U.S. v. Cole, 00-3164

• Decision Date: 10 April 2001
• Docket Number: No. 00-3164,00-3164
• Citation: 262 F.3d 704
• Parties: (8th Cir. 2001) UNITED STATES OF AMERICA, APPELLEE, v. RICHARD PATRICK COLE, APPELLANT. Submitted:
• Court: U.S. Court of Appeals — Eighth Circuit

Page 704

262 F.3d 704 (8th Cir. 2001)

UNITED STATES OF AMERICA, APPELLEE, v. RICHARD PATRICK COLE, APPELLANT.

No. 00-3164

UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

Submitted: April 10, 2001

Filed: August 17, 2001

Appeal from the United States District Court for the Western District of Arkansas. [Copyrighted Material Omitted] Before Hansen and Bye, Circuit Judges, and Melloy,¹ District Judge.

Hansen, Circuit Judge

A jury found Richard Patrick Cole guilty of transporting a minor in interstate commerce with the intent that the minor engage in illegal sexual activity, in violation of the Mann Act, 18 U.S.C. § 2423(a) (1994). Cole appeals his conviction, arguing that there was insufficient evidence to support the conviction and that the United States District Court for the Western District of Arkansas was not the proper venue for his prosecution. We affirm Cole's conviction.

I.

Cole befriended a 14-year-old girl (we will call her "M.S.") at a neighborhood pick-up basketball game in 1997, and their relationship developed into a sexual one. Cole was 32 years old at the time. After receiving a complaint filed by Cole's roommate, the Arkansas Department of Human Services (DHS) investigated the sexual relationship, which M.S. denied. Cole took M.S. from school and left Arkansas in March 1998 shortly after the DHS investigation. M.S. was missing for three weeks until she returned to her father's home in Texas. Cole and M.S. continued their daily sexual relationship during the three-week trip.

A few days after dropping M.S. off near her father's home, Cole again contacted M.S. while she shopped with her stepmother at a Jacksonville, Texas, store. M.S. sneaked out of the store and again left with Cole without informing her parents. The two went to Las Vegas, Nevada, where they lived together and continued their sexual relationship from April until August 1998. Neither Cole nor M.S. contacted M.S.'s family during that time. Nevada authorities located M.S. in Las Vegas and placed her in a protective children's home until her mother could come from Arkansas to get her. Cole was charged with contributing to the delinquency of a minor in Fort Smith, Arkansas, Municipal Court. He appeared in that court on October 1, 1998, and pleaded guilty to the charges. Cole received a suspended sentence, fines, and a "No Contact" order, prohibiting him from contacting M.S. or her family.

Immediately following the sentencing and in contravention of the no-contact order, Cole left the courthouse, went looking for M.S., and found her at a laundromat with her sister. Once again, M.S. left with Cole without informing her family of her whereabouts. They went to California with a friend of Cole's who had driven to Arkansas with Cole for his court appearance. They stopped in Kingman, Arizona, on the way to California, where Cole and M.S. resumed their sexual relationship. After a brief stay in California, they returned to Las Vegas for a few days and then, at M.S.'s suggestion, went to Florida. Cole and M.S. were located at Disney World in Orlando, Florida, and taken into custody on October 21, 1998. Cole was extradited back to Arkansas and M.S.'s mother went to Florida to retrieve M.S. Cole was charged with interference with custody in Arkansas state court and charged with violation of the Mann Act in the United States District Court for the Western District of Arkansas.

Cole filed a motion to dismiss the Mann Act charges based on double jeopardy and improper venue, both of which were denied. A jury convicted Cole on the Mann Act charges and the district court² denied Cole's motion for acquittal. Cole appeals the denial of these motions.³

II.

Under the Mann Act, "[a] person who knowingly transports any individual under the age of 18 years in interstate or foreign commerce... with intent that such individual engage... in any sexual activity for which any person can be charged with a criminal offense... shall be fined..., imprisoned..., or both." 18 U.S.C. § 2423(a). The indictment charged that Cole "did knowingly transport in interstate commerce, a female who was under the age of 18 years, from the state of Arkansas to the state of Florida, with the intent that such individual engage in sexual activity under such circumstances as would constitute a criminal offense by any person under Florida State Law, specifically Florida Statute 800.04(4)(a),⁴ in violation of 18 U.S.C. § 2423(a)." Cole argues that the Western District of Arkansas was not the proper venue for his prosecution because he did not have the requisite intent to violate the Florida statute while he was in Arkansas; it was not until he and M.S. were in Las Vegas, Nevada, that M.S. suggested that they go to Florida. He also argues that this same lack of intent mandates his acquittal as there is insufficient evidence to support his conviction. We disagree and affirm his conviction.

A. Sufficiency of the Evidence

Cole argues that there was insufficient evidence to support his conviction that he intended M.S. to engage in illegal sexual activity. Cole's trial attorney moved for acquittal following the government's case in chief, but he did not renew that motion following all of the evidence. Although such action generally constitutes a waiver of the claims raised in the motion for acquittal, subjecting the claim to plain error review, Cole's assertion that the government failed to prove one of the elements of his crime would prejudice his substantial rights, if proven to be correct, and we thus review his sufficiency of the evidence claim. See United States v. Wadena, 152 F.3d 831, 853 (8th Cir. 1998), cert. denied, 526 U.S. 1050 (1999). Sufficient evidence exists to support the conviction

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.' The standard for determining the sufficiency of the evidence is strict, and a guilty verdict should not be lightly overturned. 'We view the evidence in a light most favorable to the verdict, giving the verdict the benefit of all reasonable inferences, and [we] will reverse only if the jury must have had a reasonable doubt concerning one of the essential elements of the crime.'

United States v. Dugan, 238 F.3d 1041, 1043 (8th Cir. 2001) (internal citations omitted).

The only element Cole disputes is the intent element, which requires that the defendant intended "that the [minor] engage... in any sexual activity for which any person can be charged with a criminal offense." 18 U.S.C. § 2423(a). Because the indictment listed a Florida statute as the crime under which any person could be charged, Cole argues that he must have intended to have illegal sexual activities with M.S. in Florida before he left Arkansas. The Florida statute was used in the indictment to establish the crime for which any person can be charged, i.e., to establish that the sexual activity was illegal. That statute makes it a felony to engage in sexual activity with a person between ages 12 and 16. FLA. STAT. CH. 800.04(4)(a). Thus, to be convicted under § 2423(a), Cole must have transported M.S., age 15 at the time, with the intent to engage in sexual activity with her. Cole's twisted reading of the statute-that he must have intended to go to Florida to violate the Florida statute before he began the interstate journey-is not supported by the language of the statute or the case law construing it. Whether Cole intended to have sex with M.S. in Florida when he transported her out of Arkansas is irrelevant to his conviction. His illicit intent must have been formed only "'before the conclusion of the interstate state [sic] journey.'" Reamer v. United States, 318 F.2d 43, 49 (8th Cir.) (quoting Mortensen v. United States, 322 U.S. 369, 374 (1944)), cert. denied, 375 U.S. 869 (1963). Cole's argument that his conviction cannot stand because he did not know he was going to Florida when he left Arkansas is futile.

Cole argues alternatively that the evidence is insufficient to establish that his intentions regarding sexual activity were any more than incidental to the purposes of the interstate trip. The illicit behavior must be "one of the purposes motivating... the interstate transportation," but need not be the dominant purpose. United States v. Vang, 128 F.3d 1065, 1071 (7th Cir. 1997) (internal quotations and citations omitted), cert. denied, 522 U.S. 1140 (1998); see also Reamer, 318 F.3d at 49. Arguably, when Congress amended the Mann Act in 1986 to remove the commercial nexus and to remove the "purpose" language, replacing it with the "intent that such individual engage... in any [illegal] sexual activity," Pub. L. No. 99-628, Congress lessened the prosecution's burden, such that it need not prove that illegal sexual activity was a purpose of the interstate transportation at all. See United States v. Ellis, 935 F.2d 385, 391-92 (1st Cir.) (discussing the change in the language but declining to decide the impact of the change as the evidence supported the conviction even under the more stringent standard), cert. denied, 502 U.S. 869 (1991). Like the court in Ellis, we leave for another day the effect of the change in the statutory language because the evidence establishes that illegal sexual activity was at least one of Cole's purposes in transporting M.S. in interstate commerce.

Cole's intent "may be inferred from all the circumstances." Reamer, 318 U.S. at 49. Reviewing the evidence in the light most favorable to the guilty verdict, the jury could easily have found that Cole took M.S. out of Arkansas with the intent-and for the purpose-of having illegal sexual relations with her. First, Cole had taken M.S. away from her family on two prior occasions, during which time the two had sexual...