                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 17-3237
                        ___________________________

                             United States of America

                        lllllllllllllllllllllPlaintiff - Appellee

                                           v.

                                Kalolo Nathaniel Iu

                      lllllllllllllllllllllDefendant - Appellant
                                      ____________

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

                          Submitted: October 19, 2018
                             Filed: March 6, 2019
                                ____________

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 court1 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


      1
        The Honorable Daniel L. Hovland, Chief Judge, United States District Court
for the District of North Dakota.

                                         -2-
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

                                          -3-
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

                                          -4-
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 standard of review applies where the defendant did
not move for a judgment of acquittal, but the district court sua sponte considered
it. See United States v. Ramos, 852 F.3d 747, 752-53 (8th Cir. 2017).

                                          A.

       Iu first asserts that insufficient evidence supports his sexual abuse conviction.
To support a conviction for sexual abuse under 18 U.S.C. § 2242(1), the government
was required to prove that Iu “knowingly . . . cause[d Bad Hand] to engage in a sexual
act by threatening or placing [Bad Hand] in fear.” Iu asserts that the government
failed to prove that he “knowingly” caused Bad Hand to submit to sexual activity out
of fear. In essence, Iu asserts that because Bad Hand stopped resisting and let Iu have
sex with her, Iu could not have known that Bad Hand was acquiescing out of fear;
Bad Hand’s “subjective fears and reasons for engaging in intercourse” cannot prove
Iu acted knowingly. We disagree.



                                          -5-
       The jury heard significant evidence from which it could make permissible
inferences that Iu’s behavior was aimed at frightening Bad Hand to the point that she
acquiesced to sexual activity with him. See United States v. Bloom, 482 F.2d 1162,
1163-64 (8th Cir. 1973) (per curiam) (discussing the permissible inferences that a jury
may draw and a reviewing court’s obligation to view all evidence, including all
reasonable inferences, in the light most favorable to the verdict). This evidence
included that Iu had a long history of physically assaulting Bad Hand, including one
assault while Bad Hand was pregnant that resulted in Iu’s previous incarceration; that
the evening before he had sex with her, Iu spit on, punched, and kicked Bad Hand,
and took her to his mother’s grave, where he told Bad Hand he had a burial plot for
her picked out; that the previous evening’s abuse had occurred following allegations
by Iu of Bad Hand’s past infidelity; that Iu had a history of assaulting Bad Hand when
he suspected she had been unfaithful; that Bad Hand and Iu engaged in a physical
struggle when Iu tried to remove Bad Hand’s underwear; that immediately before Bad
Hand stopped resisting, Iu made a comment about Bad Hand allowing other men to
have sex with her but not allowing Iu to have sex with her; and Bad Hand’s testimony
that she acquiesced to sex with Iu because she was afraid Iu would hit her again. This
evidence is sufficient to allow the jury to infer that Iu put Bad Hand in fear of further
physical abuse, that he knew she was in fear, and that she acquiesced to sexual
activity because she was in fear of further physical injury.

       While the jury could have conceivably believed Iu’s version of events and
reached the opposite conclusion, where faced with conflicting hypotheses as to what
occurred, the jury is entitled to credit one over the other. See, e.g., United States v.
Serrano-Lopez, 366 F.3d 628, 634 (8th Cir. 2004) (“If the evidence rationally
supports two conflicting hypotheses, the reviewing court will not disturb the
conviction. [T]he government’s evidence need not exclude every reasonable
hypothesis of innocence.” (alterations in original) (internal quotation marks and
citations omitted)). Here, the jury did just that, and sufficient evidence supports the
hypothesis they credited.

                                          -6-
       To the extent that Iu argues that circuit precedent demonstrates the
insufficiency of the evidence against him, we disagree. In particular, Iu relies on
United States v. Fool Bear, 903 F.3d 704 (8th Cir. 2018), where we vacated a
conviction for aggravated sexual abuse based on the insufficiency of the evidence.
There, the Court determined that evidence of past physical abuse was insufficient to
show that the victim was in fear of sexual abuse during the incident giving rise to the
charges, particularly where the victim did not testify that, due to past physical abuse,
she was afraid during the sexual act and no evidence showed that the previous
physical abuse was ever tied to or occurred in conjunction with the sexual abuse. Id.
at 712-13.

        In contrast, Bad Hand offered testimony discussing her fear of Iu, how physical
abuse by Iu was often followed by sexual activity, how allegations of infidelity were
often the catalyst for physical confrontations, and how she was afraid Iu was going
to hit her again and only acquiesced to sex to avoid another beating. These facts are
sufficiently distinct to render Fool Bear’s reasoning inapplicable to this case.
Similarly, that cases such as United States v. Betone, 636 F.3d 384, 388 (8th Cir.
2011) (defendant blocked exit and told victim trying to leave was “the worst thing
[he] can do”) and United States v. Johns, 15 F.3d 740, 742-43 (8th Cir. 1994)
(defendant manipulated victim with spiritual teachings and told her spirits would
harm her loved ones if she did not submit to defendant’s sexual advances), involved
more overt threats does not undermine the jury’s conclusion here that, when viewed
in total, Iu’s behavior put Bad Hand in fear, caused her to engage in a sexual act with
him, and Iu was aware of Bad Hand’s fear and acquiescence.

      The jury heard sufficient evidence from which it could conclude, beyond a
reasonable doubt, that Iu knowingly placed Bad Hand in fear so that she engaged in
a sexual act with him. We affirm Iu’s conviction for sexual abuse.




                                          -7-
                                          B.

       Iu similarly asserts that insufficient evidence supports his attempted witness
tampering conviction. Under 18 U.S.C. § 1512(b)(1), Iu could be found guilty of
attempted witness tampering if he “knowingly use[d] intimidation, threaten[ed], or
corruptly persuad[ed Bad Hand] or attempt[ed] to do so, or engage[d] in misleading
conduct toward [Bad Hand] with intent to influence, delay, or prevent the testimony
of [Bad Hand] in an official proceeding.” To sustain a conviction, the government
was thus required to prove two elements: (1) that Iu knowingly engaged in such
activity, that is, he had “consciousness of wrongdoing” and (2) that Iu intended the
actions to influence Bad Hand’s testimony. See United States v. Craft, 478 F.3d 899,
900 (8th Cir. 2007) (quoting Arthur Anderson LLP v. United States, 544 U.S. 696,
706 (2005)).

       Again, Iu takes aim at the requisite mental state, asserting that because he did
not believe he assaulted Bad Hand, he was not pressuring her to change her story and
lie about what had occurred; he was merely encouraging her to tell the truth, which
he believed exonerated him. This argument is without merit. The jury heard
sufficient evidence from which it could conclude, beyond a reasonable doubt, that Iu
knowingly attempted to persuade Bad Hand to lie to investigators about the assault.
The jury was entitled to infer that the statements Iu made to Bad Hand while
handcuffed in the patrol car—“You tell them you lied,” “This shit is going to fuck up
my life and make me look like a sex offender for the rest of my life, you better tell
’em you’re fucking bullshitting them,” and “Baby you gotta get me out of this.”
—were not merely pleas that Bad Hand tell the truth and instead were attempts to
coerce, pressure, or intimidate her into lying to protect Iu. Especially given the long
history of Iu’s abusive behavior toward Bad Hand, the jury was entitled to infer that
Bad Hand understood these statements as threatening. The jury was also entitled to
consider, as evidence of his consciousness of guilt, statements that Iu made to both



                                         -8-
Bad Hand and his sister, urging Bad Hand to recant her story because of the negative
consequences the allegations had on Iu.

       Sufficient evidence allowed the jury to credit the prosecution’s theory that Iu’s
statements were unlawful attempts to influence or prevent Bad Hand’s testimony by
threatening, coercing, or persuading her into recanting her story and telling a
dishonest and inconsistent account of the assault rather than, as Iu suggests, efforts
to encourage her to be honest about the assault. See Serrano-Lopez, 366 F.3d at 634
(allowing jury to credit either of two conflicting hypotheses). This conclusion is
bolstered by the jury’s conclusion that Iu sexually abused Bad Hand. Iu’s theory of
innocence on the witness-tampering charge is related to his argument that he did not
knowingly sexually abuse Bad Hand. Because the jury concluded that Iu knowingly
committed sexual abuse, his theory that he was encouraging Bad Hand to tell the truth
about the assault in untenable. Considered in its entirety, the evidence was sufficient
to allow a jury to conclude, beyond a reasonable doubt, that Iu was guilty of
attempted witness tampering. We affirm Iu’s conviction for attempted witness
tampering.

                                          III.

       Iu next asserts that the district court erroneously admitted hearsay into
evidence. Iu challenges three statements—Bad Hand’s statements to the FBI Special
Agent during an interview the same day as the sexual abuse; Bad Hand’s statement
to law enforcement officers who first arrived at Bad Hand’s residence; and Bad
Hand’s statement to her brother’s boyfriend that Iu sexually assaulted her—but
acknowledges that he only objected to one of the challenged statements at trial. We
review the district court’s ruling on Iu’s objection for an abuse of discretion and will
reverse “only if an error was not harmless.” United States v. White Bull, 646 F.3d
1082, 1091 (8th Cir. 2011). We review the statements to which Iu did not object for
plain error. Id. “For relief under plain error review, [a defendant] must show (1) the

                                          -9-
district court committed an error, (2) the error is clear or obvious, and (3) the error
affected his substantial rights.” Id.

       Iu argues that the district court erred in allowing, over his objection, the FBI
Special Agent to recount Bad Hand’s statements providing a detailed account of the
incident and identifying Iu as her attacker. Iu presented as a defense theory that the
sexual act was consensual and Bad Hand had fabricated the sexual abuse claim, an
argument premised on the statement Bad Hand made to a defense investigator
identifying Bad Hand’s brother’s boyfriend, who was staying at Bad Hand’s
apartment, as the person who gave her a black eye. On cross-examination, Iu’s
counsel questioned Bad Hand about the inconsistencies in her statements. On
redirect, the government asked Bad Hand when she had made the statement that
another individual assaulted her. Bad Hand stated that she had made the statements
to a defense investigator after she had provided her original statements, including one
to the FBI Special Agent. The government then called the FBI Special Agent and
asked her to recount the contents of Bad Hand’s statement, including Bad Hand’s
identification of Iu as the person responsible for the assault. Iu raised a hearsay
objection, which the district court overruled by ruling that the testimony was
admissible as a prior consistent statement under Fed. R. Evid. 801(d).

       Rule 801(d)(1)(B) addresses the admissibility of prior consistent statements,
specifically as they relate to claims of fabricated testimony or charges, allowing the
introduction of evidence “to rebut an express or implied charge that the declarant
recently fabricated it or acted from a recent improper influence or motive in so
testifying.” Further, “[u]se of a prior consistent statement to rehabilitate the
credibility of a witness who has been impeached by a prior inconsistent statement is
appropriate when the statement contextualizes, clarifies, or amplifies the meaning of
the witness’s testimony or inconsistent statement.” United States v. Cotton, 823 F.3d
430, 437 (8th Cir. 2016).



                                         -10-
       The district court did not abuse its discretion in allowing the challenged
testimony; it was admissible under Fed. R. Evid. 801(d)(1) as a prior consistent
statement offered specifically to rebut the defense theory that Bad Hand had
fabricated her claim of sexual abuse. It helped demonstrate that Bad Hand’s account
of what happened during the assault changed only much later in the process, after
speaking with the defense investigator, and that immediately following the assault,
Bad Hand identified and detailed Iu’s involvement as the perpetrator. The testimony
was also admissible to rehabilitate Bad Hand’s credibility because it shed light on the
context in which Bad Hand made the inconsistent statement—to the defense
investigator, following repeated attempts by Iu to convince Bad Hand to change her
story and provide a statement that would exonerate Iu. We find no merit to Iu’s
contention that the district court erred in allowing this testimony.

       Iu also argues that the district court plainly erred in allowing the law
enforcement officer who originally responded to the scene to share Bad Hand’s
account of the incident and in allowing Bad Hand’s brother’s boyfriend to recount
Bad Hand’s statement that she had been sexually assaulted by Iu. We conclude that
this unobjected-to testimony is also admissible under the Federal Rules of Evidence
as prior consistent statements. The district court thus committed no error in allowing
the introduction of the statements at trial.

                                         IV.

       Finally, Iu asserts that his conviction for attempted witness tampering should
be vacated because a fatal variance occurred between that offense as charged in the
Indictment and the evidence introduced at trial, arguing that the court erroneously
allowed the jury to consider as substantive evidence of guilt communications that
occurred after the offense date charged in the Indictment. Iu challenges the
introduction of recorded phone conversations between Iu and Bad Hand and Iu and
his sister that occurred between March 27, 2017 and April 7, 2017, and a letter from

                                         -11-
Iu to Bad Hand dated April 11, 2017. All communications undisputedly occurred
after the March 10, 2017 offense date listed in the Indictment returned on April 5,
2017.

        “[A] variance occurs when the essential elements of the offense set forth in the
indictment are left unaltered but the evidence offered at trial proves facts materially
different from those alleged in the indictment.” United States v. Fiorito, 640 F.3d
338, 350 (8th Cir. 2011) (alteration in original) (quoting United Sates v. Gavin, 583
F.3d 542, 547 (8th Cir. 2009)). But “[a] variance between the indictment and proof
at trial requires reversal of a conviction only if the variance actually prejudiced the
defendant. The primary consideration in this determination is whether the indictment
fully and fairly apprised the defendant of the charges he or she must meet at trial.”
United States v. Thomas, 791 F.3d 889, 897 (8th Cir. 2015) (quoting United States
v. Begnaud, 783 F.2d 144, 148 (8th Cir. 1986)). “Whether a variance exists, and, if
so, whether that variance prejudiced [the defendant] are questions of law that we
review de novo.” United States v. Stuckey, 220 F.3d 976, 979 (8th Cir. 2000).

       While “[a] verdict cannot be based on an act that could have occurred after the
return of the indictment,” United States v. Plenty Arrows, 946 F.2d 62, 65 (8th Cir.
1991), the record reflects that evidence of Iu’s conversations with Bad Hand and his
sister was not offered as substantive evidence of Iu’s guilt on the witness-tampering
count. The jury instructions specifically stated the date on which the witness
tampering allegedly occurred, March 10, 2017, and the jury heard the phone call Iu
made to Bad Hand on that date. Further, during closing arguments the government
referenced the later calls and letters only as evidence of consciousness of guilt, not
as an independent basis to find Iu guilty of attempted witness tampering. We
conclude that a variance warranting reversal of Iu’s witness-tampering conviction did
not occur because the later-made statements and letter were not offered as substantive
evidence of Iu’s guilt, and Iu “could reasonably have anticipated the evidence



                                         -12-
presented at trial from the indictment.” United States v. Duke, 940 F.2d 1113, 1120
(8th Cir. 1991) (quoting United States v. Shyres, 898 F.2d 647, 653 (8th Cir. 1990)).

                                         V.

      For the foregoing reasons, we affirm.
                      ______________________________




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