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United States v. Iu

United States Court of Appeals, Eighth Circuit

March 6, 2019

United States of America Plaintiff- Appellee
v.
Kalolo Nathaniel Iu Defendant-Appellant

          Submitted: October 19, 2018

          Appeal from United States District Court for the District of North Dakota - Bismarck

          Before SHEPHERD, KELLY, and STRAS, Circuit Judges.

          SHEPHERD, CIRCUIT JUDGE.

         Kalolo Nathaniel Iu was convicted of one count of sexual abuse, committed in Indian Country, in violation of 18 U.S.C. §§ 2242(1) and 1153, and one count of attempted witness tampering, in violation of 18 U.S.C. § 1512(b)(1), related to an assault on his girlfriend. The district court[1] sentenced Iu to 210 months imprisonment on the sexual abuse count and 120 months imprisonment on the witness tampering count, with the sentences running concurrently, and a 5-year period of supervised release. Iu appeals his convictions, asserting that insufficient evidence supported both verdicts, that the district court erroneously admitted hearsay testimony, and that a fatal variance from the Indictment occurred as to the witness-tampering charge. Having jurisdiction under 28 U.S.C. § 1291, we affirm.

         I.

         On the evening of November 20, 2016, Iu got into an altercation with Brittany Bad Hand, the mother of three of his children, and with whom he had been in a relationship on and off for a number of years. The altercation began while Iu and Bad Hand were running errands together; Iu was driving and Bad Hand was a passenger in the vehicle. Iu and Bad Hand got into in a verbal dispute about each other's fidelity, which turned physical when Iu punched and spit on Bad Hand and Bad Hand slapped Iu. After the physical altercation, Iu drove the vehicle to the graveyard where his mother was buried. While standing at his mother's grave, Iu told Bad Hand that he blamed Bad Hand for a previous incarceration that made him unable to attend his mother's funeral and that he had "picked out" a burial plot for Bad Hand. Iu again hit Bad Hand and kicked her while she was on the ground covering her face.

         Iu then drove the two back to Bad Hand's residence. Iu spent the night, sleeping with Bad Hand in the living room; the boyfriend of Bad Hand's brother, who was also staying at the apartment, slept in one bedroom and Bad Hand's children slept in the other. At one point during the night, Iu attempted to have sex with Bad Hand, but Bad Hand resisted and told him "no." The following morning, Bad Hand moved into the bedroom while Iu got the children ready for school so that they would not see the obvious facial injuries to their mother, including a badly swollen and bruised eye. After the children left, Iu went into Bad Hand's bedroom and climbed on top of Bad Hand in the bed. Bad Hand tried to push Iu off and told Iu "no" and "stop." Iu then tried to remove Bad Hand's underwear, and when Bad Hand resisted, Iu stated that Bad Hand let "everybody else hit it," but "just say[s] no to him." Bad Hand stopped resisting, and Iu had sex with her.

         After Iu had sex with Bad Hand, Iu left the residence. Bad Hand immediately contacted authorities. Bad Hand spoke with responding officers before traveling to the hospital where she underwent a sexual assault exam. The exam documented injuries to Bad Hand's body, including a black eye and contusions behind both ears, on both arms, on her left leg, on her right shoulder, and on her hips. Bad Hand also provided a statement that Iu had physically and sexually assaulted her and spoke with a domestic violence advocate and a Federal Bureau of Investigation Special Agent.

         Iu was subsequently arrested on a federal sexual abuse warrant. After handcuffing Iu and reading him his Miranda rights, officers placed Iu in the back of a patrol car. Despite being handcuffed, Iu was able to maneuver his cell phone out of his pocket and place a call to Bad Hand. During the call, Iu told Bad Hand to drop the charges and to tell law enforcement that she had lied about the assault. After this conversation, Bad Hand called the FBI Special Agent and stated that she wanted to drop the charges against Iu. Iu was later indicted for an additional charge of attempted witness tampering.

         While Iu was in custody awaiting trial, he was recorded on four separate phone calls, three with Bad Hand and one with his sister, discussing efforts to get Bad Hand to recant her story. During the call with his sister, Iu asked her to encourage Bad Hand to tell the prosecutor that she lied and that she would not testify against Iu. Iu's sister followed Iu's instructions and later spoke with Bad Hand. During his phone conversations with Bad Hand, Iu continually encouraged her to speak with the investigator hired by the defense to investigate the claims against Iu. Iu was recorded telling Bad Hand to "make it happen," asking how things had gone in speaking to the investigator, and stating "that's all I needed to know" when told that Bad Hand spoke with the defense investigator and identified Bad Hand's brother's boyfriend as the person who had given her a black eye. The calls also recorded Bad Hand expressing her fear that she could get in trouble after speaking to the defense investigator and Iu telling her "Don't be scared," and to stay strong. The government also introduced a letter Iu wrote to Bad Hand while in custody, which he addressed to "Fat Ass" and in which he stated his displeasure with being in custody and his view that there was "a lot more [Bad Hand] could do to help [Iu] not feel this way, but [Bad Hand's] love always had limits."

         The matter proceeded to a jury trial. At trial, Bad Hand testified that, on November 20, 2016, Iu repeatedly struck her, including around the face, and that she woke up the following morning with a black eye that was so badly bruised and swollen that she could not open it. On cross-examination, when asked about her inconsistent statement to the defense investigator, Bad Hand said she lied about another person hitting her because she wanted to keep her family together. The government then called the FBI Special Agent who had interviewed Bad Hand shortly after the assault. She testified, over Iu's hearsay objection, about the statements Bad Hand made detailing the incident and identifying Iu as the person who assaulted her. The district court overruled the objection and allowed the testimony as offered not for the truth of the matter asserted, but as evidence of prior consistent statements. At the close of the evidence, Iu moved for a judgment of acquittal as to the sexual abuse count. Although Iu did not make a similar motion on the witness-tampering count, the district court sua sponte considered a motion for judgment of acquittal on that count as well. The district court denied both motions. The case proceeded to the jury, which returned a guilty verdict on both counts. The district court sentenced Iu to 210 months imprisonment on the sexual abuse count and 120 months imprisonment on the witness tampering count, to run concurrently, and a 5-year period of supervised release. This appeal follows.

         II.

         Iu asserts that the government failed to introduce sufficient evidence to support the jury's guilty verdicts of both sexual abuse and attempted witness tampering. We review a claim regarding the sufficiency of the evidence supporting a criminal conviction de novo, "viewing evidence in the light most favorable to the government, resolving conflicts in the government's favor, and accepting all reasonable inferences that support the verdict." United States v. Matthews, 761 F.3d 891, 893 (8th Cir. 2014) (quoting United States v. Morris, 723 F.3d 934, 938 (8th Cir. 2013)). Reversal is warranted only where the Court concludes that "no reasonable jury could find all the elements beyond a reasonable doubt . . . ." United States v. Wiest, 596 F.3d 906, 910 (8th Cir. 2010). The same ...


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