United States v. Pabl

625 F.3d 1285 (10th Cir. 2010)

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Nature of the Case

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Facts

Throughout the course of events, all parties involved drank at least some alcohol, but Ds consumed particularly large quantities. L.R.H., who was sixteen at the time. L.R.H. attended a dance accompanied by her boyfriend, Dave Keetso, and his cousin. Little interaction occurred until after the dance ended. The group that L.R.H. was with stopped at a convenience store when Ds’ group pulled up. The groups continued until one of the cars was stuck in mud and snow. Dave, his cousin, L.R.H., and Gordo (D) drove together to pick up a truck and chains to free the stuck car. L.R.H. woke up and climbed into the truck, as did Gordo. After some delay, they returned and pulled the stuck car out. The car and the truck continued down the road. Gordo (D) signaled for Dave to stop and Dave exited his car to unlock his four-wheel drive. Gordo (D) approached Dave from behind and began choking him before hitting him with a shovel. Ds jumped into Dave's truck and drove away, with L.R.H. still asleep in it. L.R.H. attempted to climb out of the truck, Pablo (D) prevented her from doing so. Gordo (D) stopped to go to the bathroom along the road. L.R.H. again attempted to escape, but she failed as both Ds stopped her. They resumed their journey but got stuck at which point Gordo (D) assaulted and raped L.R.H. Pablo (D) then climbed in and took his turn. Pablo (D) also forced her to perform oral sex. Pablo (D) proffered that witnesses could testify that, at the dance that preceded the rape, they observed L.R.H. intoxicated and in a state of partial undress in the presence of two other men. Pablo (D) also proffered evidence that on the night of the rape, L.R.H. made sexual advances towards Gordo (D). The court excluded both under Rule 412. Ds were convicted and appealed.