United States v. Robin L. Iron Shield ( 2012 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 11-2328
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the District
* of North Dakota.
Robin L. Iron Shield, *
* [UNPUBLISHED]
Appellant. *
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Submitted: February 13, 2012
Filed: March 27, 2012 (Corrected March 27, 2012)
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Before WOLLMAN, ARNOLD, and SMITH, Circuit Judges.
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PER CURIAM.
Robin Iron Shield appeals his conviction for sexual abuse of a minor, see
18 U.S.C. § 2243(a), asserting that the district court1 erred in refusing to sever his trial
from that of his co-defendant, Bruce Kills in Water, and that the evidence was
insufficient to support his conviction. We affirm.
1
The Honorable Daniel L. Hovland, United States District Judge for the District
of North Dakota.
I.
A single indictment charged Iron Shield with having sexual intercourse with a
thirteen-year-old girl, S.O.R., and Kills in Water with having sexual intercourse with
another thirteen-year-old girl, O.M. Although the two events occurred in the same
apartment at approximately the same time, Iron Shield maintains that the defendants
were improperly joined in the indictment because they did not participate "in the same
act or transaction, or in the same series of acts or transactions, constituting an offense
or offenses." See Fed. R. Crim. P. 8(b). He maintains that the two offenses were
separate and distinct. But since Iron Shield did not raise this issue in the trial court,
we may review it only for plain error, and cannot give relief unless the misjoinder, if
it was one, had a substantial injurious effort on the verdict. See United States v.
Robertson, 606 F.3d 943, 951-52 (8th Cir. 2010).
The record here will not support that finding. This was a simple case: There
were only two defendants, the trial lasted only a day and a half, and only four
witnesses testified. The district court very carefully told the jury, both in its
preliminary instructions and its final instructions, that the charges against the
defendants were separate and distinct and that the jurors were required to judge each
defendant individually. During the trial, moreover, the district court cautioned that
incriminating statements by each of the defendants were to be considered only to the
extent that they bore on the case of that defendant. These instructions, in the
circumstances, cured any possibility of prejudice, much less a substantial injurious
effect, arising from the joinder. See Zafiro v. United States, 506 U.S. 534, 540-41
(1993).
In a related argument, Iron Shield asserts that the district court abused its
discretion by denying his motion to sever his trial from Kills in Water's, see Fed. R.
Crim. P. 14(a), because their defenses were irreconcilable or antagonistic. It is true
that Iron Shield denied engaging in sexual intercourse with S.O.R., while Kills in
Water admitted that he had had intercourse with O.M. but denied knowing that she
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was under sixteen years old. This makes the defendants' defenses different, but it does
not make them antagonistic or irreconcilable for the very reason that Iron Shield
argued that he had been misjoined with his co-defendant: The acts with which the
defendants were charged were completely distinct and separate, and the jury could
easily have believed one defense without rejecting the other. Each defense stood on
its own. See United States v. Lewis, 557 F.3d 601, 609-10 (8th Cir. 2009). Any
possible prejudice that the different defenses might have created was in any event
cured by the district court's careful instructions, already alluded to, to the jury to
compartmentalize the evidence.
II.
Iron Shield contends that the evidence was insufficient to convict him because
his admission that he had engaged in sexual intercourse with S.O.R. was not
corroborated and was the only evidence of intercourse, as opposed to other sexual
activity, introduced at trial. It is true that S.O.R. testified that she did not remember
if she and Iron Shield had had sex and did "not believe" that they did, and there were
no witnesses to the actual sexual act charged. But the corroboration that the law
requires must only bolster the reliability of a defendant's admission to render a case
submissible; it need not independently establish all or any of the elements of the crime
charged. The defendant's admission, if other evidence tends to show its reliability, is
sufficient to do that. United States v. Kirk, 528 F.3d 1102, 1111 (8th Cir. 2008).
Here, there was evidence that Iron Shield was lying on the floor in the apartment with
S.O.R. on the night in question, that they were embracing and kissing, that he
removed her bra, and that they were lying under blankets together when they awoke
the next morning. Clothes that belonged to both of them were found in the apartment
and S.O.R.'s bra was wrapped in blankets found there. There was other corroborating
testimony, but the recited evidence is more than sufficient to show the reliability of
Iron Shield's statements that he had intercourse with S.O.R. The case against him was
therefore sufficient to go to the jury.
Affirmed.
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