Submitted: May 12, 2017
from United States District Court for the District of
Minnesota - St. Paul
SMITH, Chief Judge, COLLOTON and KELLY, Circuit Judges.
convicted Dana Lee Cobenais of one count of aggravated sexual
abuse, in violation of 18 U.S.C. §§ 1151, 1153(a),
224l(a)(1), 2246(2)(A), and 2246(2)(C). On appeal, Cobenais
argues that the theory-of-defense jury instruction mentioning
consent inaccurately stated the elements of the offense and
the defense theory of the case. He also argues that the
district court improperly curtailed his closing argument. We
hold that the district court neither abused its discretion in
giving the consent instruction nor in refusing counsel's
request for additional time to complete closing argument and
therefore affirm the judgment of the district court.
an Indian, was charged with one count of aggravated sexual
abuse against A.J., who lived on the Red Lake Indian
Reservation. At trial, the government's theory of the
case posited that when A.J. rebuffed Cobenais's demand
for sex, "[h]e would not take no for an answer" and
proceeded to backhand A.J., remove her clothes, and
"shove his fingers into her vagina causing her
injuries." Cobenais's theory of the case-as shown
during his counsel's opening statement-asserted that
"[t]he blood and the injuries in this case was the
result of a consensual sexual encounter between
[A.J.] and Dana Cobenais . . . . It wasn't the result of
a rape. It wasn't the result of forced sex."
(Emphasis added.) Cobenais's counsel argued that Cobenais
"didn't force himself on [A.J.], and the bleeding
was the result of this consensual sexual act."
(Emphasis added.) Cobenais's counsel told the jury that
Cobenais would describe the event "as a
consensual sexual encounter which resulted in blood
in this case." (Emphasis added.) Cobenais's counsel
ended his opening statement by stating that "Cobenais
did not rape [A.J.] and he didn't force himself on her.
This happened as the result of two participants engaging in a
consensual sexual act." (Emphasis added.)
trial, A.J. testified to the events of March 13-14, 2015. On
March 13, A.J. went to the home of her uncle, Lester Lussier,
and Cobenais was there. A.J. had seen Cobenais approximately
four or five times before. Later that night, the three drove
to Cobenais's grandmother's house in A.J.'s car
so that Cobenais could visit his cousin. After arriving,
Lussier left with someone else. Cobenais entered his
grandmother's house, while A.J. waited outside. Cobenais
soon came back outside, and he and A.J. "sat around
outside and . . . were drinking a little bit." According
to A.J., she drank "a couple mixes, " and remained
there about 20 to 30 minutes.
approximately 2:00 a.m., A.J. got into her car, and Cobenais
followed-uninvited. A.J. asked Cobenais to get out of the car
and told him that she wanted to go home. Cobenais refused.
A.J. waited, but Cobenais still refused to get out of the
car. A.J. testified that she "decided to drive off
because [Cobenais] wasn't, like, trying to be touching
[her] or doing anything." Cobenais told A.J. "that
he was going to have somebody else pick him up" at an
intersection, so A.J. stopped at the stop sign. A.J. became
suspicious though, "because [Cobenais] didn't call
anybody for a ride." A.J. again asked Cobenais to get
out of her car, but he again refused.
point, A.J. testified, Cobenais assaulted her. She testified,
"[Cobenais] slapped me and he pulled my pants down. And
I told him to stop, but he wouldn't stop. . . . He put
his hands inside me. . . . He was like slapping me [in the
face] and he told me to shut up." A.J. defended herself
"[b]y pushing him and kicking him." A.J. told him
no and attempted to fight him off. She testified, "I
didn't consent to any of it." A.J. could not recall
much of what happened thereafter. She "remember[ed]
coming to . . . in the passenger seat, and [Cobenais's]
hands were up like (indicating) and [A.J.] was . . . really
bleeding." Cobenais "had . . . blood all up his
hands, " and his hands had been "inside" of
A.J. She was bleeding "[b]ecause [Cobenais] used his
whole hand" "[t]o hurt [A.J.], to go inside
[her]." A.J. testified that Cobenais injured her by
forcibly putting his hand inside her vagina. A.J. did not
know why Cobenais stopped the assault, but after he stopped,
he got out of the car. A.J. then left to go home.
ran out of gas while driving home. Her car stopped in the
middle of the road. She called 911 and reported that her car
ran out of gas. A.J. explained that she did not tell the 911
operator about the sexual assault because she was scared. Red
Lake Police Officer Rennel Parish responded to the scene. She
testified that in addition to her experience as a police
officer, she has 16 years' experience as an emergency
medical technician. After A.J. exited the car, Officer Parish
noticed a sawed-off shotgun underneath the driver's seat.
Officer Parish "grabbed the gun and . . . backed
up." Officer Parish then noticed that A.J. was bleeding
profusely. Officer Parish testified, "There was so much
blood that was coming out of her and I didn't know where
it was coming from." Officer Parish asked A.J. what
happened and where the blood was coming from, and A.J.
responded that she did not know. Officer Parish asked A.J.
"if she had been shot because there was so much blood,
just it was like turning on a faucet." Officer Parish
then asked her whether she was on her period or having a
miscarriage, and A.J. responded no. Finally, Officer Parish
asked her again what happened, and A.J. told Officer Parish
that she was raped. "She was very upset when she said
that. The more questions [Officer Parish] asked her, the more
upset she was getting." At first, A.J. said that her
boyfriend raped her, but then she said it was someone else.
She quit answering questions because she was upset. Officer
Parish believed that A.J. went into shock.
told the officer that she wanted to go home, but Officer
Parish instead called for an ambulance. Officer Parish
followed the ambulance to Red Lake Hospital. A.J. was crying
and "pretty upset." At one point, she passed out.
She was distraught and hysterical. At the hospital, A.J. gave
an account of the episode to Officer Parish involving
"two men wearing dark clothing." Officer Parish
testified that she did not believe this account. After that,
A.J. stopped talking to Officer Parish.
registered nurse who attended A.J. in the emergency room (ER)
at Red Lake Hospital testified that A.J. was "bleeding
heavily" when she saw her and that "[i]t was
astonishing" to see "a patient in this
condition." According to the nurse, A.J. "was
bleeding. She was clotting. There w[ere] large clots, which
was amazing to see. . . . [They were] around maybe 6, 7
centimeters or inches in diameter." The nurse had
"never seen anything like this in [her] years of
nursing." While in the ER, A.J. tried to get off the
gurney to go home, but she collapsed. The nurse testified
that A.J. "was in shock. Confused, wanting to go home.
Kept covering her face. Didn't want people to see her.
Going in and out of crying. And then just talking words like
we couldn't understand what she was saying. And then just
being quiet again."
at Red Lake Hospital, A.J. continued bleeding. She was so
seriously injured that she was transferred to the Bemidji
Hospital for "specialized care." Upon A.J.'s
arrival to the Bemidji Hospital, she was seen by a Sexual
Assault Nurse Examiner (SANE). The SANE testified that A.J.
was "acutely injured, " having a "laceration
on the outside of her body and . . . bleeding acutely
vaginally. She had large clots that were present." The
SANE had never seen an injury like A.J.'s injury before.
She "called the [ER] doctor in to come and see [A.J.]
due to the extent of the injury." Thereafter, the ER
doctor called in an obstetrician/gynecologist who had to
surgically repair the vaginal lacerations.
examination by Special Agent Jonathan Tjernagel of the
Federal Bureau of Investigation (FBI), Cobenais admitted
having sex with A.J. in the backseat of her car. According to
Agent Tjernagel, Cobenais explained that he and A.J. had
driven to his mother's house in A.J.'s car and sat
outside of his mother's home in that car. Cobenais
reported that after he and A.J. "hung out for a
while" and drank alcohol, they then had sex. Cobenais
told Agent Tjernagel "that while they were having sex
[A.J.] began to start bleeding so he stopped. He said that
she asked him why he had stopped and [Cobenais] told [Agent
Tjernagel] it was because she was bleeding." Cobenais
additionally told Agent Tjernagel that A.J. "asked him
to continue having sex with her." Cobenais told Agent
Tjernagel that he declined to continue.
Bureau of Criminal Apprehension Investigator Philip Hodapp,
who examined A.J.'s car, testified to finding blood on
the driver's seat and on the front passenger's seat.
Although he could not testify as to the amount of blood, he
testified that a blood pattern appeared on the driver's
seat and on the floor board of the driver's side. He also
found a blood pattern on the front passenger's seat. He
found no blood on the backseat cushion. He found a droplet of
blood in the center console in the backseat.
also testified at trial. He testified that he and A.J. sat in
her car outside of his mother's home "[f]or a number
of hours" drinking, listening to music, and talking. He
confirmed that they "started talking about having
sex" and then drove to the "telephone
building" to have sex, which is "on the way to
[Cobenais's] grandmother's house." Cobenais
testified that while at the telephone building,
[w]e get in the back seat. She takes her off her pants and
underwear. I take off my pants and underwear. And I start
feeling her up. I got my fingers in there. Got my hand in
there. We keep going for a while. I see some blood. I stop.
She asked me why I stop. I told her. So she hops in the front
seat, passenger. I jump in the driver's seat and I drive
to my grandma's and we go inside. She goes in the
basement. She said she's going to go to sleep. So I make
something to eat. And then I think she might have come back
up, went to the bathroom or something. When I sit on the
couch she comes over and sits on the couch; and I end up
going to sleep there and that's where I wake up.
testified that upon awaking in the morning, A.J. was gone. He
then discovered that his cell phone and $20 was missing.
described the encounter as consensual. Specifically, he
confirmed that he and A.J. "both took off [their]
clothes together, " "talked about [it] before it
happened, " and participated in the act. Cobenais
admitted to putting his "whole fist" inside of A.J.
without her "put[ting] up any fight." At no time
did he "force [himself] into her vagina" or
"use any force to get into her vagina." He
confirmed that once A.J. started bleeding, he stopped.
Cobenais testified that A.J. never told him that the
insertion of his entire fist into her vagina hurt, despite
her incurring three lacerations.
the final charge conference, the court reviewed the proposed
jury instructions with the parties. The parties ultimately
agreed on the elements-of-the-offense instruction, which
provided in pertinent part:
The crime of aggravated sexual abuse has four
essential elements, each of which the Government must prove
beyond a reasonable doubt. The [first two of ...