                                                                                   FILED
                            NOT FOR PUBLICATION                                    JUL 29 2013

                                                                            MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                           U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                         No. 12-30220

              Plaintiff - Appellee,               D.C. No. 4:11-cr-00109-SEH-1

  v.
                                                  MEMORANDUM*
EUGENE THOMAS WHITE QUILLS,
Jr.,

              Defendant - Appellant.


                    Appeal from the United States District Court
                            for the District of Montana
                     Sam E. Haddon, District Judge, Presiding

                             Submitted July 10, 2013**
                                Portland, Oregon

Before: PREGERSON, MURGUIA, and CHRISTEN, Circuit Judges.

       Eugene Thomas White Quills, Jr., appeals his conviction of aggravated

sexual abuse in violation of 18 U.S.C. §§ 2241(a) and 1153(a) (the Major Crimes

Act). White Quills argues first that the district court abused its discretion in

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
admitting the testimony of two witnesses who told the jury that White Quills’s

victim, K.J.A., identified White Quills as her rapist between one and two hours

after the rape. Second, he contends that the district court erred in refusing to

instruct the jury on sexual abuse under 18 U.S.C. § 2242(2) in addition to

aggravated sexual abuse under 18 U.S.C. § 2241(a). Finally, White Quills argues

that the Government failed to provide sufficient evidence that his tribe—the

Blackfeet—is federally recognized (federal recognition being a prerequisite to a

conviction under the Major Crimes Act). We have jurisdiction, 28 U.S.C. § 1291,

and for the following reasons, we affirm.

1.    Two witnesses testified that K.J.A. identified White Quills as her rapist

between one and two hours after the rape, and shortly after a lengthy period of

uncontrolled weeping. The district court admitted the witnesses’ testimony

pursuant to the excited utterance exception to the rule against hearsay. See Fed. R.

Evid. 803(2). We review the district court’s evidentiary rulings for abuse of

discretion, and “we may consider any error in admitting hearsay harmless unless

we have grave doubt whether the erroneously admitted evidence substantially

affected the verdict.” United States v. Alvarez, 358 F.3d 1194, 1214 (9th Cir.

2004) (internal quotation marks and citation omitted). In this case, even if the

district court excluded the testimony in question, the record would contain:


                                            2
K.J.A.’s own testimony that White Quills raped her; the two witnesses’ accounts of

K.J.A.’s hysterical weeping; testimony that semen found in K.J.A.’s body

contained White Quills’s DNA; White Quills’s inconsistent statements to an

investigating FBI agent about having had a consensual sexual relationship with

K.J.A.; and White Quills’s statement to the same agent that he last had sex with

K.J.A. months before the rape—too far in the past, the jury heard, to have left

recoverable DNA evidence. On the basis of that record, it is very unlikely that the

hearsay testimony at issue affected the verdict.

2.    White Quills would have been entitled to have the jury instructed as to the

offense of sexual abuse under 18 U.S.C. § 2242(2) only if it is a lesser-included

offense of aggravated sexual abuse under 18 U.S.C. § 2241(a). See United States

v. Arnt, 474 F.3d 1159, 1163 (9th Cir. 2007) (reversing the district court for

instructing a jury on murder and involuntary manslaughter, but failing to instruct

the jury on the lesser-included offense of voluntary manslaughter). It is not,

because each offense requires proof of an element the other does not. Compare 18

U.S.C. § 2241(a) with 18 U.S.C. § 2242(2); see, e.g., United States v. Sneezer, 983

F.2d 920, 923–24 (9th Cir. 1992) (holding that sexual abuse under 18 U.S.C. §

2242(1) is not a lesser-included offense of aggravated sexual abuse under 18

U.S.C. § 2241(a)).


                                          3
3.    Finally, White Quills argues that the record contained insufficient evidence

to allow the jury to conclude that the Blackfeet Tribe is federally recognized. We

need not reach the issue, because White Quills raised it for the first time in his

reply brief. We therefore deem it waived. Officers for Justice v. Civil Serv.

Comm’n of City & Cnty. of S.F., 979 F.2d 721, 726 (9th Cir. 1992).

      AFFIRMED.




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