United States v. Condry
| Docket Number | 22-5058 |
| Decision Date | 14 June 2023 |
| Parties | UNITED STATES OF AMERICA, Plaintiff - Appellee, v. TRAVIS CARL CONDRY, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
(D.C. No. 4:21-CR-00322-CVE-1) (N.D. Okla.)
Before BACHARACH, KELLY, and BRISCOE, Circuit Judges. [**]
Defendant-Appellant Travis Carl Condry was convicted of aggravated sexual abuse by force in Indian Country, 18 U.S.C. § 2241(a)(1), and was sentenced to 180 months' imprisonment and five years' supervised release. His conviction arose from causing his victim (T.C.) to engage in anal sex by use of force. On appeal, he argues that the district court plainly erred by failing to instruct the jury that a conviction required that he knew that his use of force caused T.C. to engage in a sexual act. We have jurisdiction under 28 U.S.C. § 1291 and affirm.
Mr Condry and T.C. met while the two worked at a restaurant in 2017. Their relationship turned sexual in 2018 and the two engaged in consensual sexual encounters in August and again in November. III R. 61-64. During their November encounter, the two watched some, if not all, of the movie, Fifty Shades of Grey, which depicts a rough sexual relationship between consenting partners. Id. at 63, 204.
Their third sexual encounter on December 20, 2018, led to Mr. Condry's arrest and eventual conviction. That night, T.C. stopped by Mr. Condry's apartment to deliver a gift. Id. at 65. When she arrived, Mr. Condry was playing video games and had been drinking. Id. at 67-69. Mr. Condry motioned towards her to initiate sexual contact and she performed oral sex on him. Id. at 69-70. Around this time, Mr. Condry took T.C.'s Apple watch and the two made a bet whereby if she could not correctly guess his heart rate, based on the Apple watch's reading, the two would have anal sex. Id. at 70-71. The two then moved into the bedroom where the sexual activities continued. According to T.C., the oral sex made her uncomfortable and she wanted to stop. Id. at 73-74. At some point, Mr. Condry began recording the sexual encounter on his phone.[1] Id. at 72-73.
Mr. Condry told T.C. that if she did not continue oral sex, they would have anal sex per their "bet." Id. at 73. Mr. Condry then convinced her to engage in anal sex to which she consented. Id. at 74. Once the anal sex began, however, T.C. repeatedly and continuously plead with Mr. Condry to stop; telling him "no," that it hurts, and that she was not kidding. Gov't Exh. 1 at 5:05-10:00. Her pleas occurred over a four to five minute period and from the audio she can also be heard crying and at times screaming out in pain. Id. After that, T.C. testified she was finally able to get out from underneath Mr. Condry after struggling to do so.
Next, T.C. left the apartment and called two friends to tell them she had been raped. III R. at 89. She reported the incident to the police and went to the Tulsa Women's Hospital where she met with a sexual assault nurse examiner who indicated T.C. had suffered an .5cm anal tear and redness in her throat. Id. at 92-93, 142.
The next day, a detective conducted a recorded interview of Mr. Condry at his house. Id. 170. Mr. Condry told the detective he believed the anal sex was consensual. Gov't Exh. 2 at 1:57-2:02; 15:50-16:00. He admitted that he did not stop right away when she told him to stop, and instead only slowed down, but that he did fully stop once she started to cry. Id. at 16:00-15; 17:20-40. He claimed the whole encounter lasted about thirty seconds. Id. at 16:53-55. At trial, the detective said Mr. Condry's account was plainly inconsistent with the audio recording. III R. 172.
At trial, Mr. Condry testified that during the second sexual encounter with T.C. - when they had watched Fifty Shades of Grey - the two discussed entering into a contract like in the movie and that T.C. wanted to reenact role play from the film. Id. at 204-05. Mr. Condry testified that the bet concerning the heart rate was related to this previous conversation concerning a contract. Id. at 207-10. He claimed that he interpreted T.C.'s "no's" as sensual and that when she said "stop" he would stop moving but T.C. would pull him forward or push back into him again. Id. at 210-12, 224-25. Moreover, he testified that he was not able to remove his penis even though he tried because he was frozen most of the time and T.C. had a hold of his thigh. Id. at 225-26, 230-31.
Mr. Condry was charged with a violation of 18 U.S.C. § 2241(a)(1) which makes it a crime to "knowingly cause[] another person to engage in a sexual act [causation element] - (1) by using force against that other person [force element]. . . ." 18 U.S.C. § 2241(a)(1) (alterations added); see I R. 10. Without objection, the district court instructed the jury as follows:
I R. 86 (emphasis added).
On appeal, Mr. Condry argues that the force element (second element in the instructions) omitted the knowingly mens rea. According to Mr. Condry, its inclusion was required because whether he knew his use of force, and not her consent, caused the sex is the crucial element separating between innocent and wrongful conduct. Moreover, without this mens rea requirement, he maintains that his primary strategy of asserting a defense of apparent consent - that he did not know T.C. withdrew her consent and as such did not know his force was causing the sex act - was diminished. Given plain error review, he contends that it is at least reasonably probable that the jury would have acquitted him had the jury been properly instructed.
Normally "[w]e review the instructions as a whole de novo to determine whether they accurately informed the jury of the governing law." United States v. Martin, 528 F.3d 746, 752 (10th Cir. 2008) (quoting United States v. Nacchio, 519 F.3d 1140, 1158-59 (10th Cir. 2008), vacated in part on other grounds by United States v. Nacchio, 555 F.3d 1234 (10th Cir. 2009) (en banc)). However, given Mr. Condry's failure to object, we review for plain error instead. To prevail he must show (1) error, (2) that is plain, (3) that affected his substantial rights, and (4) that had a serious effect on the fairness, integrity, or public reputation of judicial proceedings. United States v. Leib, 57 F.4th 1122, 1128 (10th Cir. 2023). Yet, we apply plain error less rigidly when reviewing an improper instruction on an element of an offense in light of the Sixth Amendment's jury trial guarantee. United States v. Benford, 875 F.3d 1007, 1016-17 (10th Cir. 2017). Nonetheless, "[b]ecause all four requirements must be met, the failure of any one will foreclose relief and the others need not be addressed." United States v. Gantt, 679 F.3d 1240, 1246 (10th Cir. 2012).
Mr. Condry argues the jury instructions should have required the jury to find not only that (1) Mr. Condry knowingly caused T.C. to engage in a sex act, but also (2) that he did so by knowingly using force. Mr. Condry argues that we must include the knowingly mens rea in the force element given the "longstanding presumption . . . that Congress intends to require a defendant to possess a culpable mental state regarding 'each of the statutory elements that criminalize otherwise innocent conduct.'" Rehaif v. United States, 139 S.Ct. 2191, 2195 (2019) (quoting United States v. X-Citement Video, Inc., 513 U.S. 64, 72 (1994)). In his estimation, whether the sex act was accomplished by force is the element that "separate[s] wrongful conduct from 'otherwise innocent conduct.'" Ruan v. United States, 142 S.Ct. 2370, 2377 (2022) (quoting Elonis v. United States, 575 U.S. 723, 736 (2015)); see also X-Citement Video, Inc., 513 U.S. at 68, 72-73, 78 ().
The government concedes that the presumption of scienter ought to modify the force element. See Aplee. Br. at 16. As best we can tell, the government instead argues that the jury instructions as written adequately conveyed that the jury had to find Mr. Condry knew his use of force caused the sex act. We will assume, without deciding, that the presumption of scienter applies for the force element of § 2241(a), and that the instruction was in error as it should have included knowingly as to the force element. See United States v. A.S., 939 F.3d 1063, 1079 (10th Cir. 2019) ().
Assuming error, it is not plain. An error is plain if it is "clear or obvious under current, well-settled law." United States v. Herrera, 51 F.4th 1226, 1248 (10th Cir. 2022) (quoting United States v. DeChristopher, 695 F.3d 1082, 1091 (10th Cir. 2012)). An error ordinarily can be clear and obvious only if "the Supreme Court or our court has addressed the issue." Id. (quoting United States v. Leal, 32 F.4th 888, 897-98 (10th Cir. 2022)).
Mr Condry argues that while no court has specifically addressed the issue of scienter for the force element in § 2241(a)(1), Supreme Court cases applying the presumption of scienter to other statutes make plain that this jury instruction was in error. See ...
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