Kyle Aguilar was indicted and convicted by a jury for two counts of Abusive Sexual Contact in Indian Country involving his niece, P.C. The charges stemmed from a single incident in February 2017 where Aguilar entered P.C.'s room while she was watching a movie with her sister. P.C. testified that after locking the door, Aguilar unlocked it, lay down behind her, gave her a back massage, and then touched her buttocks, breasts, and private parts over her clothes. Aguilar was convicted on Count 2 for touching her genitalia and Count 3 for touching her breasts, while he was acquitted on a separate Count 1 involving a different incident. Following the verdict, Aguilar moved for a judgment of acquittal, arguing that the evidence was insufficient to prove his intent and that charging two counts for touching different body parts in one encounter violated the Double Jeopardy Clause by being multiplicitous. The district court denied these motions, sentencing Aguilar to 48 months in prison, and he appealed to the Tenth Circuit.
The Tenth Circuit addressed two primary issues: whether the convictions were multiplicitous in violation of the Double Jeopardy Clause, and whether the evidence was sufficient to support the verdict. On the double jeopardy issue, the court applied de novo review to determine the 'unit of prosecution' under 18 U.S.C. §§ 2244(a)(3) and 2246(3). The court analyzed the statutory text, noting that Section 2246(3) defines 'sexual contact' as 'the intentional touching' of specific body parts, using singular language and a disjunctive list of body parts (genitalia, anus, groin, breast, inner thigh, or buttocks). The court reasoned that this structure indicates Congress intended each instance of touching a protected body part to be a separate criminal act, rather than a single course of conduct. Citing Eighth Circuit precedent in United States v. Two Elk and United States v. Hollow Horn Bear, the court concluded that because the statute criminalizes individual acts, charging separate counts for touching different body parts does not violate the Double Jeopardy Clause. The court explicitly rejected the application of the rule of lenity, finding no grievous ambiguity in the statute. Regarding sufficiency of the evidence, the court reviewed the record in the light most favorable to the government. The court found that P.C.'s testimony, describing the massage and the touching of multiple intimate body parts, provided a rational basis for a jury to infer that Aguilar acted with the specific intent to 'abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.' The court noted that Aguilar's own testimony denying the acts was a factor the jury could disbelieve, and the totality of the circumstances supported the intent element.
The decision affirms the validity of charging multiple counts under the Abusive Sexual Contact statute for touching different body parts during a single encounter, clarifying that the unit of prosecution is the individual act of touching rather than the entire incident. This ruling solidifies the Tenth Circuit's stance on statutory interpretation for sex offenses in Indian Country, ensuring that defendants can face separate punishments for each protected body part touched. The judgment is affirmed, meaning Aguilar's 48-month sentence stands, and no remand is ordered.
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