Sealed Appellee v. Sealed Appellant

• Decision Date: 07 June 2016
• Docket Number: No. 15-50139,15-50139
• Parties: Sealed Appellee, Plaintiff–Appellee v. Sealed Appellant, Defendant–Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

825 F.3d 247

Sealed Appellee, Plaintiff–Appellee

v.Sealed Appellant, Defendant–Appellant

No. 15-50139

United States Court of Appeals, Fifth Circuit.

Filed June 7, 2016

JAMES E. GRAVES, JR., Circuit Judge:

FACTUAL SUMMARY

The appellant (JA-L)¹ was charged in a superseding indictment with transporting his daughter, a minor under age 12, from Texas to Mexico and engaging in a sexual activity with her in violation of 18 U.S.C. § 2423(a) and 18 U.S.C. § 2241(c). JA-L was found guilty on both counts after a jury trial. The district court denied JA-L's request for a downward departure and sentenced him, pursuant to the advisory Guidelines, to two concurrent terms of life imprisonment to be followed by concurrent lifetime terms of supervised release. JA-L appeals his conviction and sentence. We affirm.

DISCUSSION

I. Sufficiency of the evidence of criminal intent.

JA-L asserts that there was insufficient evidence to prove beyond a reasonable doubt the intent element of each of the crimes. Because JA-L properly preserved his challenge to the sufficiency of the evidence, we review this issue de novo. See United States v. Winkler, 639 F.3d 692, 696 (5th Cir.2011). Evidence will be deemed sufficient to convict if, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (emphasis in original). In making this inquiry, “[w]e view the evidence in the light most favorable to the verdict and indulge all reasonable inferences in favor of the verdict.” United States v. Mulderig , 120 F.3d 534, 546 (5th Cir.1997). Further, “we apply a rule of reason, knowing that the jury may properly rely on their common sense and evaluate the facts in light of their knowledge of the natural tendencies and inclinations of human beings.” Id. at 547 (internal quotation marks and citation omitted). A defendant who challenges the sufficiency of the evidence “swims upstream.” Id . at 546.

JA-L was charged with two counts in a superseding indictment. Count 1 was the violation of § 2423(a), which prohibits knowingly transporting an individual under the age of 18 in interstate or foreign commerce “with intent that the individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense....” See 18 U.S.C. § 2423(a). Count 2 was the violation of § 2241(c), which prohibits crossing a “State line with intent to engage in a sexual act with a person who has not attained the age of 12 years....” See 18 U.S.C. § 2241(c).

JA-L asserts that the Government failed to present sufficient evidence to prove that he transported the victim with the intent to commit a sexual act. Both §§ 2241(c) and 2423(a) require that the defendant had the intent of engaging in sexual activity with a minor.

This court has addressed the elements of § 2423 by reference to the Mann Act. See United States v. Campbell , 49 F.3d 1079, 1081–82 (5th Cir.1995). Section 2423(a) makes it a crime to “knowingly transport[ ] an individual who has not attained the age of 18 years in interstate or foreign commerce ... with intent that the individual engage in ... any sexual activity for which any person can be charged with a criminal offense.” 18 U.S.C. § 2423(a). Transporting a victim across a state line with the intent to engage in unlawful sexual activity is an element of the offense. United States v. Lewis , 796 F.3d 543, 547 (5th Cir.2015). While the intent to engage in criminal sexual activity need not be the sole purpose of the transportation, it “must be the dominant motive” of the travel. See Mortensen v. United States , 322 U.S. 369, 374, 64 S.Ct. 1037, 88 L.Ed. 1331 (1944). See also United States v. Hitt , 473 F.3d 146, 152 (5th Cir.2006) (“engaging in illicit sexual activity was ‘one of the efficient and compelling purposes of the travel.’ ”); Campbell , 49 F.3d at 1082.

Relevant here, an offense under § 2241(c) is committed when a person “crosses a State line with intent to engage in a sexual act with a person who has not attained the age of 12 years....” 18 U.S.C. § 2241(c). This court has not yet defined the elements of a § 2241(c) offense nor decided what is necessary to prove the intent element of the offense. But the Third, Ninth and Tenth Circuits have held that the offense has three elements: (1) the crossing of a state line; (2) with the intent to engage in a sexual act with a minor under the age of 12 years; (3) and either performing or attempting to perform the act. United States v. Lukashov , 694 F.3d 1107, 1121 (9th Cir.2012) (“The essential conduct elements [of § 2241(c) ] are (1) crossing a state line, (2) with intent to engage in a sexual act with a child, and (3) engaging in or attempting to engage in a sexual act with a child.”); United States v. King , 604 F.3d 125, 139 (3d Cir.2010) (“The offense of interstate transportation to engage in sex with a minor contains three elements: (1) crossing interstate lines; (2) with the intent to engage in a sexual act with a minor; and (3) either performing or attempting to perform the act.”); and United States v. Cryar , 232 F.3d 1318, 1322 (10th Cir.2000) (Government must show defendant “crossed state lines with the intent to engage in a sexual act with a child under twelve, and that he attempted to do so.”). In Cryar, the Tenth Circuit considered a claim that the evidence was insufficient to support the intent element of this offense and, in analyzing the claim, echoed Mortensen's holding that the illicit sexual activity need not be the sole purpose for traveling across state lines but had to be one of the “efficient and compelling” or dominant purposes for doing so. Cryar , 232 F.3d at 1324. The Ninth Circuit, citing Cryar, has used the same inquiry. Lukashov , 694 F.3d at 1119 (“dominant, significant, or motivating purpose”).

These cases are persuasive authority on the intent element of the offense under § 2241(c). Further, the language of both 2423(a) and 2241(c) requires a defendant to do an act with the intent of engaging in illicit sexual activity with a minor. 18 U.S.C. § 2423(a) (transporting a minor in interstate or foreign commerce with such intent); 18 U.S.C. § 2241(c) (crossing a state line with such intent). Therefore it is logical to make the same inquiry when considering the sufficiency of the evidence to support the intent element of either offense. Moreover, the court's instruction to the jury echoed Mortensen's dominant-purpose inquiry on intent, and JA-L does not challenge that instruction on appeal.

The following evidence was presented at trial. JA-L was married to VG, and Jane Doe is the eldest of their three children. The family lived in Del Rio, Texas. The couple had a tumultuous marriage and separated multiple times only to later reconcile. During those short-term separations, VG would take the children and go stay at JA-L's mother's house in Acuna, Mexico, which is just across the border from Del Rio. The couple permanently separated in December 2013. For a time, both JA-L and VG remained in Del Rio, and VG had a boyfriend. In mid-January 2014, JA-L moved to Greenville, Texas, and, in mid-March 2014, VG moved to Midland, Texas, with the three children.

Between December 2013 when the couple separated and March 2014 when VG moved to Midland, JA-L would pick the children up approximately once a month on a Friday after school and take them to Acuna for the weekend to visit his mother and sisters. According to JA-L, the reason he took the children to his mother's house in Mexico was because he no longer had a house in Del Rio where he could visit with them. On Sunday evenings, either VG, her father, or her aunt would pick the children up in Mexico and bring them home.

During a visit in January 2014, JA-L and VG fought when JA-L saw bruising on VG's neck that she had sustained during an amorous encounter with another man. During that argument, JA-L threatened to file for divorce, sue for custody of the children and report VG to the government for receiving illegal benefits.

On Friday, February 21, 2014, JA-L met VG at a McDonald's restaurant in Del Rio to begin his monthly visit. According to VG, Doe did not want to go with her father for the weekend, but JA-L insisted that he had a right to see her. When Doe got into the car, VG saw JA-L pointing and waving his hand in an accusatory manner at Doe, who was in the backseat. When VG went to the car to see if everything was alright, JA-L “just smirked, smiled and said nothing is wrong, I'm just asking if she still loves me.” To VG, Doe appeared scared. At the time of that trip, JA-L already knew that VG would be moving to Midland with the children the following month.

In April 2014, approximately a month after VG had moved the children to Midland and enrolled them in school there, Doe disclosed to VG that JA-L had sexually abused her. VG reported the information to the police in Del Rio and took Doe to the hospital in Midland for a physical examination. Cori Armstead, the nurse who conducted the examination of Doe, concluded that the physical examination of Doe's genital area supported Doe's claim that she had been sexually assaulted. Armstead testified regarding the following statements that Doe made during that examination. JA-L first sexually assaulted Doe when she was eight years old, and he had assaulted her many times. When VG would leave for work, JA-L would grab Doe by the feet and drag her to another room or he would simply pick her up to carry her and then drop her on the bed. JA-L last had sex with Doe when the family stayed at Doe's grandmother's house in Mexico. Her father had penetrated her vaginally and had given her half of a pill to take when he had finished. JA-L threatened to kill Doe if she revealed the abuse, and Doe felt she could not tell anyone about the abuse because her father was always...