United States v. Norquay

United States Court of Appeals for the Eighth Circuit · 1993 · Evidence

987 F.2d 475 (8th Cir. 1993)

Updated August 22, 2026

Evidenceperemptory challengesblind strikesjury instructionsmistake of factconsentaggravated sexual abuseforce

Facts

Norquay and Schoenborn were indicted for aggravated sexual abuse, each charged with aiding and abetting the other. At trial, the district court required simultaneous peremptory strikes instead of the alternating method prescribed by local rule, refused a requested instruction on reasonable belief in consent, admitted testimony about the victim's emotional condition and statements that she had been raped, and instructed that voluntary intoxication was not a defense. The victim testified that Schoenborn hit her, removed her clothing, raped her, and that both men raped her multiple times in different locations while she resisted. At sentencing, Norquay received a force enhancement and no minor-participant reduction, while Schoenborn received an upward departure based in part on prior conduct and tribal court convictions.

Issue

Whether the district court committed reversible error in its jury-selection procedure, refusal of a mistake-of-consent instruction, evidentiary rulings, intoxication instruction, sufficiency determination, and sentencing rulings. As to Schoenborn's sentence specifically, the question was whether the upward departure improperly relied on tribal court convictions that may have been uncounseled.

Rule

A blind-strike system for peremptory challenges is permissible if the defense is told in advance of the system and has an opportunity to strike after all qualified jurors are known. In a forcible-sexual-abuse prosecution under 18 U.S.C. § 2241(a)(1), reasonable mistake as to consent is an affirmative defense, and a defendant is entitled to an instruction on that theory only after introducing some direct or circumstantial evidence of a reasonable basis for the mistake. Testimony about a victim's statements is not hearsay when offered to explain the listener's subsequent conduct rather than to prove the truth of the statements, and consistent statements may also be admissible under Rule 801(d)(1)(B) to rebut an implied charge of fabrication. Voluntary intoxication is not a defense to this general-intent crime, though an instruction negating that defense may be given when intoxication evidence is substantial. A sentencing court may consider prior criminal conduct for upward departure, but use of tribal court convictions as a basis for increasing criminal history is improper if those convictions were uncounseled.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

Late one night outside Duluth, Minnesota, Tara Benton flagged down a passing pickup. At Victor Hale’s federal assault trial, the prosecutor asked the driver why he immediately turned around, unlocked the truck, and drove Tara to a ranger station. Over objection, the driver testified that Tara said, "He beat me and forced me out of the cabin."

For which reason is the driver's testimony about Tara's statement most likely admissible?

Explanation. The statement is admissible if offered for a non-hearsay purpose—here, to explain the listener's subsequent conduct. The majority approved testimony recounting the complainant's statements when used to explain why witnesses stopped, transported her, and involved authorities, rather than to prove the assault actually occurred. It is not admissible simply because the speaker is an alleged victim, and it is not an opinion on guilt.