United States v. Roark: Tenth Circuit Clarifies (1) When Failure to Give a Specific-Unanimity Instruction Constitutes Reversible Plain Error and (2) A District Court’s Power to Vacate Its Own Erroneous Rule 29 Acquittal Without Offending Double Jeopardy

Introduction

The Tenth Circuit’s published decision in United States v. Roark, No. 24-5062 (June 23, 2025), tackles three recurring criminal-procedure questions:

When is a trial court required to deliver a specific-unanimity instruction where a single count encompasses multiple distinct acts?
May a district court reconsider and vacate its own Rule 29 judgment of acquittal once it realizes that the acquittal rested on a legal error, without running afoul of the Double Jeopardy Clause?
What quantum of evidence is sufficient to uphold a conviction for assault with intent to commit aggravated sexual abuse under 18 U.S.C. § 113(a)(1)?

Defendant-Appellant Lance Douglas Roark, an Indian father, was accused of sexually abusing his eleven-year-old daughter (“G.R.”) over the course of a single day on tribal land in Oklahoma. A jury convicted him of (1) abusive sexual contact with a child under 12 in Indian Country (18 U.S.C. § 2244(a)(5)) and (2) assault with intent to commit aggravated sexual abuse (18 U.S.C. § 113(a)(1)). The district court initially set aside the assault conviction under Rule 29, but later reinstated it on the government’s motion to reconsider. Roark appealed on three fronts, all of which the Tenth Circuit rejected.

Summary of the Judgment

Writing for a unanimous panel, Judge Bacharach issued three principal holdings:

No Plain-Error Reversal for Omitted Specific-Unanimity Instruction. Even if it was error to omit an instruction requiring jurors to agree on the specific instance of sexual contact, the error did not affect Roark’s substantial rights because nothing in the record suggested that different jurors credited different portions of the victim’s testimony.
District Court Could Reconsider Its Own Erroneous Rule 29 Acquittal. A trial judge may correct a manifestly erroneous post-verdict judgment of acquittal without violating double jeopardy where the correction involves only legal, not factual, determinations.
Sufficient Evidence Supported Assault with Intent to Commit Aggravated Sexual Abuse. Roark’s escalating sexual conduct, explicit statements about impending painful intercourse, and physical isolation of the child permitted a reasonable jury to find (a) an assault—i.e., a threat with apparent present ability causing reasonable apprehension of immediate harm—and (b) the specific intent to commit aggravated sexual abuse.

Analysis

1. Precedents Cited and Their Influence

United States v. Hicks, 116 F.4th 1109 (10th Cir. 2024) – Restated the four-part plain-error test (error, plainness, effect on substantial rights, and effect on fairness/integrity). The panel relied on Hicks for the controlling standard.
United States v. Benford, 875 F.3d 1007 (10th Cir. 2017) – Clarified that to satisfy the third prong of plain-error review the defendant must show a reasonable probability of a different outcome. Roark’s failure to identify any reason the jury might have split on which incident occurred foreclosed that showing.
United States v. Christy, 739 F.3d 534 (10th Cir. 2014) – Recognized that district courts may reconsider rulings to correct clear error or prevent manifest injustice. This authority anchored the trial court’s decision to revisit its Rule 29 judgment.
Smith v. Massachusetts, 543 U.S. 462 (2005) – Held that reversing an acquittal after additional fact-finding violates double jeopardy. Roark invoked Smith, but the panel distinguished it because the judge here performed no new fact-finding.
United States v. Hathaway, 318 F.3d 1001 (10th Cir. 2003) and United States v. Calderon, 655 F.2d 1037 (10th Cir. 1981) – Supplied the Tenth Circuit definition of “assault” as an act or threat capable of producing reasonable apprehension of immediate bodily harm. These cases framed the sufficiency-of-evidence discussion.
Other Citations (e.g., Payseno, Reddeck, Niemi v. Lasshofer) – Addressed unanimity instructions, sufficiency-review principles, and waiver of arguments raised for the first time in a reply brief.

2. Legal Reasoning

a. Plain-Error/Unanimity

Although the government charged only one count of abusive sexual contact, the child described three discrete incidents (toy room, school room, vehicle). Under certain circumstances, failure to instruct jurors that they must agree on the same incident can violate the Sixth Amendment unanimity requirement. The court, however, assumed—without deciding—that the omission was “plain” error and jumped to prong three: Did it affect substantial rights?

• No alternative narrative suggested that the jury might partially believe and partially disbelieve the victim.
• The defense never disputed the occurrence of sexual contact; it attacked credibility in toto.
• The three acts were contiguous in time, involved the same victim and perpetrator, and were not complex or difficult to differentiate.

Because Roark offered no plausible basis by which jurors would split on which act occurred, he failed to show a reasonable probability of a different verdict. Prong three therefore failed, ending the plain-error inquiry.

b. Reconsideration of Rule 29 Acquittal

Federal Rule of Criminal Procedure 29 authorizes a judge to enter a judgment of acquittal if “the evidence is insufficient.” Here, the district court sua sponte granted the acquittal but later realized it had improperly ignored key evidence. Under Christy, a district court may reconsider any ruling to correct clear error or prevent manifest injustice. The Tenth Circuit endorsed this avenue, stressing:

The original acquittal rested on legal error—an overly narrow view of the evidence of “assault.”
The reconsideration involved only the sufficiency-of-evidence question, a legal issue; no new fact-finding occurred.

Accordingly, the court did not abuse its discretion in revisiting—and reversing—its earlier decision.

c. Double Jeopardy

Roark argued that vacating the acquittal impermissibly placed him in “double jeopardy.” The panel disagreed for two reasons:

No additional fact-finding. Unlike Smith v. Massachusetts, where the jury later made new findings about gun-barrel length, the judge here relied solely on facts already found by the jury.
Legal vs. factual distinction. Reassessing whether the jury could have found assault is a purely legal task. The double-jeopardy bar is triggered only by new fact-finding that contradicts an acquittal.

d. Sufficiency of the Evidence – Assault with Intent

Applying de novo review, the panel held that a rational jury could find:

Assault: Roark’s conduct (isolation in vehicle, exposing penis, sucking child’s chest, digitally touching her, describing imminent painful intercourse) constituted a threat accompanied by apparent present ability, generating reasonable fear of immediate harm.
Specific intent to commit aggravated sexual abuse: His explicit statements (“I need to put my seed in you”) and escalation from touching to positioning the child on his lap supported an inference that he intended to complete vaginal intercourse then and there, not merely “later that night.”

3. Impact of the Judgment

Clarifies Unanimity-Instruction Doctrine. Defendants asserting plain error for lack of specific-unanimity instructions must now affirmatively show a realistic possibility that jurors relied on different acts. Mere multiple incidents, without evidence of jury confusion or selective disbelief, will not suffice.
Empowers District Courts to Self-Correct. Trial judges in the Tenth Circuit may confidently revisit sua sponte Rule 29 acquittals when they discover clear legal errors, reducing pressure on the government to pursue time-consuming appeals.
Reaffirms Broad Definition of “Assault.” The decision underscores that non-verbal acts, sexual escalation, and contextual threats can satisfy the “threat” element even absent explicit words like “I will hurt you now.”
Native-American and Indian Country Context. Though uncontested here, the case demonstrates ongoing federal jurisdiction over major crimes by Indians in Indian Country—keeping in line with McGirt v. Oklahoma and its aftermath.

Complex Concepts Simplified

Specific-Unanimity Instruction: A supplemental jury instruction telling jurors they must all agree on the same factual act (e.g., which of three punches) that satisfies an element.
Plain-Error Review: An appellate standard applied when the defense did not object below. Four prongs: error, plainness, effect on substantial rights, and effect on judicial integrity.
Rule 29 Judgment of Acquittal: A post-verdict (or mid-trial) ruling by a judge that evidence is so weak no reasonable jury could convict.
Double Jeopardy Clause: Constitutional guarantee that no person shall be tried or punished twice for the same offense. It is not violated when a legal error—not new facts—leads to reinstatement of a jury verdict.
Assault (Federal Common-Law Definition): Either (a) an attempted battery or (b) a threat to inflict injury coupled with apparent ability, causing reasonable apprehension of immediate harm.

Conclusion

United States v. Roark supplies two important procedural clarifications for practitioners in the Tenth Circuit and beyond:

A defendant who did not request a specific-unanimity instruction faces a steep uphill battle on appeal; he must point to concrete indications that different jurors relied on different incidents.
District courts retain inherent authority to vacate their own erroneous Rule 29 acquittals—so long as they confine themselves to legal analysis and avoid new fact-finding—without triggering double jeopardy.

Finally, the case illustrates how detailed victim testimony, contextual inferences, and non-verbal conduct can jointly sustain convictions for sexual assault–related offenses. The decision is poised to influence future litigation involving multiple-act sex crimes, Rule 29 practice, and the contours of double-jeopardy protection.