NEIL V. WAKE, District Judge.
Before the Court is the Oral Motion for Acquittal by Defendant Christopher James (Docs. 109, 125 at 63:15-17). The Court has considered Defendant's Memorandum in Support of Oral Motion for Judgment of Acquittal Pursuant to Fed. R. Crim. P. 29(a) (Doc. 121), the United States' Response to Defendant's Motion for Judgment of Acquittal (Doc. 130), the evidence admitted at trial, the official transcripts of the jury trial in this matter (Docs. 122, 123, 124, 125), and oral argument on the motion, which was heard on September 23, 2013.
I. LEGAL STANDARD
"After the government closes its evidence or after the close of all the evidence, the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction." Fed. R. Crim. P. 29(a). The court may reserve decision on the motion, proceed with the trial, and decide the motion after the jury returns a guilty verdict. Fed. R. Crim. P. 29(b). "If the court reserves decision, it must decide the motion on the basis of the evidence at the time the ruling was reserved." Id. "If the jury has returned a guilty verdict, the court may set aside the verdict and enter an acquittal." Fed. R. Crim. P. 29(c)(1).
In deciding a motion for judgment of acquittal, the district court, "after viewing the evidence in the light most favorably to the government, must determine whether the jury could reasonably find the defendant guilty beyond a reasonable doubt." U.S. v. Bernhardt, 840 F.2d 1441, 1448 (9th Cir. 1988). However, "it is the jury's exclusive function to determine the credibility of witnesses, resolve evidentiary conflicts, and draw reasonable inferences from proven facts." Id.
II. PROCEDURAL HISTORY
On November 1, 2011, Defendant Christopher James was indicted on two counts of sexual abuse under 18 U.S.C. § 2242(2)(B), which defines sexual abuse as 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." (Doc. 2.) The alleged sexual act in Count 1 involved "contact between the defendant's penis and the victim's vulva." See 18 U.S.C. § 2246(2)(A). The alleged sexual act in Count 2 involved "the penetration of the victim's genital opening with the defendant's finger" "with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person." See 18 U.S.C. § 2246(2)(C). Both acts were alleged to have been committed on August 3, 2011, against a 28-year-old woman with severe cerebral palsy and developmental disabilities.
A jury trial was held on July 30 and 31 and August 1 and 2, 2013. On August 1, 2013, defense counsel moved on behalf of Defendant for judgment of acquittal. (Doc. 109.) The Court reserved ruling on the motion for judgment of acquittal under Rule 29(b). (Doc. 125 at 79:12-13.) At the close of evidence, defense counsel re-urged the Rule 29 motion for judgment of acquittal, and the Court reserved ruling on it. (Doc. 125 at 188:15-20.) On August 2, 2013, the jury returned a guilty verdict on each count. (Doc. 124 at 64:7-18.) The parties submitted post-trial briefing on the Rule 29 motion, and oral argument was heard on September 23, 2013.
For each count, the government was required to prove:
1. The Defendant knowingly engaged in a sexual act with the victim;
2. The victim was physically incapable of declining participation in, or communicating unwillingness to engage in, that sexual act;
3. The offense was committed in the District of Arizona, within the confines of the Fort Apache Indian Reservation; and
4. The Defendant was an Indian at the time.
A. Interpreting 18 U.S.C. § 2242(2)(B)
Section 2242(2) includes two subsections. The first subsection makes it a crime to engage in a sexual act with another person if that other person is "incapable of appraising the nature of the conduct." 18 U.S.C. § 2242(2)(A). Although the government presented some evidence that the victim had mental disabilities, it did not charge Defendant under § 2242(2)(A). It charged Defendant only under the second subsection, § 2242(B), which makes it a crime to engage in a sexual act with another person if that ...