1

The Honorable David M. Ebel, Senior Circuit Judge, United States Court of

Appeals for the Tenth Judicial Circuit, sitting by designation.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 07-3491

___________

United States of America, * 

*

Appellee, *

* Appeal from the United States

v. * District Court for the

* District of South Dakota.

Pascal L. Two Elk, *

* 

Appellant. *

___________

Submitted: June 10, 2008

Filed: August 5, 2008 (corrected August 13, 2008)

___________

Before LOKEN, Chief Judge, EBEL1

 and COLLOTON, Circuit Judges.

___________

EBEL, Circuit Judge.

A jury convicted Defendant-Appellant Pascal L. Two Elk of two counts of

aggravated sexual abuse of A.R., a child under the age of twelve, in violation of 18

U.S.C. §§ 1153, 2241(c) and 2246(2)(A). On appeal, Two Elk alleges a series of
2

The Honorable Charles B. Kornmann, Judge, United States District Court for

the District of South Dakota.

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errors by the district court2 that, in his estimate, deprived him of a fair trial.

Alternatively, he challenges one aspect of the sentencing court’s U.S. Sentencing

Guidelines (“U.S.S.G.”) calculations. 

Two Elk first argues that his two-count Indictment was multiplicitous because

both counts charged him with the same exact conduct. He requests a new trial on

whichever count is left standing because the two-count Indictment hyperbolized his

alleged offenses and thereby tainted the jury’s deliberations on both counts. 

Second, Two Elk challenges a series of the district court’s evidentiary

decisions. Specifically, he argues that the court erred in admitting four hearsay

statements and also failed to ensure that medical testimony offered by the prosecution

was reliable and relevant. Third, he takes issue with comments that the prosecutor

made in his closing argument and a line of questioning the prosecutor took up with

one of the defense witnesses. Two Elk contends that these errors, taken individually

or cumulatively, deprived him of a fair trial. 

Lastly – and, of course, alternatively – Two Elk asserts that the district court

erred in applying a four-level enhancement for the use of force during the sexual act.

He claims that the district court overreached in finding the factual predicates

necessary for the enhancement and also argues that, even assuming the presence of

those factors, the evidence did not warrant the enhancement. 

We hold that: (1) the district court did not plainly err by entering a judgment of

conviction on both counts of the Indictment; (2) the court did not commit reversible

error in admitting certain hearsay statements; (3) the court did not admit expert

testimony without a proper foundation; (4) the prosecutor’s alleged misconduct does
3

Two Elk lived in Francine’s home until moving out on Monday, October 17,

2005. 

4

Two Elk’s biological father passed away while he was young; Francine

married Ben Sr. before Two Elk’s first birthday. 

-3-

not necessitate a new trial; and (5) the court properly enhanced Two Elk’s offense

level pursuant to the use-of-force enhancement. We exercise jurisdiction under 28

U.S.C. § 1291 and 18 U.S.C. § 3742(a) and affirm.

I. BACKGROUND

A. Factual Background

A.R. was born on April 10, 2003. A.R.’s mother, Carmelle Roach, often left

A.R. and her twin brother S.R. with Francine Murphy, the wife of Roach’s uncle, Ben

Murphy, Sr. (“Ben Sr.”). Francine ran a state- and tribe-certified daycare center at her

home on the Rosebud Indian Reservation in South Dakota. During the relevant time

period, three of Francine’s own children lived with her and her husband, Ben Murphy,

Sr. (“Ben Sr.”), at the home: the Defendant-Appellant,3

 Christopher Two Elk (along

with his wife and son), and Ben Murphy, Jr. (“Ben Jr.”) (along with his girlfriend and

two children).4 

Before driving to Rapid City, South Dakota, to attend a wedding, Roach

dropped the twins off at Francine’s home on October 14, 2005. They remained in

Francine’s care until Roach picked them up on Wednesday, October 19, at 5:30 p.m.

Roach took the twins to a school fund-raiser from 6:45 p.m. to 9:15 p.m. that evening

after picking them up. Upon arriving home and feeding the twins, Roach realized that

something was wrong with A.R. She eventually checked A.R. into the local Indian

Health Services hospital at 12:40 a.m. the following morning. 
-4-

Shortly thereafter, Dr. Lloyd McPherson conducted an initial examination of

A.R. He diagnosed A.R. with a lacerated perineum, injuries around the vaginal

entrance, and a rectal tear. Dr. McPherson noted that the injuries were not “acute” –

that is, they had not happened in the past few hours – but that it was difficult to tell

because the wounds were contaminated. Later that morning, A.R. was flown to Sioux

Valley Hospital for further care. 

Dr. Ed Mailloux, a pediatrician affiliated with Sioux Valley Hospital, then

examined A.R. While examining her, Dr. Mailloux videotaped the injuries. Dr.

Mailloux’s initial assessment regarding the time when the injuries took place departed

somewhat from that of Dr. McPherson; he suggested that the fragility of the tissue in

the injured area suggested that the wounds could have happened within the past 24 to

48 hours, or possibly up to 72 hours earlier. At trial, however, Dr. Mailloux revised

his opinion somewhat, stating that the timing of the injuries was difficult to pinpoint

but opining that the injuries occurred 3 to 5 days before he examined A.R. After Dr.

Mailloux’s examination, Dr. Keith Allen Hansen examined A.R.’s internal organs. He

too expressed some uncertainty about when A.R.’s injuries occurred. At trial, Dr.

Hansen testified that, in his opinion, A.R.’s injuries were 2 to 5 days old at the time

of his exam. 

The Federal Bureau of Investigation (“FBI”) handled the investigation into the

apparent sexual abuse of A.R. After speaking with Francine, FBI investigators

concentrated on the early morning hours of Sunday, October 16, 2005. They did so

because Francine told them that this time frame was the only time she had not been

vigilantly watching the children. She also explained that during the lateSaturday/early-morning-Sunday time period, seven adults were hanging out at her
5

Of note, Two Elk, Ben Jr. and Ben. Jr.’s girlfriend stayed up until

approximately 4 a.m. drinking. 

-5-

home, drinking and playing a board game.5 Francine noted that she had put the twins

to bed on a comforter on the floor of a spare upstairs bedroom across from her

bedroom on the night of October 15. The FBI interviewed those in attendance,

including Two Elk, as part of its investigation. 

Two Elk met with FBI Special Agent David Mackey and a Sioux tribal

investigator on October 21, 2005. At that time, Two Elk denied any involvement in

A.R.’s abuse. He freely consented to the FBI’s request that he provide buccal swabs

for DNA-testing purposes. He also assented to a second interview on November 3,

2005. 

At the outset of the second interview, Two Elk signed a form detailing his

Miranda rights and certifying that he had appeared voluntarily. After Two Elk signed

the form, Agent Mackey left the room and FBI Special Agent Kelly Kenser

interviewed Two Elk alone for approximately forty-five minutes. Agent Kenser

explicitly asked Two Elk whether he had put anything in A.R.’s vagina or anus. Two

Elk denied having done so. Agent Kenser then left the room for a short time; when

he returned, he asserted that Two Elk was being deceitful. Shortly thereafter, Two Elk

became emotional and eventually confessed to having vaginal and anal sex with A.R.

According to Agent Kenser, this second segment of the interview lasted

approximately thirty minutes. 

At that point, Agent Kenser paused the interview momentarily to bring in Agent

Mackey. Two Elk then told the Agents that on the night in question he was very

inebriated, that he was under stress from college and planning to move out of

Francine’s home, and that he believed at the time he was having sex with an adult

woman. He did not recall entering the room where the twins were sleeping. However,
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he remembered lifting A.R. from the comforter on the floor and placing her on a

mattress on the bed. Two Elk stated that he then had intercourse, vaginal and anal,

with A.R. for approximately 5 to 10 minutes. When A.R. started to cry, Two Elk

placed his hand over her mouth to muffle the cries. After finishing, Two Elk used a

sock to wipe blood off of himself and A.R.; he then placed the sock in a trash can

which he immediately emptied. 

Near the end of the interview, the agents asked Two Elk if he would be willing

to restate his confession on tape. Two Elk assented. The taped portion of the

interview lasted approximately eight minutes. The transcript of the tape reveals a

condensed version of Two Elk’s prior statements to the two agents. Two Elk’s second

interview lasted from 1:40 p.m. until 4:22 p.m. 

B. Procedural Background

On November 16, 2005, a grand jury indicted Two Elk on two counts of

Aggravated Sexual Abuse of a Child, in violation of 18 U.S.C. §§ 1153, 2241(c), and

2246(2)(A). The Indictment charged Two Elk with (1) contacting [A.R.’s] vulva with

his penis and (2) contacting her anus with his penis. The Indictment also alleged that

Two Elk is an Indian and that the crime took place in Indian country. Two Elk

pleaded not guilty and proceeded to trial. 

Before trial, Two Elk moved to suppress the statements he made to Agents

Kenser and Mackey, claiming that they were involuntary. The district court denied

his motion to suppress all the statements, noting that this portion of the motion was

“totally without merit and . . . probably frivolous.” 

Two Elk’s trial took place from July 16 to July 18, 2007. At trial, the

government offered Two Elk’s taped confession. Both Agent Kenser and Agent

Mackey also offered testimony about their investigation and about the substance of
6

Because Agent Kenser was overseas at the time of the trial, the court ordered

that Kenser be deposed pursuant to Federal Rule of Criminal Procedure 15 and that

the resulting tape – as edited to reflect sustained objections – be admitted “as

substantive evidence.” 

7

Francine testified that she never put the twins on the mattress because they

might fall off the bed while sleeping. The DNA examiner noted that the mattress

cover had several blood and semen stains and stated that such stains may produce

testable DNA samples for years so long as the item is not washed. She also stated that

her tests on the blood and semen stains on the mattress cover excluded Two Elk as a

contributor to the particular stains. 

8

Both Agents Kenser and Mackey testified that they cautioned Two Elk not to

speculate as to what he might have done. They testified that they told Two Elk during

-7-

their November 3 interview with Two Elk.6 In addition, the government introduced

testimony from the three doctors who treated A.R. and from an FBI forensic DNA

examiner who indicated that it was likely that A.R.’s DNA was present on the mattress

cover, which would be consistent with Two Elk’s confession that he lifted A.R. onto

the bed and then returned her to the comforter on the floor.7

 The government

complemented Two Elk’s confession with circumstantial evidence from the doctors

and Carmelle Roach suggesting that A.R.’s injuries took place in the early morning

hours of October 16. 

Two Elk took the stand and denied any involvement in A.R.’s abuse. He

attempted to explain away the confession by claiming that Agent Kenser’s

interrogation tactics overwhelmed him psychologically. He explained that he was

emotionally drained and also scared during the second interview. He also claimed

that, at the time, he felt that he had the least to lose and that his sacrifice would best

preserve his family. Thus, Two Elk testified, when Agent Kenser provided prompts

as to what he had done to A.R., he simply agreed with whatever Agent Kenser

suggested.8
the interview that they wanted the truth. And both testified that Two Elk detailed the

sexual assault.

-8-

The defense also offered an alternate theory as to who assaulted A.R.

Specifically, the defense insinuated that Ben Sr., who was in the Rosebud jail until

Sunday, October 16, at about 6:00 p.m. for an alcohol-related offense, was the culprit.

The defense cast Ben Sr. as a mean drunk who had been accused by an 11-year-old

female of sexual molestation just before Two Elk’s trial. In addition, the defense

noted that the FBI had never investigated Ben Sr., failing even to take DNA swabs

from him, because he was in jail at the time they believed the assault occurred. 

In this vein, the defense argued that the crime did not occur in the early morning

hours of October 16. Francine and others who attended the party at Francine’s home

Saturday night asserted that they saw or heard nothing that would indicate an assault

had occurred. Francine testified that A.R. did nothing on Sunday that would indicate

anything was wrong. Nor did Francine notice any blood on A.R.’s diaper or any other

physical signs that A.R. was injured. Francine also acknowledged that she had slept

at other times during the twins’ stay with her. On this evidence, the defense

contended that it was likely that the crime occurred after Ben Sr. was released from

the Rosebud Jail and, more critically, after Two Elk moved out of Francine’s home

on Monday, October 17. The defense attempted to bolster this theory by questioning

the doctors’ testimony that A.R.’s injuries were not acute.

The jury convicted Two Elk of both counts on July 19, 2007. Thereafter, the

U.S. Probation Office prepared a presentence report (“PSR”). Two Elk’s PSR set his

total offense level at 40. That offense level included a four-level increase pursuant to

U.S.S.G. § 2A3.1(b)(1), which applies where the defendant used force during the

instant offense. Because Two Elk had no criminal history points, his criminal history

was I. These two metrics produced an advisory guideline range of 292 to 365 months
-9-

in prison. In objections submitted prior to sentencing and reiterated at sentencing,

Two Elk disputed, inter alia, the applicability of the § 2A3.1(b)(1) enhancement. 

Despite this objection, the sentencing court opted to apply the § 2A3.1(b)(1)

enhancement. Additionally, at the government’s behest, the court found that “the

defendant lied about material matters at his trial” and increased his offense level two

levels pursuant to U.S.S.G. § 3C1.1. The resulting advisory guideline range was 360

months to life. The court sentenced Two Elk to 408 months’ imprisonment on each

count, to run concurrently. Two Elk timely noticed his appeal, challenging both his

convictions and his sentence. 

II. DISCUSSION

A. Whether the two counts charged in the Indictment are multiplicitous.

Although Two Elk did not raise this objection below, he now argues on appeal

that Counts I and II of the Indictment are multiplicitous. Punishment for both, he

posits, would amount to two punishments for one act, in violation of the Fifth

Amendment’s Double Jeopardy Clause. 

1. Standard of Review

Two Elk asserts that this court reviews for plain error a double jeopardy

challenge not raised in the district court. See United States v. Sickinger, 179 F.3d

1091, 1092-93 (8th Cir. 1999) (citing United States v. Uder, 98 F.3d 1039, 1045 (8th

Cir. 1996); United States v. Merritt, 982 F.2d 305, 306-07 (8th Cir. 1992)); see also

United States v. Bercier, 506 F.3d 625, 633 (8th Cir. 2007). The government,

however, offers Eighth Circuit case law stating that “[i]t is well settled that ‘[d]ouble

jeopardy claims may not be raised for the first time on appeal.’” United States v. High

Elk, 442 F.3d 622, 624 (8th Cir. 2006) (quoting United States v. Santana, 150 F.3d
9

“No person shall . . . be subject for the same offence to be twice put in jeopardy

of life or limb.” U.S. Const. amend. v. 

-10-

860, 863-64 (8th Cir. 1998)) (second alteration in original); see also United States v.

Goodwin, 72 F.3d 88, 91 (8th Cir. 1995); United States v. Garrett, 961 F.2d 743, 748

& n.7 (8th Cir. 1992). We need not reconcile these two lines of cases because we

conclude that, even if we review for plain error, there was no such error here. 

“Under plain error review, [Two Elk] must prove that (1) there was an error,

(2) the error was plain, (3) it affects substantial rights, and (4) it seriously affects the

fairness, integrity, or public reputation of judicial proceedings.” United States v.

Brandon, 521 F.3d 1019, 1027 (8th Cir. 2008). In considering the facts underlying

the allegedly multiplicitous convictions, this court accepts them in the light most

favorable to the verdict. United States v. Chipps, 410 F.3d 438, 447 (8th Cir. 2005).

2. Merits

The Fifth Amendment’s double jeopardy clause9 proscribes the imposition of

“[m]ultiple punishments for the same criminal offense.” United States v. Roy, 408

F.3d 484, 491 (8th Cir. 2005). Demonstrating that an indictment violates the double

jeopardy clause requires the defendant to “show that the two offenses charged are in

law and fact the same offense.” Id. (quotation omitted). To decide whether the

defenses are the same, this court must scrutinize the statute in question to determine

“whether Congress intended the facts underlying each count to make up a separate

unit of prosecution.” Chipps, 410 F.3d at 447. This court discerns Congressional

intent from “the statutory language, legislative history, and statutory scheme.” Id. at

448. If in doubt about that intent (because, for example, Congress’s intended unit of

prosecution is not clear and unambiguous), this court “resolve[s] doubt . . . in favor

of lenity for the defendant.” Id.
10The definition of “sexual act” also includes:

(B) contact between the mouth and the penis, the mouth and the vulva,

or the mouth and the anus;

(C) the penetration, however slight, of the anal or genital opening of

another by a hand or finger or by any object, with an intent to abuse,

humiliate, harass, degrade, or arouse or gratify the sexual desire of any

person; or

(D) the intentional touching, not through the clothing, 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 any person.

18 U.S.C. § 2246(2).

-11-

Count I of the Indictment charged Two Elk with knowingly engaging in a

sexual act, namely “contact between his penis and [A.R.’s] vulva.” Count II charged

Two Elk with knowingly engaging in a sexual act, but this time by “contact between

his penis and [A.R.’s] anus.” Under the aggravated sexual abuse statute, “[w]hoever

. . . knowingly engages in a sexual act with another person who has not attained the

age of 12 years, . . . or attempts to do so, shall be fined under this title and imprisoned

for not less than 30 years or for life.” 18 U.S.C. § 2241(c) (emphasis added). “[T]he

term ‘sexual act’ means -- (A) contact between the penis and the vulva or the penis

and the anus, and for purposes of this subparagraph contact involving the penis occurs

upon penetration, however, [sic] slight.” Id. § 2246(2)(A).10 

Against this statutory backdrop, we must decide “how many sex crimes . . . a

defendant commit[s] when he inflicts a series of distinct sexual offenses on the victim

during a single incident[.]” Bercier, 506 F.3d at 634. To answer this question, we

must first decide whether aggravated sexual abuse under § 2241(c) is a “course-ofconduct offense or a separate-act offense.” Chipps, 410 F.3d at 449. Chipps involved

a separate statute prohibiting “simple assault” and in that context stated, 
11The statutory language at issue in Chipps addressed “simple assault” without

breaking that conduct into separate, disjunctive acts while § 2246(2) details the

various types of “sexual act” addressed by § 2241(c). 

-12-

To determine whether this indictment is multiplicitous, [this court] must

decide whether Congress intended to punish assault as a course of

conduct, such that the first bit of assaultive conduct . . . is of a piece with

the second bit . . . , or whether Congress sought to punish separately

individual acts within an assaultive episode.

Id. at 448. If the offense is a “course-of-conduct offense,” this court then applies “the

impulse test,” treating “as one offense all violations that arise from that singleness of

thought, purpose or action, which may be deemed a single ‘impulse.’” Id. at 449

(quoting United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 224 (1952)).

If the offense is a “separate-act offense,” however, our inquiry is at an end because

there is no double jeopardy problem. 

We conclude that § 2241(c)’s language confirms that aggravated sexual abuse

is a separate-act offense. The plain language of § 2241(c) states that a person commits

aggravated sexual abuse by “engag[ing] in a sexual act with another person.”

(Emphasis added). The statute does not say “sexual act or acts,” or “sexual course of

conduct.” Each of the permutations enumerated in § 2246(2) constitutes a sexual act

and they are linked in the disjunctive. It follows, then, that engaging in multiple

sexual acts (as listed in § 2246(2)) would amount to multiple violations of § 2241(c)

and would leave the perpetrator susceptible to multiple punishments thereunder.

Unlike Chipps, this reading does not break an assaultive episode down into absurd

quanta, (e.g., kicking and punching during a single incident). Thus, the “simple

assault” charged in Chipps, see 18 U.S.C. § 113(a)(5), can be distinguished from the

sexual acts charged here under §§ 2241(c) and 2246(2).11 
-13-

 In addition, the Bercier court noted that “[a] number of cases have held that

state court convictions for multiple sex offenses did not violate the Double Jeopardy

Clause if, under state law, ‘a defendant may receive multiple punishments for

numerous sex offenses rapidly committed with the sole aim of sexual gratification.’”

Bercier, 506 F.3d at 634 (quoting Rhoden v. Rowland, 10 F.3d 1457, 1462 (9th Cir.

1992)). The Bercier court could not find “a case thoroughly addressing this question

in the context of the federal sexual assault” statutes, id., and Bercier itself did not

resolve the issue. Nonetheless, in light of Bercier’s tone and its reference to the state

decisions holding various sex acts within a single course of conduct to be separate

offenses, the case provides some support for our interpretation of § 2241. The

statute’s language and Bercier confirm that the district court did not err and certainly

did not commit plain error. As such, we do not reach Two Elk’s argument that the

multiplicitous count tainted the other verdict. 

B. Whether the district court committed reversible error in admitting

certain hearsay statements.

Two Elk next asserts that the district court deprived him of a fair trial by

admitting four hearsay statements. Specifically, he objects to Agent Mackey’s

testimony alluding to a statement Francine made regarding the time period when the

twins went unattended, FBI Special Agent Oscar Ramirez’s reiteration at trial of a

statement made by Ben Sr., and statements made by Agent Kenser and Agent Mackey

regarding Two Elk’s confession. The government retorts that each is not hearsay at

all, citing Eighth Circuit cases holding that statements offered to elucidate the reasons

for a police investigation are not hearsay. Alternatively, the government asserts that

the substance of each of the purported hearsay statements was cumulative and, thus,

any error was harmless. We discern no reversible error in this regard. 
-14-

1. Standard of Review

“Evidentiary rulings are reviewed for abuse of discretion,” giving due

“deference to the district judge who saw and heard the evidence.” United States v.

Davidson, 449 F.3d 849, 853 (8th Cir. 2006) (quotation omitted); see also United

States v. Love, 521 F.3d 1007, 1009 (8th Cir. 2008) (reviewing district court’s

decision on hearsay matter for abuse of discretion). “A district court by definition

abuses its discretion when it makes an error of law.” Koon v. United States, 518 U.S.

81, 100 (1996). This court reviews for plain error an admission of evidence to which

the defendant did not object below. United States v. Sharpfish, 408 F.3d 507, 511 (8th

Cir. 2005). 

This court is not “bound by the grounds on which the district court admitted the

evidence” because it “may affirm a district court’s judgment on any basis supported

by the record.” Bercier, 506 F.3d at 629-30 (quotation omitted). In addition, “[a]

non-constitutional error admitting hearsay testimony ‘that does not affect substantial

rights must be disregarded.’” Id. at 632 (quoting Fed. R. Crim. P. 52(a)). Under Rule

52’s harmless-error standard, the reviewing court must consider the entire record to

ensure that “the error did not influence or had only a very slight influence on the

verdict.” Id. (quoting United States v. Cortez, 935 F.2d 135, 140 (8th Cir. 1991)). If

the trial court properly admitted other evidence covering the same ground as the

erroneously admitted evidence, this court has often held the error harmless because

the evidence is cumulative. See id.

2. Merits

Rule 801 defines hearsay as “a statement, other than one made by the declarant

while testifying at the trial or hearing, offered in evidence to prove the truth of the

matter asserted.” Fed. R. Evid. 801(c). Hearsay is inadmissible absent a Federal Rule
-15-

of Evidence exception or other exception established by the Supreme Court. Fed. R.

Evid. 802. 

a. Agent Mackey’s Statement Referring to Francine’s Testimony

First, Two Elk objects to the court’s ruling during the following colloquy: 

Q [Prosecutor]: Well, did Francine Murphy advise you as to – in the

interview when the children were not with her?

MS. MINER [Defense Counsel]: Objection. Hearsay.

THE COURT: Overruled. Calls for a “yes” or “no” answer.

A [Agent Mackey]: Yes.

Q [Prosecutor]: And she testified to that earlier today in this courtroom?

A [Agent Mackey]: Yes.

In his briefs, Two Elk never specifies which of the answers listed above he regards as

hearsay. Instead, he complains that “FBI Agent Mackey repeated a statement by

[A.R.’s] caretaker, Francine, that between Saturday, October 15, 2005, and

Wednesday, October 19, 2005, [A.R.] was out of Francine’s sight only once early on

Sunday morning, October 16.” 

Had Agent Mackey actually repeated such a statement, there would be a

potential hearsay problem. But, the court did not admit any hearsay in the colloquy

quoted above. Neither of the prosecutor’s questions called for a response that would

include hearsay. The first simply elicited Agent Mackey’s recollection of whether

Francine had told him something (without straying onto hearsay grounds by asking

what exactly she told him). The second elicited Agent Mackey’s direct recollection

of what Francine had said in her testimony that very day. Neither included a

statement by an out-of-court declarant and neither offered such a statement for its

truth. The district court did not err in admitting this testimony. 
-16-

b. Agent Ramirez’s Reiteration of Ben Murphy Sr.’s Statement

Second, Two Elk argues that the court improperly admitted Agent Ramirez’s

reiteration of Ben Sr.’s assertion that he had not assaulted A.R. More particularly, the

prosecutor asked Agent Ramirez, “And what was [Ben Sr.’s] response when you

asked him about his involvement with the A.R. matter?” After the defense counsel

objected and the judge overruled the objection, Agent Ramirez answered, “He denied

doing it and mentioned that he was in jail during the time that it could have

happened.” 

The government argues (1) that the statement is not hearsay under United States

v. Malik, 345 F.3d 999, 1001 (8th Cir. 2003), and (2) that, regardless, any error was

harmless because the testimony was cumulative. The Malik court held that a

statement is not offered to prove the truth of the matter asserted if it elucidates the

“reasons for or propriety of a police investigation.” 345 F.3d at 1001; see also Suggs

v. Stanley, 324 F.3d 672, 681-82 (8th Cir. 2003) (upholding admission of officer’s

statement about what dispatcher told him because it was offered to show why officer

went to a specific house); United States v. King, 36 F.3d 728, 732 (8th Cir. 1994). In

this regard, the government ventures that the FBI investigators decided not to

investigate Ben Sr. thoroughly because he denied assaulting A.R. Thus, the

government claims it offered the statement to explain why the government turned its

investigatory eye elsewhere, not for the truth of the matter asserted. 

The government’s argument stretches Malik too far. First, Agent Ramirez was

not involved in the A.R. assault investigation. Rather, he was tasked with

investigating the alleged inappropriate touching of an 11-year-old female at the

school at which Ben Sr. worked. Second, it seems implausible that the FBI

investigators would simply accept a suspect’s denial of liability and turn their

attention elsewhere. In this regard, the statement is a fairly flimsy rationale for the
-17-

FBI’s investigative steps and it is exceedingly unlikely that it was offered for this

purpose.

Moreover, in Malik, the court noted that the trial court had instructed the jury

to consider the evidence only as an elucidation of the officers’ reasons for stopping

the defendant, after the defendant introduced evidence suggesting that the officers

planted a gun on the defendant. See Malik, 345 F.3d at 1002. Here, there was no such

limiting instruction, nor was any defense tendered in this case dependent upon the

motives of the officers in investigating Two Elk. Cf. King, 36 F.3d at 732 (noting

court’s “concern[] that the jury’s use of [the non-hearsay testimony] was not

appropriately limited by an instruction from the court . . . ”). With no other plausible

justification for admitting the statement, the court erred as a matter of law and thereby

abused its discretion. Thus, we must address the prejudicial effect of the hearsay.

Two Elk’s theory at trial was that A.R.’s injuries occurred after he moved out

and that Ben Sr. was a prime potential suspect whom the FBI all but ignored. As

such, Ben Sr.’s denial of culpability arguably could have had an effect on the jury,

especially when repeated by an FBI Agent. Yet Ben Sr.’s denial was intertwined with

his statement that he was in jail at the time the assault occurred. And the jury heard

that Ben Sr. was incarcerated until Sunday at 6 p.m. or so on multiple occasions prior

to Agent Ramirez’s testimony. Indeed, Two Elk’s defense clamored throughout the

trial that A.R.’s injuries might well have occurred after Ben Sr. returned home. No

juror would have been surprised to learn that a potential suspect denied the conduct

in question, no juror would have been likely to accept such a denial without

skepticism, and no juror would have been shocked to learn that Ben Sr. was in jail

until Sunday evening. Additionally, as detailed above, the prosecution’s strong case

against Two Elk, stood on the shoulders of Two Elk’s own recorded confession.

Thus, we do not believe the court’s erroneous evidentiary ruling influenced the

verdict. 
12Both statements appear to be “[h]earsay included within hearsay” which is

admissible only “if each part of the combined statements conforms with an exception

to the hearsay rule provided in these rules.” Fed. R. Evid. 805. As a matter of law,

however, Two Elk’s statement – embedded in both Agent Mackey’s and Agent

Kenser’s statements – is not hearsay because it is “offered against [Two Elk] and is

[Two Elk’s] own statement.” Fed. R. Evid. 801(d)(2)(A). 

-18-

c. Agent Kenser’s Testimony Regarding His Own Statements to Agent Mackey

and Agent Mackey’s Testimony Regarding Agent Kenser’s Statements

Two Elk next argues that the court erred in admitting two final hearsay

statements. First, Agent Kenser repeated to the jury statements he made to Agent

Mackey in the hallway just after Two Elk implicated himself during the November 3

interview. Second, Agent Mackey told the jury what Kenser told him that day

(namely, that Two Elk admitted to sexually assaulting A.R.).12 The government again

relies on Malik, claiming that the two statements were not hearsay, and argues,

alternatively, that the statements had no prejudicial effect on Two Elk. Two Elk

concedes that he did not object to these statements at trial and that this court thus

reviews for plain error. See United States v. Hyles, 521 F.3d 946, 959 (8th Cir. 2008).

Again, Malik is not applicable. Under Malik, “evidence may not be admitted

for the non-hearsay purpose of explaining an investigation where the propriety of the

investigation is not a relevant issue at trial.” 345 F.3d at 1001. While Two Elk

questioned the FBI’s decision to focus on the early Sunday morning time frame

(which abbreviated the FBI’s investigation of Ben Sr.), Two Elk did not dispute the

propriety of the FBI’s focus on him after the November 3 interview. Nor could he

have: he had just confessed to the crime. Accordingly, the propriety of the FBI’s

investigation of Two Elk after his confession was not at issue.

Moreover, the statements were offered for the truth of the matter asserted

therein, namely that Two Elk had confessed, in Agent Kenser’s presence, to
-19-

committing the crime. “Where the only possible relevance of the out-of-court

statement is to show the defendant committed the act he has been charged with, the

statement is not properly admissible for a non-hearsay purpose.” United States v.

Blake, 107 F.3d 651, 653 (8th Cir. 1997). Similarly, if the only possible relevance of

the out-of-court statements is to show that the defendant said that he committed the

act, the statement is not admissible for a non-hearsay purpose. Thus, these statements

were hearsay and the court erred in admitting the testimony.

We need not decide whether such error was plain, however, because Two Elk

cannot bear his burden with respect to the third prong of the plain-error inquiry:

neither hearsay statement prejudiced Two Elk. The hearsay statements admitted here

did not add anything to the unimpeached testimony that Two Elk had confessed and

thus they were cumulative. See United States v. Azure, 845 F.2d 1503, 1507 (8th Cir.

1988) (noting that hearsay statement “was corroborated by [the out-of-court

declarant’s] own unimpeached testimony, by the testimony of two [other witness], and

by” other documentary evidence); see also Bercier, 506 F.3d at 632 (noting that

erroneous admission of redundant evidence is typically harmless). The court admitted

Two Elk’s taped confession and heard both Agents detail the substance of their

November 3 interview with Two Elk. Thus, although it may have been error to admit

these two out-of-court statements, these errors were not prejudicial.

 

C. Whether the district court committed reversible error in admitting

certain expert testimony.

Two Elk challenges certain aspects of the expert testimony introduced against

him. He contends that the district court neglected to require the government to

develop an adequate foundation for Dr. McPherson’s testimony, and similarly erred

with respect to the testimony and demonstrative exhibits presented by Dr. Mailloux

and Dr. Hansen. Two Elk insists this was a critical mistake because he sought to sow

doubt regarding when the injuries to A.R. happened and the doctors’ testimony
-20-

contravened Two Elk’s theory. We conclude that the court committed no reversible

error. 

1. Standard of Review

“We review a district court’s ruling admitting expert testimony under Federal

Rule of Evidence 702 for an abuse of discretion.” United States v. Eagle, 515 F.3d

794, 800 (8th Cir. 2008). Similarly, the abuse of discretion standard applies when we

review a district court’s rulings admitting exhibits. See C.L. Maddox, Inc. v. Benham

Group, Inc., 88 F.3d 592, 600 n.8 (8th Cir. 1996). This court reviews for plain error

the admission of any unobjected-to testimony. United States v. Collins, 340 F.3d 672,

682 (8th Cir. 2003). 

2. Merits

The district court may admit the testimony of a witness whose knowledge, skill,

experience, training, or education merits expert status if (1) the testimony “will assist

the trier of fact to understand the evidence or to determine a fact in issue,” Fed. R.

Evid. 702, and (2) the evidence is relevant and reliable. Eagle, 515 F.3d at 800; see

also Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 588-91 (1993). “A district

court . . . enjoys broad latitude when it decides how to determine reliability, and

[t]here is no requirement that the [d]istrict [c]ourt always hold a Daubert hearing prior

to qualifying an expert witness.” United States v. Kenyon, 481 F.3d 1054, 1061 (8th

Cir. 2007) (internal citations, quotations omitted). Accordingly, so long as the court

is satisfied with the expert’s knowledge, skill, experience, training, or education, “and

the expert’s testimony is reasonably based” on that expertise, “the court does not

abuse its discretion by admitting the testimony without a preliminary hearing.” Id.

Nevertheless, “[t]he district court must exclude expert testimony if it is so

fundamentally unreliable that it can offer no assistance to the jury, otherwise, the
13The government argues that Two Elk’s defense counsel failed to object

contemporaneously, because she interposed her objection between a prior question

and answer but remained mum after the specific question that elicited the testimony

at issue. As such, the government contends that plain-error review is appropriate. 

Two Elk disagrees and suggests that the abuse of discretion standard applies. We

need not decide this issue because we conclude that under either standard the court

committed no reversible error.

-21-

factual basis of the testimony goes to the weight of the evidence.” Larson v.

Kempker, 414 F.3d 936, 940-41 (8th Cir. 2005) (quotation omitted) (emphasis added).

“In child sexual abuse cases, ‘a qualified expert can inform the jury of

characteristics in sexually abused children and describe the characteristics the alleged

victim exhibits.’” Eagle, 515 F.3d at 800 (quoting United States v. Kirkie, 261 F.3d

761, 765-66 (8th Cir. 2001)). Such an expert may also offer a synopsis of the medical

evidence. Id.

a. Dr. McPherson’s Testimony Regarding A.R.’s Injuries

Over the defense’s objection, Dr. McPherson testified regarding the definition

of an “acute” injury and the characteristics of A.R.’s injuries that led him to believe

that her injuries were not acute. Two Elk argues that there was “no indication or

testimony that [Dr. McPherson’s] opinion was based upon a reasonable medical

certainty.”13

As in Kenyon, however, Two Elk does not appear to have challenged Dr.

McPherson’s expertise. See Kenyon, 481 F.3d at 1061. Rather, Two Elk suggests

that the district court must ensure that everything a medical expert says on the stand

is individually supported by reasonable medical certainty. In support, Two Elk cites

Graham v. Ozark Mountain Sightseeing, Inc., 181 F.3d 924, 926 (8th Cir. 1999), for

the propositions that “medical experts . . . must testify to a reasonable medical
14Dr. McPherson offered his opinion – “based upon [his] experience and

education and training,” – alongside a caveat: “[I]t’s hard to determine actually what

period of time it could have taken place; but [A.R.’s injuries were] not acute in the

sense that [they] happened say within a few hours of the time that she arrived.” The

foundation for this opinion was Dr. McPherson’s twenty-plus years of work in

emergency rooms. 

-22-

certainty” and that “[e]xpert testimony that defendants ‘probably’ or ‘likely’ caused

the harm is insufficient . . . .” 

Two Elk’s reliance on Graham is misplaced. In Graham, the court addressed

expert testimony offered to prove an element of a state tort cause of action. Id. In that

particular situation, Erie compelled that Rule 702 – which generally is a procedural

rule – yield to a state substantive rule requiring medical experts to testify to a

“reasonable medical certainty” regarding causation. Cf. id. (citing Missouri case-law).

In the federal criminal context we confront here, however, the Larson rule

(which is derived from Rule 702 and Daubert) applies. And there is little doubt that

Dr. McPherson’s testimony was reliable under Larson. Dr. McPherson explored the

difficulties inherent in assessing how acute A.R.’s injuries were, but concluded that

they were not acute.14 As the district court determined, this testimony was likely to

assist the trier of fact. At that point, it was “up to the opposing party to examine the

factual basis for the opinion in cross-examination.” Olson v. Ford Motor Co., 481

F.3d 619, 627 (8th Cir. 2007) (quotation omitted); cf. Kudabeck v. Kroger Co., 338

F.3d 856, 861 (8th Cir. 2003) (“[N]othing in Rule 702, Daubert, or its progeny

requires that an expert resolve an ultimate issue of fact to a scientific absolute in order

to be admissible.” (quotation omitted)). Thus, the court did not abuse its discretion

in admitting the testimony; it follows that the court did not plainly err in doing so

either. 

b. Dr. Mailloux’s Testimony Regarding A.R.’s Injuries
-23-

Two Elk next objects to Dr. Mailloux’s testimony comparing A.R.’s injuries to

those he has witnessed in other pediatric examinations he has performed. Two Elk

argues that the trial judge erred in admitting this testimony because there was nothing

on the record to show that “the comparison group was of a similar age or size to

[A.R.].” Again, Kenyon teaches that the admission of Dr. Mailloux’s testimony was

not an abuse of discretion. 481 F.3d at 1061. In fact, by basing his testimony on the

myriad other pediatric examinations he has performed, Dr. Mailloux did exactly what

an expert witness should do: answer questions about A.R.’s injuries in light of his

specialized medical expertise and his experience. 

c. The Admission of Demonstrative Exhibits Depicting the Genitalia of Female

Children and the Testimony Accompanying Those Exhibits

Lastly, Two Elk argues that the trial court erred in admitting three photographs

of the “normal structures . . . in the genitalia of a small female child,” and in allowing

Dr. Mailloux and Dr. Hansen to reference the photographs as they explained A.R.’s

injuries. Two Elk asserts that these demonstrative exhibits were neither reliable nor

relevant. 

Demonstrative exhibits may be admitted, at the trial court’s discretion, as

“educational tool[s] for the jury.” Wipf v. Kowalski, 519 F.3d 380, 387 (7th Cir.

2008). Rule 901 mandates only that the authentication requirement “as a condition

precedent to admissibility is satisfied by evidence sufficient to support a finding that

the matter in question is what its proponent claims.” Fed. R. Evid. 901(a). The Rule

then notes that the “[t]estimony of [a] witness with knowledge” suffices. Fed. R.

Evid. 901(b)(1). 

Both Dr. Mailloux and Dr. Hansen authenticated the photographs as accurate

depictions of the normal genitalia of young females. But Two Elk suggests that the

photographic evidence and the accompanying testimony were unreliable because there
15Two Elk weaves Federal Rule of Evidence 403 thread into this argument,

suggesting that “such evidence could only upset the jury and create an aura where

sympathy and passion encouraged the jury to ignore the lack of actual proof.”

Because Two Elk did not specifically advance a Rule 403 unfair prejudice argument

in his brief, we will not resolve that issue (although it is not apparent to us that Rule

403 would have been violated). 

-24-

was no showing that the photographed children were of the same age or shared the

same physical characteristics as A.R. The issue then is whether the doctors’

testimony, during which they referenced the photographs, was reliable and whether

it was helpful to the trier of fact. 

At that point in the trial, the court had already qualified both Dr. Mailloux and

Dr. Hansen as experts. Their testimony was reasonably related to their respective

expertise. Moreover, Two Elk’s argument that their testimony would not be of

pedagogic or illustrative value to the laypersons on the jury is unavailing. Both Dr.

Mailloux and Dr. Hansen confirmed on the stand that the photographs would assist

them in explaining to the jury the results of their respective examinations of A.R. And

the trial testimony regarding A.R.’s injuries included a number of anatomical terms

that, we assume, would be unfamiliar to most. The district court did not err in

concluding that the photographs and accompanying testimony were reliable. 

 

Relatedly, Two Elk argues that the photographs were irrelevant because “there

was no issue before the jury about the nature or extent of A.R.’s injuries.”15 As the

government points out, however, this argument is inaccurate. The photographs were

relevant for two main reasons. First, Two Elk postulated that A.R.’s injuries occurred

after he had moved out of Francine’s house. Thus, the doctors’ testimony regarding

the nature and extent of A.R.’s injuries was relevant to the issue of when A.R. was

assaulted. Second, Count I of the Indictment charged Two Elk with penile-vaginal

contact, while Count II charged penile-anal contact. The doctors’ testimony bolstered
-25-

the government’s argument that Two Elk had committed both crimes. The trial judge

did not abuse his discretion in this regard either. 

D. Whether prosecutorial misconduct deprived Two Elk of a fair trial.

1. Standard of Review

Trial judges have “broad discretion in controlling closing arguments.” Hyles,

521 F.3d at 958. They have similarly broad discretion in controlling the course of

cross-examination. See Love, 521 F.3d at 1009 (“We review a district court’s

evidentiary ruling for abuse of discretion, including those regarding the scope of

cross-examination.” (quotation omitted)). Where Two Elk failed to object to an

instance of alleged prosecutorial misconduct, this court reviews for plain error. Hyles,

521 F.3d at 958. 

2. Merits

“To obtain a reversal for prosecutorial misconduct, [Two Elk] must show that

(1) the prosecutor’s remarks were improper, and (2) such remarks prejudiced the

defendant’s rights in obtaining a fair trial.” Id. Three factors inform this court’s

analysis of the prejudice prong: “(1) the cumulative effect of the misconduct; (2) the

strength of the properly admitted evidence of the defendant’s guilt; and (3) the

curative actions, if any, taken by the district court.” Eagle, 515 F.3d at 804-05. The

first factor confirms that this court must consider each instance of alleged misconduct

both by itself and in combination with the other alleged prosecutorial oversteps. Cf.

United States v. Eizember, 485 F.3d 400, 405 (8th Cir. 2007). Below, we review each

of the allegedly improper prosecutorial acts individually and then turn to their

cumulative effect.
-26-

a. The Prosecutor’s Allusion to Humpty-Dumpty

Two Elk first contends that the prosecutor inappropriately appealed to the

jurors’ passion and sympathy with an allusion to a nursery rhyme:

[Prosecutor]: . . . All of the king’s horses and all of the king’s men,

ladies and gentlemen, can’t put A.R. back together again.

MS. MINER [Defense Counsel]: Your Honor, I would object.

THE COURT: Overruled.

MS. MINER: Sympathy is not to play a part in this.

THE COURT: Overruled.

[Prosecutor]: You can’t put A.R. back together again, but your verdict

can hold the person responsible. . . .

It is well-settled that prosecutorial “appeals to the passion, prejudice, or

sympathy of jurors during closing argument are improper.” Eagle, 515 F.3d at 805

(citing Viereck v. United States, 318 U.S. 236, 247 (1943)); see also United States v.

Mullins, 446 F.3d 750, 759 (8th Cir. 2006). 

In Eagle, the prosecution made similarly strong statements regarding the impact

of a crime on an eight-year-old victim of sexual assault. See Eagle, 515 F.3d at 805.

The Eagle court noted that the prosecutor’s arguments were reasonable inferences

from the evidence and did not find reversible error. Id. And we have held that

prosecutors may use “colorful and forceful language in their arguments to the jury.”

Mullins, 446 F.3d at 759 (quotation omitted). 

Here, the prosecutor did not “stray from the evidence and the reasonable

inferences that may be drawn from it.” Id. (quotation omitted). Moreover, the

allusion to Humpty-Dumpty was no more egregious than the Eagle prosecutor’s

remarks. The statement, therefore, was not improper.
-27-

Even if were to conclude otherwise, the statement did not deprive Two Elk of

a fair trial. The jury had already listened to three doctors describe the awful details

of A.R.’s injuries. Furthermore, as to the second factor, the admitted evidence of Two

Elk’s guilt was quite strong. The third factor also militates against reversal. The jury

was instructed that they were “to perform [their] duty without bias or prejudice,

because the law does not permit jurors to be governed by sympathy,” and that

“[s]tatements, arguments, questions and comments by lawyers . . . are not evidence.”

In sum, the statement did not deprive Two Elk of a fair trial. 

b. The Prosecutor’s Statement Regarding the Reasonable Doubt Standard

Favored by Defense Attorneys

Two Elk posits that a second statement by the prosecutor also amounted to

misconduct. The prosecutor remarked, “[t]here’s an old saying in the law, that if the

standard of proof had to be met as articulated by defense attorneys, every crime would

have to be witnessed by a bus load of nuns with video cameras.” Two Elk’s counsel

objected and the judge overruled her. On appeal, Two Elk suggests that the

prosecutor thereby directed a “personal, unsubstantiated attack[] on the character and

ethics of” his defense counsel which may have “induce[d] the jury to trust the

Government rather than its own view of the evidence.” 

We think this statement was arguably improper. It had the potential both to

obfuscate the reasonable doubt standard and to impugn the defense counsel. See, e.g.,

United States v. Holmes, 413 F.3d 770, 775 (8th Cir. 2005) (reversing, on ground of

prosecutorial misconduct, where prosecutor told jury that defense attorney was using

“smoke and mirrors” to divert their attention and implied that the attorney had

conspired with client to fabricate testimony). 

Again, even assuming it was improper, we do not believe that it deprived Two

Elk of a fair trial. First, the statement’s cumulative effect was likely negligible. Far
-28-

from an ad hominem attack on the defense counsel, the statement seems more like an

inopportune attempt at levity. Cf. Donnelly v. DeChristoforo, 416 U.S. 637, 647

(1974) (“[A] court should not lightly infer that a prosecutor intends an ambiguous

remark to have its most damaging meaning . . . .”). More importantly, the statement

was unlikely to alter the jury’s understanding of the reasonable doubt standard. See

United States v. Foley, 508 F.3d 627, 637-38 (11th Cir. 2007). The judge instructed

the jury on the proper standard and both the prosecution and defense discussed the

standard during their closing arguments.

As to the second factor, the statement pales in comparison to the government’s

evidence of Two Elk’s guilt. And the final factor reinforces our belief that the

statement had little cumulative effect: the jury instructions clarified the reasonable

doubt standard, and the court labeled the statement as “just argument” on the record

immediately after it was made. See Eagle, 515 F.3d at 806 (asserting “district court’s

instruction that closing arguments are not evidence is a curative action that serves to

alleviate any risk of prejudicial impact”). The trial judge thereby dismissed the import

of the statement – and for good reason, it was too insubstantial to skew the trial’s

fundamental fairness.

3. The Prosecutor’s Cross-Examination of Agent Ramirez

Lastly, Two Elk sees reversible error in the prosecutor’s questioning of Agent

Ramirez, a defense witness. Specifically, the prosecutor asked, and Agent Ramirez

answered, two questions that Two Elk regards as impermissible vouching:

Q [Prosecutor]: Have any charges been brought against [Ben Murphy,

Sr.] with respect to this matter that you are aware of?

A [Agent Ramirez]: No, sir.

Q [Prosecutor]: Is that a decision made by the U.S. Attorney’s office?

A [Agent Ramirez]: Yes, it is.
-29-

Two Elk concedes that he failed to object to this line of questioning during the trial.

Thus, we review for plain error. Hyles, 521 F.3d at 958. 

Two Elk asserts that this line of questioning amounted to misconduct because

the prosecutor thereby (1) “induce[d] the jury to trust the Government’s judgment

rather than its own view of the evidence,” and (2) implied that the prosecutor knew

something that the jury did not about whether Ben Sr. was a possible perpetrator. 

“Improper vouching may occur when the government . . . refers to facts outside

the record or implies that the veracity of a witness is supported by outside facts that

are unavailable to the jury . . . .” United States v. Santana, 150 F.3d 860, 863 (8th Cir.

1998).

Had this testimony been properly challenged, it may very well have been

excluded. The prosecutor’s questioning tacitly informed the jury that the U.S.

Attorney’s Office had opted not to charge Ben Sr., focusing instead on the defendant.

Of course, the details of the government’s investigation of Ben Sr. were not in

evidence. The prosecutor thereby intimated that the government had access to

knowledge about the case to which the jury was not privy. 

Nonetheless, Two Elk must still “show[] prejudice – that is, . . . a reasonable

probability that the outcome would have been different absent the alleged error.”

United States v. Abdullahi, 520 F.3d 890, 896 (8th Cir. 2008) (quotation omitted). At

the outset, we note that Two Elk’s counsel actually asked Agent Mackey similar

questions on cross-examination well before Agent Ramirez testified. Specifically, she

queried whether “anyone else [was] ever arrested for this crime?” and whether

“anyone else [was] ever charged in any way for this crime?” Agent Mackey

responded, “no.” The defense thereby broached the topic and lessened the impact of

Agent Ramirez’s testimony.
16As a secondary matter, the jury may well have believed that the facts which

led to the decision not to prosecute Ben Sr. were in fact before them. That is, the jury

had already heard that Ben Sr. was in the Rosebud jail at the time when the FBI

believed the probable time the assault took place. Cf. United States v. Rivas, 493 F.3d

131, 137 (3d Cir. 2007) (“[A] prosecutor may urge that a witness is trustworthy by

arguing from record evidence; vouching occurs only where the prosecutor implicitly

refers to information outside the record.”).

-30-

As we have explained above, the government had a strong case against Two

Elk. The government adduced Two Elk’s taped confession and other evidence that

dovetailed with the details of Two Elk’s confession. While Two Elk makes much of

Ben Sr.’s “checkered past,” the prosecution’s evidence against Two Elk was far more

substantial than Two Elk’s insinuations about Ben Sr. And Two Elk was able to

introduce ample – albeit entirely speculative – evidence pinning Ben Sr. as a potential

suspect.16 Indeed, Two Elk had already confessed to the crime once and offered

details about his conduct. Two Elk has not borne his burden of showing a reasonable

probability that the court’s error in allowing this line of questioning was prejudicial.

d. The Cumulative Effect of the Alleged Prosecutorial Misconduct

“Prejudice sufficient to warrant reversal may result from the cumulative effect

of repeated improper comments by the prosecutor.” United States v. Johnson, 968

F.2d 768, 771 (8th Cir. 1992). Taken together, however, the instances of alleged

misconduct here did not prejudice Two Elk. 

E. Whether the district court erred by enhancing Two Elk’s base offense

level four levels pursuant to U.S.S.G. § 2A3.1(b)(1). 

Finally, Two Elk argues that his sentence should be reversed because the

district court erroneously enhanced his base offense level pursuant to U.S.S.G. §

2A3.1(b)(1), an enhancement for using force during the offense. He contends that the
-31-

court made clearly erroneous factual findings in support of its decision to apply §

2A3.1(b)(1) and also erred as a matter of law. We disagree.

1. Standard of Review

This court reviews “for clear error the district court’s factual findings

underlying the imposition of a sentencing enhancement based on the defendant’s role

in the offense,” United States v. McDonald, 521 F.3d 975, 978 (8th Cir. 2008)

(quotation omitted), “and examine[s] de novo the application of the Guidelines,”

United States v. Yah, 500 F.3d 698, 702 (8th Cir. 2007). “[O]nly if [this court has]

a definite and firm conviction that a mistake has been made,” will it reverse the

sentencing court’s factual findings. United States v. Garcia, 512 F.3d 1004, 1005 (8th

Cir. 2008). “[S]entencing judges are only required to find sentence-enhancing facts

by a preponderance of the evidence.” United States v. Farrington, 499 F.3d 854, 859

(8th Cir. 2007). 

2. Merits

The Guideline at issue provides that “[i]f the offense involved conduct

described in 18 U.S.C. § 2241(a) or (b), increase by 4 levels.” U.S.S.G. §

2A3.1(b)(1). By cross-referencing 18 U.S.C. 2241(a), § 2A3.1(b)(1) sweeps in

defendants who have “knowingly cause[d] another person to engage in a sexual act

. . . by using force against that other person.” 18 U.S.C. § 2241(a)(1). 

a. Two Elk’s Objection to the District Court’s Factual Findings

During the sentencing hearing, the trial judge stated:

The defendant told the two FBI agents that he did commit this offense

and that he put his hand over the victim’s mouth to keep her from

awakening somebody. He denied this at trial, but I find that he did use
-32-

force to sustain – to hold the victim down, if you will, and to prevent the

victim from screaming. And that’s in addition to the great discrepancy

here in the size and weight of the defendant compared to the victim.

The court thus felt the enhancement was justified. Two Elk disputes three aspects of

the court’s factual findings: (1) that he put his hand over the victim’s mouth to keep

her from awakening anyone; (2) that he held the victim down; and (3) that he used

force to prevent the victim from screaming. 

As Two Elk concedes, the transcript of his recorded confession reveals that he

lifted A.R. from a mattress on the floor and placed her on a bed and that he covered

her mouth with his hand to muffle her cries. However, because the transcript offers

no clue as to whether A.R. was screaming or whether Two Elk held A.R. down, Two

Elk contends that the judge clearly erred in drawing inferences from the record. 

There was more than enough evidence in the record to support the sentencing

court’s findings of fact. Two Elk’s argument parses the court’s language in

excruciating detail. Yet the court need not repeat the record verbatim to enter a valid

factual finding. And nothing the court found misstated the evidence in the record.

Rather, the court’s findings fairly accurately reflect Two Elk’s admissions and hence

they were not clearly erroneous. See Farrington, 499 F.3d at 859 (“[A]s long as the

determination is plausible in light of the record as a whole, clear error does not exist.”

(quotation omitted)). 

b. Two Elk’s Objection to the District Court’s Legal Conclusion

Although § 2241 does not define the term “force,” this court has held, 

[t]he requirement of force may be satisfied by a showing of the use, or

threatened use, of a weapon; the use of such physical force as is
-33-

sufficient to overcome, restrain, or injure a person; or the use of a threat

of harm sufficient to coerce or compel submission by the victim.

United States v. Allery, 139 F.3d 609, 611 (8th Cir. 1998) (quoting United States v.

Fire Thunder, 908 F.2d 272, 274 (8th Cir. 1990)). In addition, “force sufficient to

prevent the victim from escaping the sexual contact satisfies the force element.” Id.

On the other hand, a discrepancy in the size of the victims is, by itself, insufficient to

conclude that the defendant used force. See United States v. Blue, 255 F.3d 609, 613

(8th Cir. 2001) (“[S]ize difference alone cannot establish use of force under section

2A3.1(b)(1).”). 

The district court did not err as a matter of law in applying the enhancement

based on the record before it. While a size discrepancy alone is insufficient to merit

the four-level increase, id., it is a factor that bears on the applicability of §

2A3.1(b)(1), see, e.g., United States v. Crow, 148 F.3d 1048, 1050 (8th Cir. 1998)

(noting, in reversing district court’s application of enhancement, that “the record is

devoid of any evidence regarding Crow’s size in relation to the victim’s . . .”). Here,

of course, there was a substantial discrepancy between the body mass of Two Elk, a

twenty-five year old male, and that of A.R., a two-and-a-half-year-old female. In

addition, Two Elk lifted A.R. off the floor and placed her on the bed. And, as a final

factor, Two Elk muffled A.R.’s cries with his hand. The net result of these actions

certainly supports the district court’s conclusion that Two Elk used force to

accomplish these sexual assaults. 

III. CONCLUSION

For the reasons detailed above, we AFFIRM Two Elk’s convictions and

sentence.

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