Full opinion text
MEMORANDUM & DECISION SEYBERT, District Judge. Pending before the Court are the post-trial motions of defendants Francis Crowley (“Crowley”) and Steven Valjato (“Val-jato”) for a judgment of acquittal or, in the alternative, for a new trial, pursuant to Fed.R.Crim.P. 29 and 33, respectively. Crowley and Valjato were convicted by a jury on July 15, 1999 of one count each of attempted aggravated sexual abuse, in violation of 18 U.S.C. § 2241(a), and one count each of attempted sexual abuse, in violation of 18 U.S.C. § 2242(1). The jury returned verdicts of not guilty as to the remaining counts of abusive sexual contact, 18 U.S.C. § 2244(a). For the reasons discussed below, the motions are granted in part and denied in part. BACKGROUND A. THE STATUTES Count One of the indictment charged the defendants with aggravated sexual abuse in violation 18 U.S.C. § 2241(a)(1). This statute provides that “[wjhoever, in the special maritime and territorial jurisdiction of the United States ... knowingly causes another person to engage in a sexual act — (1) by using force against that other person; ... or attempts to do so, shall be fined under this title, imprisoned for any term of years or life, or both.” 18 U.S.C. § 2241(a)(1). In relevant part, the statute defines “sexual act” as • “contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus,” and also “the penetration, however slight, of the anal or genital opening of another by a hand or a finger or by any object, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.” 18 U.S.C. § 2246(2)(B and C). Defendants also, were charged, under Count One, with violation of the federal aiding and abetting statute, 18 U.S.C. § 2. Both defendants were convicted of this count. Count Two of the indictment charged the defendants with sexual abuse in violation of 18 U.S.C. § 2242(1). This statute states that “[wjhoever, in the special maritime and territorial jurisdiction of the United States or in a Federal prison, knowingly — (1) causes another person to engage in a sexual act by threatening or placing that other person in fear ..., or attempts to do so, shall be fined under this title, imprisoned not more than 20 years, or both.” 18 U.S.C. § 2242(1). Defendants also were charged, under this count, with violation of the federal aiding and abetting statute, 18 U.S.C. § 2. Both defendants were convicted of this count. However, the jury acquitted both defendants of Counts. Three and Four of the indictment. Count Three charged the defendants with abusive sexual contact in violation of 18 U.S.C. § 2244(a)(1); while Count Four charged them with abusive sexual contact in violation of 18 U.S.C. § 2244(a)(2). The statutes relevant to Counts Three and Four prohibit unlawful sexual contact. The statute defines “sexual contact” as “the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.” 18 U.S.C. § 2246(3). Counts Three and Four also charged the defendants with violation of the aiding and abetting statute, 18 U.S.C. § 2. As previously stated, both defendants were acquitted of Counts Three and Four. B. EVIDENCE PRESENTED AT TRIAL The events giving rise to this prosecution occurred in late September 1997 at the United States Merchant Marine Academy (“Academy”) in Kings Point, New York. Defendants Crowley and Valjato, as well as the complaining witness, Stephanie Vincent, were midshipmen at the Academy. In the evening of Saturday, September 27, 1997, a large group of midshipmen, around thirty to sixty in number, had gathered at Kings Point Park, near the Academy grounds, to celebrate the Academy rugby team’s victory earlier in the day. T. 72-73, 75, 641. According to one witness, the point of going to Kings Point Park on a Saturday evening was “to hang out and drink.” T. 621. It was very common for midshipmen under the age of twenty-one to drink. T. 653. One witness described the party as a “rugby drink-up,” where after an athletic event someone would get a keg of beer and the teams would go somewhere to drink. T. 750. Vincent had played a volleyball game earlier in the day, later had attended an Academy football game, and around 8:30 p.m. went to Kings Point Park with members of her volleyball team. T. 72-73. Jennifer Bechtel, Vincent’s roommate, also was at the park, as was defendant Crowley. T. 74. Vincent saw Bechtel and Crowley talking with each other at the park. T. 74. Vincent did not see defendant Valjato at the park that night. T. 75. Prior to this time, Vincent knew Crowley by his name and face, but had never socialized with him. T. 74. Vincent knew Val-jato because they were in the same engineering section at school, and therefore had all of their classes together that term, but she had never socialized with him. T. 75,197. Exam week at the Academy was to commence the following Monday morning. T. 76. Thus, although there was plenty of beer at the park, Vincent limited herself to one or two beers because she planned on dedicating herself to studying all day on Sunday to prepare for exams. T. 76, 450. Vincent left the park at around 9:30 or 10:00 p.m., and arrived back at the Academy at around 10:30 p.m. T. 78. She left the park with David Queally and Andrea Peer, catching a ride back to the Academy in Queally’s car. T. 77. Peer, a freshman, was a member of Vincent’s volleyball team. T. 77, 73. Although Peer was a first-year “plebe,” and thus not permitted to socialize with non-freshmen, she nevertheless had attended the party and had socialized with a number of upperclassmen, including Vincent. T. 77, 78. Upon arriving at the Academy, Vincent took Peer to Vincent’s room, and attempted to find someone to help Peer return to her own room, because Peer was very intoxicated. T. 78, 172. After commending Peer to the care of two freshmen who lived on Vincent’s floor, Vincent returned to her room, which was located in Palmer Hall. T. 78, 71. Bechtel, Vincent’s roommate, arrived back to the room at around 11:00 or 11:15 p.m. T. 79. Bechtel later left the room for about ten minutes,.and then returned, upset and crying. T. 79. Vincent testified that Bechtel appeared to be intoxicated, and that Bechtel later had told her that she had smoked marijuana that night. T. 295, 299, 539. Vincent did not speak to Bechtel about why she was crying, but instead continued to prepare for bed. T. 80. She went to bed at 11:30 p.m., wearing only a T-shirt and basketball shorts. T. ,80. Bechtel went to bed at the same time. T. 80. Vincent testified that she locked the door because her bed was situated closest to the door and hall. T. 80. However, Bechtel testified that it was she who locked the door that night. T. 510. The beds in the room were bunk-type beds, located five or six feet off the ground. T. 80. Vincent’s bed was against the center wall. T. 80. Because there were no ladders, Vincent would go from the floor to her chair, then to her desk, then up to her bed in order to retire. T. 81. The other side of the bed was blocked by a cinder wall, as was the head of the bed. T. 81-82. The door to the room was at the foot of the bed. T. 82. There was approximately three feet between the top of Vincent’s bed and the ceiling. T. 159. A functioning telephone also was in the room. T. 180. Vincent awoke several hours later when her bedroom door opened. T. 82. She looked at the digital clock next to her pillow and determined that it was 4:51 a.m. T. 82. Upon hearing the door open, she looked across the room, approximately 10-12 feet, to Bechtel’s bed. T. 82, 83. Although the lights were off, Vincent saw that Bechtel was in her bed, and then saw Francis Crowley in the room. T. 83. Crowley approached Vincent’s bedside and stood up on her desk. T. 83. He began calling, “Jen, Jen.” T. 83. He repeated it twice. T. 191. Vincent replied that she was not Jennifer and that Jennifer was across the room. T. 83. Crowley then got down and went toward Bechtel’s bed. T. 83. Vincent heard some talking, but could not make out what Crowley and Bechtel were saying. T. 84. She thought that Crowley was acting hyperactive, based on the way he was speaking and the look on his face. T. 192, 194. Vincent got down from her bed and exited the room. T. 84. Upon exiting the room, she saw Steven Valjato seated on the floor with his head against his knees, on the right-hand side of the door, resting against the door frame. T. 84, 196. Vincent thought it was strange that Valjato was outside her room at that time of day. T. 198. Without speaking to Valjato, Vincent continued down the hall to the bathroom. T. 85. Vincent was away from her room for about five to seven minutes. T. 292. On her way back to her bedroom, Vincent again passed Valjato but neither one spoke to the other. T. 85. Vincent reentered her room and went back to her bed. T. 85. Crowley was still at Bechtel’s bedside speaking with Bechtel. T. 85, 292. Vincent could hear Crowley repeatedly saying to Bechtel, “let’s party, let’s go out, come on, let’s smoke crack.” T. 85-86. Bechtel did not respond to Crowley except to grumble and move around in the bed. T. 86. Crowley then walked toward Vincent’s bed. T. 86, 292. He stood on the chair directly below her bed. T. 86. Crowley said to Vincent, “we have a problem here.” T. 86. Vincent got down from her bed and went over to the door. T. 86, 292. Vincent and Crowley exited the room and went into the hallway. T. 87, 292. When the two entered the hallway, Valjato was standing near the stairway. T. 96. Crowley stood within the door frame to Vincent’s room, and Vincent stood in the middle of the hallway. T. 96. The door to the room was partially open. T. 96. Vincent asked Crowley what was going on. T. 96. Crowley responded by asking her to go out, saying “let’s go out, come on, let’s party, let’s do drugs, come on, let’s smoke crack.” T. 96-97. Crowley made these statements over and over again. T. 97. Valjato also responded, saying “come on, let’s do it, come on, let’s go out with us.” T. 97. Vincent told them that she did not know what was going on. T. 97. Vincent was annoyed by the fact that it was 5:00 a.m., she had to study all day that day, and she was being asked to go party. T. 97. Crowley then said to Vincent, “well, you are going to miss out on this. Steve, show her what you have.” T. 98. Valjato responded, “Francis, you show her what you have.” T. 98. At this point, both defendants pulled plastic bags out of their pants pockets. T. 98. Vincent was able to see inside Valjato’s bag, but could not see inside Crowley’s bag. T. 98-99. Valjato’s bag appeared to contain marijuana. T. 99. Vincent told Crowley and Valjato that this was not something that she could be a part of, and told them that they could do whatever they wanted, but that she was going back to her room. T. 100. Vincent was trying to be “politically correct” with the situation. T. 204. The defendants asked Vincent why she would not go party and do drugs with them, telling her that because she was smart she would do well on the exams. T. 205. Valjato then asked Vincent if he and Crowley could “at least do it” in Vincent’s room. T. 100. Vincent again stated that they could do what they wanted, but she was going back to her room to sleep. T. 100. Vincent then returned to her bed. T. 103. She did not lock her bedroom door. T. 208. The conversation in the hallway lasted approximately fifteen minutes. T. 206, 292. Neither defendant said anything about sex during the hallway conversation. T. 381. At the time of these events and thereafter, Crowley was very hyperactive. T. 102, 323, 377. According to Vincent, he was “all agitated and distracted.” T. 102. Crowley appeared to be intoxicated or stoned, although Vincent did not know whether or not he was under the influence of alcohol or some other substance. T. 302-03, 294. Vincent did not smell alcohol on Crowley’s breath at anytime. T. 323. Valjato appeared to be “lethargic, very slow and concentrated.” T. 102-03. Vincent did not have the opportunity to determine whether Valjato’s breath smelled of alcohol because his mouth was never near Vincent’s face. T. 323. About a minute after Vincent returned to her bed, Crowley re-entered the room and came towards Vincent’s bed. T. 103, 292. Crowley went directly up to her bed until he was within inches of her. T. 104. Crowley asked Vincent if she knew that Steven was leaving, and Vincent said she did. T. 104. Crowley then told Vincent that Valjato was “very angry” that she did not want to go out with them. T. 104-05. Vincent replied that she was sorry, but that she had to study and she could not go out with them at the time. T. 105. Crowley then told Vincent that Valjato wanted to “go down” on her. T. 105. Vincent ■Understood this phrase to mean that Valja-to wanted to perform oral sex on her. T. 106. When Crowley made this last statement, he began to move over the top of Vincent and tried to get onto her bed. T. 106. Vincent backed away toward the wall and told Crowley to stop and to.please leave. T. 106. Crowley started kissing her neck and fondling her breasts outside of her T-shirt. T. 106-07. Vincent pushed his hands down and told him to stop. T. 107. Crowley said to Vincent, “come on, I know you want us, come on, let us.” T. 107. Vincent continued to tell Crowley “no, to stop, please leave,” and persisted in pushing his hands away from her and backing up against the cinder wall. T. 107. The more Vincent resisted Crowley’s actions, the more force he used. T. 107. Crowley did not have a weapon or dangerous instrument. T. 235. Crowley fondled Vincent’s breasts and kissed her neck for approximately five to ten minutes. T. 292-93, 305. During this struggle, the bed continuously creaked as the wood shifted, making a lot of noise. T. 399. Crowley then started to move his hand down into the waistband of Vincent’s basketball shorts. T. 108. At this point, Vincent cried out to her roommate for help. T. 108. Vincent said “Jennifer, would you please come over and help me.” T. 348. Bechtel did not respond. T. 108. Bechtel testified that she never heard Vincent cry out or ask her for help that night. T. 541. After Vincent called to her roommate for help, Crowley pushed Vincent back up towards the wall and told her not to freak out and that everything was going to be okay. T. 108. Crowley then touched Vincent’s vagina and attempted to insert his finger. T. 108-09. Crowley was not able to do so. T. 109. Vincent continued to kick back against the wall and continued to try to push Crowley off. T. 109. Crowley then called out “Steven, come over here.” T. 109. Within seconds, Val-jato came to the lower end of the bed, nearest the door. T. 110. When Valjato entered, Crowley still had his hand down Vincent’s shorts and was still touching her vagina. T. 110. Valjato attempted to climb onto Vincent’s bed, but was not able to because he slipped. T. 111. As he tried to climb onto the bed, Valjato stated, “come on, just let us do this.” T. 112. Crowley took his hand out of Vincent’s shorts and tried to help Valjato. T. 112. Crowley’s other hand was still placed across Vincent’s chest, on her breast. T. 112. At this point, both defendants were standing on Vincent’s desk while she remained in her bed. T. 112. Vincent testified that she “felt as though the situation had escalated into something that I needed to [calm] down, [that] I had. to rationalize with them and do something other than physical force, because I could not fight with Francis.” T. 397. At no time did Vincent say that two people were fighting with her. T. 326. While Crowley was touching Vincent, Valjato stood at the edge of the bed, saying “come on, just let us do this, let us go down on you. You will enjoy it.” T. 113. Crowley was saying essentially the same thing. T. 114. Vincent told them that she would never do this with anybody. T. 114. Vincent was intimidated by the presence of both Crowley and Valjato at her bedside. T. 114. She continued to ask them to “please leave,” but did not scream. T. 115. While Vincent continued to tell Crowley and Valjato that she did not want them to perform oral sex on her and wanted them to leave, the two continued to beg. T. 116. Crowley stated “come on, just let us do this for five minutes, just for one minute. You will enjoy it, come on.” T. 116. Val-jato said the same. T. 116. Crowley attempted to pull down Vincent’s basketball shorts but was not able to do so. T. 116-17. As Crowley attempted to pull down Vincent’s shorts, he said “no, she is going to do that.” T. 117. During this part of the incident, Valjato was standing next to Crowley. T. 117. There was some space in between the bodies of Crowley and Val-jato while they were standing on the desk. T. 159. Valjato then told Vincent that he had a tongue ring and that she would really enjoy it. T. 117. Vincent again replied that she was sorry, but it was something she would not do. T. 117. She told Valjato that she did not mean her refusal personally against either one of them, but that she simply wanted them to leave. T. 117. Valjato replied that nobody ever had turned him down. T. 118. Vincent testified that Valjato was upset and angry and that she felt threatened. T. 118. Crowley and Valjato continued to hound Vincent, asking her to give them a reason why she would not consent to oral sex. T. 118. She told them that she had a boyfriend. T. 118. She also told them that she knew Valjato had a girlfriend, and wondered aloud how Valjato’s girlfriend would feel about what they were trying to get her to do. T. 118. Crowley, ever-persistent, said “who cares? Your boyfriend is not here and neither is Steve’s girlfriend.” T. 119. The two continued to repeat, over and over, “please let [us] go down on [you].” T. 119. Vincent kept saying no. T. 119. Finally, in an angry tone, Valjato told Crowley “that if she was not going to fucking do it, let’s fucking go.” T. 119. As he said these words, Valjato hit his fist against the bed frame. T. 119. Valjato then told Vincent that she “better never say anything that was said or done in this room, or it would be all over, and especially to Meg and Carol.” T. 120. Vincent understood these words to be a personal threat against her. T. 120. Meg and Carol were the only other female students in Vincent’s engineering section at that time. T. 120. Valjato never touched any part of Vincent’s body. T. 113. Vincent testified that although Valjato “may have brushed up against my leg as he was trying to climb into my bed[,][h]e never placed his hands on me.” T. 113. Crowley then asked Vincent if she was mad, and Vincent told him that she was not. T. 120. Crowley then asked Vincent, “you wouldn’t put me up for sexual harassment, would you?” T. 120. Crowley then laughed. T. 120. Vincent told Crowley that if he left, everything would be fine. T. 120. Valjato got down from the desk, followed by Crowley, and the two then exited the room. T. 121. Vincent heard the door click, but she did not lock the door. T. 244-45. Vincent heard the sounds of their voices, whispering in the hall. T. 121. Francis Crowley then re-entered the room. T. 121. He returned atop Vincent’s chair. T. 121-22. Crowley asked Vincent, “are you sure, come on, just let us do it. We will never bother you again; just let us do this.” T. 122. Crowley told Vincent that Valjato was very angry. T. 122. Vincent again told Crowley that she was sorry, that this was something she was not going to do. T. 123. She asked Crowley to please leave and everything would be fine. T. 123. Crowley then asked Vincent if she would call him the next day and Vincent said she would. T. 123. Vincent testified that she said this because she knew it was the only way Crowley would leave. T. 123. Crowley then left the room. T. 123. Vincent hit the clock and it was 6:12 a.m. T. 123. Vincent listened for the door to click, and noticed that her roommate was still in bed across the room with her back toward Vincent. T. 124. Vincent did not lock the door. T. 246. She did not say anything to her roommate. T. 124. She did not call the police. T. 246. She did not contact the hourly floor watch patrol, nor did she contact campus security. T. 246-47. Vincent lay in her bed wondering why “after that amount of time at that school, my third year, that I had ever given someone the notion that I would allow that to happen to me or that I would want that to happen to me.” T. 123-25. Jennifer Bechtel, Vincent’s roommate, left the room at about 7:00 a.m. T. 125. The two did not speak. T. 125. Around 9:00 a.m., Vincent went down the hallway to speak with her friend Elizabeth Johnsen. T. 125-26. However, Johnsen was still sleeping, so Vincent waited until 9:30 a.m. and then returned to Johnsen’s room. T. 126. Vincent was upset, and told Johnsen what happened, although she did not go into all the details. T. 126. Vincent then left Johnsen’s room, showered, got dressed and went to brunch. T. 126. At brunch, Vincent saw her friend Diane Bonnar, and told her what happened. T. 127. Some time later, Vincent spoke to Megan Carroll, and at some point in the morning Vincent spoke to her parents by phone. T. 144, 146. Vincent told her parents what happened, and after speaking with them decided to report the incident to her commanding officer. T. 146. She went to her commanding officer’s office on Sunday afternoon, but nobody was there. T. 147. Although it is not exactly clear from the testimony, sometime after talking to her parents, and while she was studying, Vincent and Megan Carroll went to the vending machines to get coffee. T. 144. While they were getting coffee, Vincent saw Crowley walking towards them. T. 145, 454. Crowley asked her if everything was okay, if she was mad at him, and if they were still friends. T. 145. Crowley told Vincent that he did not know what had gotten into him that night. T. 145, 455. Crowley wanted to know if he could buy Vincent some coffee and wanted to know what she was doing. T. 145. Vincent said she was studying thermodynamics and that everything was fíne. T. 145. Crowley said he would help her make photocopies, and again asked if she was mad at him. T. 145, 455. She again told Crowley that everything was fine. T. 145, 455. Sometime in the afternoon, after discovering that her commanding officer was not in his office, Vincent looked for her company officer, but could not locate him. T. 147. Instead, she looked at the watch bill to see who was on duty. T. 147. Vincent saw that Commander Funken was on duty, wrote down his phone number, and went back to her room. T. 148. She then called her parents and told them that the commanding officer was not around, but that she was going to call Commander Funken. T. 148. When Vincent called Funken, she only was able to reach his voice mail, so she left a message that there was an emergency and that she needed to speak with him immediately. T. 148. Vincent also called front gate security, but received no answer. T. 149. She also called her friend Linda Bulone at home. T. 149. Bulone previously had worked at the infirmary at the Academy. T. 149. Around four or five that afternoon, Vincent received a phone call from Captain Robert Larson. T. 150. She met with Captain Larson in the library at around 7:00 p.m. and told him what had happened. T. 150. Captain Larson directed Vincent to return to her room and that she would be notified when he wanted to speak with her again. T. 150. Vincent was contacted again by Captain Larson at 9:00 p.m., after which she went to the Academy’s administrative building. T. 150-51. Once she arrived, she again called her parents. T. 151. After speaking with her parents, Vincent called the Nassau County Police. T. 151. Megan Carroll testified that she saw Vincent and Crowley talking to each other at the park the night before the incident. T. 450-51, 459. Carroll saw Vincent drink two beers within the course of an hour at the park. T. 450.- The next day, around twelve noon, Carroll received a phone call from Vincent. T. 453. She went to Vincent’s room and observed that Vincent was very upset and had been crying. T. 453. Vincent told Carroll why she was upset. T. 453. Sometime later, the two went to the vending machines to get coffee, where they ran into Crowley. T. 454. Vincent acted surprised to see him and put her hands up. T. 454. Vincent told Crowley that everything was fine. T. 455. Crowley told Vincent that he was sorry about the previous night, that he did not know what had gotten into him that caused him to do what he did, but did not state what he was sorry for. T. 455, 472. Crowley offered to pay for Vincent’s copies. T. 455. Vincent again told Crowley that everything was fine. T. 455. Later Sunday night, Carroll ran into Crowley. T. 456. Crowley asked her what was going on. T. 456. She told him that there was nothing she could do for him. T. 456. Crowley told Carroll that he “wouldn’t normally do what [he had] done.” T. 456. He said he could kill himself for what had happened. T. 456. Carroll told him that “drugs don’t give you the excuse for you — what you did.” T. 456, 943-44. Crowley told her he was just joking around, and asked if the police were involved. T. 457. Carroll told Crowley that the police were involved, and the conversation ended. T. 457. Jennifer Bechtel testified that she was at Kings Point Park on Saturday, September 27, 1997, and drank four or five beers that night. T. 501, 503. She saw Francis Crowley at the park and engaged in small talk with him. T. 504. Crowley was with Bill Hardesy. T. 504. While she was talking with Crowley, he pulled a zip lock bag from his pocket and showed her some marijuana. T. 505. Crowley handed the bag to Hardesy. T. 505. Hardesy then put some marijuana in a pipe and smoked it. T. 505-06. Bechtel took two puffs of marijuana. T. 506. Crowley asked her if she wanted to go to a club and she said no. T. 506. She later left the park and returned to campus. T. 507. Bechtel never saw Crowley smoke marijuana in her presence that night. T. 551-52. Bechtel returned to her room and got ready for bed around 11:00 p.m. T. 509. Vincent was in the room at the time. T. 509. Bechtel testified that she normally locks the door to the room, and that she locked it that night before going to bed. T. 509-10. A half-hour after Bechtel went to bed, Vincent’s friend Diane Bonnar knocked on the door. T. 510-11. Bechtel answered the door, and then left the room for a few minutes. T. 511. When Bechtel returned, Bonnar was gone and Vincent was in bed. T. 511. Bechtel went back to bed, but did not lock the door. T. 511. Later that night, Bechtel heard the door open and saw Francis Crowley in the room. T. 512. Crowley went to Vincent’s bed and asked for Bechtel. T. 513. She heard Vincent tell Crowley that Bechtel was in the other bed. T. 513. Crowley went over to Bechtel’s bed and climbed up on her desk. T. 513. He said to Bechtel, “let’s go party, let’s smoke some crack.” T. 513. She said no. T. 514. Crowley asked her numerous times to go out, but she said no each timé. T. 514. Bechtel finally told Crowley that she had to get up early and to leave her alone. T. 515. She pulled the blanket up over her head and rolled over towards the wall. T. 515. Bechtel then heard conversation between Vincent and Crowley. T. 517. She heard the door open and looked over to see Crowley and Vincent leaving the room. T. 517. She was not able to hear anything that occurred in the hallway. T. 517. Vincent was outside the room for “a while” before she returned. T. 518. Bechtel heard the door open again and looked over to see Crowley again enter the room. T. 519. She heard Vincent and Crowley speaking; Crowley was asking Vincent to go party and smoke crack. T. 519. The first time that Crowley asked Vincent to party and smoke crack with him, Bechtel heard Vincent say “no” with a laugh in her voice. T. 541. Crowley made this request a few times, and Vincent refused each time. T. 519. Bechtel heard Vincent’s bed creaking the entire time. T. 520. At one point Bechtel heard Vincent say “no,” and heard her tell Crowley that she had to study, and to leave. T. 520. Sometime later, Bechtel again heard the door open, and when she looked over she saw Valjato enter the room. T. 520. She heard Valjato climb up on Vincent’s desk. T. 520. Bechtel heard Valjato ask Vincent a few times if he could go down on her. T. 521. She heard Vincent say “no” each time he asked. T. 521. Bechtel also heard Valjato tell Vincent that he had a tongue ring. T. 521. Valjato spoke in.a normal speaking voice. T. 521. While Valjato was asking to go down on Vincent, Bechtel heard Crowley say, “come on, let him do it.” T. 521. Although she could not hear everything, Bechtel heard Vincent say no a couple of times. T. 522. The bed was creaking loudly. T. 522. Valjato’s voice got louder and he continued to ask Vincent to let him go down on her. T. 522. This conversation lasted quite some time. T. 523. Bechtel decided to stay in bed. T. 523. Eventually, Bechtel heard Valjato loudly tell Vincent that she better not tell anybody or he would come and find her. T. 524. She then saw Crowley and Valjato leave the room. T. 524-25. However, Crowley entered the room a third time. T. 525. Bechtel heard the door open and looked over to see Crowley. T. 525. Val-jato was not with him. T. 525. Bechtel heard Crowley tell Vincent that Valjato was really mad. T. 525. She could not hear much of what they were saying. T. 525. Shortly after he re-entered the room, Crowley left. T. 525. Bechtel did not hear Vincent crying or make any other remark to her at that time. T. 545. Bechtel was not frightened by the fact that the defendants were in the room. T. 559. It never crossed her mind that anyone was “molesting [her] roommate in any frame, in any way, shape or form.”' T. 567. Bechtel was annoyed by the fact that Crowley and Valjato were in the room for so long, T. 567, but was not alarmed by that fact. T. 568. Bechtel thought Vincent could take care of herself and did not think there was any reason to help. T. 576. Bechtel went to sleep and awoke at 7:00 a.m. T. 526. Vincent was in the room, but they did not speak. T. 526. Bechtel returned to the room at 5:00 p.m. that day, and noticed that Vincent had been crying. T. 526. The two had a brief conversation about what had happened earlier that morning with Crowley. T. 526. Vincent asked Bechtel if she knew what happened. T. 546. Bechtel told her that two guys came into the room, they were annoying and she tried to sleep. T. 546. Vincent talked about pressing charges. T. 539. Bechtel testified that Vincent wanted to make sure that what Bechtel was saying about the incident was similar to what Vincent was saying. T. 539. Vincent did not say anything about Valjato during this conversation, but rather limited herself to discussing Crowley. T. 594. Bechtel never heard Vincent yell out and ask her for help during the incident. T. 541. Bechtel testified that it is common for midshipmen to enter other midshipmen’s rooms at night. T. 546. She also testified that it is a common occurrence for women at the Academy to be asked for sexual favors, and that she had been asked for sexual favors before. T. 546. Bechtel has a very poor personal opinion of Vincent and testified that Vincent was known at the Academy to make mountains out of mole hills. T. 570, 583-84. Bechtel testified that Vincent is not known as a truth teller. T. 584-85. Diane Bonnar testified that she was friends with Vincent in September 1997 and that the two were volleyball teammates. T. 619-20. Bonnar accompanied Vincent and Carroll to Kings Point Park the evening of September 27, 1997. T. 621. Bonnar drank beer at the park and became intoxicated. T. 622. Bonnar also saw Vincent drink one or two beers at the park. T. 622, 623. Vincent left the park before Bonnar. T. 627. When Bonnar returned to the Academy, she stopped by Palmer Hall to tell Vincent that she was back. T. 628. She knocked on Vincent’s bedroom door and tried to open it, but it was locked. T. 629. Jennifer Bechtel answered the door. T. 629-30. Bonnar spoke briefly with Vincent and then returned to her dorm. T. 630-31. The following morning, Bonnar, Vincent and Elizabeth Johnsen went to brunch. T. 631. Vincent did not mention anything about the incident during brunch. T. 646. The group later returned to Vincent’s room, where Vincent told them about an incident earlier that morning involving Crowley and Valjato. T. 632. Vincent told Bonnar that Crowley came into her room, stood at her desk, leaned over her, and touched her and made threats to her, and told her to be quiet and not say anything. T. 632. Bonnar was told that Crowley had been pushing down the waistband of Vincent’s shorts and reaching under her shirt. T. 634. Vincent told her that Valjato later came into the room and stood on the desk with Crowley. T. 633. Bonnar testified that Vincent told her that after Valjato got on the desk with Crowley, she asked both of them to stop and then they “just stopped on their own.” T. 633. Bonnar testified that Vincent did not relate to her anything at all about what Valjato may have said to Vincent during the incident. T. 633-34. During this forty-five minute conversation, Vincent appeared worried about her exams, stating that “she really didn’t need this on top of exams.” T. 637. Bonnar testified that Vincent said nothing about whether she was going to report the incident or not. T. 636. However, Vincent later called Bonnar on the phone and told her that she had told her mother, and her mother wanted Vincent to report the incident. T. 648. Vincent was trying to decide whether to report it or not. T. 648, 652. Jose Rodriguez was a midshipman at the Academy in September 1997. T. 656. He was close friends with Crowley. T. 658, 681. On Sunday, September 28, 1997, Crowley visited Rodriguez’s room around three or four o’clock in the afternoon. T. 658. Crowley told Rodriguez that he had “hooked up with a Kings Point chick” the previous night. T. 659, 944. Rodriguez understood the term “hooked up” to mean to kiss, to make out. T. 659, 674. Crowley, at Rodriguez’s request, told him it was Stephanie Vincent, and that the two had hit it off at the park. T. 659-60. Crowley and Rodriguez continued their conversation as they walked to Murphy Hall. T. 661. During their walk, Rodriguez spotted Vincent about a hundred feet away and waved to her. T. 661. Vincent waved back. T. 662. The next day, Crowley returned to Rodriguez’s room. T. 662. Crowley acted a little bit nervous, and told Rodriguez that Vincent was saying something about Crowley forcing himself on her. T. 663. Rodriguez asked him why she would say such a thing, and Crowley responded that he had “just felt her up.” T. 663. Rodriguez had used this term before with Crowley, and understood this phrase to mean that Crowley had touched her breast or caressed her buttocks. T. 663. Crowley told him that Vincent had said “no, I can’t do this. I have a boyfriend.” T. 663. One or two days later, Crowley again visited Rodriguez’s room to tell him that Vincent was going to the police. T. 664. Crowley was pacing about the room, mumbling that he could not believe it happened and that he could not believe he had done something like that. T. 664. Crowley told Rodriguez that he did not know what had happened or why he did it, and asked Rodriguez if he should apologize. T. 664. Later that week, Crowley again visited with Rodriguez. T. 666. By this time, Rodriguez had heard rumors on campus about what Vincent had been saying about the incident. T. 666. Rodriguez told Crowley that he had heard something about Steven Valjato and Jennifer Bechtel. T. 666. Crowley told Rodriguez that Val-jato was out in the hallway but that he was “so fucked up.” T. 666. Crowley had not mentioned Valjato in any of their prior conversations. T. 666. Crowley admitted to Rodriguez that he had “fingered” Vincent, and that when she said no, he kissed her neck and touched her breast. T. 667. Crowley also told Rodriguez that he asked Vincent “can I go down on you and will you go down on me?” T. 667. During this time, Vincent was saying “no.” T. 667-68. Crowley’s demeanor was calm at the time of this conversation. T. 669. Rodriguez, who was the regimental human relations training officer at the Academy, later circulated a petition drive to keep Crowley in the Academy. T. 678, 684, 692, 694-95. A couple of days later, Rodriguez saw Valjato on campus and spoke with him. T. 669-70. Rodriguez asked Valjato “what is the story of you being in the room?” T. 670. Valjato said, “I don’t know anything about that. I was all fucked up.” T. 670. Elizabeth Johnsen testified that Vincent woke her up around 9:30 or 10:30 a.m. on Sunday, September 28, 1997. T. 715-16, 746-47. Vincent was visibly shaken up and had watery eyes. T. 716. Vincent described to Johnsen an incident involving Crowley and Valjato that had taken place earlier that morning. T. 716. Vincent told Johnsen that Valjato and Crowley had been looking for someone to party with and that they asked Vincent to go hang out with them and party. T. 717. Vincent said no and asked them to leave. T. 717. Crowley then got on Vincent’s desk and told her that Valjato always had a crush on her and wanted to go down on her, and that she would like it. T. 717. Vincent told him no. T. 717. Crowley told Vincent that Valjato had a tongue ring and it would feel good. T. 717. Again, Vincent told Johnsen, she said no and that she did not want anything to do with that. T. 717. One of them asked if they both could go down on her, and Vincent told them she had a boyfriend and he would not appreciate knowing about what they were asking her to do. T. 717. Vincent again “politely” asked them to leave. T. 717. Crowley then put his hand on her lower stomach area and her navel ring, and proceeded to put his hands down Vincent’s pants. T. 718. Vincent tried to fight him off and kept asking them to leave, but the two became more physically aggressive and verbally aggressive. T. 718. Valjato then spoke up and said that they better go because they were not getting anywhere. T. 718. He said “there was no point, and just forget about it, let’s get out of here and let’s go party somewhere else.” T. 718. As they were leaving, Vincent related to Johnsen, Crowley told Vincent that he better not hear about this incident again. T. 718. The two then left the room. T. 718. Vincent told Johnsen that “they” had drugs on them, but did not tell Johnsen specifically which defendant had what, if anything. T. 720. Vincent also told Johnsen that she was under the suspicion that Crowley and Valjato had been doing drugs that night. T. 740-41. Bohuslav Humplik, Valjato’s roommate and best friend, testified that he learned through the Academy “rumor mill” that Stephanie Vincent had made allegations about Valjato. T. 786. Humplik asked Valjato about the rumors, and Valjato told him that he, Crowley and Vincent had walked back from the park together that night and that Crowley and Valjato had walked Vincent to her room. T. 787. Val-jato told Humplik that Vincent was drunk. T. 792. Humplik testified that on or about September 27, 1997, Vincent had gotten so drunk that she had fallen down and “bust[ed] her face.” T. 793. Linda Bulone testified that she received a telephone call from Vincent around 1:00 p.m. on September 28, 1997. T. 808. Vincent was very shaky and very hesitant and upset. T. 808. Vincent told Bulone about an incident involving Crowley and Valjato allegedly making unwanted sexual advances on her. T. 816. Bulone, formerly a medical administrator assistant at the Academy, helped Vincent get in touch with Captain Larson. T. 806, 820-21. After the government completed its case in chief, the Court heard argument on the defendants’ Rule 29 motions. The Court reserved decision. T. 862. Defendant Crowley then called four witnesses to the stand, each of whom testified to Vincent’s poor character and reputation for truthfulness. 864-889. One of these witnesses, Matthew Delaney, lived in the room directly below that of Vincent and Bechtel in September 1997. T. 872. Delaney saw Francis Crowley on the stairway of the building at approximately 4:30 a.m. on Sunday, September 28, 1997, as Delaney was going to get a soda. T. 878, 873. He testified that from his room he usually could hear sounds from the sides, above or below. T. 874. He did not hear any indications of a struggle that morning or any calls for help. T. 874. Following summations and the jury charge, the jury deliberated. T. 962-1071. During deliberations, the jury asked to hear a read back of the testimony of Jennifer Bechtel “pertaining to what she overheard between the hours of 4:51 and 6:12.” Court Exhibit 3; T. 1123-24. Following the read back, the jury asked for clarification on the definition of the word “force,” as discussed in element two of Count One. Court Exhibit 5; T. 1139. The Court, after consulting with counsel, decided to tell the jury that it had been provided the definition of “force,” and that there would be no further instruction on this point. T. 1142. The jury was released to resume deliberations. T. 1142. However, counsel for the defendants made an additional application for clarification to the jury, which was opposed by the government. T. 1142-43. Approximately thirty minutes later, the Court again consulted with counsel and informed them of the Court’s decision to provide an additional clarification on the meaning of “force.” T. 1143. The Court heard additional argument, T. 1143-52, and then called the jury back into the courtroom and told them that the Court was preparing additional material with respect to “force,” but that they nevertheless could continue their deliberations. T. 1152. Following fifteen minutes of additional argument, T. 1153-57, the Court provided the jury with a clarified definition of the term “force.” T. 1157-58. The jury left the courtroom at 4:24 p.m., and sent a note out one hour later indicating that they had reached a verdict. Court Exhibit 6. The jury returned a verdict of guilty on Counts One and Two, and not guilty on Counts Three and Four, as to both defendants. T. 1159-62. LEGAL STANDARDS I. Fed.R.Crim.P. 29 — Motion for Judgment of Acquittal In considering a motion for judgment of acquittal pursuant to Rule 29, the Court must view the evidence presented in the light most favorable to the government. United States v. Guadagna, 183 F.3d 122, 129 (2d Cir.1999) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)). All permissible inferences must be drawn in favor of the government. Id. The Court must avoid usurping the role of the jury. Id. “[U]pon a motion for judgment of acquittal, ‘the Court must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt.’ ” Id. (internal quotation omitted). “[I]f the court ‘concludes that either of the two results, a reasonable doubt or no reasonable doubt, is fairly possible, [the court] must let the jury decide the matter.’ ” Id. (quoting Curley v. United States, 160 F.2d 229, 233 (D.C.Cir.1947)). II. Fed.R.Crim.P. 33 — Motion for a New Trial “The burden of proving the need for a new trial lies with the defendant.” United States v. Sasso, 59 F.3d 341, 350 (2d Cir.1995); see also United States v. Ferguson, 49 F.Supp.2d 321, 323 (S.D.N.Y. 1999) (citing United States v. Soblen, 203 F.Supp. 542 (S.D.N.Y.1961), aff'd, 301 F.2d 236 (2d Cir.1962)). The decision to grant or deny a motion for a new trial is firmly within the broad discretion of the trial judge. Sasso, 59 F.3d at 350; see also Ferguson, 49 F.Supp.2d at 323 (citing United States v. Rodriguez, 738 F.2d 13, 17 (1st Cir.1984)); United States v. Zane, 507 F.2d 346, 347 (2d Cir.1974) (reviewing trial court’s denial of Rule 33 motion for abuse of discretion); United States v. Madeoy, 912 F.2d 1486, 1490 (D.C.Cir.1990) (decision to grant post-trial relief is within trial court’s sound discretion). “[I]n deciding whether to grant a Rule 33 motion, a judge may weigh the evidence and deter mine the credibility of witnesses.” Ferguson, 49 F.Supp.2d at 323 (citing United States v. Sanchez, 969 F.2d 1409, 1413 (2d Cir.1992)). Moreover, on a Rule 33 motion, “[t]he Court is not required to view the evidence in the light most favorable to the Government.” Id. (citing United States v. Lincoln, 630 F.2d 1313, 1319 (8th Cir.1980)). Nevertheless, the Court’s discretion is limited to the extent that Rule 33 motions for a new trial are “not favored and should be granted only with great caution.” United States v. Gallego, 191 F.3d 156, 161 (2d Cir.1999) (quoting United States v. Stofsky, 527 F.2d 237, 243 (2d Cir.1975) (quoting United States v. Costello, 255 F.2d 876, 879 (2d Cir.1958))). DISCUSSION I. Motions of Defendant Francis Crowley A. Attacks on the Indictment Crowley argues that the Court should set aside his convictions on Counts One and Two of the indictment, or alternatively order a new trial, because the Grand Jury clause of the Fifth Amendment was violated. Specifically, Crowley contends not only that these counts of the indictment failed to charge essential facts, but also that the government’s proof, and the Court’s instructions, constituted an impermissible constructive amendment of the indictment. 1. Sufficiency of the Indictment The issue presented is one of first impression. The question is whether an indictment alleging violation of 18 U.S.C. §§ 2241 and 2242 must set forth the specific facts alleged to constitute the proscribed sexual act in order to comply with the Fifth Amendment’s Grand Jury clause. For the reasons discussed below, the Court holds that such factual particularity is required. As a result, the motion must be granted and the indictment dismissed. The Fifth and Sixth Amendments set forth bedrock principles of constitutional law: “No person shall be held to answer for a capital or otherwise infamous crime, unless on a prosecution or indictment of a grand jury,” U.S. Const, amend. V., and “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be informed of the nature and cause of the accusation.” U.S. Const, amend. VI. These principles are enshrined in Fed.R.Crim.P. 7(c), which states that “[t]he indictment ... shall be a plain, concise and definite written statement of the essential facts constituting the offense charged.” The Second Circuit has held that fidelity to this rule is required in order to safeguard a defendant’s constitutional rights. Compliance with Rule 7(c) fulfills the Sixth Amendment right to be informed of the nature and cause of the accusation; it prevents a person from being subject to double jeopardy as required by the Fifth Amendment; and it serves the Fifth Amendment protection against prosecution for crimes based on evidence not presented to the grand jury- United States v. Walsh, 194 F.3d 87, 44 (2d Cir.1999) (quotation marks omitted); see also United States v. Silverman, 430 F.2d 106, 110 (2d Cir.1970) (analyzing sufficiency of the indictment to “insure that the defendant [was] not tried upon a theory or evidence which was not fairly embraced in the facts upon which the grand jury based its charges”), modified, 439 F.2d 1198 (2d Cir.1970). Crowley argues that the indictment handed down by the grand jury fails to satisfy the Fifth Amendment requirement explained in Walsh and Silverman because the indictment was silent as to which of the four sexual acts set forth in the statute the defendant was alleged to have attempted to commit. See 18 U.S.C. § 2246(2). Thus, according to Crowley, there is a substantial danger that he was convicted on evidence of alleged sexual acts that was not presented to the grand jury. Crowley contends that the failure to allege the specific unlawful conduct proscribed by the statute is fatal because there is no way to determine what conduct the grand jury chose to allege as criminal. The government responds that this argument has been waived for Crowley’s failure to raise it before trial. This argument is without merit. Rule 12 of the Federal Rules of Criminal Procedure requires that “[a]ny defense, objection, or request which is capable of determination without the trial of the general issue may be raised before trial by motion.” Fed. R.Crim.P. 12(b). This rule further requires that any objection based on a supposed defect in the institution of the prosecution, or any objection based on alleged defects in the indictment, must be raised prior to trial. Fed.R.Crim.P. 12(b)(l-2). Rule 12 declares that a party’s failure to raises objections that must be made prior to trial “shall constitute waiver thereof,” although the Court, for good cause shown, may grant relief from the waiver. Fed. R.Crim.P. 12(f). By Notice of Motion dated April 14, 1999, defendant Yaljato presented an omnibus motion seeking, inter alia, a ruling pursuant to Fed.R.Crim.P. 12 to dismiss the indictment as vague, or in the alternative, an order directing the government to amend the existing indictment so that it conformed with Fed.R.Crim.P. 7(c). By Notice of Motion dated April 12, 1999, Crowley moved, inter alia, for an order “[a]llowing Mr. Crowley to join in the motions of his co-defendant ... to the extent that the same apply to him.” Given that both defendants were charged under the same indictment, it is clear that Yaljato’s motion to dismiss the indictment also applied to Crowley. Thus, there was no waiver of this issue by the defendants. See United States v. Berlin, 472 F.2d 1002, 1007 (2d Cir.1973) (holding that appellant’s failure to raise insufficiency of indictment until after completion of government’s case did not constitute a waiver). In any event, if this challenge had in fact been waived, the Court nevertheless would grant relief from the waiver, prejudice and good cause having been shown. See Fed.R.Crim.P. 12(f); United States v. Forrester, 60 F.3d 52, 59 (2d Cir.1995) (decision to grant relief from waiver firmly within trial court’s discretion); United States v. Freeling, 31 F.R.D. 540, 543 (S.D.N.Y.1962) (same); see also United States v. Sutton, 961 F.2d 476, 478-79 (4th Cir.1992) (defendant may challenge sufficiency of indictment at any time in the proceedings); United States v. Rodriguez, 556 F.2d 638, 641 (2d Cir.1977) (holding that appellate review of sufficiency of the indictment claim was barred by defendant’s failure to raise issue in district court). The government further argues that the Court is required by the law of the case doctrine to fully adhere to its prior decision on this issue. This argument also fails. The Court ruled on the defendants’ motion to dismiss the indictment at a pre-trial conference held on June 10, 1999. Specifically, the Court stated: The fourth motion that you bring is to dismiss under Federal Rules of Criminal Procedure, Rule 7(c)(1), and that the basis for that is the indictment is vague, or in the alternative with this motion you move to weigh [sic] the government to amend, to reflect the specific facts of what happened on the night in question, as you request in your memorandum of law at page 16. Rule 7(c) requires that the indictment quote, shall be a plain, concise and definite written statement of the essential facts constituting the offense charged. The law in this circuit permits an indictment essentially to track the statutory language of the — and simply requires that the elements of the crime be stated. And the government cites, and I concur in that, United States v. Citrone [sic] at 783 F.2d 307. This indictment meets those requirements. Clearly the indictment informs the defendant of the offense he’s charged with so that he can make a proper defense to these charges. It advises him of the date, place and acts that he’s alleged to have committed. So this motion is also denied. Transcript of Conference, June 10,1999, at 6-7. At the time of its ruling, however, the Court was unaware of the true nature of the evidence that was to be presented by the government and the significant tension between the proof as it was to be presented at trial and the allegation of a singular “sexual act” as charged in the indictment. The Court also failed to consider the full nature of the Fifth Amendment rights that were at issue, particularly on the question whether the defendants were about to be tried on evidence that had not been presented to the grand jury. Compare Walsh, 194 F.3d at 44 (outlining three constitutionally required functions of Fed.R.Crim.P. 7(c)). Therefore, although the Court previously ruled on the sufficiency of the indictment, and as a general proposition would be required to adhere to this ruling in a subsequent stage of the proceedings, the Court finds that to prevent manifest injustice, there are compelling reasons to reconsider and depart from its prior holding. See Arizona v. California, 460 U.S. 605, 618 & n. 8, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983) (“it is not improper for a court to depart from a prior holding if convinced that it is clearly erroneous and would work a manifest injustice.”); Sanders v. Sullivan, 900 F.2d 601, 605 (2d Cir.1990) (court may depart from a prior ruling for “cogent” or “compelling” reasons). The Court therefore proceeds to determine whether the indictment was insufficient as a matter of law because of its alleged failure to specify the precise nature of the sexual act charged. In this regard, the government asserts that the indictment is sufficient because it clearly sets forth each element of the charged offense and closely tracks the language of the statute. See Walsh, 194 F.3d at 44 (“we have consistently upheld indictments that ‘do little more than to track the language of the statute charged and state the time and place (in approximate terms) of the alleged crime.’ ”) (quoting United States v. Tramunti, 513 F.2d 1087, 1113 (2d Cir.1975)); compare United States v. Aliperti 867 F.Supp. 142, 144 (E.D.N.Y.1994) (“an indictment need only be supplemented when the statute itself contains generic terms.”); with United States v. Washington, 106 F.3d 983, 1012 & n. 43 (D.C.Cir.1997) (requiring that the indictment state concisely the essential facts constituting the offense); see also United States v. Sullivan, 919 F.2d 1403, 1422 (10th Cir.1990) (holding that where statute employs generic terms the indictment must employ specifics, leaving no room for uncertainty or ambiguity); 1 Wright, Federal Practice and Procedure § 125 (1982) (“The acts and intent that make up the crime should be set forth in the indictment or information with reasonable particularity of time, place, and circumstances.”). The government denies that the indictment is required to state the specific facts underlying the charged element. See Citron, 783 F.2d at 314-15 (affirming sufficiency of indictment in tax evasion case where indictment failed to specify precise amounts of taxes the defendant sought to evade). Rather, the government claims that because the indictment charges the essential elements of the offense, including a “sexual act,” the defendants were not tried on conduct which the grand jury had not considered. The exact language of Counts One and Two of the indictment is reproduced in footnotes one and two, supra. Briefly, both counts charged the defendants with an “attempt to cause another person to engage in a sexual act.” The first count alleged that the defendants’ actions were taken “by using force,” while the second count alleged that the actions were taken “by threatening and placing that other person in fear.” Section 2246 of Title 18 of the United States Code contains four precise and concrete definitions of the term “sexual act,” each of which is easily distinguishable from the others. The term means (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; (B) contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus; (C) the penetration, however slight, or 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. 18 U.S.C. § 2246(2). As is clear from the statutory language, each subparagraph is unique. Two definitions of the term “sexual act,” subparagraphs (C) and (D), contain an additional, specific mens rea requirement. Only subparagraph (D) contains a requirement that the victim be under the age of 16. Subparagraph (A) further subdivides the term into two types of sex, vaginal or anal. Finally, the definition in subparagraph (B) is that of oral sex, while subparagraph (C) deals with manual or “object” penetration. There was no evidence presented at trial, nor any claim made by the government, that subparagraphs (A) or (D) were relevant to this case. However, there was considerable evidence that Crowley (1) had attempted to insert his finger into Vincent’s vagina and (2) had attempted to convince Vincent to allow him to use his mouth to engage in contact with Vincent’s vulva. As is clear from the statute, the first factual scenario would constitute an attempted sexual act as defined in subpar-agraph (C), while the second factual scenario implicates only subparagraph (B). Importantly, unlike subparagraph (B), the definition of “sexual act” contained in sub-paragraph (C) contains its own unique intent requirement, that is, that the act be performed with “an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.” 18 U.S.C. § 2246(2)(C). Finally, although the indictment charged the defendants with an attempt to cause another to engage in a singular sexual “act,” at trial the government proceeded on a theory that plural sexual acts were attempted, and evidence was introduced on both factual scenarios. See T. 108-10, 964-66, 976-77, 983, 985, 1055,1065. “The Indictment Clause of the Fifth Amendment ‘requires that an indictment contain some amount of factual particularity to ensure that the prosecution will not fill in elements of its case with facts other than those considered by the grand jury.’ ” Walsh, 194 F.3d at 44 (emphasis added) (quoting United States v. Abrams, 539 F.Supp. 378, 384 (S.D.N.Y.1982)). This factual specificity is required in order to ensure that a conviction is not secured “on the basis of facts not found by, and perhaps not even presented to, the grand jury” that voted for the indictment. Russell, 369 U.S. at 770, 82 S.Ct. 1038. In Russell, the leading case on indictment sufficiency, the Supreme Court struck an indictment where a defendant had been charged with unlawfully refusing to answer certain questions before a congressional committee. Russell, 369 U.S. at 752, 82 S.Ct. 1038. The statute at issue made it a crime for any person to “refuse[ ] to answer any question pertinent to the question under inquiry” by Congress. Id. at 752 & n. 2, 82 S.Ct. 1038 (citing 2 U.S.C. § 192). The indictment was silent as to the subject matter of the congressional inquiry at the time the defendant was interrogated. Id. at 752, 82 S.Ct. 1038. Instead, the indictment merely tracked the language of the statute, and contained only a conclusory statement that the questions to which answer