United States v. Francis Crowley

The court reviewed the evidence in the light most favorable to the government and asked only whether any rational juror could find the offense's elements beyond a reasonable doubt. For an attempt conviction, the government had to establish criminal intent and conduct constituting a substantial step toward the completed offense.

Crowley's conduct went far beyond preparation. Vincent testified that he pinned her to the bed or wall, put his hand inside her shorts, gripped her vagina, and tried to insert his finger but was prevented by her resistance. Those acts brought the crime to the verge of completion and easily qualified as a substantial step toward forcible digital penetration.

The jury could also infer the required intent from Crowley's actions. The sexual touching occurred despite Vincent's express refusals and physical resistance, and Crowley used force to restrain her while attempting penetration. The fact that he asked for her agreement and ultimately stopped did not compel the conclusion that he never intended to use force; the cramped setting and Vincent's resistance could explain why he did not succeed.

The court found United States v. Hourihan closely analogous. As in that case, the defendant used force to make unwanted sexual contact and to position himself to accomplish a sexual act, then stopped before completion. The jury could reasonably infer that Crowley's failure to complete the act reflected resistance and fear of detection rather than an absence of criminal intent.

Although Crowley's eventual departure might suggest renunciation, he neither requested a renunciation instruction nor asserted that defense on appeal. The court therefore did not decide whether voluntary renunciation is a defense to a federal attempt. In any event, the evidence could support a finding that Vincent's resistance, not Crowley's change of heart, defeated the attempt.

Federal Rule of Criminal Procedure 30 required Crowley to make a distinct objection to the charge actually proposed by the court. His pretrial requested instruction did not itself preserve the point, and at the charging conference he did not object after the judge stated that he would instruct on intent and a substantial step. The court treated this as forfeiture, rather than intentional waiver, and thus reviewed only for plain error.

The charge correctly stated that attempt requires an intent to engage in criminal conduct and acts constituting a substantial step toward the substantive offense. The Second Circuit had never held that a jury must additionally be told that the step must strongly corroborate criminal purpose.

The Model Penal Code uses the phrase 'strongly corroborative' principally to guide courts in deciding whether evidence is sufficient to send an attempt charge to the jury. It does not establish mandatory jury-instruction language, and the court noted that the phrase may be less clear to jurors than the ordinary term 'substantial step.'

Crowley also could not show prejudice. His acts had progressed to within an inch of the charged sexual act, so they strongly corroborated an intent to commit forcible digital penetration under any articulation of the substantial-step test. There was no reasonable likelihood that the omitted phrasing would have changed the verdict.

Although prior false accusations can bear on a witness's credibility, trial courts retain broad authority under the Confrontation Clause and the Rules of Evidence to prevent harassment, confusion, undue prejudice, and marginally useful collateral inquiries. Specific-instance impeachment is also constrained by Rule 608(b), which generally bars extrinsic evidence to prove such conduct.

The trial judge allowed defense counsel to question Vincent outside the jury's presence about identified incidents and people. Vincent denied lying or making false accusations. Because Rule 608(b) would have prevented the defense from using extrinsic evidence to disprove those denials, jury questioning would likely have yielded only denials and little probative value.

A broader inquiry into unrelated Academy investigations would have created distracting mini-trials over disputes unrelated to Crowley's charged conduct. The court reasonably concluded that the risk of speculation and confusion outweighed the limited benefit of having the jury observe Vincent deny the allegations.

The trial judge, as well as the earlier state and federal judges, reviewed Vincent's Academy records in camera and found no determination that she had made false accusations. The appellate court also reviewed additional subpoenaed files and found nothing warranting a different conclusion or requiring disclosure under Brady.

Evidence of a witness's psychological history may be relevant only when the nature, timing, and effect of the condition plausibly bear on the witness's memory, perception, or truthfulness. Courts must weigh that limited probative value against the risks of prejudice and confusion.

The defense relied only on an administrator's surprise that Vincent had been subjected to an extensive battery of tests before sea-duty clearance. The trial judge reviewed the Academy materials and found no evidence of a psychological problem; Vincent was cleared for sea duty and performed it without incident.

This case was unlike one involving evidence that a witness suffered from paranoia, delusions, or schizophrenia. There was no indication that Vincent was delusional, paranoid, impaired in memory or perception, or otherwise affected by a condition relevant to credibility.

In the earlier appeal, the Second Circuit held that Crowley waived his indictment-specificity objection by not raising it before the first trial, as required by Rule 12. That ruling was law of the case and ordinarily had to be followed in later stages of the same litigation.

Crowley's contention that the earlier court mistakenly applied Rule 12 instead of Rule 7 failed because Rule 12 governs the timing of motions asserting defects in an indictment, including a claim that the indictment violates Rule 7(c)(1) or constitutional notice requirements.

Crowley also failed to renew the objection before his retrial, even though the case had returned to a pretrial posture after the new-trial order. Raising the issue only after a second trial was precisely the sort of gamesmanship Rule 12 is designed to prevent, because a timely objection might have been cured without imposing the costs of trial.

A district court's discretionary decision not to depart downward is generally not appealable. Appellate review is available only in the narrow circumstance where the sentencing judge mistakenly believed that he lacked legal authority to depart.

Judge Wexler expressly stated that, under Koon, he had authority to depart if the offense fell outside the applicable guideline's heartland, but that he declined to do so as a matter of discretion. That statement conclusively showed that the judge understood his departure authority.

The judge's observation that the Guidelines treat an attempt and a completed offense alike did not reflect a contrary belief. It correctly recognized that a court may not depart merely because it disagrees with the Sentencing Commission's decision to place attempts and completed offenses in the same guideline category. The judge nevertheless remained free to find unusual individual circumstances outside the heartland and chose not to do so.