U.S. v. Hoffman

• Citation: 626 F.3d 993
• Decision Date: 09 February 2011
• Docket Number: No. 09-3651,09-3651
• Parties: UNITED STATES of America, Appellee, v. Bernie Lazar HOFFMAN, also known as Tony Alamo, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

626 F.3d 993 UNITED STATES of America, Appellee, v. Bernie Lazar HOFFMAN, also known as Tony Alamo, Appellant. No. 09-3651. United States Court of Appeals, Eighth Circuit. Submitted: Sept. 21, 2010. Filed: Dec. 2, 2010. Rehearing and Rehearing En Banc Denied Feb. 9, 2011.

John Wesley Hall, Jr., argued, Little Rock, AR, Don Edward Ervin, on the brief, Houston, TX, for appellant.

Kyra E. Jenner, AUSA, argued, Fort Smith, AR, for appellee.

Before BYE, BEAM, and SMITH, Circuit Judges.

BEAM, Circuit Judge.

A jury found Bernie Lazar Hoffman, a/k/a Tony Alamo, guilty of ten counts of transporting five minor females across state lines for the purpose of engaging in illegal sexual activity in violation of the Mann Act, 18 U.S.C. §§ 2 and 2423. The district court ¹ sentenced Hoffman to consecutive terms of imprisonment on all counts, for a total term of life imprisonment. Because there was sufficient evidence to support the verdict on each of the ten counts and the district court appropriately sentenced Hoffman under the United States Sentencing Guidelines (U.S.S.G. or Guidelines) and the Constitution, we affirm.

I. BACKGROUND

The government charged Hoffman with ten counts of violating the Mann Act for transporting minor females in interstate commerce with the intent to engage in criminal sexual activity. These chargesfollowed an investigation conducted by the Federal Bureau of Investigation (FBI) into Hoffman's travel with certain young children between 1994 and 2005. The trial evidence in this case is voluminous and includes testimony from many people, including each of the five girls that Hoffman made his "wife," some even at the tender age of eight. We are not going to document the specific nefarious activities that occurred between these individuals and Hoffman. For purposes of the federal charges in play, it suffices that these girls testified that Hoffman engaged in illegal sexual contact with each of them either during or shortly following interstate travel and that, regardless of whether Hoffman actually traveled with them, all their travel was taken under the direction of and under the control of Hoffman. In the instances where Hoffman did not travel with the girls, the testimony revealed that Hoffman, alone, determined the length of the trip and directed the girls when to return to Arkansas, where he engaged in sexual intercourse with each girl shortly upon her return.

At sentencing, the district court accurately conveyed that the imposed sentence was based upon an application of the Guidelines, which the court appropriately applied in an advisory fashion; information from the Presentence Report; trial testimony; arguments and objections by both sides. Further, the imposed sentence followed the submission of evidence in the form of testimony and letters at the sentencing hearing itself. The court sentenced Hoffman to life imprisonment. At one point during its colloquy, the district court stated:

[h]opefully, this sentence, life imprisonment, will uphold the law and respect for the law and send a message to others that violation of children, young girls like these victims, shall not be and will not be tolerated in the courts around this United States of America. Mr. Alamo, one day you will face a higher and greater judge than me. May he have mercy on your soul.

Hoffman appeals, claiming that the evidence presented does not support the jury's verdict and that the imposed sentence was tainted by the district court's personal sense of religion.

II. DISCUSSION

A. Sufficiency of the Evidence

This court reviews the sufficiency of the evidence presented at trial de novo, viewing the evidence in the light most favorable to the jury's verdict and drawing all reasonable inferences in the government's favor. United States v. Coleman, 584 F.3d 1121, 1125 (8th Cir.2009), cert. denied, --- U.S. ----, 130 S.Ct. 1752, 176 L.Ed.2d 222 (2010). We find that sufficient evidence exists to support Hoffman's conviction.

[I]f 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) (second and third alterations in original) (internal quotations omitted).

The statutory antecedents of the current Mann Act were enacted to outlaw the useof interstate commerce as a calculated means for effectuating sexual immorality, and date back to the early part of the twentieth century. Mortensen v. United States, 322 U.S. 369, 375, 64 S.Ct. 1037, 88 L.Ed. 1331 (1944), United States v. Vang, 128 F.3d 1065, 1069 (7th Cir.1997). Under its current version, § 2423(a) states:

A person who knowingly transports an individual who has not attained the age of 18 years in interstate or foreign commerce, or in any commonwealth, territory or possession of the United States, with intent that the individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense,² shall be fined under this title and imprisoned not less than 10 years or for life.

In the instant case, viewing the evidence in the light most favorable to the verdict, Hoffman's intention that these girls engage in illegal sexual conduct was a dominant motive of their interstate travel. Even in the instances when Hoffman did not travel with the girls, the evidence supports the conclusion that he directed their return to Arkansas so that he could resume his sexual activity with them. This is not a case, warned of by the Court in Mortensen so many years ago, and hypothesized about by Hoffman, of an immoral person merely traveling from place to place indulging in illegal or immoral acts incidentally. Mortensen, 322 U.S. at 376, 64 S.Ct. 1037. The evidence here clearly demonstrated that in each instance Hoffman directed the travel and transport of these girls across state lines for the purpose of engaging in proscribed sexual acts, thus supporting the jury's conviction on each and every charge.

In United States v. Broxmeyer, 616 F.3d 120 (2d Cir.2010), a case relied upon by Hoffman at oral argument to bolster his argument that sex was merely incidental to these trips, the court reversed a § 2423(a) conviction because the mens rea of intent did not coincide with the actus reus of crossing state lines. 616 F.3d at 129. There, a hockey coach entered into a sexual relationship with a fifteen-year-old player. Relevant to the § 2423(a) violation, the coach drove the girl from New York to her home in Pennsylvania one Sunday following practice and had sex with her before leaving New York. On those facts, the actus reus and mens rea did not coincide. Id. at 127-30. Unlike Broxmeyer, however, the evidence in the instant case supports the jury's conclusion that at all times Hoffman's intent in transporting these girls across state lines was for the purpose of engaging in illegal sexual activity.

As to Hoffman's intent, we have held that "[t]he illicit behavior must be one of the purposes motivating ... the interstate transportation [of the minor], but need not be the dominant purpose." United States v. Cole, 262 F.3d 704, 709 (8th Cir.2001) (internal quotation omitted). The sexual activity just may not be merely incidental to the trip. Id. Indeed, the jury instructions, which Hoffman does not challenge on appeal, accurately reflect the required determination. In particular, jury instruction 12 stated:

It is not necessary for the government to prove that illicit sexual activity was the only, or sole, purpose for transporting the minor across state lines. However, the government must prove that sexual activity with the minor, which is prohibited by law, was a dominant motiveof the travel. In determining whether the government has met its burden, you should keep in mind that a person may have several different motives or reasons for doing a particular act such as traveling and all such reasons may, in varying degrees, prompt the act.

It is the purpose for the transportation of the minor that is our focus under the Mann Act, not per se a defendant's reasons for travel generally. That a defendant facing charges under § 2423(a) need not have even traveled at all further supports this fact. In his brief, Hoffman views the standard through a different lens and argues, erroneously, that it requires proof that the illegal conduct was a "dominant purpose" of the trip, generally. He claims, that at best, sex was merely incidental to each of the out-of-state trips, and not a dominant purpose of the trip. Our focus, however, is on Hoffman's intent in having these girls transported across state lines.

Hoffman concedes that the proof is "admittedly stronger" as to certain of the ten convictions under the Mann Act in this case. But, Hoffman argues that there is no basis for a Mann Act conviction for others of these girls based upon the evidence presented. There were trips, he claims, where the record is "singularly devoid" of evidence of sex in relation to the trip at all, and all that the government proved was that Hoffman was having sex during that time period with that minor and that she took a trip. Additionally, despite Hoffman's arguments that the girls' return travel to Arkansas does not support Mann Act violations in this case, the return journey can be considered apart from its integral relation with the round trip as a whole, in the determination whether a violation of the Act has occurred.³ Mortensen, 322 U.S. at 375, 64 S.Ct. 1037. Indeed, we have held that the "illicit intent must [be] formed only before the conclusion...