

had a reasonable doubt as to Appellant’s guilt. Cf. United States v.

McCarthy, 97 F.3d 1562, 1571-72 (8th Cir. 1996) (rejecting claim of

insufficiency of the evidence based on “discrepancies in the testimony of

the government witnesses, a strong motive to fabricate, the government

witnesses' histories of drug and alcohol abuse, and the fact that the

government witnesses received favorable deals from the government in return

for testifying against the appellants.”).

B. Prosecutorial Misconduct

At various times, the prosecutor referred to the statement Appellant

made to Agent Pritchard as a “confession.” In particular, the prosecutor

referred to it as a confession when he requested that it be admitted into

evidence and during closing
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argument. Objections to this characterization were overruled and, though

no curative instructions were given, the trial judge did declare (in the

presence of the jury) that “it’s up to the jury to make that determination.

That’s Mr. Seiler’s interpretation of it. The jury may well find

otherwise. And I realize that’s not your interpretation of it, but that

will be up to the jury to decide.” C.Tr. at 6-7. Appellant contends that

the prosecutor’s characterization was improper because he never admitted

to using force or the threat of force to compel Robert Cook to engage in

sexual acts.

We examine claims of improper prosecutorial comments by determining

(1) whether the comments were actually improper, and (2) if the comments

were improper, whether they prejudicially affected the Defendant’s right

to a fair trial. United States v. Cannon, 88 F.3d 1495, 1502 (8th Cir.

1996). Initially, we are not entirely convinced that the prosecutor’s

characterization amounted to misconduct. Appellant did confess to three

of the four elements of the crime with which he was charged: he admitted

that he was an Indian, that he caused Robert Cook to engage in sexual acts

with him, and that the events in question occurred on the reservation. “A

confession is an acknowledgment in express words, by the accused in a

criminal case, of the truth of the guilty fact charged or of some essential

part of it.” Opper v. United States, 348 U.S. 84, 90 n.7 (1954); see also

Noland v. United States, 380 F.2d 1016, 1017 n.3 (10th Cir.), cert. denied,

389 U.S. 945 (1967); but see Niolek v. Ashe, 694 F.2d 282, 291 (1st Cir.

1982) (acknowledging distinction between confession of guilt to a crime and

an admission to some of the elements); Gladden v. Unsworth, 396 F.2d 373,

376 n.2 (9th Cir. 1968) (same). Whether a statement given to law

enforcement officials should be referred to as a confession or an admission

appears, at best, to be a question of semantics and not a potential ground

for misconduct.

Assuming, arguendo, that the use of the term “confession” was

improper, we conclude that Appellant’s right to a fair trial was not

comprised. The jury was aware that Appellant denied, both at
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trial and in his statement, that he used force or the threat of force. In

context, the prosecutor’s comments did not have the potential to mislead

the jury into believing otherwise. Moreover, we note the trial judge’s

comments, although not formally identified as a curative instruction, made

clear that the jury would decide the evidentiary value of the statement.

Finally, we see no basis for concluding that the jury was led to believe

that the government did not have to prove that Appellant used force or the

threat of force to cause Robert Cook to engage in sex. Having reviewed the

entire transcript, we are not persuaded that the jury’s verdict was

improperly affected by the terms employed by the prosecutor, and Appellant

was not deprived of his right to a fair trial.

C. Leading Questions

Appellant’s final argument focuses on the prosecutor’s use of

leading questions when conducting his direct examination of Robert Cook. 

In light of Robert Cook’s mental retardation, Appellant does not dispute

that leading questions were permissible pursuant to Fed. R. Evid.

611(c). Instead, Appellant contends that the prosecutor was permitted

to use more leading questions than was necessary.

"The use of leading questions is a matter left to the discretion

of the district court." United States v. Butler, 56 F.3d 941, 943 (8th

Cir.), cert. denied, 116 S. Ct. 322 (1995)(quotation omitted). 

Obviously, the trial court is in a better position than we are to

determine the emotional condition and forthrightness of the witness and

the need for counsel to use leading questions to develop the witness’s

testimony. E.g., United States v. Nabors, 762 F.2d 642, 651 (8th Cir.

1985). Upon reviewing the transcript, we discern no abuse of the trial

court’s discretion in permitting the use of leading questions.

III. CONCLUSION
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For the foregoing reasons, Appellant’s convictions are affirmed.

A true copy.

Attest:

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