November 23, 2017

Tenth Circuit: Mens Rea Element of Child Sex-Trafficking Statute Satisfied Where Defendant Recklessly Disregarded Victim’s Underage Status

The Tenth Circuit Court of Appeals issued its opinion in United States v. Doung on Tuesday, February 14, 2017.

The Tenth Circuit Court of Appeals had to determine whether a statutory amendment to 18 U.S.C. § 1591, relating to child sex-trafficking, altered the government’s burden in proving the requisite mens rea. The defendants, Tung Doung, William Baker, and Curtis Anthony were each charged with one count of child sex trafficking and one count of conspiracy to engage in child sex-trafficking in violation of 18 U.S.C §§ 1591 and 1594. The defendants moved to dismiss the indictment, on the basis that it did not allege the mens rea element of the child sex trafficking crime, and the district court granted the motion.

Under § 1591, the government can prove the mens rea element of child sex-trafficking pertaining to the age of a child in three ways: (1) by showing that the defendant knew the child was underage; (2) the defendant acted in reckless disregard of their age, or (3) the defendant had a reasonable opportunity to observe the victim prior to engaging in a commercial sex transaction. In the superseding indictment, the government charged the defendants only with having a reasonable opportunity to observe the victim to prove the requisite mens rea.

To interpret the statute, the court began by looking at the plain language of § 1591, stating, “the plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole. After looking at the plain language of the statute, the court determined that § 1591 (c) (pertaining to the language adding reasonable observation as a mens rea standard), was not ambiguous, and provides the government a third option for proving a defendant’s mens rea.

Because the section was enacted by congress as a part of the Trafficking Victims Protection Act of 2000 (TVPA), the court next addressed the congressional intent behind the addition of § 1591. The court noted that Congress’ stated purpose behind the act was to, “combat trafficking in persons, especially into the sex trade, slavery, and involuntary servitude,” and that § 1591 was added to provide federal criminal penalties for engaging in such conduct. The court then stated that because Congress added subsection 1591(b) to lessen the government’s burden as to the mens rea required regarding a child’s age, the addition of a third subsection further lessening that burden is wholly consistent with the intent of the TVPA.

The defendants argued that if the court interprets § 1591(c) as giving the government a third avenue to prove mens rea, then the section would effectively relieve the government from having to prove actual knowledge or reckless disregard of a victim’s age. The court rejected the defendant’s argument, and stated that contrary to the defendant’s assertions, the government will still have to prove actual knowledge or reckless disregard in circumstances where the defendants did not have a reasonable opportunity to observe the child victim before engaging in the commercial sex transaction. Additionally, the court stated that the defendant’s preferred interpretation actually goes against the stated objective of the TVPA of lessening the government’s burden by restricting the government’s ability to show mens rea under the reckless disregard standard.

As to the conspiracy charge, the defendants argue that the courts interpretation of § 1591(c) does not resolve if the district court properly dismissed the conspiracy charge. Relying on the seventh circuit holding in United States v. Saldago, the defendants claim that they could not have conspired to commit the crime of child sex-trafficking without knowing that the child in question was actually a minor. The court rejected this claim as well, holding that because the government is alleging the defendants had reasonable opportunity to observe the victim, the indictment specifically charges that the defendants had knowledge of the victim’s age for the purpose of the conspiracy charge as well.

The court reversed the decision of the district court in dismissing both charges against the defendants, and remanded the matter for further proceedings.

Colorado Court of Appeals: “Knowingly” Element Should Have Been Offset but Error Harmless

The Colorado Court of Appeals issued its opinion in People v. Garcia on Thursday, January 12, 2017.

Juvenal Onel Garcia was married to the victim, but in August 2010 a protective order issued against Garcia concerning the victim. However, on occasion in April 2012, he would go to the victim’s house to watch their children at her request. One night, he was late, and when he arrived the victim told him to leave because he had been drinking. He took her car keys and left. The victim eventually reported her car stolen after he did not return. When he came back, they physically struggled. According to the victim, Garcia then tried to take her clothes off and force intercourse, but she fought him off and he immediately masturbated. They resumed struggling, he prevented her from calling 911, and he left, again taking her car. The victim called police and was taken to the hospital.

Garcia was charged with first degree burglary, attempted sexual assault, unlawful sexual contact, third degree assault, violation of a protection order, and obstruction of telephone service, as well as attempted sexual assault and unlawful sexual contact. He was designated a sexually violent predator (SVP). Garcia appealed, arguing first that the trial court erred in not applying “knowingly” to every element of the offense of sexual assault, including the “caused submission” element. The court of appeals found no error. The jury instruction in this case was based on the model jury instruction then in effect, and although the model jury instruction was later amended to offset the word “knowingly,” the court concluded any error in the failure to offset “knowingly” was not obvious. The court of appeals found the trial court did not commit plain error and affirmed.

Garcia next contended his sentences for class 4 attempted sexual assault and class 4 unlawful sexual contact should be vacated because the jury was not instructed and therefore did not find that Garcia knowingly used force or submission, so elevation of the offenses to a higher class of felony was not warranted. After evaluating the instructions under a plain error standard, the court of appeals found none. The court found that a published opinion directly addressed and refuted Garcia’s contention, so there was no error in the trial court’s instructions.

Garcia also argued that the trial court erred in its interrogatory on force related to sexual assault because the trial court did not define “force,” “threat,” or “intimidation,” which are narrower in the legislative context than in ordinary use. The court of appeals again rejected his argument. The court again looked to prior case law that had addressed the issue, and affirmed Garcia’s convictions and sentences.

Garcia argued that the mens rea element for violation of a protection order was not proved. The court of appeals disagreed, finding there was plenty of evidence to show that Garcia knew the protective order was still in place and he was not supposed to contact the victim. The court affirmed this sentence and conviction also.

Finally, Garcia contended the trial court erred in designating him a sexually violent predator (SVP) because he neither established nor promoted his relationship with the victim for purposes of sexual victimization, as required by the statute. The court evaluated two supreme court cases that had not been decided at the time of Garcia’s conviction and remanded for reconsideration in light of the two cases.

Garcia’s sentences and convictions were affirmed, and the court of appeals remanded for consideration of the SVP designation in light of new precedent.

Colorado Court of Appeals: Universal Malice Requires Potential Harm to More than One Person

The Colorado Court of Appeals issued its opinion in People v. Anderson on Thursday, April 7, 2016.

Richard Anderson became depressed after his wife’s death and decided to commit suicide. After a night of drinking at a bar, he went to his car and pulled a gun on another of the bar’s patrons. He then left, and the other patron called the police. A police officer found him quickly and pulled him over in an isolated area with no other cars or people. Anderson shot at the officer multiple times, grazing his arm with one of the bullets, and the officer shot him, ending the conflict.

Anderson was charged with and convicted of attempted extreme indifference first degree murder; first degree assault, threatening a peace officer with a weapon; first degree assault, serious bodily injury with a deadly weapon; and first degree assault, extreme indifference. At trial, Anderson admitted shooting the officer but maintained that he did not mean to harm the officer but rather intended to have the officer shoot and kill him, and thus lacked the requisite mens rea for extreme indifference first degree murder. During trial, the jurors submitted five separate notes to the court, evidencing trouble reconciling the intent element of the extreme indifference charge. He was convicted and sentenced to a total of 108 years.

On appeal, Anderson contended the evidence was insufficient to support the extreme indifference conviction, the jury was improperly instructed on the mens rea element for both attempted extreme indifference murder and extreme indifference murder, his convictions for first degree assault violate double jeopardy, and his sentences are based on identical evidence and must run concurrently. The Colorado Court of Appeals agreed with his sufficiency challenge on the attempt conviction because his conduct only endangered one person. The court held that Anderson’s conduct was not the type that demonstrated the universal malice contemplated by the statute.

The court also agreed with Anderson that he should receive a single conviction for first degree assault because his three convictions violate double jeopardy. Since the three convictions were based on the same victim and the same act, they must be merged. The court did not address Anderson’s contentions about concurrent sentencing because of its double jeopardy finding.

The court of appeals vacated Anderson’s convictions for attempted extreme indifference murder, first degree assault (extreme indifference), and either first degree assault (peace officer) or (serious bodily injury), and remanded for correction of the mittimus.

Colorado Court of Appeals: “Sufficient Consequence” Language in Sexual Assault Statute Not Unconstitutionally Vague

The Colorado Court of Appeals issued its opinion in People v. Komar on Thursday, December 3, 2015.

Sexual Assault—Unconstitutionally Vague—Jury Instructions—Mens Rea—Prior Inconsistent Statements.

M.A., the victim, celebrated her 21st birthday with several others and later went to bed in a severely intoxicated state. M.A. testified that she awoke to find defendant engaging in sexual intercourse with her. She told him to stop, screamed for help, and defendant continued the assault until M.A.’s friends pulled defendant off of her. The jury found defendant guilty of sexual assault by causing the victim’s submission through means of sufficient consequence to overcome her will, a class 4 felony.

On appeal, defendant argued that the “sufficient consequence” language of the sexual assault statute, CRS § 18-3-402(1)(a), is unconstitutionally vague, both on its face and as applied to him. When the statute is read as a whole, a reasonable person is put on notice that a class 4 sexual assault is committed when causing submission by “means of sufficient consequence.” Further, the evidence supporting defendant’s conviction showed, at a minimum, that defendant continued to sexually penetrate M.A. after she explicitly and forcefully instructed him to stop. Imposing sexual penetration despite clear and affirmative non-consent paradigmatically constitutes sexual penetration “by means of sufficient consequence reasonably calculated to cause submission.” Accordingly, this statute is not unconstitutionally vague on its face or as applied to defendant.

Defendant also argued that the district court erred by failing to instruct the jury that the mens rea element of “knowingly” applies to the fourth element of sexual assault. Although the instruction did not specifically tie “knowingly” to the last element of the offense, it did inform the jury that to convict it must find the sexual penetration had been achieved by means “reasonably calculated to cause submission against the victim’s will.” Hence, the district court adequately instructed the jury.

Defendant next argued that the district court reversibly erred by sustaining the prosecutor’s objection to testimony concerning M.A.’s prior inconsistent statements and by limiting defense counsel’s questions concerning those statements. On direct examination by defense counsel, M.A. testified that she had never accused anyone other than defendant of sexual assault and no other individual had sexually assaulted her. Defense counsel called Stone as a witness to impeach M.A.’s in-court testimony and to show that M.A. had previously made false accusations of sexual assault. The trial court abused its discretion when it excluded Stone’s testimony concerning M.A.’s prior statements; however, any error was harmless.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Enticement of a Minor Conviction Affirmed Regardless of Defendant’s Intent to Engage in Specific Acts

The Tenth Circuit Court of Appeals issued its opinion in United States v. Faust on Tuesday, August 4, 2015.

David Faust exchanged a series of email and text messages with an FBI agent posing as a 37-year-old woman named “Joelle,” where he agreed to pay $200 for a sexual encounter with Joelle and her 12-year-old daughter. On the day of the agreed-upon encounter, he told Joelle he did not have the money, and she said that the sexual encounter would only be with her young daughter. He agreed to meet Joelle and the daughter at a motel. He drove to the motel but did not park; instead, he turned around and got on the highway, where he was arrested. He was indicted on one count of attempted online enticement of a minor, and, after a jury trial, he was convicted and sentenced to 10 years’ imprisonment followed by 10 years’ supervised release.

Faust appealed, arguing the evidence was insufficient to support his conviction and that the district court abused its discretion by refusing his proposed specific intent jury instruction. The Tenth Circuit first addressed Faust’s sufficiency argument. Faust contended that by driving away from the motel he showed that he had no intention of following through with the arrangement for a sexual encounter with Joelle’s daughter and therefore the government failed to show that he took a substantial step toward illegal sexual activity. The Tenth Circuit noted that a jury could well have disagreed with Faust’s characterizations of why he drove away from the parking lot but also found that it need not reach Faust’s argument because it was predicated on a misunderstanding of the mens rea element of the offense. The Tenth Circuit noted the government was only required to show that Faust intended to entice a minor, not that he intended to commit the underlying sexual act. The Tenth Circuit found ample evidence to support that Faust took a substantial step toward the inducement, enticement, or persuasion of a minor. The Tenth Circuit also noted that it was of no consequence that Faust’s communications were through an adult intermediary. The Tenth Circuit noted that even if Faust had never traveled to the motel the evidence was sufficient to support his conviction based on his conveyed desire to follow through with the sexual act with the daughter after the mother said she would be unavailable.

The Tenth Circuit also rejected Faust’s argument that the district court erred in refusing his specific intent instruction. Although Faust failed to properly preserve the issue for appeal, the government failed to raise that as a bar to review, so the Tenth Circuit reviewed the issue for abuse of discretion. The Tenth Circuit noted that specific intent instructions are disfavored because of their potential to confuse the issues, and the better practice is to instruct on the intent necessary for the crime of conviction. The Tenth Circuit analyzed the jury instructions and found they sufficiently advised that the requisite mens rea was that defendant “knowingly” act. Because the district court correctly defined “knowingly,” the Tenth Circuit found no abuse of discretion in its rejection of the specific intent instruction.

The district court’s judgment was affirmed.

Colorado Court of Appeals: Evidence Insufficient to Prove Knowledge that Social Security Number Belonged to Someone Else in Identity Theft Case

The Colorado Court of Appeals issued its opinion in People v. Perez on Thursday, May 9, 2013.

Identify Theft—Criminal Impersonation—Evidence—Mens Rea.

Defendant appealed the judgment of conviction entered on jury verdicts finding him guilty of identity theft and criminal impersonation. The convictions were vacated.

Defendant was charged with identity theft and criminal impersonation for using another person’s Social Security number to obtain employment. On appeal, defendant asserted that the prosecution presented insufficient evidence to sustain his identity theft convictions. The identity theft statute, CRS § 18-5-902, requires that the prosecution prove that the defendant knew the Social Security number at issue belonged to someone. The prosecution failed to present sufficient evidence of this element.

Defendant also contended that the evidence was insufficient to support his criminal impersonation conviction, because the prosecution failed to prove that he assumed a false or fictitious identity or capacity. Although there might have been evidence that the employers would not have hired defendant unless he had a Social Security number, there was no evidence that a Social Security number was legally required for employment. Thus, the evidence was not sufficient to prove defendant assumed a false capacity.

Summary and full case available here.

Tenth Circuit: Defendant Needs No Knowledge of Distribution Capability of File Sharing Program He is Using to View Child Pornography for Sentence Enhancement to Apply

The Tenth Circuit issued its opinion in United States v. Ray on Friday, February 1, 2013. This is an amended opinion after the panel granted panel rehearing in part. En banc consideration was denied. The court had previously published its opinion in this case on November 6, 2012 and the following summary is from Legal Connection’s November 8th post as the holding of the case has not changed.

In August 2011, Defendant Ray pleaded guilty to the knowing, intentional, and unlawful receipt of child pornography. In its presentence investigation report (PSR), the probation office assigned defendant, among other sentence enhancements, a two-level enhancement because defendant’s offense involved the distribution of child pornography. Defendant objected to the enhancement on the ground that the government had offered no evidence that defendant had distributed any child pornography or that any of the files downloaded had later been shared with another computer. Defendant further argued that even if such sharing had occurred, such sharing had been unintentional.

This appeal presents the question whether the district court could properly apply the two-level sentencing enhancement for the distribution of child pornography when the record indicated only that defendant used a peer-to-peer file-sharing software and that its sharing function was enabled, but not that defendant actually knew his software was capable of sharing files.

The Tenth Circuit held that § 2G2.2(b)(3)(F) does not require that a defendant know about the distribution capability of the program he is using to view child pornography. The Court noted it had repeatedly held that when the plain language of a guideline, in contrast to a criminal statute, does not include a mens rea element, the court should not interpret the guideline as containing such an element. The sentence enhancement was therefore properly applied.

The Tenth Circuit also rejected defendant’s claims that the district court unconstitutionally made findings for sentencing enhancements under a preponderance-of-the-evidence standard, that the court erred procedurally at sentencing, and that the sentence was substantively unreasonable. Accordingly, defendant’s sentence was AFFIRMED.