Submitted: October 19, 2018
from United States District Court for the District of North
Dakota - Bismarck
SHEPHERD, KELLY, and STRAS, Circuit Judges.
SHEPHERD, CIRCUIT JUDGE.
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 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.
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.
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
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.
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
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."
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
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