                                                                      F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit
                                    PUBLISH
                                                                      June 12, 2007
                   UNITED STATES CO URT O F APPEALS               Elisabeth A. Shumaker
                                                                      Clerk of Court
                               TENTH CIRCUIT



 U N ITED STA TES O F A M ER ICA,

             Plaintiff-Appellee,
       v.                                               No. 05-7130
 M ELV IN ELLIS H O LLY ,

             Defendant-Appellant.



         A PPE AL FR OM T HE UNITED STATES DISTRICT COURT
             FO R TH E EASTERN DISTRICT O F O K LAH O M A
                        (D.C. NO . CR -04-114-01-F)


W arren Gotcher, Gotcher and Belote, M cAlester, Oklahoma, for A ppellant.

Robert G. Guthrie, Assistant United States Attorney (Sheldon J. Sperling, United
States Attorney, with him on the brief), M uskogee, Oklahoma, for Appellee.


Before KELLY, M U RPH Y, and HO LM ES, Circuit Judges.


M U RPH Y, Circuit Judge.




I. Introduction

      M elvin Holly was convicted by a jury on fourteen criminal counts,

including five counts of felony deprivation of rights under color of law involving
aggravated sexual abuse. In the district court’s instruction to the jury on the

definition of aggravated sexual abuse, the court informed the jury it need not find

actual violence and could infer the requisite degree of force from a disparity in

size or coercive power. It further explained the jury could alternatively find the

requisite fear element if there was a fear of some bodily harm, which could also

be inferred from a disparity in size or power, or control over the victim’s

everyday life. On appeal, Holly argues the district court erroneously instructed

the jury on the definition of aggravated sexual abuse. He therefore challenges his

convictions on the five counts of felony deprivation of rights, all of which

required a finding of aggravated sexual abuse. Exercising jurisdiction pursuant to

28 U.S.C. § 1291, this court reverses and remands the case to the district court

to vacate the convictions as to counts II, IV, VI, and VII. The conviction on

Count V is affirmed upon harmless error review.



II. Background

      Holly, the sheriff of Latimer County, was indicted in a fifteen-count

superseding indictment that charged eight counts of misdemeanor deprivation of

rights under color of law in violation of 18 U.S.C. § 242; five counts of felony

deprivation of rights under color of law involving aggravated sexual abuse in

violation of 18 U.S.C. § 242; one count of making a false statement in violation

of 18 U.S.C. § 1001; and one count of tampering with a witness in violation of 18

                                         -2-
U.S.C. § 1512(a)(2)(C). The indictment arose out of a series of sexual assaults

perpetrated by Holly against inmates and employees of the Latimer County Jail,

as w ell as the daughter of an employee of the jail. Following a five-day jury trial,

Holly was convicted on all counts except one count of misdemeanor deprivation

of rights under color of law. Holly challenges his conviction only as to the five

counts of felony deprivation of rights. On each of these five counts, the jury

found the deprivation of rights involved aggravated sexual abuse.

      W ith respect to the five counts at issue in this appeal, there was testimony

presented at trial that Holly had nonconsensual sex with four inmates at the

Latimer County Jail and attempted to have sex with another whose resistance

ultimately deterred him. Each of the five victims testified at trial. Summer

Hyslop testified that Holly took her from the jail to his farm where he parked the

car, told her to get into the back seat, and then proceeded to rape her. She

explained she did not run aw ay because she was scared he w ould shoot her. In

addition, Hyslop stated that on another occasion, Holly raped her on the floor of

his office at the jail. Vicki Fowler testified that Holly forced her to have sex with

him in his office after allowing her to make a personal phone call. Amber

Helmert related a situation in which Holly attempted to have sex with her in his

office after calling her to the office using the pretext of a family emergency.

Helmert testified that she yelled and physically resisted him, ultimately causing

him to stop the assault. Although her resistance prevented Holly from having sex

                                          -3-
with her, H elmert testified that he penetrated her vaginal area with his finger.

Rebecca Foreman testified that Holly took her from the jail to a trailer in a nearby

tow n w here he made sexual advances and proceeded to have sex w ith her against

her will. April Partain testified that Holly had sex w ith her in his office against

her w ill and that she did not fight back because she was afraid of his reaction.

Partain explained she had sex with H olly on multiple occasions.

      W hile each of the victims testified she was scared at the time of the sexual

assaults, only Helmert referenced any specific threat made by Holly during the

sexual encounter. Each victim did, however, testify that Holly was wearing a gun

just prior to the sexual assault and placed it within reach while the incidents

occurred. Helmert further elaborated that Holly looked repeatedly at his gun just

prior to the sexual assault and threatened to “get to” her family, including her

nine-year-old sister, if she did not cooperate. H yslop, Foreman, and Partain all

admitted, either in their trial testimony or in a prior statement, that they had sex

or flirted with Holly partially for the benefits and jail privileges they received as

a result. Only Helmert testified she physically resisted H olly’s advances.

      In defense, Holly’s primary theory was that the sexual acts in question did

not occur and could not have occurred due to his failing health. His doctor

testified that Holly had extreme bowel problems and impotence during the time

periods in question and that these health problems would have made sexual




                                          -4-
intercourse impossible. H olly also testified on his own behalf, specifically

denying the allegations of each government witness.

      In formulating its jury instruction on aggravated sexual abuse, the district

court rejected Holly’s requested jury instruction that simply quoted the

aggravated sexual abuse statutory language. It instead gave the following

instruction:

            The term “aggravated sexual abuse” means that a person was
      caused to engage in a sexual act by another’s use of force against that
      person or by threatening or placing that person in fear that any
      person will be subjected to death, serious bodily injury, or
      kidnapping.

             The term “sexual act” as referenced above means contact
      between the penis and the vulva or the penetration, however slight,
      of the genital opening of another by a hand or finger or by any
      object, with an intent to abuse, humiliate, harass, degrade, or arouse
      or gratify the sexual desire of any person.

             You may find that the defendant’s conduct involved
      aggravated sexual abuse if you find that he used force during the
      alleged sexual assault. To establish force, the government need not
      demonstrate that the defendant used actual violence. The
      requirement of force may be satisfied by a showing of restraint
      sufficient to prevent the victim from escaping the sexual conduct.
      Force may also be implied from a disparity in coercive power or in
      size between the defendant and the victim or from the disparity in
      coercive power, combined with physical restraint.

             Alternatively, you may find the defendant’s conduct involved
      aggravated sexual abuse if you find the defendant placed the victim
      in fear of death, serious bodily injury, or kidnapping. The
      requirement of fear may be satisfied when the defendant’s actions
      implicitly place the victim in fear of some bodily harm. Like force,
      fear can be inferred from the circumstances, particularly a disparity



                                         -5-
      in power between the defendant and the victim. Further, a
      defendant’s control over a victim’s everyday life can generate fear.


Holly did not object to the first two paragraphs of this instruction, but he argued

the rest of the instruction was improper. The jury convicted Holly on all five

counts involving aggravated sexual abuse: Count II involving Hyslop, Count IV

involving Fow ler, Count V involving Helmert, Count VI involving Foreman, and

Count VII involving Partain.



III. Analysis

      Pursuant to 18 U.S.C. § 242, “[w]hoever, under color of any law . . .

willfully subjects any person in any State . . . to the deprivation of any rights”

violates federal law. The statute sets forth three separate categories of violations,

each with a different maximum punishment. Holly was convicted under the third

category, which states in relevant part that “if such acts include . . . aggravated

sexual abuse, or an attempt to commit aggravated sexual abuse . . . [the

defendant] shall be fined under this title, or imprisoned for any term of years or

for life, or both, or may be sentenced to death.” 18 U.S.C. § 242. Because

aggravated sexual abuse is not defined in § 242, the statute necessarily requires

reference to 18 U.S.C. § 2241, the federal aggravated sexual abuse statute. Under

§ 2241(a), an individual commits aggravated sexual abuse if he “knowingly

causes another person to engage in a sexual act— (1) by using force against that

                                          -6-
other person; or (2) by threatening or placing that other person in fear that any

person w ill be subjected to death, serious bodily injury, or kidnapping.” Thus,

although Holly’s convictions on the challenged counts were pursuant to § 242,

these convictions turn on whether his acts violated the substantive provisions of

§ 2241.

      Holly argues the district court erroneously instructed the jury on the

definition of aggravated sexual abuse. W hile he does not dispute the general

definition of aggravated sexual abuse drawn directly from the statutory language

of § 2241, he contends the district court erred in its subsequent explanation of the

requisite elements of a violation. He argues the language of the jury instruction

at issue eliminated the government’s burden of proving the fear of serious bodily

harm. Specifically, Holly challenges the district court’s instructions as to the

alternative elements of force and fear. This court “review[s] a district court’s

decision to give a particular jury instruction for an abuse of discretion and

consider[s] the instructions as a whole de novo to determine whether they

accurately informed the jury of the governing law.” United States v. Gwathney,

465 F.3d 1133, 1142 (10th Cir. 2006).

      A. Error Analysis

             1. Force Instruction

      Holly first argues the district court erred in instructing the jury that force

may be implied from a disparity in size or coercive power between the defendant

                                          -7-
and the victim. He contends that such an instruction essentially directs a guilty

verdict against the defendant in circumstances such as these because, as a sheriff,

Holly necessarily had power over the prisoners. By allowing an inference of

force from this fact alone, Holly argues, the instruction impermissibly reduced the

government’s burden of proof.

      The term “force” is not defined by statute and this court has not previously

defined it for purposes of § 242 or § 2241. Nevertheless, this court has construed

the term in the context of USSG § 2A3.1(b)(1), which allows for a sentencing

enhancement when the defendant’s conduct violates § 2241(a) or (b). See United

States v. Reyes Pena, 216 F.3d 1204, 1211 (10th Cir. 2000). In doing so, this

court held “a force enhancement is appropriate when the sexual contact resulted

from a restraint upon the other person that was sufficient that the other person

could not escape the sexual contact.” Id. (quotation omitted). W e further stated

that “force may be inferred by such facts as disparity in size between victim and

assailant, or disparity in coercive power.” Id. This court has therefore explained

the element of force within the meaning of aggravated sexual abuse does not

require “the brute force [commonly] associated with rape.” Id.

      Contrary to Holly’s assertions, there is no reason for this court to

distinguish between the definition of force in the context of USSG § 2A3.1(b)(1)

and the definition of force in the context of § 2241. The Guideline provision at

issue in Reyes Pena provides for a four-level enhancement “[i]f the offense

                                         -8-
involved conduct described in 18 U.S.C. § 2241(a) or (b).” USSG § 2A3.1(b)(1).

Because application of the sentencing enhancement requires a violation of the

statute, the requisite degree of force is identical. Other circuits addressing the

meaning of force for purposes of § 2241 have similarly relied on cases

interpreting the statute as part of a review of a sentencing enhancement. See, e.g.,

United States v. Simmons, 470 F.3d 1115, 1121 (5th Cir. 2006) (citing United

States v. Lucas, 157 F.3d 998, 1002 (5th Cir.1998)); United States v. Allery, 139

F.3d 609, 611 (8th Cir. 1998) (citing United States v. Fire Thunder, 908 F.2d 272,

274 (8th Cir. 1990)). Thus, this circuit’s case law on the meaning of force for

purposes of the application of USSG § 2A3.1(b)(1) applies with equal force

outside the sentencing context.

      This court also rejects Holly’s contention that force may be inferred from a

disparity in size or power only where the defendant is an adult and the victim is a

child. Although this circuit’s cases expressing the propriety of such an inference

have often involved an act committed upon a child by an adult, there is no reason

to limit its application to such facts. Rather, an adult/child relationship is offered

as but one example of a disparity in size or coercive power. See Reyes Pena, 216

F.3d at 1211 (explaining force may be inferred from a disparity in size or power,

“such as that between an adult and a child”). Indeed, one of the cases on which

Reyes Pena relied referenced the inference in a case involving abuse perpetrated

by a jail w arden against an inmate. See Lucas, 157 F.3d at 1002 (5th Cir. 1998).

                                          -9-
There is no reason to limit the inference of force from disparity in size or power

to cases involving child victims and this court declines to do so in this case.

      The district court therefore properly instructed the jury on the element of

force. After properly stating the element of force does not require proof of actual

violence, it then indicated, consistent with Reyes Pena, that “[t]he requirement of

force may be satisfied by a showing of restraint sufficient to prevent the victim

from escaping the sexual conduct.” The district court went on to instruct that this

required showing could be implied, rather than proved directly, “from a disparity

in coercive power or in size.” Contrary to Holly’s claim that the instruction

directed a guilty verdict, the instruction simply permitted such an inference rather

than requiring it. Because the instruction was consistent with the prevailing case

law, the instruction as to force was not error.

             2. Fear Instruction

      Holly challenges the district court’s jury instruction on the element of fear

in two respects. First, he argues it was error to instruct the jury that “[t]he

requirement of fear may be satisfied when the defendant’s actions implicitly place

the victim in fear of some bodily harm.” Second, he argues it was error to allow

the jury to infer fear from “a disparity in power between the defendant and the

victim” or “a defendant’s control over a victim’s everyday life.” Because the

district court’s use of language suggesting the victim need only be placed in fear




                                         -10-
of “some bodily harm” impermissibly reduced the degree of fear necessary to

sustain a conviction, this court concludes the instruction on fear w as erroneous.

      As noted above, a defendant commits aggravated sexual abuse in violation

of § 2241(a)(2) only “by threatening or placing [another] person in fear that any

person will be subjected to death, serious bodily injury, or kidnapping.”

Although the victim’s fear may alone support a conviction without the use of

actual force, a specific and severe form of fear is required. It is this heightened

degree of fear that distinguishes aggravated sexual abuse from the separate crime

of sexual abuse set forth in 18 U.S.C. § 2242. A violation of § 2242(1) merely

requires that the defendant “causes another person to engage in a sexual act by

threatening or placing that other person in fear (other than by threatening or

placing that other person in fear that any other person will be subjected to death,

serious bodily injury, or kidnapping).” Thus, § 2242(1) sets forth a lesser degree

of fear than § 2241(a)(2). A defendant commits sexual abuse if he places the

victim in fear, but commits aggravated sexual abuse only if that fear rises to the

level of fear of death, serious bodily injury, or kidnapping.

      The jury instruction given by the district court failed to make this critical

distinction between §§ 2241(a)(2) and 2242(1). Although the court began by

paraphrasing the statutory language of § 2241(a)(2), it then used language more

closely resembling that of § 2242(1). By instructing the jury that the fear element

is satisfied by fear of “some bodily harm,” the district court eliminated the

                                         -11-
heightened degree of fear required to support a conviction for aggravated sexual

abuse. In doing so, the district court essentially made §§ 2241(a)(2) and 2242(1)

identical, a result explicitly precluded by the language of the statutes. W hile it

was not inappropriate for the court to describe circumstances that may generally

give rise to fear, its use of the “some bodily harm” language constituted

independent error, regardless of any other language used in the jury instruction.

      In formulating its jury instruction, the district court relied on language

derived from United States v. Lucas. 157 F.3d at 1002-03. To the extent that

language defined the severity of fear required to support a conviction, however, it

is inapposite because Lucas addressed the meaning of fear within § 2242(1),

which expressly excludes the specific category of heightened fear necessary to

satisfy § 2241(a)(2). Id.; see also United States v. Castillo, 140 F.3d 874, 885

(10th Cir. 1998) (using “some bodily harm” language in the context of § 2242).

W hile fear of “some bodily harm” certainly satisfies the broad definition of

ordinary fear under § 2242(1), it cannot sustain a conviction under § 2241(a)(2).

Because the jury instruction did not clearly require the jury to find the heightened

level of fear of death, serious bodily injury, or kidnapping necessary to convict

Holly of felony deprivation of rights under color of law, involving aggravated

sexual abuse, the instruction was erroneous.




                                          -12-
      B. Harmless Error Analysis

      Having resolved that the jury was instructed on two independent bases for

conviction, force and fear, one of which was proper and one of which was

erroneous, this court must now resolve whether any of Holly’s convictions on

Counts II, IV, V, VI, and VII can nevertheless be affirmed. This determination

requires an analysis of whether harmless error review is applicable and, if so,

whether the instructional error was harmless as to any count of conviction.

             1. Availability of H armless Error Review

      As the Supreme Court confirmed in Neder v. United States, the conclusion

that a jury instruction was erroneous does not necessarily end the inquiry. 527

U.S. 1, 7 (1999). Rather, like most constitutional violations, an instructional

error on an element of the offense is generally subject to harmless error review . 1

Id. at 8-9; Rose v. Clark, 478 U.S. 570, 579-80 (1986). In this case, however, the

apparent availability of harmless error review must be squared with the well-

established rule of Stromberg v. California, 283 U.S. 359, 368 (1931).




      1
       W hile Neder v. United States, 527 U.S. 1 (1999), only directly addressed
the application of harmless error review to a jury instruction that omitted an
element of the offense, its holding applies with equal force to the misdescription
of an element. Indeed, Neder stated the Court had “often applied harmless-error
analysis to cases involving improper instructions on a single element of the
offense.” 527 U.S. at 9; see also id. at 14 (explaining petitioner’s argument of
structural error would “call into question the far more common subcategory of
misdescriptions”).

                                         -13-
      In Strom berg, the Court was presented with a state conviction for the

display of a banner “as a sign . . . of opposition to organized government, . . . an

invitation . . . to anarchistic action, or [as] propaganda that is of a seditious

character.” Strom berg, 283 U.S. at 363. The Court held that the first of the three

alternative bases upon which the conviction could rest was “repugnant to the

guaranty of liberty contained in the Fourteenth Amendment” and, thus, “could not

constitute a lawful foundation for a criminal prosecution.” Id. at 369, 368. The

Court reversed the conviction because it was impossible to determine whether the

guilty verdict rested on one of the constitutional grounds. Id. at 369-70.

      In Zant v. Stephens, the Court clarified that Strom berg “requires that a

general verdict must be set aside if the jury was instructed that it could rely on

any of two or more independent grounds, and one of those grounds is

insufficient,” unless it is possible to determine the verdict rested on the valid

ground. 462 U.S. 862, 881 (1983); see also Griffin v. United States, 502 U.S. 46,

59 (1991) (limiting the Stromberg rule to cases involving grounds for conviction

that are “legally inadequate” rather than “factually inadequate”); Yates v. United

States, 354 U.S. 298, 312 (1957), overruled on other grounds, Burks v. United

States, 437 U.S. 1 (1978). In Strom berg, the Court did not conduct a harmless

error analysis with respect to the constitutionally invalid ground to determine if it

was sufficient to sustain the conviction. Such an analysis was both unnecessary

and impossible because there were no circumstances under which a conviction

                                           -14-
based on the invalid ground could be upheld. Strom berg, 283 U.S. at 369

(holding the invalid ground for conviction was “so vague and indefinite” that it

was “repugnant to the guaranty of liberty contained in the Fourteenth

Amendment”). Thus, the conviction in Strom berg was reversed because the Court

was able to determine, without the necessity of conducting a harmless error

analysis, that one of the independent grounds was insufficient to sustain the

conviction.

      Like Strom berg, there is nothing in this case to conclusively indicate the

jury convicted Holly on the force theory, for which there was a proper jury

instruction, rather than on the fear theory, for which the jury instruction was

erroneous. Unlike Strom berg, however, the error here was merely an instructional

error and did not involve a theory of conviction which “could not constitute a

lawful foundation for a criminal prosecution.” 2 Strom berg, 283 U .S. at 368. As a

      2
        The dissent takes issue with the majority’s characterization of the error in
this case as “instructional error” and, consequently, its application of harmless
error review. See Dissenting Op. at 2. The misdescription of an element of a
crime, however, does not become something other than an “instructional error”
simply because the instruction given mistakenly recites an element of a lesser
crime. Like the instruction in Neder that wholly omitted an element of the
offense, such an instruction is legally inadequate and deprives the defendant of an
actual jury finding on every element of the offense of conviction. W hile
application of harmless error review in such circumstances may indeed create
tension with the Sixth Amendment, see Dissenting Op. at 4, Neder resolved this
tension and is controlling in this case. Thus, the characterization of the error as
“instructional error” is meant only to distinguish the type of legal insufficiency
present in this case from the type of legal insufficiency present in Yates and
Strom berg, both of w hich involved legal errors that were not subject to harmless
                                                                        (continued...)

                                         -15-
consequence, application of harmless error review to the erroneous portion of the

instruction alone is not unnecessary or impossible, as it was in Stromberg and

other cases arising in the typical Stromberg context. 3 Thus, Stromberg does not

preclude application of harmless error review to determine whether, absent the

instructional error, the jury would nevertheless have convicted Holly of felony

civil rights violations involving aggravated sexual abuse, premised on the

victims’ fear of death, serious bodily injury, or kidnapping. If the error is

harmless as to the erroneously instructed ground considered separately, that

ground is no longer insufficient to support the conviction and Stromberg does not

require reversal. All Strom berg requires is that Holly’s convictions be reversed if



      2
        (...continued)
error review and therefore could not sustain a conviction under any
circumstances. Yates v. United States, 354 U.S. 298, 312 (1957) (concluding one
ground for conviction violated the statute of limitations), overruled on other
grounds, Burks v. United States, 437 U.S. 1 (1978); Stromberg v. California, 283
U.S. 359, 368 (1931) (concluding first ground for conviction violated the
Fourteenth A mendment).
      3
        Although the invalid ground in Stromberg violated the Constitution, the
Stromberg rule has been extended to apply whenever one of the possible grounds
of conviction was legally inadequate for any reason. See Yates, 354 U.S. at 312
(applying the Stromberg rule where one of the independent grounds for conviction
violated the statute of limitations); Griffin v. United States, 502 U.S. 46, 55-56
(recognizing extension of Stromberg rule). Its application, however, has been
primarily confined to grounds for conviction that are legally erroneous in their
entirety. See, e.g., Yates, 354 U.S. at 312; United States v. Pearl, 324 F.3d 1210,
1213 (10th Cir. 2003); United States v. Self, 2 F.3d 1071, 1093 (10th Cir. 1993).
In such a context, unlike the current case, harmless error review cannot apply to
the invalid ground alone because “[t]here is no object . . . upon which harmless-
error scrutiny can operate.” Sullivan v. Louisiana, 508 U.S. 275, 280 (1993).

                                        -16-
harmless error review reveals those convictions cannot be sustained on the basis

of the fear theory. See Stephens, 462 U.S. at 881. Application of harmless error

review in this manner to an instructional error on an element of the offense pays

heed to Neder and yet does not conflict with Strom berg. 4

      In United States v. Holland, this court held that an instructional error on

one of two independent alternative grounds for conviction required the conviction

to be set aside “unless w e can be assured the jury did in fact rely on the valid

ground, or unless . . . the jury necessarily made the findings required to support a

conviction on the valid ground.” 116 F.3d 1353, 1358 (10th Cir. 1997), overruled

on other grounds, United States v. Bousley, 523 U.S. 614 (1998). W hile relying

on harmless error principles, however, the court essentially did no more than

apply the traditional Stromberg rule itself. 5 Because the court concluded the jury



      4
        The Eleventh Circuit has adopted this approach to application of harmless
error review in the Stromberg context. See Parker v. Sec’y for the Dep’t of
Corrs., 331 F.3d 764, 776-79 (11th Cir. 2003).
      5
       Even under the traditional Stromberg analysis, a verdict need not be set
aside where it is possible to conclusively determine the jury relied on a valid
ground, such as where a special interrogatory verifies such reliance or where no
evidence is admitted at trial to support the legally erroneous ground. See United
States v. Weidner, 437 F.3d 1023, 1044 (10th Cir. 2006) (concluding lack of
evidence on legally erroneous theory established jury relied on valid theory);
LaFevers v. Gibson, 182 F.3d 705, 716 (10th Cir. 1999) (declining habeas relief
because special verdict form established jury convicted on valid ground). In
addition, the verdict may be affirmed where facts necessarily found by the jury
encompass the findings required to support a conviction on a valid ground.
Weidner, 437 F.3d at 1044; United States v. Holland, 116 F.3d 1353, 1359 (10th
Cir. 1997). Neither of these situations is present in this case.

                                         -17-
findings necessarily established the elements of a conviction on the valid ground,

it was unnecessary for the court to consider the application of harmless error

review to the erroneously instructed ground. Id. at 1359.

      In addition, Holland was decided before Neder, which explained that

harmless error review allows this court to look beyond what the jury actually

found to what a rational jury would have found under a proper instruction. Neder,

527 U.S. at 16-18 & n.1 (concluding error was harmless even though jury did not

actually make a finding on the erroneously omitted element). Although

Stromberg continues to preclude application of harmless error review to the valid

ground, except under the narrow standard recognized by Holland, 6 application of

harmless error review to the erroneously instructed ground is permitted and is no

longer confined to a review of what the jury necessarily found. Therefore, if

otherwise appropriate, this court may analyze the evidence of fear of death,




      6
        In applying harmless error review in the Strom berg context, this court may
not affirm a conviction based solely on overwhelming evidence of the properly
instructed ground. Cf. Pearl, 324 F.3d at 1213-14 (reversing child pornography
conviction where jury was erroneously instructed it could convict the defendants
based on images that “appeared to be” minors, regardless of how much the images
seemed to be actual minors and despite the defendant’s acknowledgment at trial
that the images depicted minors engaged in sexually explicit conduct). Reliance
on the valid ground, without an actual jury finding, too closely resembles a
presumption that the jury relied on that ground, thus undermining even the most
narrow applicability of Strom berg. The possibility that the jury could have based
its verdict in this case on the alternative force instruction, for which there was no
error, is therefore irrelevant. See Stromberg, 283 U.S. at 368 (1931) (refusing to
sustain a conviction even though it may have been based on a valid ground).

                                        -18-
serious bodily injury, or kidnapping presented in support of Holly’s convictions

under the rubric of harmless error.

             2. Application of H armless Error Review

      A constitutional error is harmless and may be disregarded if “it appears

beyond a reasonable doubt that the error complained of did not contribute to the

verdict obtained.” 7 Neder, 527 U.S. at 15 (quotation omitted). An instructional

error may be harmless w here the element on which the jury was not properly

instructed was “uncontested and supported by overwhelming evidence, such that

the jury verdict would have been the same absent the error.” Id. at 17. Because

this court’s harmless error review must focus exclusively on the erroneously

instructed “fear” element, the error is harmless in this case only if it is clear

beyond a reasonable doubt that the jury would have found Holly placed the

victims in fear of death, serious bodily injury, or kidnapping, had it not been

erroneously instructed that “fear of some bodily harm” was sufficient.

      It is well-established that the burden of proving harmless error is on the

government. United States v. Serawop, 410 F.3d 656, 669 (10th Cir. 2005). In

this case, however, the government has failed to raise harmless error as an

      7
        A conviction violates due process if the state is not required to prove every
element of the offense beyond a reasonable doubt. In re Winship, 397 U.S. 358,
364 (1970). In this case, the erroneous jury instruction relieved the government
of its burden to show the victims w ere placed in fear of death, serious bodily
injury, or kidnapping, which was a necessary element of the offense of
deprivation of rights under color of law involving aggravated sexual abuse. Thus,
the erroneous jury instruction in this case is constitutional error.

                                          -19-
alternative ground to affirm Holly’s convictions. Nevertheless, where the

government has failed to assert harmless error, this court “may in its discretion

initiate harmless error review in an appropriate case.” United States v.

Samaniego, 187 F.3d 1222, 1224 (10th Cir. 1999) (quotation omitted). In

deciding whether to exercise its discretion to address harmlessness, this court

considers “(1) the length and complexity of the record; (2) whether the

harmlessness of the errors is certain or debatable; and (3) whether a reversal

would result in protracted, costly, and futile proceedings in the district court.” 8

Id. at 1225.

      The record in this case consists primarily of the 700-page trial transcript of

a five-day jury trial involving thirty-two witnesses. Each of the fifteen counts

involved conduct occurring on separate occasions and each required separate

proof. See id. at 1225 (declining to sua sponte raise harmless error where each

conviction involved “discrete and specific transactions” and each required

“separate proof”). Although not all fifteen counts are at issue in this appeal, the

absence of argument by the parties, caused by the government’s failure to argue

harmless error, leaves this court with the difficult task of determining which

portions of the transcript may be relevant to the five counts in question. This

      8
       This court has quite reasonably questioned the relevance of the third
factor. See United States v. Samaniego, 187 F.3d 1222, 1225 n.2 (10th Cir.
1999). In this particular case, the third factor bears no weight in this court’s
analysis. As a consequence, this court’s decision whether to sua sponte address
harmlessness depends solely on a balancing of the first two factors.

                                          -20-
court should therefore be hesitant to engage in an “unsolicited, unassisted, and

undirected harmless error review” to determine w hether the error was harmless

beyond a reasonable doubt. Id. Further, it should be with a great deal of

trepidation that an appellate court undertake a full, independent harmless error

review of a lengthy record when the convicted defendant has been deprived of the

adversary process on the issue of harmlessness. 9

      Despite this court’s general reluctance to sua sponte apply harmless error

review , it may be appropriate to do so where the certainty of the harmlessness is

readily apparent. Evaluation of the certainty of the harmlessness necessarily

requires this court to review the record to some extent, though not to the same

degree as would be required pursuant to a full harmless error review. As noted

above, such review must be constrained to the fear element and must not extend

to evidence of the force element for w hich the instruction was proper.

      Even a preliminary review of the trial transcript leads this court to conclude

that the harmlessness of the instructional error is certain as to Count V, for the

reasons more fully discussed below. Thus, this court concludes it is appropriate




      9
       The erroneous instruction in this case was not proposed by the government
and was apparently proposed by the district court after the close of evidence. The
instruction proposed by the defendant simply mirrored the language of the statute.
Thus, it can only be assumed that the defendant proceeded throughout trial on the
assumption that the jury would be properly instructed on the elements of the
offense.

                                         -21-
to sua sponte engage in a full-scale harmless error review as to this count. 10 It

would not generally be appropriate to engage in a full-scale harmless error review

as to Counts II, IV, VI, and VII because the harmlessness of the instructional

error is far from certain as to those counts. This is a unique case, however, in

that the harmlessness of one of the five counts is both certain and readily

apparent. Because this court must conduct a thorough examination of the entire

record in conducting harmless error review as to Count V, it therefore will fully

consider the evidence and the issue of harmlessness as to the other counts as well.

Based on this independent review of the trial transcript, this court concludes the

instructional error is harmless as to Count V. As to Counts II, IV, VI, and VII,

however, the error is not harmless.

                    a. Count V

      This court’s review of Helmert’s testimony at trial renders it certain that

the requisite element of fear of death, serious bodily injury, or kidnapping was

“uncontested and supported by overwhelming evidence, such that the jury verdict

would have been the same absent the error.” Neder, 527 U.S. at 17. A thorough

examination of the entire trial transcript further confirms this conclusion.

      At trial, Helmert testified as follow s:



      10
         The limited appendix submitted by the defendant contained only portions
of the trial transcript and is inadequate to allow for proper harmless error review.
Prior to oral argument, however, this court, sua sponte, supplemented the record
with the entire trial transcript.

                                         -22-
             Q. [Prosecutor] W hat happened at that point?
             A. [Helmert] At that point, I go— my back is towards the door
      and I go— and he grabs me and he said— and I said, “Get away from
      me.”
             And he says that if he can’t get to me, he’ll get to my family,
      and my little sister is cute too. He goes, “Your little sister is awfully
      cute too.” And my little sister is nine years old.
             Q. Did that upset you?
             A. Yes, very much.
             And I go to turn around and he’s looking at— his gun is sitting
      on the table and he’s looking at his gun the whole time, you know, or
      he would look down at it. And he pushed me up beside the door and
      pushed me down on the ground and he had his hand over my mouth
      and he’s kissing my neck and he starts to kiss my neck and I keep on
      moving it and I’m trying to push him off and he puts his hands— his
      hand down there and touched me, and then I started kicking. I got
      off and he said, “Get up,” he said, “You are too loud,” and then he
      said a cuss word and he said, “You are too loud, get out of my
      office.”


This testimony provides overwhelming evidence that Holly placed Helmert in fear

that either she or her nine-year-old sister would be subjected to death, serious

bodily injury, or kidnapping. See 18 U.S.C. § 2241(a)(2) (stating aggravated

sexual abuse is committed where the victim is threatened or placed in fear “that

any person will be subjected to death, serious bodily injury or kidnapping”

(emphasis added)). In addition to the explicit threat to Helmert’s sister, the

testimony that Holly repeatedly looked at the gun prior to engaging in the sexual

assaults constitutes direct and specific testimony of an implicit threat of death or

serious bodily injury. Given this express testimony on the requisite degree of

fear, there is no way a rational jury could have concluded Helmert was placed in



                                         -23-
fear of some bodily harm, as this jury necessarily did, without also concluding she

was placed in fear of death or serious bodily injury.

      Further, Helmert’s testimony regarding both the explicit and implicit threat

was entirely uncontested by Holly. On cross-examination of Helmert, Holly did

not challenge whether these threats w ere actually made and did not inquire into

the degree of fear Helmert felt at the time the sexual abuse occurred. In contrast

to the cross-examination of other victims, Holly failed to question Helmert as to

whether he made threats to kill or seriously injure her if she did not submit to his

advances. Rather, the only cross-examination of Helmert regarding the incident

was brief and focused exclusively on whether anyone else was present and could

have heard her screams. Even if the jury convicted Holly on the basis of the

legally erroneous fear instruction, it clearly rejected Holly’s defense, implied in

the cross-examination of Helmert and established clearly by his own testimony,

that the incident did not occur. Thus, Holly’s conviction on Count V is like the

defendant’s conviction in Neder where the element that was not properly

submitted to the jury was supported by overwhelming and uncontroverted

evidence. Neder, 527 U.S. at 17. In such a situation, the error could not have

contributed to the verdict obtained and the error is harmless.

                    b. Counts II, VI, and VII

      The evidence that Holly placed Partain, Hyslop, and Foreman in fear of

death, serious bodily injury, or kidnapping at the time the sexual abuse occurred

                                         -24-
is neither uncontested nor overwhelming. A review of the trial transcript reveals

some evidence that could support a finding of the requisite degree of fear as to

these counts. All three victims testified that they were “scared” and that Holly’s

gun was present and within reach at the time the sexual abuse occurred. Hyslop

further elaborated that she “was scared [Holly] would shoot” her because he told

her “he killed a lot of people in his time and he has a reputation for killing people

in W ilburton.” W hile such testimony may provide evidence of the requisite

degree of fear, however, it does not stand alone.

      Unlike the testimony of Helmert, the testimony of these three witnesses

also contained significant admissions that would tend to undermine a finding of

the requisite fear element. Partain and Foreman each testified they were

motivated in part by a desire to obtain privileges from Holly. Likewise, Hyslop

admitted she previously told an FBI agent she had sex with Holly in exchange for

favors and special treatment. On cross-examination, each of these three victims

testified that Holly made no threats to kill them or seriously injure them if they

refused to have sex with him. Thus, unlike the omitted element in Neder, the

requisite fear element as to these three victims was specifically contested by

defense counsel at trial. Although there was evidence Partain, Hyslop, and

Foreman w ere placed in significant fear, the existence of evidence suggesting

they were motivated by something other than fear renders it far from clear what

the jury would have found if it had been properly instructed on the requisite

                                         -25-
degree of fear. Given all of this evidence, this court cannot conclude beyond a

reasonable doubt that the instructional error was harmless as to Counts II, VI, and

VII.

                   c. Count IV

       The testimony of Fowler also does not constitute such overwhelming

evidence of fear of death, serious bodily injury, or kidnapping as to render the

erroneous jury instruction harmless. In response to an open-ended question

asking Fowler to describe the sexual abuse, she did not initially mention that a

gun was present. It was only after the prosecutor suggested the significance of

the gun, several questions later and following an intervening change in subject,

that Fow ler testified Holly’s gun was within his reach during the sexual abuse and

that this made her “[v]ery uncomfortable, scared.” This isolated and general

statement regarding fear, however, does not alone establish beyond a reasonable

doubt that the jury would have found Fowler was in fear of death, serious bodily

injury, or kidnapping. Significantly, Fow ler’s response was not further developed

by questions qualitatively probing the degree of fear she felt. W hile Fowler’s

testimony certainly provides evidence from which the jury could have inferred the

requisite degree of fear, it does not so overwhelmingly support the fear element as

to m ake the error harmless beyond a reasonable doubt as to Count V.




                                        -26-
IV. Conclusion

      Based on the testimony presented at trial, it is entirely possible the jury

would have found Holly committed aggravated sexual abuse upon each of the five

victims, had it been properly instructed on the statutory elements of the crime. 11

The question before this court on harmless error review, however, is whether the

verdict would have been the same beyond a reasonable doubt. After a review of

the record, this court concludes the error is harmless only as to Count V.

      For the foregoing reasons, this court reverses and remands this case to the

district court to vacate H olly’s convictions on Counts II, IV , VI, and VII. This

court affirms H olly’s conviction on Count V.




      11
        The reversal of Holly’s convictions on four of the counts at issue does not
preclude a retrial on these counts because the double jeopardy clause bars retrial
only where the government presents no evidence that could support a conviction.
Pearl, 324 F.3d at 1214. Here, the government has presented sufficient evidence
to permit a jury to find Holly guilty of aggravated sexual abuse on either the force
or the fear theory.

                                         -27-
No. 05-7130, United States v. M elvin Ellis Holly

KELLY, Circuit Judge, concurring in part and dissenting in part.



      I concur in the court’s opinion except insofar as it affirms the conviction on

Count V by means of a harmless error review. I would reverse and remand for a

new trial on all counts.

      To determine whether a defendant’s acts, which deprived another “of any

rights, privileges, or immunities secured or protected by the Constitution or law s

of the United States” in violation of 18 U.S.C. § 242, constituted aggravated

sexual abuse, it is necessary to reference 18 U.S.C. § 2241. Section 2241

criminalizes aggravated sexual abuse in certain instances giving rise to federal

criminal jurisdiction. The fear component of an aggravated sexual abuse

conviction under § 2241(a)(2) requires proof beyond a reasonable doubt that the

defendant caused another person to engage in a sexual act “by threatening or

placing that other person in fear that any person will be subjected to death,

serious bodily injury, or kidnapping.” See 18 U.S.C. § 2241(a)(2). In this case,

the district court, seizing upon the Fifth Circuit’s language in United States v.

Lucas, 157 F.3d 998, 1002-03 (5th Cir. 1998), erroneously instructed the jury that

“[t]he requirement of fear [under § 2241(a)(2)] may be satisfied when the

defendant’s actions implicitly place the victim in fear of some bodily harm.” See

Ct. Op. at 5. In so doing, the district court essentially instructed the jury that it

could find M r. Holly guilty of depriving his victims of their federal rights by
means of aggravated sexual abuse under 18 U.S.C. § 242 so long as it found that

he had committed non-aggravated sexual abuse under 18 U.S.C. § 2242(1), a

statute which only requires a defendant to have caused “another person to engage

in a sexual act by threatening or placing that other person in fear . . . .” See id. at

13.

      The court views this as “merely an instructional error,” and therefore

applies Neder’s harmless error test. See id. at 15, 18. But the error was not

merely instructional; rather, the district court instructed the jury it could convict

M r. Holly on a ground that was legally insufficient. In other words, this is not a

simple case of mis-description or omission of an element of the offense. Instead,

the jury was told it could convict M r. Holly under § 242 so long as it found him

guilty under § 2242(1). One’s guilt under § 2242(1), however, is a legally

insufficient basis on which to hang an aggravated sexual abuse conviction under

§ 242. W hat is required is a violation of § 2241.

      The circumstances in this case call to mind the holdings of Yates v. United

States, 354 U.S. 298 (1957), overruled in part on other grounds by Burks v.

United States, 437 U.S. 1 (1978), and Griffin v. United States, 502 U.S. 46

(1991). Yates teaches that a general verdict must be set aside where “the verdict

is supportable on one ground [(here, the force component of § 2241(a)(1))], but

not on another [(here, the fear component of § 2242)], and it is impossible to tell

which ground the jury selected.” 354 U.S. at 312; see also United States v.

                                           -2-
M iller, 84 F.3d 1244, 1257 (10th Cir. 1996), overruled in part on other grounds

by United States v. Holland, 116 F.3d 1353, 1359 n.4 (10th Cir. 1997) (“Because

the instruction defining one of the two alternative grounds for conviction was

legally erroneous, we must reverse the conviction unless w e can determine with

absolute certainty that the jury based its verdict on the ground on which it was

correctly instructed.”). The Supreme Court, in Griffin, clarified that the rule in

Yates only applies in the case of legal error, which it defined as “a mistake about

the law.” 502 U.S. at 59. The Court explained that legal error must result in the

setting aside of a general verdict because:

      W hen . . . jurors have been left the option of relying upon a legally
      inadequate theory, there is no reason to think that their own
      intelligence and expertise will save them from that error. Quite the
      opposite is true, however, when they have been left the option of
      relying upon a factually inadequate theory, since jurors are well
      equipped to analyze the evidence.

Id.

      The error in this case falls within the legal error category with which jurors

are particularly ill suited to deal— after all, there is no reason to believe that the

jurors’ “own intelligence and expertise” would have led them to conclude that

placing another in fear of “some bodily injury” was legally insufficient and that

placing another in fear of “death, serious bodily injury, or kidnapping” is what the

statute actually requires. And because we cannot be sure that the jury’s verdict

relied solely on the properly instructed force component, I would simply set aside



                                           -3-
the verdict as to all counts, including Count V, without conducting harmless error

review .

      Even if harmless error review applies to this type of instructional error, w e

should not undertake it. The burden of showing that an error is harmless lies w ith

the government, but the government did not argue harmlessness and we ought not

raise it sua sponte without the benefit of briefing. Given the constitutional

implications of Neder— it essentially allows us to grant judgment as a matter of

law in a criminal case in tension with the Sixth Amendment jury trial right— we

should be cautious in deeming an error harmless on a record that is less than clear

and without the benefit of the adversarial process. In recognition of the difficulty

of conducting harmless error review sua sponte, we have previously cabined our

discretion to do so with the following three factors: “(1) the length and

complexity of the record; (2) whether the harmlessness of the errors is certain or

debatable; and (3) whether a reversal would result in protracted, costly, and futile

proceedings in the district court.” United States v. Samaniego, 187 F.3d 1222,

1224 (10th Cir. 1999).

      The first factor undoubtedly weighs against such a review in the instant

case— the trial transcript alone spans 700 pages, the jury trial lasted five days, a

total of 32 witnesses w ere called, and each of the fifteen counts against M r. Holly

required separate proof. See Ct. Op. at 20. Under the second factor, the evidence

as to fear of serious bodily injury, death, or kidnapping is debatable as to Count

                                          -4-
V. To be sure, the evidence could give rise to a permissible inference that M r.

Holly threatened M s. Helmert with serious bodily injury, death, or kidnapping. I

do not think, however, that the jury was required to, or necessarily did, find that

such a threat occurred. Nor can I say that the fear component of Count V was

uncontroverted. M r. Holly’s primary defense at trial was that the incident did not

occur; given that defense, it is not surprising that the requisite degree of fear was

not fully developed, but that does not mean it is uncontroverted. In fact, implicit

in M r. Holly’s defense that the incident did not occur is the assertion that a threat

serious enough to satisfy § 2241(a)(2) also did not occur.

      In sum, I would reverse on all counts and remand for a new trial.




                                          -5-
