United States Court of Appeals
                       For the First Circuit

No. 05-2270

                     UNITED STATES OF AMERICA,

                               Appellee,

                                   v.

                           DEEPAK JAHAGIRDAR,

                       Defendant, Appellant.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

              [Hon. Mark L. Wolf, U.S. District Judge]


                               Before
                        Boudin, Chief Judge,
                       Lynch, Circuit Judge,
               and Schwarzer,* Senior District Judge.


     Kimberly Homan for appellant.
     John T. McNeil, Assistant United States Attorney, with whom
Michael J. Sullivan, United States Attorney, was on brief for
appellee.


                            October 20, 2006




    *
      Of the    Northern     District   of   California,   sitting   by
designation.
            BOUDIN,   Chief   Judge.     On   March   31,   2002,     Deepak

Jahagirdar was seated next to D.S., a 22-year-old woman, on a

commercial airline flight from Dallas to Boston.                D.S. later

testified that she awoke from a nap to find Jahagirdar's hand

inside her underpants.    D.S. cursed at Jahagirdar, pushed her way

to the aisle, and immediately told a flight attendant that "[t]he

guy next to me had his hand down my pants."

            Upon landing, Jahagirdar was arrested. D.S. was asked to

remain onboard the airplane after the other passengers had exited,

and was interviewed by Massachusetts State Trooper Kevin Hogaboom.

After disembarking, D.S. was interviewed again and made a written

statement.     D.S. was then taken to the hospital for a                rape

examination.

            A grand jury indicted Jahagirdar on February 11, 2004,

charging him (so far as is relevant to this case) with sexual abuse

and attempted sexual abuse, 18 U.S.C. § 2242(2) (2000), within the

special aircraft jurisdiction of the United States, 49 U.S.C.

§   46506   (2000).     Sexual   abuse   includes,    subject    to   other

conditions,1 "the penetration, however slight, of the . . . genital

opening of another by a hand or finger or by any object."                 18

U.S.C. § 2246(2)(C).



      1
      The statute requires, in pertinent part, that the penetration
be done with requisite intent and to someone incapable of consent.
§ 2242(2). That these conditions were satisfied in this case is
not contested.

                                   -2-
             At trial,    D.S. testified that Jahagirdar's fingers were

"underneath the lip area of the vagina" and that his fingers were

"[u]nderneath the outer lips [labia majora] and the inner lips

[labia minora]" of her genitals; and she made corresponding marks

on an anatomical diagram to illustrate her testimony.

             On   cross-examination      of   D.S.,   Jahagirdar   sought   to

impeach her by suggesting that she had not told the doctor or nurse

at the hospital that she had been penetrated, and that she had in

fact denied having been penetrated when asked by the doctor.

Jahagirdar also implied that she had settled on her description of

the alleged assault after consulting a lawyer and after concluding

that Jahagirdar was an attractive target for a civil suit.

             The government was then allowed to offer evidence from

the trooper who had interviewed D.S. at the scene.               He testified

that, when he asked D.S. whether she had been penetrated, she

stated that she had been, and that, on the basis of her response,

he recommended that Jahagirdar be charged with rape.

             There was also testimony from flight attendants and

secret service agents who were on board the plane as to D.S.'s

visible emotional distress, and expert testimony that a large

quantity of D.S.'s DNA was found on Jahagirdar's hands, consistent

with   his   fingers     having   come   into   contact   with   her   vaginal

secretions.       However, the expert agreed that it was also possible

that Jahagirdar could have picked up skin cells from the waistband


                                      -3-
of D.S.'s pants, so this forensic evidence did not incontrovertibly

establish just where Jahagirdar had placed his hand.

           Jahagirdar testified in his own defense.               He admitted

that he had placed his hand in D.S.'s pants, but claimed that D.S.

had begun and encouraged a sexual encounter, that his hand touched

only her "pubic hair area," and that he withdrew his hand when he

began to feel guilty about betraying his wife's trust.

           The jury convicted Jahagirdar of sexual abuse.                       The

district judge sentenced Jahagirdar to 87 months' imprisonment, a

term of supervised release, and a $25,000 fine.                 Jahagirdar now

appeals, challenging the critical jury instruction as to the scope

of the statute, the admission of D.S.'s statements to the trooper,

and certain of the district court's sentencing determinations.

           Jahagirdar's     first   argument      on   appeal    is   that      the

district court erroneously instructed the jury as to an element of

the   offense.    Section   2242(2)      criminalizes    "knowingly       .    .   .

engag[ing] 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."

Section 2246(2) in turn defines "sexual act" (we underscore the

most pertinent language) as

       (A) contact between the penis and the vulva or the
       penis and the anus, and for purposes of this
       subparagraph contact involving the penis occurs upon
       penetration, however slight;



                                     -4-
       (B) contact between the mouth and the penis, the mouth
       and the vulva, or the mouth and the anus;

       (C) the penetration, however slight, of the anal or
       genital opening of another by a hand or finger or by
       any object, with an intent to abuse, humiliate,
       harass, degrade, or arouse or gratify the sexual
       desire of any person; or

       (D) the intentional touching, not through the
       clothing, of the genitalia of another person who has
       not attained the age of 16 years with an intent to
       abuse, humiliate, harass, degrade, or arouse or
       gratify the sexual desire of any person (emphasis
       added).

             Jahagirdar requested that the court instruct the jury

that   "penetration    of   the   .   .   .    genital   opening"   in    section

2246(2)(C) refers to the penetration of the "vaginal orifice." The

government requested an instruction stating that "genital opening

. . . includes not only the vagina itself, but also the anterior

parts known as the vulva and labia," so that "penetration of the

labia majora, or outer lips, of the vulva is sufficient" to find

Jahagirdar guilty of violating section 2242.

             The district court chose a middle ground, instructing the

jury that the government had to prove beyond a reasonable doubt

that Jahagirdar "placed his finger or hand beyond Ms. DS's labia

majora to at least the labia minora or inner lips . . . . The

government is not required to prove that he penetrated her vaginal

or[i]fice."    Jahagirdar objected.           On appeal, Jahagirdar continues

to   press   his   argument   that    "genital      opening"   means     "vaginal

orifice."


                                      -5-
             The term "genital opening" is not itself a medical term

of art. The term "genitalia" refers to the "external and internal"

organs of reproduction, Stedman's Medical Dictionary 738 (27th ed.

2000),   but   "esp[ecially]    the    external          organs,"    Random    House

Dictionary 797 (2d ed. unabridged).                 For women, the "external

genitalia" include the mons pubis, the labia majora, the labia

minora, the clitoris, and the vaginal orifice. Gray's Anatomy 1876

(38th ed. 1995).     "The term . . . vulva includes all these parts."

  itself,   the     term    "genital       opening"    could

conceivable refer to any of at least three successive openings in

the female genitalia: (1) the exterior opening bounded by the outer

lips or labia majora, (2) the interior opening bounded by the

contained inner lips or labia minora, and (3) the opening, yet

further along the same channel, called the vaginal orifice.

             The most straightforward reading of "genital opening" is

that   the   term    encompasses    all     three       orifices    including   the

outermost--a     reading    given   support        by    the   statutory      phrase

"penetration, however slight."        Nor is it clear why Congress would

have sought to distinguish among them, treating more leniently the

deliberate insertion of a finger into the outermost orifice--given

that the perpetrator must be acting without consent and for the

mostly malign purposes described in the statute.




                                      -6-
          The literal reading becomes almost conclusive when one

comes to understand that, under state law, the definition of

"rape"--whether penile rape or the variant digital rape with which

Jahagirdar was charged--is almost always satisfied under state law

by penetration of the labia majora, regardless of whether the

statute refers to the "genital opening" (as some do), the "female

sex organ" (as others do), or even (in a few cases) the "vagina."2



     2
      Several state courts have specifically held, in the context
of digital or object rape, that penetration of the "genital
opening" is satisfied by penetration of the vulva or labia. See
People v. Quintana, 

, 1366-71 (2001); State v.
Albert, 

, 1044-46 (Conn. 2000); People v. Bristol, 

, 230 (Mich. Ct. App. 1982) (per curiam); State v.
Bellamy, 

, 88 (N.C. Ct. App. 2005).       The general
pattern of requiring only penetration of the labia majora existed
well before Congress adopted the present statutory scheme in 1986.
See, e.g., Thomas v. State, 

, 656 (Ala. Crim. App.
1974); State v. Pollock, 

, 250 (Ariz. 1941); Hice v.
State, 

, 170-71 (Ark. 1980); People v. Karsai, 

, 232-33 (Cal. Ct. App. 1982); State v. Shields, 

, 256 (1877); State v. Dill, 

, 444 (Del. 1945);
Lee v. State, 

, 465 (Ga. 1943); People v. Hebel, 

, 1386-87 (Ill. App. 1988); Short v. State, 

, 559 (Ind. App. 1991); State v. Ragland, 

, 279
(Kan. 1952); White v. Commonwealth, 

, 342 (Ky. 1894);
State v. Bertrand, 

, 1161 (La. Ct. App. 1984); Craig
v. State, 

, 244 (Md. 1957); Commonwealth v. Baldwin,

, 7 (Mass. App. Ct. 1987); 

;
Rhoades v. State, 

, 294 (Mo. Ct. App. 1973); State v.
Atkinson, 

, 157 (Neb. 1973); Hutchins v. State, 

, 1140-41 (Nev. 1994); State v. J.A., 

, 785
(N.J. Super. Ct. App. Div. 2001); People v. Crowley, 

,
384-85 (N.Y. 1886); State v. Johnson, 

, 17-18 (N.C.
1986); Swearingen v. State, 

, 137 (Okla. Crim. App.
1925); State v. Wisdom, 

, 830 (Or. 1927); Commonwealth v.
Ortiz, 

, 560-61 (Pa. Super. Ct. 1983); State v. Bowles,

, 74 (Tenn. 2001); State v. Montgomery, 

,
908 (Wash. Ct. App. 1999); State v. Brady, 

, 550-51 (W.
Va. 1927); Rhodes v. State, 

, 726 (Wyo. 1969).

                               -7-
Under this rule, known as the "least penetration doctrine," rape

laws    are   "designed    to    punish     the    fact,     not     the      degree,   of

penetration,"       State v. Albert, 

, 1047 (Conn. 2000).

              "[W]here Congress borrows terms of art in which are

accumulated       the   legal   tradition       and    meaning     of    centuries       of

practice, it presumably knows and adopts the cluster of ideas that

were attached to each borrowed word . . . ."                  Morissette v. United

States, 

, 263 (1952).               Here, no single term is used in

all of the state statutes, but the cluster of terms has been given

the same meaning by construction and the rationale of Morissette

strongly supports the straightforward reading of the statute that

we adopt.

              Jahagirdar's textual response is to point to use of the

term    "vulva"    in   subsections    (A)       and   (B)   of    the     definitional

statute,      section 2246(2), and argue that Congress must have meant

to distinguish between "vulva" and "genital opening" or else it

would    simply    have   repeated    the       prior,   more      specific      term   in

subsection (C).         But if Congress had deliberately intended to

depart from the common-law approach, the obvious way would been to

say "vaginal orifice" instead of "genital opening."

              Although Congress' purpose in using "genital opening"

rather    than    repeating     "vulva"    cannot      be    known      for    sure,    one

plausible explanation exists and gives Jahagirdar no help.                               In

subsection (A), Congress' concern was with penetration by the


                                          -8-
penis, and in subsection (B), with "contact" between the mouth and

either "penis," "vulva," or "anus"; in both cases, the use of the

female-specific   term    "vulva"   makes   sense.   By   contrast,   in

subsection (C), use of the gender neutral term "genital opening"

may well have been intended to encompass the insertion of "any

object" into the penis as well as the vulva.3

          Jahagirdar also relies upon the rule of lenity, namely,

that ambiguities in criminal statutes are to be resolved in favor

of the defendant; but that rule requires real uncertainty and

applies only when "after seizing everything from which aid can be

derived, [a court] can make no more than a guess as to what

Congress intended."      United States v. Councilman, 

, 83

(1st Cir. 2005) (quoting Reno v. Koray, 

, 65 (1995)).

In this case, language, policy, and tradition make this a case in

which there is no real uncertainty.

          There is nothing whatever to Jahagirdar's suggestion that

the statute fails to give constitutionally adequate notice that

such digital penetration of the labia majora constitutes sexual



     3
      One of Congress' purposes, avowed in the legislative history,
was to modernize rape-statute jargon to use gender neutral language
and provide comparable protection where possible. See H.R. Rep.
No. 99-594, 99th Cong., 2d Sess. (1986), at 10 (sexual abuse
statute "modernizes and reforms Federal rape provisions by . . .
defining the offenses in gender neutral terms"); 

("The
offenses set forth in [the statute] are drafted in gender-neutral
terms."); 

(statutory language was "drafted broadly to
cover the widest possible variety of sexual abuse, and to protect
both males and females from that abuse.").

                                    -9-
abuse.   A criminal statute fails to give adequate notice "if a

person of ordinary intelligence examining [only] the language of

the statute would be in some way surprised that it prohibited the

conduct in question."    Sabetti v. DiPaolo, 

, 17 (1st

Cir.) (alteration in original) (citations omitted) (quoting United

States v. Harriss, 

, 617 (1954); United States v.

Colon-Ortiz, 

, 9 (1st Cir. 1989)) (internal quotation

marks omitted), cert. denied, 

(1994).

          Here, on a common sense reading, the labia majora frame

a genital opening, even if there were other openings that might

also qualify.   Indulging the acceptable fiction that perpetrators

closely read statutes before acting, this statute gave Jahagirdar

ample warning that he was courting violation.    Moreover, this is

far from the more troubling case of an ill-defined malum prohibitum

violation; given the lack of consent, Jahagirdar had to know that

his conduct was criminal.   

.

          The only close circuit precedent called to our attention

expressly rejects Jahagirdar's contention that "genital opening"

refers only to the "vaginal orifice."   United States v. Norman T.,

, 1104 (10th Cir. 1997), cert. denied 

(1998) ("[The defendant] reads ['genital opening'] to require

vaginal penetration, but that is simply not the requirement found

in the statute."). Instead, Norman T. holds that "penetration deep




                               -10-
enough to cause injury to the labia minora is sufficient to

violate" the statute.      Id.4

          In our case, the district court's instruction seemingly

required that penetration be at least within the labia minora.

This was an understandably conservative approach not objected to by

the government, which had the necessary evidence.           But Norman T.

did not require this limitation--it held only that penetration of

the labia minora was sufficient to violate the statute.            For the

sake of future litigation, we hold explicitly that penetration of

the labia majora is sufficient for conviction.

          Turning to a different subject, Jahagirdar argues that

the trial court erred in admitting testimony concerning statements

made by D.S. during her interview with Trooper Hogaboom. At trial,

D.S. was permitted to testify--over defense counsel's hearsay

objection--that she had told Hogaboom that Jahagirdar's "hand was

inside the vagina." Hogaboom was permitted to testify--again, over

defense counsel's objection--that he had asked D.S. "if there was

penetration,   and   she    stated    yes,"   that   she   told   him   that




     4
      Injury is not required by the statute, but Norman T. phrased
its holding in those terms because of direct testimony from a
doctor that such injury had been 

.
Jahagirdar seeks to distinguish Norman T. on grounds that it
involved a child and that trial testimony indicated that actual
vaginal penetration had occurred, but the court clearly stated that
"vaginal penetration . . . is simply not [required]." 

"hand penetrated her vagina," and that, on this basis,

he had recommended a charge of rape in his report.5

             The court admitted D.S.'s out-of-court statements under

two theories--as prior consistent statements to rebut a charge of

recent fabrication, Fed. R. Evid. 801(d)(1)(B), and as excited

utterances, Fed. R. Evid. 803(2).           Both are arguably close calls;

we   think   the   former    a   stronger   ground   than   the   latter    and

sufficient to support admission of the evidence.

             The   excited   utterance      ruling   is   not   without    some

foundation.     D.S. and others offered detailed testimony that D.S.

remained upset for the duration of the flight and through her

interview with the trooper, which occurred 90 to 120 minutes after

the incident. Although "[t]he time lapse in most excited utterance

cases is usually a few seconds, or a few minutes,"              United States

v. Taveras, 

, 537 (1st Cir. 2004) (citations omitted),

there are exceptions stretching into hours.

             But these cases involve facts arguably more extreme than

those in the present case--including continuing physical pain after

beatings or shootings, Webb v. Lane, 

, 393 (7th Cir.

1991); United States v. Scarpa, 

, 1017 (2d Cir. 1990),

involve continued or renewed insecurity, United States v. Cruz, 156



      5
        Although D.S. in talking with the trooper perhaps used the
term "vagina" as if it included the labia--colloquially common but
medically incorrect--the use of a chart during her trial testimony
made clear that Jahagirdar had penetrated only the labia.

                                     -12-
F.3d 22, 30 (1st Cir. 1998), cert. denied, 

(1999);

, or involve young children who were

sexually abused, Morgan v. Foretich, 

(4th Cir. 1988);

Gross v. Greer, 

(7th Cir. 1985). Having noted our

doubts, we need not resolve them, given Rule 801(d)(1)(B).

          Rule   801(d)(1)(B)   permits   the   admission   of   a   prior

statement by a witness when (1) the declarant testifies at trial

and is subject to cross-examination; (2) the prior statement is

consistent with the declarant's trial testimony; and (3) the prior

statement is offered "to rebut an express or implied charge against

the declarant of recent fabrication or improper influence or

motive." Fed. R. Evid. 801(d)(1)(B) (emphasis added). The "prior

statement" must be made "before the charged recent fabrication or

improper influence or motive."     Tome v. United States, 

, 167 (1995) (emphasis added).

          Jahagirdar says that the prior statements to the trooper

were not consistent with D.S.'s in-court testimony. In court, D.S.

testified that Jahagirdar touched her labia minora; but Hogaboom

was permitted to testify that D.S. told him that Jahagirdar's hand

"penetrated her vagina." The inconsistency is probably superficial

(see note 5, above), and anyhow both statements are consistent in

including penetration of the labia minora--which was the central

point of D.S.'s testimony.




                                 -13-
          Jahagirdar also says that he never charged fabrication,

but the cross examination of D.S. plainly implies fabrication. One

example will do:

          Q: You did in fact consult with a man named
          Jeffrey Newman, is that correct?

          A: Yes.

          Q: And Mr. Newman contacted lawyers on your
          behalf who represented Mr. Jahagirdar, saying
          that he had been retained by you, is that
          correct?

          A: Yes.

          Q:   And  he   also  contacted   lawyers who
          represented Mr. Jahagirdar, asking them if
          they would settle a claim against him?

          A: Yes.

          Jahagirdar's best objection is that D.S.'s statements to

the trooper did not predate her motive to fabricate, as Tome (and

the "recent" fabrication language of the rule) require.      Such a

motive could have existed from the time of the assault; and the

exception would not apply if D.S. was equally conscious, or perhaps

just significantly conscious, of the possibility of profit both

before and after her statements to the trooper.

          In admitting the testimony, the judge implicitly ruled

that the alleged motive to fabricate arose or became substantial

after D.S.'s statements to the trooper rather than before.   To the

extent that this ruling involved finding of facts, we review for

clear error; to the extent that it reflects a judgment call about


                               -14-
the application of the rule to the facts, we review for abuse of

discretion.    United States v. Young, 

, 8 (1st Cir. 1997).

In either case, we affirm.         There is no indication that D.S. had a

civil suit in mind when interviewed by the trooper not long after

the incident itself.       Nor, if she had such a suit in mind, would

she likely have failed--as Jahagirdar brought out for his own

purposes--to mention penetration to the nurse and doctor who

examined her.

            Even if the trial judge had erred in admitting D.S.'s

out-of-court       statements,     any    error   would      likely   have    been

harmless.   United States v. Piper, 

, 56 (1st Cir. 2002).

This is so partly, but not exclusively, because the direct evidence

against Jahagirdar was quite strong, comprising D.S.'s unqualified

court   testimony     bolstered     by     forensic    DNA   evidence   and   the

independent testimony of the flight attendants and secret service

agents that she was visibly upset at the time.

            What    is   equally    important     is   the    improbability    of

Jahagirdar's own testimony.          See United States v. Jimenez-Perez,

, 11 (1st Cir. 1989). Believing Jahagirdar depended upon

believing that D.S., a relatively young woman who said she was

thoroughly scared of flying and had taken a sedative prior to

boarding (thus her nap), had invited a sexual encounter in the open

cabin of the aircraft.       It is not surprising that the jury deemed




                                         -15-
Jahagirdar's story not to be credible--as did the judge in imposing

his own perjury enhancement at sentencing.

            Finally, Jahagirdar makes two objections to his sentence

of 87 months.     This is the bottom end of the applicable guideline

range, given the base offense level of 27 plus a two-level perjury

enhancement. U.S.S.G. §§ 2A3.1, 3C1.1 (2001). The first objection

is   that   the    district     court       used    the     term       "presumptive"

("presumptively reasonable" and "presumptively appropriate") in

referring    to   the     guideline    range;      the    second       is    that,   in

Jahagirdar's view, the sentence was unreasonable under the post-

Booker advisory guideline scheme.

            Unlike many other circuits, we have avoided the term

"presumptive" in describing the guideline range.                  United States v.

Jiménez-Beltre, 

, 518 (1st Cir. 2006) (en banc),

petition    for   cert.    filed,     No.   06-5727      (U.S.    Aug.       7,   2006).

Instead, we specified in functional terms that the guidelines are

a starting point, that they deserve substantial weight, and that

the party seeking a variance--upward or downward--needs to specify

and establish the supporting circumstances.                      

is

perhaps not large but we thought our formulation more helpful to

judges.




                                       -16-
          Even where the defendant has preserved an objection to

"presumption" references--not the case here6--we have generally

upheld the resulting sentence where it seemed fairly clear--from

the trial judge's explanation and surrounding circumstances--that

rephrasing the matter would not alter the result.            E.g., United

States v. Sagendorf, 

, 517 (1st Cir. 2006).          That    is

plainly so in this instance even if the more demanding requirements

of the plain error test are ignored.         United States v. Olano, 

, 732-37 (1993).

          The district court began by determining the applicable

guidelines   range,   and   then   decided    whether   to   exercise   its

discretion to impose a non-guidelines sentence, whether by variance

or by a formal departure. The judge noted Jahagirdar's substantial

community service, and the judge expressly stated that--prior to

Jahagirdar's allocution--he had been inclined to give a "somewhat

lower sentence" than the guidelines minimum.

          But when Jahagirdar failed to express any "remorse or

concern for the victim," or for "traumatiz[ing] her again by lying

about who initiated that sexual contact," the judge concluded that

the section 3553(a) factors did not permit a lower sentence.            The


     6
      Jahagirdar claims he preserved his objection. Although he
agrees he did not object in court when the judge used the term
"presumptive," he points out that his sentencing memorandum argued
that the post-Booker guidelines were only one factor among the
several mentioned in section 3553(a). But there is no indication
that the judge failed to consider the other section 3553(a)
factors.

                                   -17-
judge   explained   that    Jahagirdar's     allocution     "persuaded    me,

somewhat to my surprise, that . . . 87 months was necessary and no

more than sufficient to serve the goal of deterrence, of sending

you a message that this was a serious offense and you can't do this

again."

           The   judge    also   explained   that    Jahagirdar's     perjury

weighed heavily in his decision:

           If   the    defendant   had    not   committed
           perjury . . . there probably would have been a
           compelling case for a downward departure based
           on a single act of aberrant conduct. But the
           defendant . . . did not after committing that
           crime do anything to mitigate or reduce the
           harm. He acted to aggravate the harm by lying
           about it and placing into question the
           victim's character and candor.

Striking   the   word    "presumption"     would    not   alter   a   sentence

justified in this systematic fashion.

           The court's thoughtful comments also answer Jahagirdar's

last argument that the 87-month sentence was unreasonable, given

the aberrant nature of his conduct, his significant charitable

activities, and other characteristics.              In Jiménez-Beltre, we

stated that a sentence is reasonable if the court provides a

"plausible explanation" and the overall result is 

.    The district court's thoughtful commentary meets

both tests.

            Affirmed.




                                    -18-