United States v. Garcia-Limon: Tenth Circuit Validates “Scheme” Indictments for Repetitive Child-Sex-Abuse Under §§ 2241(c) & 2244(a)(5)

Introduction

In United States v. Garcia-Limon, the U.S. Court of Appeals for the Tenth Circuit confronted a recurring prosecution dilemma in child-sexual-abuse cases: how to draft an indictment when the victim cannot pinpoint the date, time, or frequency of repeated, virtually identical assaults that occurred over several years. The panel (Judges Tymkovich, Baldock, and Eid; opinion by Judge Eid) held that the federal child-sexual-abuse statutes —18 U.S.C. § 2241(c) (aggravated sexual abuse of a minor) and 18 U.S.C. § 2244(a)(5) (abusive sexual contact with a minor)—permit the Government to allege an ongoing “scheme” or course of conduct in a single count covering an extended date range. Consequently, scheme-based counts are not duplicitous, do not violate notice or double-jeopardy guarantees, and need not be broken into separate counts for every individual act.

This decision clarifies—for the first time in a published federal appellate opinion—that §§ 2241(c) and 2244(a)(5) authorize course-of-conduct prosecutions. It also confirms that a general unanimity instruction is ordinarily sufficient even when multiple abusive acts could support conviction, and it rejects constructive-amendment arguments when trial proof conforms to the overarching scheme alleged.

Summary of the Judgment

Garcia-Limon was convicted on four counts; only Counts 2 (aggravated sexual abuse) and 3 (abusive sexual contact) were appealed.
Those counts alleged that “Beginning on or about August 14 2011 and continuing until on or about July 9 2019” in Indian Country, the defendant knowingly engaged in (Count 2) sexual acts and (Count 3) sexual contact with D.C., a child under 12.
On appeal, Garcia-Limon argued:
1. The eight-year date span failed to give fair notice (insufficient indictment).
2. The counts were duplicitous because the statutes do not authorize charging a “scheme.”
3. The indictment was constructively amended at trial when the Government proved multiple acts.
The Tenth Circuit rejected all three arguments and affirmed the convictions.

Analysis

Precedents Cited and Their Influence

Russell v. United States, 369 U.S. 749 (1962) – foundational standard for indictment sufficiency; Court applied but distinguished.
Valentine v. Konteh, 395 F.3d 626 (6th Cir. 2005) – upheld large time windows in child-abuse indictments; cited for analogous reasoning.
United States v. Jaynes, 75 F.3d 1493 (10th Cir. 1996) & United States v. Schneider, 594 F.3d 1219 (10th Cir. 2010) – recognized that multiple acts in one count are permissible when part of a single continuing scheme.
United States v. Klat, 156 F.3d 1258 (D.C. Cir. 1998) and sister-circuit cases (Robin, Alsobrook, Berardi) – allowed consolidation of multiple threats or obstructive acts into one count; used by Court as structural analogues.
United States v. Two Elk, 536 F.3d 890 (8th Cir. 2008) & United States v. Yazzie, 743 F.3d 1278 (9th Cir. 2014) – interpreted “a sexual act” as authorizing separate counts per act; Court cited them to show prosecutorial flexibility—either separate counts or a single scheme count.

Legal Reasoning

Textual Interpretation of §§ 2241(c) & 2244(a)(5).
• The phrase “a sexual act” or “sexual contact” does not exclude repeated identical acts by the same defendant against the same victim.
• The Court emphasized that nothing in the statutory text requires separate counts, and other statutes that expressly reference a “scheme” do not limit these provisions.
• Because repetitive acts were essentially carbon copies, charging them as a unitary scheme was consistent with statutory language.
Indictment Sufficiency.
• Elements clearly set out: victim, age, location (Indian Country), statutory references, and intent.
• Large date window permissible in repetitive-child-abuse cases; fairness safeguarded by discovery & interview disclosures.
• Double-jeopardy concerns mitigated because entire record precludes re-prosecution for abuse within the charged span.
Duplicitous-Count Challenge.
• Single offense per count; one punishment; counts merely aggregate multiple instances of the same proscribed conduct.
• General unanimity instruction presumed adequate; record lacked complexity requiring special instruction; defense never requested one.
Constructive-Amendment Claim.
• No divergence between indictment and trial proof—evidence showed the very scheme alleged.
• Court reviewed indictment language (“beginning … and continuing”) and found it broad enough to encompass all trial acts.
• Closing argument stressing repeated acts did not expand legal basis; it illustrated facts within charged period.

Likely Impact of the Decision

Prosecutorial Drafting: U.S. Attorneys in the Tenth Circuit can confidently plead repetitive child-abuse incidents as a single count covering lengthy spans when the acts are substantially similar.
Victim Accommodation: Relieves child witnesses from pinpointing exact dates, reducing retraumatization and evidentiary hurdles.
Unanimity Instructions: Confirms that a boiler-plate unanimity charge often suffices; however, counsel should still evaluate complexity and request a special instruction when variations in acts exist.
Defense Strategy: Defense teams must now attack such counts on factual grounds (credibility, corroboration) rather than constitutional defects—unless the acts are diverse enough to demand separate counts.
Future Litigation: Sets a precedent other circuits may cite; invites further clarification of “course-of-conduct” indictments under other federal sex-offense statutes (§§ 2242, 2243).
Statutory Interpretation Trend: Aligns sexual-abuse charging practice with that for fraud, threats, tax evasion, etc., recognizing pragmatic grouping of homogenous criminal acts.

Complex Concepts Simplified

Duplicity: Charging two distinct crimes in one count. Problematic because jury might not be unanimous on which crime was proven.
Constructive Amendment: Occurs when, through evidence, argument, or instructions, the trial shifts the legal theory or factual basis beyond what the grand jury charged—violates Fifth & Sixth Amendments.
General vs. Special Unanimity Instruction:
- General: “Your verdict must be unanimous.” Presumed adequate unless case complexity requires more.
- Special: Explicitly tells jurors they must agree on the same underlying act among several alternatives.
Scheme or Continuing Course of Conduct: A legal characterization allowing the aggregation of repetitive, substantially identical acts committed with a single purpose or victim.

Conclusion

United States v. Garcia-Limon crystallizes a pragmatic rule: when a defendant repeatedly commits essentially the same sexual act against the same child, federal prosecutors may charge those repetitions as a single, continuing offense under §§ 2241(c) and 2244(a)(5). The Tenth Circuit’s opinion harmonizes child-sexual-abuse charging practice with broader federal jurisprudence on schemes and continuing offenses, while reaffirming constitutional safeguards through fair-notice analysis, unanimity instructions, and constructive-amendment doctrine. Going forward, both prosecutors and defense counsel must tailor their strategies to this clarified doctrinal landscape, and district courts should remain vigilant in determining when a specific unanimity charge becomes necessary. Above all, the decision underscores the judiciary’s effort to balance defendants’ constitutional rights with the realities of prosecuting crimes that often unfold in secrecy, over time, and against the most vulnerable victims.