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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