U.S.A v. Frank

• Decision Date: 15 March 2010
• Docket Number: No. 07-13685.,07-13685.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Kent FRANK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Eleventh Circuit

599 F.3d 1221

UNITED STATES of America, Plaintiff-Appellee, v. Kent FRANK, Defendant-Appellant.

No. 07-13685.

United States Court of Appeals Eleventh Circuit.

Decided: March 15, 2010.

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Michael Dennis Walsh, Law Offices of Michael Walsh, P.A., Miami, FL, for Frank.

Emily M. Smachetti, Anne R. Schultz Asst. U.S. Atty., Lisa T. Rubio, Miami FL, Wendy Waldron, Crim Div., Washington, DC, for U.S.

Appeal from the United States District Court for the Southern District of Florida.

Before MARCUS and WILSON, Circuit Judges, and RESTANI, ^* Judge:

WILSON, Circuit Judge:

Kent Frank was convicted of traveling and engaging in illicit sexual conduct with three minor girls in Cambodia, of traveling with the intent to engage in illicit sexual conduct, and of purchasing the girls in order to produce sexually explicit visual depictions of them, in violation of 18 U.S.C §§ 2423(b), (c) and 2251A(b)(2)(A). On appeal, Frank raises the following issues: (1) whether the district court correctly denied his motion to suppress un-Mirandized statements obtained by foreign officials in Cambodia; (2) whether 18 U.S.C. § 2251A applies extraterritorially; (3) whether the district court correctly denied his motion for judgment of acquittal as to the sufficiency of evidence for "purchase" under 18 U.S.C. § 2251A(b) and "illicit sexual conduct" under 18 U.S.C. § 2423(c); (4) whether the district court erred in instructing the jury as to the definition of "purchase" under 18 U.S.C. § 2251A(b) and "sexual act" under 18 U.S.C § 2423(b); (5) whether there was reversible error in the prosecutor's opening and closing statements; (6) whether the district court plainly erred in imposing concurrent 360-month sentences for Counts 2 4, and 5; (7) whether the district court violated Federal Rule of Criminal Procedure 30 in giving supplemental jury instructions at the defense's request; and (8) whether Frank's confession was properlyadmitted. After thorough review of the briefs and the record, and with the benefit of oral argument, we affirm Frank's convictions.

I. BACKGROUND

In January 2004, Frank, a United States citizen and resident, was detained in Cambodia by the Cambodian National Police ("CNP") based on a tip that Deputy Chief Keo Thea¹ of the CNP Anti-Human Trafficking and Juvenile Protection Office received concerning unusual activities in Frank's room at the Golden Bridge Hotel. Four girls exited the hotel, and Keo detained them for questioning.² Keo suspected that the girls were between fourteen to seventeen years old from their appearance and stated astrological signs. Based upon the information he learned from the girls, Keo went to Frank's hotel room, searched it, and seized various items.³

Keo then took Frank to the Cambodian police station, suspecting him of violating Cambodian laws. That night, Frank was not placed in a jail cell but was permitted to sleep on a cot in Keo's office. The next morning, Seng Leena, an interpreter, was brought in, and Frank was interviewed. Frank admitted that he had engaged in sexual conduct with and had taken sexually explicit photographs of Minors A, B, C, and D on multiple occasions. He confessed to paying the girls $15 or $25 to either photograph them or have sex with them.

At some point during the interview, Gary Phillips, the Assistant United States Immigration and Customs Enforcement Attach in Bangkok, Thailand, arrived to meet with Chief Meng Say of the CNP, but did not participate in Frank's interview. In a separate room, Agent Phillips reviewed the evidence Cambodian officials had seized from Frank's hotel room. The day after Frank's interrogation by Cambodian officials, Agent Phillips attempted to interrogate Frank after providing him Miranda warnings, but was interrupted when Cambodian officials arrived to bring Frank before a Cambodian judge to face charges against him. Without notifying Agent Phillips, Cambodian officials released Frank after resolution of these charges. Frank then traveled to Vietnam, where he was arrested by United States officials.

In 2005, Frank was charged with traveling in foreign commerce and engaging in illicit sexual conduct with a minor, in violation of 18 U.S.C. § 2423(c) (Counts 1-5); purchasing or otherwise obtaining custody or control of a minor with the intent to promote the engaging in of sexually explicit conduct by the minor for the purpose of producing any visual depiction of such conduct, in violation of 18 U.S.C. § 2251A(b)(2)(A) (Counts 6-9); and traveling in interstate and foreign commerce for the purpose of engaging in illicit sexual conduct with a minor, in violation of 18 U.S.C. § 2423(b) (Count 10).⁴

At trial, the government introduced evidence that during two trips in late 2003, Frank paid the minor girls listed in the indictment to engage in sexual acts with Frank and to take sexually explicit pictures of him. From the first trip, 506 photographs were retrieved, of which 322 were not deleted. From the second trip, which culminated in Frank's arrest by Cambodian officials, law enforcement found 1, 134 pictures, of which 96 were not deleted. Among other things, the pictures depicted Frank engaging in sexual conduct with Minor A, Minor B holding an OraQuick HIV test and posing in a sexually explicit manner on Christmas Day, and Minors C and D dressed in various outfits on New Year's Eve. On New Year's day, Frank took the four girls to a swimming pool and then back to his hotel to have sex with them or to take sexually explicit pictures of them.

The government also presented expert witnesses to testify as to the age of the girls. One expert witness testified that Minor B was fifteen to seventeen years old, that Minors A and C were fourteen or fifteen years old, and that Minor D was eleven or twelve years old. Another expert witness testified that the girls were under sixteen years of age. Frank's defense at trial was that he reasonably believed the girls to be eighteen years or older at the time of the offense, that he did not purchase the girls, and that he traveled to Cambodia for business and not to engage in illicit sexual conduct. The jury found Frank guilty of Counts 1, 2, 4-6, and 8-10. A mistrial was declared as to Counts 3 and 7, which concerned Minor B.

Frank was sentenced to concurrent terms of 360 months' imprisonment on Counts 1, 2, 4, 5, and 10, with 15 years' supervised release. He was sentenced to 480 months' imprisonment on Counts 6, 8, and 9, running concurrently, and 15 years' supervised release.

II. DISCUSSION

A. The District Court Properly Denied Frank's Motion to Suppress

A district court's denial of a motion to suppress is a mixed question of law and fact. United States v. Ramos, 933 F.2d 968, 972 (11th Cir.1991) (per curiam) (citing United States v. Nixon, 918 F.2d 895, 902 (11th Cir.1990)). We review factual findings for clear error, but we review the district court's application of the law to those facts de novo. Id,

Cambodian law enforcement officers detained and interrogated Frank without reading him Miranda warnings. The district court denied Frank's motion to suppress his statements obtained from the interrogation because it found that Miranda warnings were not needed and that Frank's confession was voluntary. Generally, "statements obtained by foreign officers conducting interrogations in their own nations have been held admissible despite a failure to give Miranda warnings to the accused." United States v. Heller, 625 F.2d 594, 599 (5th Cir.1980) (citing Kilday v. United States, 481 F.2d 655, 656 (5th Cir.1973)).⁵ The reasoning behind this rule is that the exclusion of evidence by an American court has little to no deterrent effect on foreign police practices. United States v. Morrow, 537 F.2d 120, 139 (5th Cir.1976). That is, our "Constitution cannot compel such specific, affirmative action by foreign sovereigns." Kilday, 481 F.2d at 656. Two exceptions to this general rule are: (1) if the foreign officers' conduct "shocks the conscience of the American court" and (2) if "American officials participated in the foreign... interrogation, or ifthe foreign authorities were acting as agents for their American counterparts, " also known as the joint venture doctrine. Heller, 625 F.2d at 599 (citing Morrow, 537 F.2d at 139); United States v. Behety, 32 F.3d 503, 511 (11th Cir.1994).

Frank concedes that his arguments are foreclosed by our precedent.⁶ First Frank's statements do not fall under the joint venture doctrine. American officials did not know of Frank's presence in Cambodia until after he was arrested and did not participate in Frank's detention or interrogation. When Agent Phillips attempted to interrogate Frank, after giving him Miranda warnings, he was cut short when Cambodian officers came in to bring Frank before a judge. At all times, the Cambodian officers acted out of their own interest in determining whether Frank violated Cambodian laws. The officers then released Frank and allowed him to travel to Vietnam without notifying the United States. Consequently, there is no evidence that the Cambodian officers acted as agents of the United States.⁷

Second, Frank's interrogation does not shock the judicial conscience. Frank was not held in a jail but allowed to sleep overnight in Keo's office. The interview lasted less than two hours. Frank was treated with respect, offered food and water, and was not beaten or threatened in any way. Based on these facts, we also find that Frank's confession was voluntary. See Martin v. Wainwright, 770 F.2d 918 924-25 (11th Cir. 1985), modified on other grounds, 781 F.2d 185 (11th Cir.1986) (finding that defendant's confession was voluntary when officers interrogated him for five hours, cursed him, discussed the death penalty, and provided him with false information). As such, the district court did not err in denying Frank's motion to suppress his statements resulting...