U. S. v. Cryar
| Citation | 232 F.3d 1318 |
| Decision Date | 20 November 2000 |
| Docket Number | No. 00-6053,00-6053 |
| Parties | (10th Cir. 2000) UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOHN GARLAND CRYAR, Defendant-Appellant |
| Court | United States Courts of Appeals. United States Court of Appeals (10th Circuit) |
Appeal from the United States District Court For the Western District of Oklahoma. (D.C. No. CR-99-126-R)
William P. Earley, Assistant Federal Public Defender, Oklahoma City, Oklahoma, for Defendant-Appellant.
Daniel G. Webber, Jr., United States Attorney, Oklahoma City, Oklahoma, for Plaintiff-Appellee.
Before SEYMOUR, KELLY, and HENRY, Circuit Judges.
Mr. John Garland Cryar was indicted in the Western District of Oklahoma on four counts: (1) counts one and three charged that on two occasions in June 1999, Mr. Cryar crossed the state line between Texas and Oklahoma with the intent to engage in a sexual act with a six-year old girl in violation of 18 U.S.C. 2241(c); (2) counts two and four charged that Mr. Cryar knowingly transported child pornography in interstate commerce in violation of 18 U.S.C. 2252(a)(1). Mr. Cryar pleaded guilty to counts two and four (the pornography counts) and was tried on the attempted sexual abuse counts. At the close of the government's case Mr. Cryar moved for a judgment of acquittal, alleging that the government failed to prove his travel from Texas to Oklahoma was for the dominant purpose of having sex with a minor and that the district court lacked venue. The district court overruled the motions.
Mr. Cryar was convicted on the sexual abuse counts and sentenced to 144 months on all four counts and five years of supervised release, and received a special assessment of $400.00.
Mr. Cryar appeals (1) the overruling of the motion for judgment of acquittal for lack of venue; (2) the district court's refusal to give Mr. Cryar's proffered instruction on venue; (3) the sufficiency of the evidence to support the attempted sexual abuse convictions; and (4) the district court's calculation of his base offense level. For the reasons set forth below, we affirm.
Mr. Cryar's convictions stemmed from a relationship with Daniel Sharpton, whom Mr. Cryar met while serving a federal sentence for possession of child pornography. In May 1999, after tornados damaged a large part of the Oklahoma City area, Mr. Cryar, residing in Texas, contacted Mr. Sharpton and they commenced an informal roofing business relationship where Mr. Cryar would travel to Oklahoma City and perform roofing estimates and inspections.
During that month, Mr. Sharpton testified that Mr. Cryar told Mr. Sharpton how he liked "really young" girls from ages four to ten and that Mr. Cryar told him of various experiences with young girls. Upon meeting Mr. Sharpton's six year old sister-in-law in Oklahoma, Mr. Cryar expressed an interest in babysitting her alone. Mr. Cryar stated that he had no interest in babysitting her seven year old brother. Mr. Sharpton testified that Mr. Cryar spoke of his sexual experiences with female children on various occasions.
In late May 1999, Mr. Cryar returned to his home in Texas. At that time, Mr. Sharpton, awaiting sentencing for a bank fraud conviction, contacted his probation officer about Mr. Cryar's conversations. The probation officer put him in touch with the Federal Bureau of Investigation. Mr. Sharpton informed the FBI of these and other similar conversations with Mr. Cryar. Mr. Sharpton agreed to have audio and video surveillance equipment installed in his truck. Beginning on May 30, 1999, Mr. Sharpton proceeded to record telephone conversations with Mr. Cryar while Mr. Cryar was in Texas. When Mr. Cryar returned to Oklahoma, and the two traveled between jobs, Mr. Sharpton recorded these conversations as well.
The audio and video recordings were admitted at trial as exhibits, and contained several conversations revolving around Mr. Cryar's sexual experiences with female children. On several occasions, Mr. Cryar encouraged Mr. Sharpton to arrange a daytime or overnight visit with Mr. Sharpton's six year old sister-in-law. On June 8, 1999, Mr. Cryar traveled again to Oklahoma from Texas and he and Mr. Sharpton discussed Mr. Cryar's desire to babysit Mr. Sharpton's sister-in-law at his hotel for either an afternoon or overnight. After Mr. Sharpton appeared to acquiesce to the visit, Mr. Cryar offered suggestions about the specific arrangements to reduce suspicion by the child's mother.
On June 9, 1999, pursuant to instructions from the FBI, Mr. Sharpton told Mr. Cryar he could pick up Mr. Sharpton's sister-in-law from the Oklahoma City Zoo and babysit her for the remainder of the afternoon. The FBI arrested Mr. Cryar upon his arrival at the zoo. The FBI seized receipts indicating that on the two dates charged in the indictment, Mr. Cryar drove from his hometown of Conroe, Texas, to Dallas, Texas and to Oklahoma City on Interstate 35. The FBI also recovered additional materials containing child pornography from Mr. Cryar's truck.
Mr. Cryar presents four contentions on appeal: (1) that because he crossed state lines and entered the State of Oklahoma in the Eastern District of Oklahoma, the Western District of Oklahoma was the improper venue for this proceeding; (2) that the district court should have given his proffered instruction regarding the crossing of state lines; (3) that there was insufficient evidence to support his conviction; and (4) that the district court erred when it calculated his base offense level. We shall consider each contention in turn.
Article III of the Constitution generally requires that the trial of any crime be held in the state where the crime was committed. U.S. Const. Art. III, 2, cl. 3. The Sixth Amendment further requires that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed."
Our determination of venue raises matters that touch closely the fair administration of criminal justice and public confidence in it, on which it ultimately rests. These are important factors in any consideration of the effective enforcement of the criminal law. They have been adverted to, from time to time, by eminent judges; and Congress has not been unmindful of them. Questions of venue in criminal cases, therefore, are not merely matters of formal legal procedure. They raise deep issues of public policy in the light of which legislation must be construed.
United States v. Johnson, 323 U.S. 273, 275 (1944). Fed. R. Crim. P. 18 reinforces these directives: "[e]xcept as otherwise permitted by statute or by these rules, the prosecution shall be had in a district in which the offense was committed."
The statute at issue, 18 U.S.C. 2241(c), does not contain a specific venue provision. Where no venue provision is present, "the place at which the crime was committed 'must be determined from the nature of the crime alleged and the location of the act or acts constituting it.'" United States v. Medina-Ramos, 834 F.2d 874, 876 (10th Cir. 1987) (quoting United States v. Anderson, 328 U.S. 699, 703 (1946)) (emphasis added); see United States v. Rodriguez-Moreno, 526 U.S. 275, 279 (1999) (); United States v. Cabrales, 524 U.S. 1, 6-7 (1998) ().
Chapter 109A, entitled "Sexual Abuse," reads:
Aggravated sexual Abuse
(a) By force or threat.--Whoever, in the special maritime and territorial jurisdiction of the United States or in a Federal prison, knowingly causes another person to engage in a sexual act--
(1) by using force against that other person; or
(2) by threatening or placing that other person in fear that any person will be subjected to death, serious bodily injury, or kidnapping;
or attempts to do so, shall be fined under this title, imprisoned for any term of years or life, or both.
...
(c) With children.--Whoever crosses a State line with intent to engage in a sexual act with a person who has not attained the age of 12 years, or in the special maritime and territorial jurisdiction of the United States or in a Federal prison, knowingly engages in a sexual act with another person who has not attained the age of 12 years, or knowingly engages in a sexual act under the circumstances described in subsections (a) and (b) with another person who has attained the age of 12 years but has not attained the age of 16 years (and is at least 4 years younger than the person so engaging), or attempts to do so, shall be fined under this title, imprisoned for any term of years or life, or both.
18 U.S.C. 2241(a), (c) (emphasis added). The legislative history indicates that the nature of the offense to be criminalized is the performance or attempted performance of sexual acts with children, and not the crossing of state lines: "This legislation would establish new Federal jurisdiction over sexual offenses against children when a person commits a crime after crossing state lines with the intent of committing a sex offense." 142 Cong. Rec. S8636-03, at S8639 (daily ed. July 24, 1996) (statement of Sen. Hutchinson).
We often examine the verbs used in an ambiguous or incomplete statute in order to define the offense. See Medina-Ramos, 834 F.2d at 876 (). The defendant argues that utilization of the so-called "verb test" suggests that the act of one who "crosses," that is, the crossing, is the overt act which Congress intended to criminalize....
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