In the
United States Court of Appeals
For the Seventh Circuit

No. 00-2441

United States of America,

Plaintiff-Appellee,

v.

Michael A. Peters, a/k/a Tony Boots,

Defendant-Appellant.

Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 99-CR-169--Rudolph T. Randa, Judge.

Argued September 24, 2001--Decided January 22, 2002



  Before Posner, Ripple, and Kanne, Circuit
Judges.

  Kanne, Circuit Judge. A jury found
Michael A. Peters ("Peters"), a/k/a Tony
Boots, guilty of one count of knowingly
engaging in a sexual act with Barbara
House at a time when Peters knew that
Barbara was physically incapable of
declining participation in the sexual act
in violation of 18 U.S.C. sec.sec.
2242(2)(B) and 1153. Peters filed a
motion for judgment of acquittal or in
the alternative for a new trial,
challenging the sufficiency of the
evidence presented against him. On May
26, 2000, the district court denied
Peters’ post-trial motions and imposed a
sentence of 135-months imprisonment,
followed by three years of supervised
release. Peters filed a timely notice of
appeal. On appeal, Peters argues that the
district court erred in denying his
motion for judgment of acquittal because
the government failed to sufficiently
prove that Barbara was physically
incapable of declining participation in
the sexual act with Peters and because
the government failed to sufficiently
prove that Peters knew Barbara was
physically incapable of declining
participation in the sexual act. Further,
Peters contends that his conviction
should be reversed because the government
improperly commented on his failure to
testify during its closing argument and
therefore impinged upon his Fifth
Amendment right to remain silent. We
agree with Peters’ sufficiency of the
evidence challenge. Thus, we reverse and
remand with instructions to grant Peters’
motion for judgment of acquittal.

I.   History

  Both Peters (age 36) and Barbara (age
21) are enrolled members of the Menominee
Indian Tribe. The events relevant to this
appeal occurred on the Menominee Indian
Reservation in Wisconsin. Peters was
married to Diane House, Barbara’s older
sister, but the two were separated at the
time the events relevant to this appeal
transpired. Peters and his three children
were living at 102 School View, in the
City of Keshena on the Menominee Indian
Reservation. The residence at 102 School
View belonged to Jonnie House, Barbara
and Diane’s other sister. Jonnie was
allowing Peters and his three children to
live at the residence during the summer
of 1999.

  At trial, Barbara testified that on the
evening of August 11, 1999, she, Peters,
her brother Keith House (age 19), and two
of her cousins (ages 13 and 14) had a
party at 102 School View. Barbara
testified that over the course of three
to four hours, the group played cards,
and that she consumed about twelve beers.
Further, Barbara explained that later in
the evening her cousins were lying on the
living room floor and that Keith was
lying on the couch in the living room
when she decided to lie down on the
living room floor. Barbara stated that
she did not know where Peters was because
she "passed out right away" on the living
room floor. Barbara further testified
that the next thing she remembers is her
sister attempting to put some clothes on
her. She stated that she was in the rear
bedroom, but that she did not remember
how she got there. She testified that she
was wearing only a t-shirt and bra and
that she did not remember taking off her
pants. She said that she felt sick when
she woke up and that she vomited in a
bucket about three times. Barbara then
stated that she did not remember having
sex with Peters, that she does not
remember consenting to have sex with
Peters, and that she would never have
consented to having sex with Peters. On
cross-examination, Barbara testified that
she drinks until she passes out about
three times a month. She admitted that
when she drinks, sometimes she remembers
what she did the night before, and
sometimes she does not.

  Keith was the only other person present
at the party on August 11, 1999, who also
testified at trial. Keith testified that
Peters flirted with Barbara during the
evening and that Barbara did not like
Peters’ advances. Keith stated that he
fell asleep on the couch in the living
room at about 10:30 p.m. and at that time
both Barbara and Peters were still awake.
Keith also testified that he remembers
Peters asking Barbara, while she was
passed out on the living room floor, to
go to the back bedroom at about 11:00
p.m./* He further stated that the next
thing he remembers is waking up and
seeing police officers standing in the
living room.

  Jonnie testified that around midnight on
August 11, she picked up her mother,
Donna House, from a casino. Jonnie was
accompanied by her boyfriend Osborn
Crowe. According to Jonnie, Donna planned
to drop Jonnie and Crowe off at 102
School View. Jonnie explained that she,
Donna, Crowe, and her Aunt entered the
residence at 102 School View at about
12:30 a.m. Jonnie stated that she
believed that a party had taken place and
that there were many beer cans around the
house. She testified that she saw Keith,
her two cousins, and Peters’ children,
but that she did not immediately see
Barbara. Jonnie further testified that
the door to the rear bedroom was locked.
After jimmying the door open, Jonnie
stated that she found Barbara lying on
the bed with her young son sleeping next
to her. Jonnie testified that she pulled
the covers off of Barbara and discovered
that Barbara was wearing only a t-shirt
and that Barbara had nothing on below her
waist. Jonnie attempted to wake Barbara,
but did not initially succeed. Jonnie
testified that she yelled for Donna and
then that she started looking for Peters
in the other bedrooms.

  Donna testified that after Jonnie called
her into the bedroom, Donna opened the
closet door and found Peters in the
closet wearing only his boxer shorts and
a white t-shirt. Donna testified that she
then said, "That’s it Tony. I am calling
the Police." Donna admitted that she knew
that on occasion Barbara would drink to
the point of passing out. Donna also
indicated that Barbara was able to
function after a night of heavy drinking
and would return home and into Donna’s
house or have someone bring her in. She
then admitted that Barbara could not
always recall what she did the previous
night when she drank.

  The first officer on the scene, Officer
Bernard L. Smith, Jr., testified that
when he arrived at 102 School View,
Jonnie and Donna reported a possible
sexual assault. Officer Smith explained
that he was shown to the rear bedroom and
that he unsuccessfully attempted to wake
Barbara by shaking her foot and calling
her name. Officer Smith then escorted
Peters to a squad car in front of the
house. Officer Smith stated that when
Barbara did eventually wake up, he could
tell that she was intoxicated because she
was unbalanced and her eyes were glassy.

  Sergeant Louis Moses was the second
officer to arrive on the scene. Sergeant
Moses testified that he also
unsuccessfully attempted to wake Barbara
by calling her name and shaking her
shoulder. He explained that while he was
calling the emergency medical technicians
because he was concerned that Barbara
might have alcohol poisoning, Barbara
started to wake up. Sergeant Moses
explained that he then told Donna to
dress Barbara.

  Barbara was taken to Shawano Hospital
and was given a sexual assault
examination. While the parties stipulated
that there was a DNA match between
samples taken from Peters and the semen
recovered from the vaginal area of
Barbara, the examination revealed no
physical or medical evidence indicating
that Barbara had been the victim of a
non-consensual sexual assault. While
there was redness on the cervical area, a
nurse from the Shawano Medical Center
testified that this type of redness could
result from both non-consensual and
consensual sexual intercourse.

  Peters’ defense at trial   was that the
sexual act was consensual.   Several
individuals testified to a   purported pre
vious relationship between   Peters and
Barbara. None of the individuals who
testified on Peters’ behalf were present
on the evening and early morning hours of
August 11 and 12, 1999. Peters did not
testify at trial.

  Peters was charged with sexual abuse in
violation of 18 U.S.C. sec. 2242(2)(B).
Section 2242(2)(B) punishes whoever
knowingly "engages in a sexual act with
another person if that other person is
physically incapable of declining
participation in, or communicating
unwillingness to engage in, that sexual
act." After all of the evidence was
presented, the district court charged the
jury:

[T]o sustain the charge of sexual abuse .
. . the Government must prove the
following propositions:

First, that Defendant knowingly caused
Barbie House to engage in a sex act, to
wit, penis to the vulva.

Second, that Barbie House, whom the
Defendant engaged in a sexual act with,
was physically incapable of declining
participation or communicating
unwillingness to engage in that sexual
act.

Third, that the Defendant, Michael
Peters, knew that Barbie House was
physically incapable of declining
participation in, or communicating
unwillingness to engage in, that sexual
act.

Fourth, that the alleged incident
occurred within Indian country. That is,
within the external boundaries of an
Indian reservation.

And fifth, the Defendant and Barbie House
were both members of an Indian tribe.

The jury found Peters guilty of the
charge of sexual abuse.

  Peters filed a motion for judgment of
acquittal or for a new trial on the
grounds that the government failed to es
tablish that Barbara was incapable of
declining participation in, or
communicating unwillingness to engage in,
the sexual act that occurred between
herself and Peters. The district court
denied Peters’ post-trial motion and
imposed a sentence of 135-months
imprisonment, followed by three years of
supervised release. Peters filed a timely
notice of appeal. On appeal, Peters
argues that the district court erred in
denying his motion for judgment of
acquittal because the government failed
to sufficiently prove that Barbara was
physically incapable of declining
participation in the sexual act with
Peters and because the government failed
to sufficiently prove that Peters knew
that Barbara was physically incapable of
declining participation in the sexual
act. Further, Peters contends that his
conviction should be reversed because the
government improperly commented on his
failure to testify during closing
argument and therefore impinged upon his
Fifth Amendment right to remain silent.

II.   Analysis

  A district court’s denial of a motion
for judgment of acquittal is reviewed de
novo. See United States v. Jones, 222
F.3d 349, 351 (7th Cir. 2000). In
weighing the sufficiency of the evidence
on appeal, this Court will view the
evidence in the light most favorable to
the prosecution and will reverse a
conviction only if no rational trier of
fact could have found the essential
elements of the offense charged beyond a
reasonable doubt. See Jackson v.
Virginia, 443 U.S. 307, 319, 99 S. Ct.
2781, 61 L. Ed. 2d 560 (1979); United
States v. Montani, 204 F.3d 761, 769 (7th
Cir. 2000). While we will "give deference
to the jury’s weighing of the evidence
and its drawing of reasonable
inferences," United States v. Draiman,
784 F.2d 248, 251 (7th Cir. 1986), we
also recognize that "each link in the
chain of inferences must be sufficiently
strong to avoid a lapse into
speculation." See Piaskowski v. Bett, 256
F.3d 687, 693 (7th Cir. 2001) (citing
United States v. An Article of Device,
731 F.2d 1253, 1262 (7th Cir. 1984)).

  We believe that the government has
failed to present sufficient evidence to
establish that at the time the sexual act
occurred, Barbara was incapable of
declining participation in the sexual
act. In sum, the evidence presented at
trial revealed: (1) that on August 11,
1999, Barbara consumed a large quantity
of alcohol; (2) that at around 10:30
p.m., Barbara and Peters were still
awake; (3) that Barbara passed out on the
living room floor; (4) that Peters asked
Barbara to go to the rear bedroom at
about 11:00 p.m.; (5) that sometime
before 12:30 a.m., Barbara and Peters en
gaged in a sexual act; (6) that at about
12:30 a.m. on August 12, 1999, Jonnie and
Donna found Barbara in the rear bedroom;
and (7) that Barbara does not remember
how she got to the rear bedroom or the
sexual encounter with Peters.

  While Barbara testified that she would
never consent to having sex with Peters,
this statement, in combination with the
other evidence presented, is not
sufficient to prove beyond a reasonable
doubt that at the time the sexual act
occurred, Barbara was physically
incapable of declining participation in
the sexual act. Cf. United States v.
Barrett, 937 F.2d 1346, 1348 (8th Cir.
1991) (finding testimony that the victim
was asleep when the defendant engaged in
a sexual act with her sufficient to
affirm conviction). There was no evidence
presented as to when between 10:30 p.m.
and 12:30 a.m. the sexual act occurred,
or explaining how Barbara got to the rear
bedroom. We do not know whether Barbara
went to the rear bedroom at 10:45 p.m. or
12:15 a.m, nor do we know whether the
sexual act occurred closer to 10:45 p.m.
or to 12:15 a.m. Barbara was still
walking around immediately prior to 10:30
p.m., but we know nothing about Barbara’s
physical state prior to when she laid
down in the living room. We do know that
in the past Barbara was able to function
at some level after a night of heavy
drinking. Without more evidence, we do
not believe that any rational trier of
fact could have found beyond a reasonable
doubt that, at the time the sexual act
occurred, Barbara was physically
incapable of declining participation in
the sexual act. See Piaskowski, 256 F.3d
at 693 ("[I]nferences must be
sufficiently strong to avoid a lapse into
speculation.").

  Further, we also find that the
government failed to sufficiently
establish that Peters knowingly engaged
in a sexual act with Barbara when she was
physically incapable of declining
participation in the sexual act. In
regard to Peters’ knowledge, the district
court charged the jury:
Now, when the word knowingly is used in
these instructions, it means that the
defendant realized what he was doing and
was aware of the nature of his conduct
and did not act through ignorance,
mistake, or accident. Knowledge may be
proved by the Defendant’s conduct and by
all the facts and circumstances
surrounding the case. You may infer
knowledge from a combination of suspicion
and indifference to the truth. If you
find that a person had a strong suspicion
that things were not what they seemed or
that someone had withheld some important
facts, yet shut his eyes for fear of what
he would learn, you may conclude that he
acted knowingly, as I have used that word
here.

The record is devoid of evidence
establishing that Peters acted knowingly.
Again, there was no evidence presented
regarding Barbara’s physical state prior
to 10:30 p.m., nor was there any evidence
presented suggesting when, between 10:30
p.m. and 12:30 a.m., the sexual act
occurred. As we have already stated, it
is not rational to conclude beyond a
reasonable doubt that because Barbara
appeared intoxicated when her family and
the police arrived at 12:30 a.m., she was
physically incapable of declining
participation when the sexual act
occurred. Similarly, the leap to conclude
that Peters knew that Barbara was
physically incapable of declining
participation in the sexual act is even
more attenuated and one that a rational
juror could not make. We simply cannot
conclude that the evidence presented was
sufficient such that any rational trier
of fact could have found Peters guilty of
each element of the offense beyond a
reasonable doubt.

  Because we have found insufficient
evidence to support the conviction, we
need not address the other contention by
Peters that the government, in closing
argument, improperly commented on his
failure to testify.

III.   Conclusion

  For the foregoing reasons, we REVERSE the
district court’s judgment of conviction
and REMAND with instructions to enter
judgment of acquittal in favor of Michael
A. Peters.
FOOTNOTE

/* In regard to this testimony, on redirect-examina-
tion, Keith had to be shown a statement that he
had made to the police dated August 12, 1999 in
order to refresh his recollection.
