U.S. v. Cherer

• Decision Date: 25 January 2008
• Docket Number: No. 06-10642.,06-10642.
• Citation: 513 F.3d 1150
• Court: U.S. Court of Appeals — Ninth Circuit
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Paris CHERER, Defendant-Appellant.

513 F.3d 1150

UNITED STATES of America, Plaintiff-Appellee, v. Paris CHERER, Defendant-Appellant.

No. 06-10642.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 5, 2007^*.

Filed January 25, 2008.

Mario D. Valencia, Henderson, NV, for the appellant.

Steven W. Myhre, Acting United States Attorney, Robert L. Ellman, Appellate Chief, and Nancy J. Koppe, Assistant United States Attorney, Las Vegas, NV, for the appellee.

Appeal from the United States District Court for the District of Nevada; James C. Mahan, District Judge, Presiding. D.C. No. CR-05-00325-JCM.

Before: JOHN T. NOONAN and M. MARGARET McKEOWN, Circuit Judges, and DAVID G. TRAGER,^** District Judge.

Opinion by Judge TRAGER; Partial Concurrence and Partial Dissent by Judge NOONAN.

TRAGER, District Judge:

Paris Cherer was convicted under 18 U.S.C. § 2422(b) for attempting to persuade, entice, or coerce a minor to engage in sexual acts with him. He appeals his conviction on two grounds. First, that the district court committed prejudicial error by improperly instructing the jury, and second, that the district court improperly admitted evidence of his past conviction and other prior bad acts under Federal Rule of Evidence 404(b). He also appeals his sentence of 293 months on the grounds that it is unreasonably long. This court has jurisdiction pursuant to 18 U.S.C. § 3231 and 28 U.S.C. § 1291. Cherer's sentence is appealable under 18 U.S.C. § 3742(a). We affirm the conviction and sentence.

Background

On July 8, 2005, FBI Special Agent Sue Flaherty was in an America Online chat room in an undercover capacity, using the AOL screen name "SusieBabyGirl." And Cherer, using the screen name "G8rwith8nGV," initiated a chat with her.

In the following weeks leading up to Cherer's arrest, Cherer, as "G8rwith8nGV," and Agent Flaherty, as "SusieBabyGirl," chatted online several times. During each chat they discussed sex, e.g., "Susie's" sexual experience, and whether she would be willing to have a sexual relationship with Cherer.

During three different chats, Cherer asked "Susie" her age, and she replied fourteen each time. In particular, the first time "Susie" told Cherer she was fourteen, Cherer replied, "cool, fourteen is cool...." At the time, Cherer was thirty-five.

The two also planned to meet in person. According to their online chats, the purpose of this meeting was for "Susie" to perform various sex acts on Cherer. When Cherer approached the designated meeting place, FBI agents arrested him.

Following his arrest, Cherer made several statements to the FBI, including that he thought "Susie" was eighteen, and that he did not recall the chats in which "Susie" told him she was fourteen.

Discussion

(1.)

Jury Instructions

The government charged Cherer under 18 U.S.C. § 2422(b), which provides,

Whoever, using the mail or any facility or means of interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title and imprisoned not less than 10 years or for life.

18 U.S.C. § 2422(b).

To explain the offense to the jury, the court delivered the following two jury instructions. First, jury instruction twelve stated,

The defendant is charged in the indictment with Coercion and Enticement In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt{.]

First: defendant used a facility of interstate commerce;

Second: defendant intended to knowingly persuade, induce, entice or coerce "Susie" into engaging in a sexual act for which he could be prosecuted under the laws of the State of Nevada; and

Third: the defendant did something which was a substantial step toward committing the crime, with all of you agreeing as to what constituted the substantial step.

It is a crime to attempt to persuade, induce, entice, or coerce a minor into engaging in a criminal sexual act for which a person may be criminally prosecuted under the laws of the State of Nevada.

. . .

Under the laws of the state of Nevada, it is an offense to attempt to commit Statutory Sexual Seduction. Nevada law defines "sexual seduction" as "[o]rdinary sexual intercourse, cunnilingus or fellatio committed by a person 18 years of age or older with a person under the age of 16 years."

Second, jury instruction thirteen stated,

The defendant is charged with Coercion and Enticement. Title 18, United States Code, Section 2422(b) provides, in pertinent part, that a person is guilty of violating it if that person: who [sic], using ... any facility or means of interstate ... commerce ... knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in ... any sexual activity for which any person can be charged with a criminal offense, or attempts to do so.

Cherer asked the court to add the following instruction: "In order to find the defendant guilty you must find beyond a reasonable doubt that the defendant actually believed "Susie" was under the age of 16 years [the age of consent in Nevada]." The court declined to do so.

On appeal, Cherer argues that the court committed prejudicial error by refusing to deliver his proposed instruction because, according to Cherer, the instructions as given prevented him from effectively presenting his defense to the jury.

This court reviews de novo "whether the district court's instructions omitted or misstated an element of the charged offense." United States v. Stapleton, 293 F.3d 1111, 1114 (9th Cir.2002) (citing United States v. Knapp, 120 F.3d 928, 930 (9th Cir.1997)). "In reviewing jury instructions, the relevant inquiry is whether the instructions as a whole are misleading or inadequate to guide the jury's deliberation." United States v. Freon, 179 F.3d 793, 807 n. 16 (9th Cir.1999) (citing United States v. Moore, 109 F.3d 1456, 1465 (9th Cir.1997)). And "[t]he trial court has substantial latitude so long as its instructions fairly and adequately cover the issues presented." Id. (citing United States v. Garcia, 37 F.3d 1359, 1364 (9th Cir.1994)).

Under 18 U.S.C. § 2422(6), when a defendant, like Cherer, has targeted an adult decoy rather than an actual minor, the Ninth Circuit requires that the defendant have believed the target was a minor. United States v. Meek, 366 F.3d 705, 718 (9th Cir.2004) ("Mt is apparent that the term `knowingly' refers both to the verbs—`persuades, induces, entices, or coerces'—as well as to the object—`a person who has not achieved the age of 18 years.'") (citations omitted) (interpreting 18 U.S.C. § 2422(b) in a case involving a sting operation). Thus, Cherer's belief regarding "Susie's" age is an element of the crime.¹

The government argues that jury instructions twelve and thirteen adequately described the requisite state of mind. We disagree. Even if not inaccurate, the instructions did not explain that the jury was required to find that Cherer believed that the target, "Susie," was a minor. In other words, neither appropriately connected the requisite State of mind—knowledge—with the statute's object—a minor victim.

In this case, however, omitting an element from the jury instructions constituted harmless error. "Jury instructions, even if imperfect, are not a basis for overturning a conviction absent a showing that they prejudiced the defendant." Frega, 179 F.3d at 807 n. 16 (citing United States v. de Cruz, 82 F.3d 856, 864-65 (9th Cir.1996)). Erroneous jury instructions constitute harmless error if it is "clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error." United States v. Gracidas-Ulibarry, 231 F.3d 1188, 1197 (9th Cir.2000) (quoting Neder v. United States, 527 U.S. 1, 18, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999)). Omitting an element is harmless if "the omitted element [is] uncontested and supported by overwhelming evidence." Gracidas-Utibarry, 231 F.3d at 1197 (citing Neder, 527 U.S. at 17, 119 S.Ct. 1827). The Supreme Court has noted, however, that a jury instruction error would not be harmless if a defendant "contested the omitted element and raised evidence sufficient to support a contrary finding." Neder, 527 U.S. at 19, 119 S.Ct. 1827.

The government's evidence overwhelmingly shows that Cherer believed "Susie" was fourteen years old. During three different online chats, Cherer asked "Susie" how old she was, and she' replied that she was fourteen each time. Specifically, during their initial chat, when "Susie" told Cherer she was fourteen, Cherer replied, "cool, fourteen is cool...." These explicit references to "Susie's" age are sufficient to conclude that Cherer held the requisite state of mind.

In addition, however, all of the following facts demonstrate that Cherer believed he was communicating with a minor. First, on July 8, 2005, when Cherer wanted to call "Susie," she told him she was afraid her mother would answer. Cherer offered to hang up if her mother answered. On July 18, 2005; after "Susie" gave Cherer her phone number, her phone rang, and when an adult male FBI agent answered, the caller hung up. The next day, July 19, 2005, "Susie" apologized to Cherer for not picking up the phone and told him her father had answered. Second, on July 18, 2005, "Susie" sent Cherer a photograph, purportedly of "Susie," but actually of an FBI agent, taken when she was around fourteen years old. Third, on at least two occasions, Cherer asked "Susie" whether she would be allowed out of the house to meet him. Once, she told him she would have a friend create an alibi for her if she left. Another time Cherer asked "Susie" if her mother kept her on "lock down." Fourth, on one occasion, when discussing...