United States v. John

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________
m 01-60721
_______________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
VERSUS
MIKE JOHN, JR.,
Defendant-Appellant.
_________________________
Appeal from the United States District Court for
the Southern District of Mississippi
_________________________
October 7, 2002
Before SMITH and BENAVIDES, Circuit
Judges, and ENGELHARDT,* District
Judge.
JERRY E. SMITH, Circuit Judge:
Mike John, Jr., appeals his conviction on
two counts of sexual contact with a minor un-
der the age of twelve. Concluding that the dis-
trict court committed reversible error by failing
to instruct the jury that it could consider
evidence of John’s good character, we reverse
and remand.
I.
John, a Choctaw Indian, was alleged to
have engaged in sexual contact with his elev-
en-year-old female foster child on the Choctaw
Indian Reservation. 18 U.S.C. § 1153, 18
U.S.C. § 2244(a)(1). After a one-day trial, a
jury convicted John of both counts. He was
* District Judge of the Eastern District of
Louisiana, sitting by designation.

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sentenced to thirty-seven months’
imprisonment and three years’ supervised
release.
The child testified that John made sexual
contact with her on two occasions. The first
alleged incident occurred while she was
washing dishes; she testified that John came up
from behind her and placed his hand on her
right breast; he moved away when she told him
she would tell his wife Geraldine. The second
incident occurred approximately two weeks
later, when the child was alone in her room.
John allegedly entered the room, pushed her
onto the bed, and touched the frontal area
between her legs on top of her clothing. He
left the bedroom when his daughter, Sara
Lynn, called the child’s name from an
adjoining room. No third person witnessed
either incident.
John denied that the incidents occurred.
His defense strategy was twofold. He claimed
the child fabricated both incidents as a way of
obtaining release from the foster home because
she thought she was assigned a
disproportionate share of household chores.
One of her friends testified she had overheard
a conversation in which the complainant and
another friend discussed framing John so that
she would be removed from the home.
John introduced several witnesses who tes-
tified to his good character. Although the
court permitted the introduction of this
evidence, it denied John’s request for a jury in-
struction regarding character.
II.
John argues that he was improperly
sentenced as a felon. The indictment charged
a violation of § 2244(a)(1), which makes it a
felony, punishable by ten years’ imprisonment,
to engage in “sexual contact” with another
person if in doing so it would violate § 2241
“had the sexual contact been a sexual act.”1
John argues that the phrase “had the sexual
contact been a sexual act” requires that the
government prove a sexual act, not merely
sexual contact. John contends that because he
was alleged to have engaged in only sexual
contact, he should have been sentenced for
violating § 2244(b), a misdemeanor.2
A.
Chapter 109A of title 18, entitled “Sexual
Abuse,” which encompasses 18 U.S.C.
§§ 2241-2248, differentiates between a sexual
act and sexual contact. Section 2246(2)
defines a sexual act, in part, as “the intentional
1 Section 2244(a)(1), entitled “abusive sexual
contact,” states:
(a) Sexual conduct in circumstances where
sexual acts are punished by this chapter.SS
Whoever, in the special maritime and
territorial jurisdiction of the United States or
in a Federal prison, knowingly engages in or
causes sexual contact with or by another
person, if so to do would violateSS
(1) section 2241 of this title had
the sexual contact been a sexual
act, shall be fined under this title,
imprisoned not more than ten
years, or both[.]
2 Section 2244(b) states:
(b) In other circumstances.SSWhoever, in
the special maritime and territorial
jurisdiction of the United States or in a
Federal prison, knowingly engages in sexual
contact with another person without that
other person’s permission shall be fined
under this title, imprisoned not more than
six months, or both.

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3
touching, not through the clothing, of the gen-
italia of another person.” On the other hand,
sexual contact is defined as “intentional
touching, either directly or through the
clothing” of areas including the genitalia and
breasts. It is undisputedSSindeed the
indictment only allegedSSthat both incidents
qualified as “sexual contacts,” because the
child was touched through the clothing, not
directly.
As we have said, § 2244(a)(1), under which
John was indicted, prohibits sexual contact in
violation of § 2241 “had the sexual contact
been a sexual act.” Section 2241, the
subsection cross-referenced by § 2244(a)(1),
is entitled “aggravated sexual abuse” and
generally prohibits sexual acts by aggravated
means. Specifically, § 2241(c) punishes
defendants who engage in sexual acts with
minors under twelve years of age.
Section 2244(a)(1)’s use of the phrase “had
the sexual contact been a sexual act”
apparently was intended to incorporate § 2241
in its entirety, with the caveat that § 2241’s
use of the term “sexual act” be replaced by
“sexual contact.” In other words, the plain
text of § 2244(a)(1) prohibits sexual contacts
“had the sexual contact” at issue “been a
sexual act” as described in § 2241. Therefore,
§ 2241(c), which prohibits sexual acts with
minors under twelve, is incorporated by
§ 2244(a)(1) to punish sexual contact with
minors under twelve.
We do not see how the plain text can be
interpreted any other way. In light of the fact
that § 2244 is entitled “abusive sexual
contact,” it would make little sense if the
government were required to prove a sexual
act to convict under § 2244(a)(1).
B.
We are mindful that this interpretation re-
sults in two avenues for punishing the same
conduct.3 In addition to § 2244(a)(1), § 2244-
(b), in concert with § 2244(c),4 punishes sex-
ual contact with minors under twelve years of
age. Notably, a violation of § 2244(a)(1) qual-
ifies as a felony, while a violation of § 2244(b)
qualifies only as a misdemeanor. The fact that
two provisions of § 2244 provide different
penalties for punishing the same conduct does
not, however, create ambiguity.
Although the rule of lenity requires that am-
biguous statutes be construed in favor of crim-
inal defendants, United States v. Reedy, ___
F.2d ___, ___ & n.13, 2002 U.S. App. LEXIS
17668, at *20 & n.13 (5th Cir. Aug. 26,
2002), the rule applies “only when, after con-
struing traditional canons of statutory con-
struction, [a court] is left with an ambiguous
statute.” United States v. Shabani, 513 U.S.
10, 17 (1994). The rule of lenity does not ap-
ply in a case such as this, where two statutes
provide different penalties for the same
conduct. United States v. Batchelder, 442
U.S. 114, 121-22 (1979). If the government
3 This oddity could mean that Congress intended
§ 2244(a)(1) to incorporate § 2241(a) and (b), but
not (c). Yet, the plain text of § 2244(a)(1), which
incorporates § 2241 in its entirety, suggests
otherwise.
4 Section 2244(c) provides that “[i]f the sexual
contact that violates this section is with an
individual who has not attained the age of 12 years,
the maximum term of imprisonment that may be
imposed for the offense shall be twice that
otherwise provided in this section.” Presumably,
this permits one who violates § 2244(b) by
engaging in sexual contact with a minor under
twelve years of age to be punished for not more
than one year, instead of for only six months.

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does not attempt to punish a defendant for the
same conduct under both § 2244(a)(1) and §
2244(b), it “has the discretion to prosecute
under either statute regardless of whether one
allows a harsher sentence.” United States v.
Thrasher, 569 F.2d 894, 895 (5th Cir. 1978).5
III.
The district court committed reversible er-
ror in refusing John’s request for a character
instruction. Unlike the situation in cases in
which we have found a character instruction
unnecessary, character was a vital part of
John’s theory of defense. Without any
witnesses or other corroborating evidence
supporting the child’s accusations, guilt hinged
entirely on credibility.6 Given these
circumstances and the closeness of the case,7
the court should have given a character
instruction.
The proposed instruction would have in-
formed the jury it should consider evidence of
“good general reputation for truth and
veracity, or honesty and integrity, or [being a]
law abiding-citizen.” More importantly, the
instruction would have informed the jury that
character evidence “may give rise to a
reasonable doubt, since you may think it
improbable that a person of good character in
respect to those traits would commit such a
crime.” The court apparently rejected the
character instruction because it thought that
John’s only proffered character evidence was
the testimony of Sara Lynn John, and that her
testimony alone was insufficient to warrant the
instruction.8
A.
A character instruction is warranted only if
the defendant first introduces admissible char-
5 In addition, a principle of statutory
construction provides that a specific provision
takes precedence over a more general one. United
States v. Torres-Echavarria, 129 F.3d 692, 699
(2d Cir. 1997) (citation omitted). Section 2244(a)-
(1) punishes sexual contacts with minors under
twelve years of age through its incorporation of §
2241(c). Section 2244(b), the statute urged by
John, generally prohibits sexual contacts regardless
of age. Therefore, § 2244(a)(1) is the more
specific provision and would control if we were
forced to choose between the two provisions.
6 Indeed, the fact that sex offenses are often
unwitnessed and unsupported by evidence outside
the victim’s testimony means that they become
“unresolvable swearing matches.” United States v.
Mound, 149 F.3d 799, 801 (8th Cir. 1998) (citing
140 Cong. Rec. H8991 (daily ed. Aug. 21, 1994)
(statement of Rep. Molinari)).
7 The jury deliberated for approximately 2 hours
and 15 minutes before reaching a verdict. After
about 1 hour and 45 minutes of deliberation, the
(continued...)
7(...continued)
court had given an “Allen charge,” see, e.g.,
United States v. McClatchy, 249 F.3d 348, 358-59
(5th Cir.), cert. denied, 122 S. Ct. 217 (2001), in-
structing the respective jurors to reconsider their
positions in light of the body’s inability to reach a
unanimous decision. This was a close case; at one
point, the prosecutor remarked that there was a
“relatively small quantum of proof” linking John to
the crime.
8 The court, by referring to character evidence
as “reputation” evidence and stating that Sara
Lynn John’s testimony was the only “reputation”
evidence adduced at trial, overlooked the fact that
character evidence also may be proven by a
witness’s opinion of the defendant. FED. R. EVID.
405(a). As we will discuss, several witnesses tes-
tified to their opinion of John without mentioning
his reputation in the community.

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acter evidence. See United States v. Tanne-
hill, 49 F.3d 1049, 1057-58 (5th Cir. 1995).
An accused may offer evidence of a pertinent
character trait to prove action in conformity
with that trait. FED R. EVID. 404(a)(1). In the
criminal context, a pertinent character trait is
one that is relevant to the offense charged.
United States v. Hewitt, 634 F.2d 277, 279
(5th Cir. Unit A Jan. 1981). Where
admissible, proof of character may be made by
testimony as to the defendant’s reputation or
by testimony in the form of an opinion. FED.
R. EVID. 405.
John offered a host of admissible character
evidence. Geraldine John, his wife, testified
that she and John had a good marriage and a
normal sexual relationship. Marion Wesley, a
social service worker, testified that she knew
the Johns, had placed eight foster children with
them, and considered them to be “very good
parents [who were] willing to do whatever
needs to be done for t he children.” John
testified that he was fifty-one years old and
had never been accused of sexual misconduct.9
Finally, Sara Lynn John, John’s thirty-three-
year-old daughter, testified that John had a
“good” reputation for sexual morality and
decency in the community.10
This character evidence, if believed, might
have swayed the jury that John was incapable
of engaging in sexual contact with his foster
child. The fact that this testimony was given in
the form of personal opinion, rather than
John’s reputation in the community, does not
defeat its admissibility.
B.
A defendant may introduce character
testimony to show that “the general estimate
of his character is so favorable that the jury
may infer that he would not be likely to
commit the offense charged.” Michelson v.
United States, 335 U.S. 469, 476 (1948).
Unlike an affirmative defense, character
evidence is never legally sufficient to render a
defendant not guilty. Standing alone,
however, character evidence may create a
reasonable doubt regarding guilt. Edgington
9 We have located no authority stating that a
defendant’s own testimony cannot be considered
character evidence within the meaning of rule 404-
(a)(1). Instead, at least one court has concluded
that it can. See United States v. Daily, 921 F.2d
994, 1010-11 (10th Cir. 1991) (considering the
defendant’s own testimony as character evidence).
10 A language barrier apparently prevented Sara
Lynn John from initially comprehending defense
counsel’s questions regarding John’s reputation for
sexual morality and decency. After being asked
three times whether she had heard people in the
(continued...)
10(...continued)
community discussing John’s reputation for sexual
morality and decency, Sara Lynn John responded
“yes.” When asked whether John was a “good man
or a bad man,” she responded “good.”
The government argues that her acknowledge-
ment on cross-examination that she gathered John’s
reputation only from the opinions of persons
connected to the case, and only after the com-
plainant’s allegations were raised, defeats its
admissibility. We disagree, noting that rule 405(a)
imposes no requirement beyond the limitation that
reputation be limited to the community in which
one resides. “The defendant may introduce
evidence of his reputation . . ., and such a witness
not only may but must base his testimony upon
hearsay, in effect summarizing what he has heard
in the community.” United States v. Duke, 492
F.2d 693, 695 (5th Cir. 1974). We know of no au-
thority suggesting that a “community” cannot be
made up, in whole or in part, of persons interested
in the case.

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6
v. United States, 164 U.S. 361, 366 (1896).
“In some circumstances, evidence of good
character may of itself create a reasonable
doubt as to guilt, and the jury must be ap-
propriately instructed.” Hewitt, 634 F.2d at
278 (citations omitted).11
We review for abuse of discretion the re-
fusal to give a defense-tendered instruction.
United States v. Correa-Ventura, 6 F.3d 1070,
1076 (5th Cir. 1993). A court commits
reversible error where (1) the requested
instruction is substantially correct; (2) the
requested issue is not substantially covered in
the charge; and (3) the instruction “concerns
an important point in the trial so that the
failure to give it seriously impaired the
defendant’s ability to effectively present a
given defense.” United States v. Grissom, 645
F.2d 461, 464 (5th Cir. Unit A May 1981).
The government does not argue that the
instruction is an improper statement of the law
or that the issue of character was otherwise
covered in the instructions.12 We are left to
determine whether the omission of the
character instruction “impaired the defendant’s
ability to present” his defense of good
character.
C.
A defendant “is usually entitled to have the
court instruct the jury on the defense’s ‘theory
of the case.’” United States v. Robinson, 700
F.2d 205, 211 (5th Cir. 1983) (internal citation
omitted).13 Importantly, in cases where we
have determined that the lack of a character in-
struction did not impair the defendant’s ability
to present his defense, character was not his
main theory of defense.14
11 The importance of character evidence is fur-
ther demonstrated by the fact that on at least two
occasions, we have reversed convictions after the
district court had instructed the jury that character
evidence “should not constitute an excuse to acquit
the defendant if you, the jury, after weighing all of
the evidence in the case, is convinced beyond a
reasonable doubt that he defendant is guilty of the
offenses charged in the indictment.” United States
v. Leigh, 513 F.2d 784, 785 (5th Cir. 1975);
accord United States v. Harris, 533 F.2d 306, 307
(5th Cir. 1976). “Seizing on this sentence, the jury
could easily have formed the impression that
reputation evidence could only be used to tip the
scales in defendant’s favor if the case was
otherwise close; this is precisely the contention
rejected by the Supreme Court in Edgington . . . .”
513 F.2d at 786.
12 At no point did the court address the issue of
character. See Daily, 921 F.2d at 1010 (finding
that a jury instr uction failing specifically to men-
tion character “cannot be reasonably construed as
addressing the issue” of character). The court told
the jury that in determining the facts of the case, it
should consider “only the evidence presented
during the trial, including the sworn testimony of
the witnesses and the exhibits.” The court also told
the jury, however, that in weighing the testimony of
witnesses, it should consider the witness’s
relationship with the defendant. Without the
benefit of being told that character evidence could
raise a reasonable doubt as to the defendant’s guilt,
the jury might have inferred that it should disregard
character evidence, in light of the fact that it was
elicited mainly from witnesses close to John.
13 At least the Tenth Circuit has recognized that
a defendant is ordinarily “entitled” to a character
instruction if he affirmatively makes character an
issue and presents evidence of traits relevant to the
charged offense. Daily, 921 F.2d at 1010.
14 See Oertle v. United States, 370 F.2d 719,
727 (10th Cir. 1967) (“It is important in this case
that the [defendants], for their defense, did not rely
solely on good character evidence; such evidence
(continued...)

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For instance, in United States v. Baytank
(Houston), Inc., 934 F.2d 599 (5th Cir. 1991),
in holding that a character instruction was un-
necessary where a defendant company accused
of violating environmental regulations offered
character evidence, we stressed that it did “not
appear that character evidence was central or
crucial.”15 Id. at 614. Similarly, in United
States v. Hunt, 794 F.2d 1095 (5th Cir. 1986),
we found a character instruction unnecessary
where the defendant was convicted of mail
fraud. In that case, the defendant argued good
faith as his main theory of defense and did not
deny that he had solicited customers through
mail, but contended only that he lacked the
specific intent to defraud.16 Id.
By contrast, John’s theory of defense was
that he did not commit the act at all.
Character was necessarily a vital part of that
defense, along with the credibility of the
victim. Without corroborating evidence or an
eyewitness, the case boiled down to a
“swearing-match” between the victim and the
accused. Indeed, defense counsel argued, in
his opening statement and closing argument,
that John’s character made it unlikely that he
would have engaged in sexual contact with his
foster child.
The fact that character evidence may create
a reasonable doubt as to guilt, Edgington, 164
U.S. at 366, is most compelling in cases such
as this, where the only evidence linking the de-
fendant to the crime is the victim’s word.
Therefore, under these narrow circumstances,
the court’s treatment of character as a non-
issue was tantamount to impairing John’s abil-
ity to present his defense. Grissom, 645 F.2d
at 464. Given the closeness of the case, had
the jury been told that character evidence
might create a reasonable doubt as to guilt, the
outcome may well have been different.
IV.
Although we reverse John’s conviction, we
also address his contention that the district
court engaged in prohibitive “double-
counting” when it sentenced him.17 John was
sentenced pursuant to U.S.S.G. § 2A3.4(a),
which applies only to offenses committed in
violation of § 2244(a)(1),(2),(3). U.S.
SENTENCING GUIDELINES MANUAL § 2A3.4
cmt. statutory provisions (2001). After
assigning John a base offense level of 10 under
§ 2A3.4(a)(3),18 the court imposed a six-level
14(...continued)
was, in fact, only incidental to the prime
defenses.”).
15 In Baytank, 934 F.2d at 614 n.26, we also
called into question whether a corporate or
institutional defendant is even entitled to present
character evidence.
16 In United States v. Lamp, 779 F.2d 1088 (5th
Cir. 1986), we merely found that the court was
entitled to conclude that the proffered character
witnesses were insufficiently acquainted with the
defendant to render character testimony.
17 The sentencing guidelines should be
interpreted in a way that does not result in
cumulative punishment for the same conduct.
United States v. Lamere, 980 F.2d 506, 516-17
(8th Cir. 1992).
18 Under § 2A3.4, a base offense level of 16 is
assigned to § 2244(a)(1) so far as it covers offens-
es “committed by the means set forth in 18 U.S.C.
§ 2241(a) or (b) [but not (c)].” U.S. SENTENCING
GUIDELINES MANUAL § 2A3.4(a)(1) (2001). A
base offense level of 12 is assigned to § 2244(a)-
(2), which incorporates crimes committed “by the
means set forth in 18 U.S.C. § 2242.” Id.
§ 2A3.4(a)(2). All remaining offenses, which in-
clude only § 2244(a)(3) and § 2244(a)(1) so far as
(continued...)

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8
enhancement pursuant to § 2A3.4(b)(1)
because the victim had not attained the age of
twelve.
John contends that age was factored twice
in the overall calculation of base offense level
16SSonce in the calculation of base offense
level 10, and subsequently in the six-level en-
hancement. Because the enhancement
undoubtedly was based on the victim’s age, we
must decide whether the guideline’s drafters
factored age in calculating base offense
level 10.
Two observations, viewed in tandem, com-
pel the conclusion that the court engaged in
prohibited double-counting. First, as we have
discussed, John’s violation of § 2244(a)(1) re-
quired that the age of the victim be under
twelve. In other words, age is an element of
§ 2244(a)(1). Second, by process of
elimination, there are only two offenses
covered by § 2A3.4 that are assigned a base
offense level of 10: §2244(a)(1) insofar as it
incorporates § 2241(c), and § 2244(a)(3).
John was convicted of violating § 2244-
(a)(1). The other offense covered by § 2A3.4,
which is § 2244(a)(3), punishes sexual contact
with child-victims between the ages of twelve
and sixteen. Bearing in mind that age is an el-
ement of both § 2244(a)(1) and § 2244(a)(3),
the sentencing guidelines commentary
specifically exempts only § 2244(a)(3) from an
age enhancement: “The [age] enhancement
under subsection (b)(2) does not apply . . .
where the base offense level is determined un-
der subsection (a)(3) because an element of
the offense to which that offense level applies
is that the victim had attained the age of
twelve years but had not attained the age of
sixteen years.” Id. cmt. background.
It cannot be that age was factored into the
computation of base offense level 10 as
applied to § 2244(a)(3) but not to §
2244(a)(1).19 Although the commentary does
not explicitly state that § 2244(a)(1) is exempt
from an age enhancement,20 the commentary
does not control our interpretation of the
sentencing guidelines where it is plainly
erroneous or otherwise inconsistent with the
guidelines. United States v. Urias-Escobar,
281 F.3d 165, 167 (5th Cir.), cert. denied, 122
S. Ct. 2377 (2002).
It would be inconsistent to find that age
was factored into the computation of base lev-
el 10 when applied to § 2244(a)(3) but not to
18(...continued)
it incorporates § 2241(c), are assigned a base of-
fense level of 10. Id. § 2A3.4(a)(3).
19 Other courts have used similar reasoning in
determining that double-counting did not occur
where a defendant received a sentence enhancement
because of the age of the victim after being
sentenced under U.S.S.G. § 2A3.1 for violating 18
U.S.C. § 2241(c), which criminalizes aggravated
sexual assault. E.g., United States v. Wimberly,
60 F.3d 281, 288 (7th Cir. 1995); United States v.
Balfany, 965 F.2d 575, 584 (8th Cir. 1992). Key
to the reasoning in these cases was the fact that
§ 2242, another offense covered under § 2A3.1,
does not require that the victim be less than twelve
years old, even though § 2241(c) does so require.
20 One possible explanation for the lack of an
age enhancement exemption for § 2244(a)(1) is
that Congress did not foresee § 2244(a)(1)’s being
used to prosecute defendants through § 2241(c).
As discussed supra part II, we are bound by
§ 2244(a)(1)’s incorporation of § 2241 in its en-
tirety and will not speculate as to whether Congress
intended a meaning at odds with the plain text of §
2244(a)(1).

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§ 2244(a)(1). There is only one base offense
level 10. The district court engaged in double-
counting when it enhanced John’s sentence be-
cause of the victim’s age.
The judgment of conviction and sentence is
REVERSED and REMANDED for further
proceedings consistent with this opinion.

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