US v. Kelly, No. 16-10460 (10-30-17)(Tallman w/Gould & Watford).

This raises a "delegation" and other constitutional challenges to DEA's temporary scheduling a controlled substance (designer drugs).  The 9th denied the challenges.  The 9th concludes that Congress can delegate and that the DEA did not violate the non-delegation doctrine when it temporarily scheduled ethylone (the drug here - Ectasy). The DEA complied with the new for findings, and were sufficient.  There was also fair notice and the rule of lenity is not violated.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/10/30/16-10460.pdf

 

Case o' The Week: Ninth Reverses Convictions for Three Grizzly Deaths - Wallen and Good Faith Self-Defense

 The AUSA and MJ won’t like our subjective “good faith” self-defense theory after reversal and remand.

  (But they’ll have to grin and “bear” it).

United States v. Wallen, 2017 WL 4799292(9th Cir. Oct. 25, 2017), decision available here.

Players: Decision by Judge Fisher, joined by Judges O’Scannlain and Friedland. Admirable win by Assistant Defender John Rhodes, Federal Defenders of Montana.

Facts: Wallen lived in Montana. There are bears. Specifically, three grizzlies killed his chickens, ran near his kids, scared his wife, and returned repeatedly despite being chased off. Id. at *2. When the bears returned to the home for the third time in one day, Wallen killed them. Id.

  He gave different narratives of what happened to agents, and was charged with three misdemeanor counts of violating the Endangered Species Act. Id.

  At the bench trial, Wallen asserted he shot the bears in self-defense. Id. at *2. Id. The magistrate judge, as the factfinder, found Wallen’s claim of self-defense was objectively unreasonable and found him guilty. Id. at *3.

 Wallen appealed.

Issue(s): “Here, the parties dispute whether the ‘good faith belief’ standard an objectively reasonable belief, as the government argues, or requires only a subjective belief in the need to protect oneself or others, as Wallen maintains. The magistrate judge and district court applied an objective test.” Id. at *5.

Held: “We conclude that was error.” Id. “We now hold that subjective good faith belief suffices to establish self-defense under this statute.” Id. 

  “We . . . construe § 1540(b)(3) in accordance with the general principle that a good faith belief defense ordinarily depends on a defendant’s subject state of mind rather than the objective reasonableness of the defendant’s belief . . . .” Id. at *8.

Of Note: The Endangered Species Act provides a defense when the defendant kills an endangered animal, but had a “good faith belief he was acting to protect himself or herself” or others from bodily harm. Id. at *5 (quoting 16 U.S.C. § 1540(b)(3)). Judge Fisher concludes that the words “good faith” requires an analysis of the defendant’s subjective belief – not the (more difficult) “objective” reasonable person standard. Id. at *5-*6.

  “But wait,” you may ask, “doesn’t the vanilla federal assault statute require that more-difficult objective, ‘reasonable’ belief of danger to argue self-defense?”

  It does indeed.

  Judge Fisher observes that 18U.SC. § 113 (“Assaults within maritime and territorial jurisdiction”) only permits a self-defense theory when a defendant reasonably believes the force was necessary. Id. at *6, quoting United States v. Keiser, 57 F.3d 847, 851 (9th Cir. 1994). Shoot a grizzly and your sincere belief in the need for self-defense is enough. Assault a human, and a “reasonable,” objective belief in the need for self-defense is necessary.

   Weird? Blame Congress, explains this admirably honest opinion. Id. at *6. The two statutes are written differently: unlike the Endangered Species Act, the Section 113 assault statute has no “good faith” language. The Ninth is just calling ‘em like Congress writes ‘em.

How to Use: Fourth Amendment fans may get a little nervous with all this “subjective good faith” language that peppers Wallen. In a world where Leon and Jacobson give cops a “good faith” harbor, does Wallen mean that a cops who honestly – but unreasonably – believe a search was righteous escapes suppressesion?

  It does not. 

  Judge Fisher carefully distinguishes those other good faith cases, that arise in the context of the Fourth Amendment and § 1983 claims. A cop’s assertion of good faith for a search, and the government’s assertion of good faith in the context of the Stored Communications Act, still must be objectively reasonable. Id. at *7.

                                               

For Further Reading: Last summer, Senator Jeff Flake (R-Arizona) introduced a bill to split the Ninth– and held a hearing on the issue. See article here.  

 This week, Senator Flake famously explained he would not be seeking re-election – and added a bon mot or two with his announcement. See article here. 

  Impossible to predict the Split’s momentum, but safe to predict it won’t come be from a bill sponsored by Senator Flake.

Image from the Big Lebowski from https://i.pinimg.com/originals/98/cf/76/98cf7624015401cbfba1eb733640b428.jpg

Steven Kalar, Federal Public Defender, N.D. Cal. Website at www.ndcalfpd.org

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US v. Wallen, No. 16-30033 (10-25-17) (Fisher w/O’Scannlain, Friedland).  

This is a case about the three grizzly bears, and their being shot by the defendant.  The 9th vacated the conviction under the Endangered Species Act because the magistrate judge, at the bench trial, used the wrong standard for self-defense.  The 9th holds that the “good faith belief” defense for a 16 U.S.C. § 1540 prosecution is “subjective” and not “objective.” It is satisfied when “a defendant actually, even if unreasonably, believes his actions are necessary to protect himself or others from perceived danger from a grizzly bear.”

The case arose when three grizzly bear cubs were seen around homes in Ferndale, Montana (bear country). The cubs were human food conditioned, liked food like chicken feed, and were not afraid of approaching humans to get food.  The cubs killed a number of the defendant’s chickens.  The bears then came back, and scared the family. The defendant chased them away with his truck.  Later, when the bears returned again, the defendant shot them.  A neighbor said at no point did the bears appear to behave aggressively to him or humans. The defendant never called authorities.  He also gave contradictory stories about the bears.

A magistrate court tried and convicted the defendant.  The court denied his request for a jury trial, and used an objective standard for self-defense.  The sentence was five years probation (sixty days at a halfway house), and $15,000 in restitution.

On appeal, the 9th quickly disposed of the jury argument. The maximum penalty of imprisonment was six months, and does not get a jury trial because it is a petty. Lewis v. US, 518 US 322 (1996). The other consequences, such as probation and restitution, were not sufficiently severe to warrant a jury.

The 9th did find that the “good faith” self-defense required a subjective standard. The defendant can argue that he had a good faith belief that the bear cubs threatened him or his family.  The 9th examined the objective standard in other offenses, and the special good faith in this defense, added by Congress in 1978 after an elderly couple shot a bear they said threatened them.

This is not a license for any belief.  A good faith subjective belief can still be unreasonable. Upon retrial, the court can consider acts that would show it was unreasonable to believe the bears posed a danger.

The 9th lastly refused to grant a jury trial because the judge had sat as a trier of fact.

Congrats to John Rhodes, AFPD, D. Montana (Missoula).  

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/10/25/16-30033.pdf

Case o' The Week: Evidentiary Errors Just the Tip of the Berg - Preston, Lay Witness Testimony, FRE 404(b), and Prosecutorial Misconduct

 "Preston raises over fifteen individual trial errors, across seven different categories."

 (But three suffice).

United States v. Preston, 2017 WL 4638022 (9th Cir. Oct. 17, 2017), decision available here.

The Honorable Judges Alex Kozinski and Stephen Reinhardt

Players: Decision by visiting District Judge Berg, ED Mich., joined by Judge Reinhardt. Concurrence by Judge Kozinski.

  Big win for appellate counsel AFPD M. Edith (“Edie”) Cunningham, for trial counsel AFPD Jay Sagar, and Jon Sands, Federal Public Defender, District of Arizona.

Facts: As an adult, Mitchell Rosenberg alleged that he had been molested by the defendant, Preston, 14 years before while on a reservation in Arizona. Id. at *2. Preston was charged with aggravated sexual abuse of a child in federal court. Id. 

  During the jury trial, Rosenberg’s testimony was the only direct evidence for the government. Id. A therapist, Bussert, who had worked with Rosenberg testified: over defense objection, she opined on whether Rosenberg was telling the truth about the allegations of sexual abuse. 

  Preston was convicted and sentenced to 162 months. Id.

Issue(s): “On appeal, Preston argues that the district court and the prosecutor committed a variety of errors and that these errors – either independently or cumulatively – deprived him of his right to a fair trial.” Id. at *2.  

Held: “Preston raises over fifteen individual trial errors, across seven different categories. We reverse based on the cumulative effect of the following: (1) improper witness testimony that bolstered Rosenberg's credibility and offered opinion on the credibility of sex abuse allegations in general; (2) prejudicial propensity evidence in the form of Preston's ex-wife's testimony regarding a child incest fantasy Preston allegedly had in 2003; and (3) prosecutorial misconduct, namely: commenting on Preston's decision not to testify, witness vouching, and misstating the evidence in summation.” Id. at *3.

  “In addition to improper opinion testimony indicating that she believed Rosenberg individually, Bussart gave improper opinion testimony as a lay witness about whether sex abuse victims generally tell the truth.” Id. at *5.

  “In sum, the district court abused its discretion in (1) allowing the government's line of questioning that led to Bussart's three improper statements indicating that she believed Rosenberg's allegations, and (2) permitting a juror's question to be asked regarding whether Rosenberg demonstrated his emotions in a manner consistent with sex abuse victims generally. In addition, it was plainly erroneous for the district court to allow Bussart to state that allegations of sexual abuse in her patients had normally been true.” Id.

   “The cumulative effect of these [and additional] errors rendered Preston’s trial fundamentally unfair, and his conviction must therefore be reversed and the case remanded for a new trial.” Id. at *12.

Of Note: This debacle of a trial spawned enough error holdings on appeal for a dozen Case o’ The Week memos. It is a must-read.

  In addition to the above “lay witness” holding, the Court also delivers an important FRE 404(b) holding. Id. at *7. Preston’s ex-wife testified – over defense objection – that she had caught Preston masturbating to an image of his eight-year old stepson, years after the alleged crime. Id. The Ninth holds the district court abused its discretion in admitting this testimony under both FRE 404(b) and 403.

  Preston offers a thoughtful and valuable FRE 404(b) / FRE 403 discussion, that recognizes the extraordinarily prejudicial impact of “collateral” sexual evidence in these cases. Add it to your trial arsenal for in limine battles.  

How to Use: Lay witness errors, evidentiary errors - but wait, there’s more. Prosecutorial misconduct also infests this cornucopia of trial problems. The AUSA improperly commented on the lack of defense testimony, and vouched for the government witness, Rosenberg. Id. at *10-*11. Other holdings aside, Preston would still be a very important decision solely for its discussion of prosecutorial misconduct during closing argument. Id. at *10.

                                               

For Further Reading: Two particularly well-known jurists (and famed friends) were on Preston: Judges Reinhardt and Kozinski. 

  For a thoughtful piece mentioning both judges, and discussing some core facts in the morass of myth surrounding the Circuit split brouhaha, see Has the 9th Circuit gone ‘bananas?’ And can Trump break it up?, available here.

Image of Judge Kozinski and Judge Reinhardt from https://www.flickr.com/photos/aclu_socal/5927007238/in/photostream/ .

Steven Kalar, Federal Public Defender, N.D. Cal. Website at www.ndcalfpd.org

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US v. Bonnett, No. 15-10557 (10-10-17)(per curiam w/Schroeder, Tallman & Whaley).

"The issue of first impression is whether an obstruction of justice enhancement may be founded upon a finding of malingering." (3). The 9th holds "yes." This was for a competency evaluation.  The defendant changed behavior when interacting with staff versus medical personnel, refused to complete tests, and made admissions in phone calls to his wife.  The defendant argued that an obstruction enhancement chills his right to obtain a competency hearing.  The 9th brushes this aside, acknowledging that a defendant has a right to be deemed competent, but does not have a right to pretend he is not competent.  The 9th joins the Third, Fifth, Seventh, and Eleventh Circuits on this issue: "We join the other Circuits in holding that malingering may support an obstruction of justice enhancement pursuant to U.S.S.G. 3C1.1." This is a corollary to a previous precedent that allows obstruction for a refusal to participate in court-ordered testing.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/10/10/15-10557.pdf

Kirkpatrick v. Chappell, No. 14-99001 (10-10-17)(Reinhardt w/Wardlaw; dissent by Kozinski).

In a capital petition, the 9th holds that the district court erred in dismissing 20 claims as unexhausted.  The dismissal was based on a letter the petitioner had handwritten and filed with the California Supreme Court asking that his claims be dismissed as he wanted his sentence carried out.  The state court appointed a referee to determine if the waiver was knowing and voluntary.  The referee said "no," but the court declined to follow the recommendation and dismissed.  The federal district court dismissed federal claims for being unexhausted based on AEDPA deference.

The 9th parsed AEDPA's language, concluding that the deference refers to claims adjudicated on merits.  This dismissal was based was not on the merits of claims, but was whether it was knowing and voluntary. The record does not support evidence that this was a knowing and valid waiver.

Dissenting, Kozinski announces that his dissent doesn't matter because California does not have a functioning death penalty.  Kozinski would find sufficient evidence, and bemoans the fact that, to him, the petitioner is "crazy like a fox," and is playing the courts for these many years.  Kozinski continues to lament the promise of the death penalty, castigates some of the litigation as to lethal injection, and concludes that the death penalty is a charade in California.

Congrats to AFPDs Patricia Young and Mark Drozdowski, FPD Cal Central (Los Angeles CHU).

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/10/10/14-99001.pdf

US v. Slade, No. 16-30150 (10-10-17)(Bea w/McKeown & N. Smith).

 

The 9th vacates a sentence and remands because Washington's second degree assault, 9A.36.021, is not a "crime of violence" under the guidelines.  Applying the categorical approach, the panel holds the statute is not divisible.  The 9th concludes that the Supreme Court's decisions in Deschamps and Mathis overrule prior 9th precedent finding this statute divisible.

Congrats to AFPD Vanessa Pai-Thompson, FPD Wa Western (Seattle).

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/10/10/16-30150.pdf

US v. Preston, No. 15-10521 (10-17-17)(Berg w/Reinhardt; Kozinski concurring). Note:  This is an Az FPD case.

The 9th reverses convictions for agg sex abuse due to evidentiary errors and prosecutorial misconduct.  The offenses allegedly occurred in 1998, and were only remembered in 2012, 14 years later, when the victim was in trouble with the law and had drug issues.  At trial in 2015, the errors cumulative effect was to render the trial fundamentally unfair.  The evidentiary errors concerned an expert who gave improper expert testimony related to the victim's truthfulness as to the sexual abuse and characteristics of child sexual victims; and FRE 404(b) from an ex-wife about masturbation and fantasies that differed or were not tied to the acts here (oral sex with a 10 year old). It was offered seemingly for intent.   The prosecutor engaged in misconduct by vouching, alluding to defendant's failure to testify and rebut the accusations, and misstatement of the evidence.

Concurring, Kozinski states that in any retrial, the prosecution can try to link the evidence of fantasies and masturbation to another basis for admission, such as sexual arousement by young boys.

Congrats to Edie Cunningham, AFPD, D. Az (Tucson Appeals) and Jay Sagar, Trial AFPD, for the win.

 
http://cdn.ca9.uscourts.gov/datastore/opinions/2017/10/17/15-10521.pdf

Case o' The Week: "Crazy" Clamor, Obstruction Hammer - Obstruction of Justice, Malingering, and Competency Evals

 Ninth naysays "obstruction" bee in our sentencing bonnet. 

United States v. Bonnett, 2017 WL 4509039 (9th Cir. Oct. 10, 2017), decision available here.

Players: Pur curiam decision by Judges Schroeder, Tallman and DJ Whaley.

Facts: Bonnett was charged with one count of receipt and distribution of child porn. Id. at *1. He was made to undergo a court-ordered pysch eval for competency. Id. The shrink concluded that “Bonnett was feigning incompetency.” Id. After his guilty plea, Bonnett received an increase in his guideline sentence for “obstruction of justice,” based on “malingering.” Id.

Issue(s): “[Bonnett] challenges the two-level adjustment for obstruction of justice pursuant to U.S.S.G. § 3C1.1 . . . .” Id. at *1. “The issue of first impression in this Circuit is whether an obstruction of justice enhancement may be founded upon a finding of malingering.” Id. “[ ] Bonnett contends that permitting an obstruction of justice enhancement on the basis of his performance in a competency evaluation chills his exercise of the right to obtain a competency hearing.” Id.

Held: “We join other Circuits in holding that malingering may support an obstruction of justice enhancement pursuant to U.S.S.G § 3C1.1.” Id. at *2.

Of Note: While disappointing, this outcome is not terribly surprising. Four other circuits have upheld obstruction enhancements in the context of competency evaluations. Id. at *1. More importantly, the Ninth had already held that refusing to participate in a competency evaluation can support an obstruction enhancement. Id. at *2 (citing United States v. Fontenot,14 F.3d 1364, 1372 (9th Cir. 1994)).

  Nonetheless, despite the Ninth’s brief per curiam resolution of this thoroughly hairy issue, the confluence of competency and obstruction raises thorny problems for both defense counsel and shrinks (see below).

How to Use: First, us. Should defense counsel now balk on competency motions, when the possibility of a malingering finding may trigger an obstruction enhancement? The federal competency statute only suggests that defense counsel may make a motion “to determine the mental competency of the defendant.” 18 U.S.C. § 4241(a).

  Admittedly, there are those awkward questions to defense counsel about a defendant’s competency during a Rule 11 plea competency (not to mention the uncomfortable ethical issues arising from pleading out a potentially crazy client). 

  At minimum, if you worry that your client has a Klinger routine going, have a frank talk about Bonnett and the obstruction enhancement (and consider a private defense mental health eval before Court shrinks build that obstruction foundation for the PSR).

                                               

For Further Reading: Second, shrinks. Psychologists and psychiatrists assure our clients that competency evals are protected, and that their talks and tests are just used to determine their ability to understand the charges and assist counsel.

  That now ain’t true – creating a real ethical quandary for mental health professionals.

  For an interesting fret on this ethical dilemma, see Shaheen Darani, Behavior of the Defendant in a Competency-to-Stand-Trial Evaluation Becomes an Issue in Sentencing, Journal of the American Academy of Psychiatry and the Law Online, January 2006, 34(1), 126-128, available here. (“Based on this ruling, is it necessary to inform the defendant that information gathered as part of the evaluation may be used for purposes outside of the competency evaluation? Would it also follow that the defendant should be advised that uncooperativeness or feigning of symptoms could lead to a finding of obstruction of justice and, therefore, a harsher sentence? The challenge in adopting this warning becomes the determination of the level of uncooperativeness that might rise to the level of obstruction of justice.”)

Image of bee in the bonnet from https://ashleeblucas.files.wordpress.com/2012/11/bee-in-your-bonnet.jpg.

Steven Kalar, Federal Public Defender Northern District of California. Website at www.ndcalfpd.org

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Case o' The Week: A Stitch in Twine Saves Nine (from reversing) - Spatig and Mens Rea in "Knowingly" Statutes

  Mens rea, frayed Twine, on Ninth's mind.

 United States v. Spatig, 2017 WL 4018398 (9th Cir. Sept. 13, 2017), decision available here.

Players: Decision by Judge McKeown, joined by Judge Nguyen and visiting 10th  Circuit Judge Murphy.

 Hard fought appeal by AFD Steven Richert, Federal Defenders Services of Idaho.

Facts: Spatig ran a company that ended up with lots of bulk paint and paint-related materials. Id. at *1. When Spatig’s wife became ill he stopped working and decided to store these materials at his Idaho residence (with no EPA permit). Id. County officials found the stuff in 2005 and destroyed much of it. Id.

  However, in 2010, hazardous materials were again found strewn across the property: corroded, rusted, and not stored safely. Id. An EPA team came in, removed over 3,000 containers, and spent almost half a million dollars on the clean-up. Id.

  Spatig was charged with knowingly storing and disposing hazardous waste, without a permit, in violation of 42 USC § 6928(d)(2)(A) (the “Resource Conservation and Recovery Act,” or “RCRA.”) Id.

  The government won an in limine motion to preclude evidence on Spatig’s diminished capacity, arguing the offense was a general-intent crime. Id. Spatig was convicted after trial.

Issue(s): “The key issue on appeal is whether § 6928(d)(2)(A) defines a crime of general or specific intent, as that decision dictates whether Spatig can advance a diminished-capacity defense. We have consistently held that diminished capacity defenses are not available to defendants who are accused of general intent crimes.” Id. at *2 (quotations and citations omitted).

Held: “[W]e affirm because § 6928(d)(2)(A) defines a general-intent crime.” Id. “Because § 6928(d)(2)(A) defines a crime of general intent, the district court did not err in excluding evidence of Spatig’s diminished capacity.” Id. *4.

Of Note: “But wait,” you protest, “what about Twine?” In that 1988 decision, Judge Brunetti looked at a pair of statutes that prohibited knowingly conveying a threat – the same operative verb in the charge facing Spatig. See United States v. Twine, 853 F.2d 676 (9th Cir. 1988). The Court held that those statutes required an “intent to threaten,” and thus required “specific intent.” Id. at 680.

  Judge McKeown is unpersuaded.

  Twine, Judge McKeown concludes, covers offenses that are “akin to ‘classic’ specific-intent crimes,” while the hazardous waste statute in Spatig is “agnostic” as to the defendant’s aim. Id. at 2017 WL 4018398 at *3.

  The Court also takes a swipe at Twine, opining that the Ninth has “softened on the reasoning” of the decision and reporting the circuit split engendered by the case. Id. at *3 & n.2.

  It is a disheartening discussion for those on all sides of the political spectrum who worry about federal prosecutions in a strict liability world, checked only by prosecutorial discretion.   

How to Use: Good Conservatives (well, at least, good Federalists) distrust the regulatory state and worry about the constant erosion of mens rea requirements in federal criminal statutes and regs. As President Trump’s judicial appointees join the district courts and Ninth (and more Justices join the Supreme Court), the time is ripe for a renewed mens rea effort by the federal defense bar.

   More immediately, and despite the discounting of the Spatig panel, note that Twine remains good law. Spatig’s “akin to classic specific-intent” distinction of Twine feels like an awfully fuzzy test. When advocating for specific intent for a “knowingly” statute, brush off your copy of Reading Law, channel Justice Scalia’s originalism vibe, and root about old common law for “classic” specific-intent analogues that are arguably “akin” to offenses in “knowingly” statutes.   

                                        

For Further Reading: “The Supreme Court has long recognized a ‘presumption’ grounded in our common law tradition that a mens rea requirement attaches to ‘each of the statutory elements that criminalize otherwise innocent conduct.’”

  Who penned these wise words?  Then-Judge, now-Justice Gorsuch. See Neil Gorsuch on criminal defendants and the rule of law, available here. 

Image of severed twine from http://photos1.blogger.com/blogger/123/954/1600/rope%20fray%202.1.jpg

Steven Kalar, Federal Public Defender, Northern District of California. Website available at www.ndcapfpd.org

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Case o' The Week: Ninth Mulls Serious Minor Issue: Jayavarman and Mens Rea for Foreign Child Porn Cases

  You gotta believe.

  (And that'll get you convicted).

 United States v. Jayavarman, 2017 WL 4247402 (9th Cir. Sept. 26, 2017), decision available here.

Players: Decision by Judge Clifton, joined by Judges Graber and M. Smith.  

Facts: Jayavarman visited Cambodia and made videos of himself having sex with a female he believed was a minor. Id. at *2. Evidence at trial(including a disputed birth certificate) suggested that while Jayavarman thought the female was a minor, she may have been an adult when the videos were made. Id. [The jury apparently could not agree on whether the was a minor]. Id. 

  Jayavarman was tried on, among other things, “Count 1B.” That count alleged a violation of 18 USC § 2251(c)(1) and § 2251(e): attempting to persuade a minor, abroad, to produce child porn. Id. Jury instructions for this count did not require that the jury find that the female was actually under the age of eighteen. Id. at *4. 

  Jayavarman was convicted and sentenced to 216 months. Id. at *11.

Issue(s): “Jayavarman [contends] . . . that a jury must find that the victim was actually a minor, as opposed to finding that the defendant believed the victim was a minor, in order to convict a defendant of an attempted violation of 18 U.S.C. § 2251(c).” Id. at *3. 

  “In this case, we consider what happens when a defendant believes that the victim appearing in a depiction is a minor but the victim turns out to be an adult. That defendant cannot be convicted of the completed version of the crime, but can he be convicted of attempt?” Id. at *2.

Held: “We answer that question in the affirmative: a defendant attempts to produce and transport a visual depiction of a minor engaged in sexually explicit conduct when he believes that the victim is a minor, regardless of the victim’s actual age.” Id. at *2.

  “We conclude that a person may be convicted for attempting to commit the crime charged in Count 1B if he believed that the victim was a minor, even if the victim was not in fact a minor. On this attempt theory of the crime, the prosecution did not have to prove that the victim was actually a minor, and the district court correctly instructed the jury accordingly.” Id. at *3.

  “[A] defendant may be convicted of an attempt to violate § 2251(c) if he believes that the victim is a minor, even if the victim turns out to be an adult.” Id. at *5.

Of Note: By way of context, it is settled law that when a defendant personally interacts with a victim and actually produces and tranports child porn, there is no requirement under § 2251(c) for the government to prove that the defendant was aware that the victim was actually a minor. Id. at *4 (though note that there is a “reasonable mistake of age” defense). What makes this particular case different is that it involved attempted production. Id. at *5. Unfortunately, the Ninth’s 2004 decision in United States v. Meek, 366 F.3d 705 (9th Cir. 2004) set a (low) mens rea bar. 

  In Meek, the Ninth upheld an attempted child prostitution conviction under § 2422(b), where the defendant thought he was corresponding with a minor victim, but it was actually dealing with an undercover cop. Id. at *5. The Ninth held that the “simple fact of Meek’s belief [as to the age of the victim] is sufficient as to [the mens rea] element of a § 2422(b) violation.” Id. Judge Clifton finds no basis to distinguish the statute at issue in Meek from the § 2251(c) statute charged in Jayavarman: conviction upheld.

How to Use: In this case, Jayavarman’s conviction was upheld when he attempted to create child porn abroad with a female he believed was a minor – but may have been an adult. What about the reverse scenario? What if a defendant attempts to violate § 2251 with a victim he believes is an adult, but that turns out to be a minor?

  The Ninth expressly dodges this fact pattern: flag this as an issue to be fought another day. Id. at *5 & n.3.

                                               

For Further Reading: Turns out that you, and the Heritage Foundation, agree: the federal criminal code is a trap for the unwary, and needs meaningful mens rea reform. 

   For an interesting piece advocating for Congressional action, see John Malcolm, The Importance of Meaningful Mens Rea Reform, available here. 

Image of Cambodian birth certificates from https://blogger.googleusercontent.com/img/b/R29vZ2xl/AVvXsEiHI-rzpsc4Fkofi0G4_WwAqjPD83k6v9TFYfHMBBabKrJ7PRbGUd-F5bl0Gy9vgnxN7g7PIA3NiNpnlx6QI3pgRO9Oj0Q6fTgZX2Q2s86ZeRLbtJrxrEn3KKmYHJGA7RNIyb9o7g/s1600/Birth+certificates_+Srey+Mao+and+Sam+Nang.JPG .

Steven Kalar, Federal Public Defender N.D. Cal. Website at www.ndcalfpd.org

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