U.S. v. Jennings

• Decision Date: 03 August 2007
• Docket Number: No. 06-4854.,06-4854.
• Citation: 496 F.3d 344
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Ryan Douglas JENNINGS, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

496 F.3d 344

UNITED STATES of America, Plaintiff-Appellee, v. Ryan Douglas JENNINGS, Defendant-Appellant.

No. 06-4854.

United States Court of Appeals, Fourth Circuit.

Argued: May 25, 2007.

Decided: August 3, 2007.

ARGUED:

Frances Hemsley Pratt, Research and Writing Attorney, Office of the Federal Public Defender, Alexandria, Virginia, for Appellant. Patricia Tolliver Giles, Assistant United States Attorney, Office of The United States Attorney, Alexandria, Virginia, for Appellee.

ON BRIEF:

Michael S. Nachmanoff, Acting Federal Public Defender, Alexandria, Virginia, for Appellant. Chuck Rosenberg, United States Attorney, Michael E. Rich, Assistant United States Attorney, Office of the United States Attorney, Alexandria, Virginia, for Appellee.

Before WILKINSON, NIEMEYER, and GREGORY, Circuit Judges.

Affirmed by published opinion. Judge NIEMEYER wrote the opinion, in which Judge WILKINSON and Judge GREGORY joined.

OPINION

NIEMEYER, Circuit Judge:

Ryan Jennings, age 24, was convicted for repeatedly touching a 13-year-old girl's buttocks, inner thighs, and genitalia during a "red-eye" transcontinental flight from San Diego, California, to Washington, D.C. (Dulles International Airport in Virginia), in violation of 18 U.S.C. § 2244(a)(3) (criminalizing "abusive sexual contact" with a minor).

On appeal, Jennings contends (1) that the testimony of passengers relating statements made by the 13-year-old girl to the passengers regarding Jennings' abuse was improperly admitted into evidence under an exception to the hearsay rule; (2) that the district court erred in instructing the jury that the government need not prove that Jennings knew the victim's age to prove a conviction under § 2244(a)(3); and (3) that the district court abused its discretion in giving a "deliberate ignorance" instruction to the jury.

We conclude that the hearsay testimony of two passengers about what the child said to them fell within the excited utterance exception to the hearsay rule, Federal Rule of Evidence 803(2); that § 2244(a)(3) does not require that the defendant know the victim's age; and that the district court did not abuse its discretion in giving a deliberate ignorance instruction. Accordingly, we affirm the judgment of the district court.

I

On the evening of December 18, 2005, the mother of Casey, a 13-year-old girl within days of her 14th birthday, and Ryan, an 11-year-old boy, accompanied her children through security at the San Diego International Airport to the gate of their red-eye flight to Dulles International Airport, where their father was to pick them up to spend the Christmas holiday with him. The children's mother waited with them at the departure gate for half an hour, and then departed. Ryan Jennings, age 24, who was booked on the same flight, sat across from the children in the departure gate's waiting area. After their mother left, Jennings struck up a conversation with them, asking if they were traveling alone, to which Casey responded, "Yes." Linda Columbus, a fellow passenger on the flight, overheard Jennings say to the children, "Everybody tells you not to talk to strangers, but I'm cool."

After boarding the plane, Casey sat in seat 7A, the window seat, and her brother sat in seat 6A, a window seat directly in front of her. Jennings took seat 7B, directly next to Casey, even though his assigned seat was ten rows back. Jennings told Casey he wanted to sit next to her because he "thought [she] was beautiful." Another male passenger sat in seat 7C, the aisle seat.

A few minutes into the flight, Jennings made attempts to engage Casey in conversation. Casey smelled alcohol on Jennings' breath (he had been partying prior to arriving at the airport). Casey asked Jennings how old he was, and he answered, "21," even though he was 24. Jennings, on the other hand, did not want to know how old Casey was, saying, "In my mind, you are 18. I want to make this right." Jennings then expressed his belief to Casey that it was "really wrong" that a friend of his had been charged with statutory rape, "because if two people want to be together, then they should, regardless of age." While saying this, Jennings placed his left hand on Casey's inner right thigh. Casey crossed her legs in an attempt to get it off, but Jennings left his hand there. By this time, the male passenger in seat 7C was asleep.

When the fasten-seatbelt sign was turned off, Casey got up to go to the lavatory. As Casey moved past Jennings toward the aisle, Jennings "grabbed [her] butt, and then his fingers touched [her] vagina."

After returning from the lavatory, Casey noticed that Jennings had raised the armrest separating his seat from hers. He was also drinking from a bottle of wine. Jennings complained that he was cold, and Casey offered him a blanket that she had brought along. After covering himself with the blanket, Jennings tried to cover Casey's legs with it as well. Casey resisted, saying that she was "really hot," but Jennings persisted. After he covered Casey's legs, Jennings again placed his left hand on Casey's inner thigh. When Jennings leaned in to give Casey a kiss on the cheek, he spilled wine on the blanket. Jennings cursed at his clumsiness, seized the blanket, and went to the lavatory to clean it off. While Jennings was gone, Casey tried to convince her brother to move back to seat 7B and sit by her, but Ryan said that he was sleeping and was too tired to move. Jennings returned from cleaning the blanket and tried again to cover Casey and himself with the blanket. This time, Casey grabbed the blanket and put it into her backpack.

The absence of cover did not deter Jennings, and he again put his left hand on Casey's inner thigh. Casey again crossed her legs, but this did not discourage Jennings. He hooked his hand between Casey's crossed legs, using the opportunity to reach under Casey and rub her buttocks. With his hand between Casey's legs, Jennings rubbed Casey's buttocks and inner thighs constantly for 15 minutes. Casey did not say anything because she "was scared" and "shocked." She "just thought that if [she] pretended to be sleeping, that maybe he would get bored and go away." Jennings asked Casey for her telephone number, saying, "Maybe we could hook up when we get back to San Diego."

Eventually Jennings got up to sit between Casey's brother Ryan in seat 6A and Karen Schmidt in seat 6C, in the row directly in front of Casey. Ryan was still sleeping, and Jennings began to talk to Schmidt. Casey testified that she overheard Jennings tell Schmidt that he thought Casey was beautiful, to which Schmidt asked, "Well, do you know how old she is?" Jennings replied, "No," and Schmidt told him that Casey was 13 or 14. "It doesn't matter," Jennings said. Schmidt testified that Jennings "reeked" of alcohol and that he continued to drink from his bottle of wine. Jennings repeatedly told Schmidt how "hot" he thought Casey was, and that he wanted to join the "mile high club" with her. Schmidt told Jennings, "I'm sure this isn't the first time you've done this." "No, it's not," Jennings replied, "I have always had a thing for young girls."

Jennings' conversation with Schmidt ended abruptly when Jennings again spilled wine, which landed on the feet and bag of the passenger slumbering in seat 7C. That passenger moved, leaving Casey alone to stretch out over the three seats in the row. Jennings asked Casey if she wanted him to return and sit next to her. Casey said, "No," but Jennings ignored Casey's response, moved her feet, sat down, and placed her legs on his lap. Casey told Jennings that she had overheard his conversation with Schmidt and that she knew that he knew her age. Jennings grimaced and said that it did not matter, "because in his mind, [she] was still 18." Jennings suggested that Casey take out her blanket again so nobody would see what was going to happen. Casey pretended not to hear Jennings and put on her iPod. Throughout this conversation, Jennings was rubbing Casey's lower legs.

Linda Columbus, the fellow passenger who had observed Jennings talking to the children at the departure gate, saw that Jennings was seated next to Casey and leaning in close to her. Alarmed, she contacted a flight attendant and requested that Jennings be moved to a seat away from Casey. The flight attendant ordered Jennings to sit in his assigned seat, and five minutes thereafter Casey moved to sit next to her brother.

When Casey sat down in seat 6B between her brother and Schmidt, Casey felt "shocked, angry, kind of like confused." Schmidt asked Casey what had happened, and Casey recounted in detail Jennings' words and actions. As Casey did so, she "became hysterical" and began to cry.

The plane landed approximately an hour and a half after Jennings was moved to his assigned seat. When the plane stopped at the arrival gate, Jennings, with his hood pulled over his head, rushed to the front of the plane to talk to Casey. Casey, who "was still crying," exited the aircraft as quickly as she could, pretending not to see Jennings. Jennings caught up to Casey and said, "Casey, I'm sorry the flight attendants [] had to move me." Casey kept on walking, grabbing her brother to speed him up. Jennings stopped following them as they left the gate terminal, at which point Casey paused and broke down into tears. Linda Columbus witnessed Jennings talk to Casey and Casey's immediate tearful reaction. Columbus approached Casey to ask if she was okay. "Tears were streaming down her face," Columbus testified. "She couldn't really speak. She was really upset." Columbus testified that when she asked what had happened, Casey exclaimed that Jennings had "touched her butt and between her legs." Columbus sent the children on to meet their father, and then she went in search of security. She found the pilots of their flight and reported what Casey had told her. The captain of the flight approached Jennings and detained him until airport security arrived.

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