United States v. Koech

• Decision Date: 26 March 2021
• Docket Number: No. 19-2906,19-2906
• Citation: 992 F.3d 686
• Parties: UNITED STATES of America, Plaintiff - Appellee v. Amos Kiprop KOECH, Defendant - Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

992 F.3d 686

UNITED STATES of America, Plaintiff - Appellee

v.Amos Kiprop KOECH, Defendant - Appellant

No. 19-2906

United States Court of Appeals, Eighth Circuit.

Submitted: October 23, 2020

Filed: March 26, 2021

Counsel who presented argument on behalf of the appellant and appeared on the brief was Douglas Olson, AFPD, of Minneapolis, MN. The following attorney also appeared on the appellant brief: Eric Riensche, AFPD, of Minneapolis, MN.

Counsel who presented argument on behalf of the appellee and appeared on the brief was Chelsea Walcker, AUSA, of Minneapolis, MN. The following attorney also appeared on the appellee brief: Laura M. Provinzino, AUSA, of Minneapolis, MN.

Before SMITH, Chief Judge, LOKEN and GRUENDER, Circuit Judges.

LOKEN, Circuit Judge.

A jury convicted Amos Koech of commercial sex trafficking of a minor in violation of 18 U.S.C. § 1591(a) and conspiring to commit that offense in violation of § 1594(c). The substantive count was based on proof that Koech paid codefendant Andre Mathis $60 to have sex with fifteen-year-old C.D. in late June 2017. The district court¹ sentenced Koech to 130 months imprisonment. He appeals his conviction, arguing (1) the phrase "reasonable opportunity to observe" in § 1591(c) is unconstitutionally vague, (2) the district court improperly instructed the jury on the interstate commerce element of these sex trafficking offenses, and (3) the evidence was insufficient to prove that his conduct affected interstate commerce. We affirm.

I. The Vagueness Issue

After indictment, Koech moved to dismiss, arguing the phrase "reasonable opportunity to observe" in 18 U.S.C. § 1591(c) is void for vagueness. Adopting the magistrate judge's² report and recommendation, the district court concluded that § 1591(c) is not unconstitutionally vague "because ‘reasonable opportunity to observe’ would ‘provide a person of ordinary intelligence fair notice of what is prohibited,’ is subject to common understanding, and is typical of standards that juries are asked to consider," quoting United States v. Paul, 885 F.3d 1099, 1105 (8th Cir.), cert. denied, ––– U.S. ––––, 139 S. Ct. 290, 202 L.Ed.2d 190 (2018). On appeal, Koech argues the district court erred and therefore "the convictions must be vacated as constitutionally infirm."

Section 1591(a) provides in relevant part:

Whoever knowingly -- (1) in or affecting interstate or foreign commerce ... recruits, entices, harbors, transports, provides, obtains, advertises, maintains, patronizes, or solicits ... a person ... knowing, or ... in reckless disregard of the fact ... that the person has not attained the age of 18 years and will be caused to engage in a commercial sex act, shall be punished as provided in subsection (b).

Section 1591(c) provides that "[i]n a prosecution under subsection (a)(1) in which the defendant had a reasonable opportunity to observe the person so ... obtained ... the Government need not prove that the defendant knew, or recklessly disregarded the fact, that the person had not attained the age of 18 years."

Section 1591(c) does not make § 1591 a strict liability criminal offense because § 1591(a) includes another traditional scienter requirement -- that the offender must know or recklessly disregard the fact that the victim "will be caused to engage in a commercial sex act." However, § 1591(c) does alter the mens rea requirement regarding the victim's age. Congress adopted this amendment to reflect the Supreme Court's recognition that "the perpetrator [who] confronts the underage victim personally ... may reasonably be required to ascertain that victim's age." United States v. X-Citement Video, Inc., 513 U.S. 64, 72 n.2, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994). See generally United States v. Whyte, 928 F.3d 1317, 1328-31 (11th Cir. 2019), cert. denied, ––– U.S. ––––, 140 S. Ct. 875, 205 L.Ed.2d 497 (2020) ; United States v. Copeland, 820 F.3d 809, 813-14 (5th Cir.), cert. denied, ––– U.S. ––––, 136 S. Ct. 2531, 195 L.Ed.2d 857 (2016).

Koech argues that the phrase "reasonable opportunity to observe" is unconstitutionally vague because it has no ascertainable application or meaning, and fails to give notice of the conduct it punishes. In reviewing this contention, we must begin with a well-established principle: "A plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others." United States v. Cook, 782 F.3d 983, 987 (8th Cir.), cert. denied, 577 U.S. 906, 136 S.Ct. 262, 193 L.Ed.2d 193 (2015), quoting Holder v. Humanitarian L. Project, 561 U.S. 1, 18, 130 S.Ct. 2705, 177 L.Ed.2d 355 (2010). Thus, we must consider whether § 1591(c) is vague as applied to the facts of this case. If Koech had an objectively reasonable opportunity to observe C.D., "[his] vagueness challenge to section 1591(c) fails." Whyte, 928 F.3d at 1331 ; see United States v. Washam, 312 F.3d 926, 930 (8th Cir. 2002). So we begin with a review of the evidence at trial from this perspective.

The evidence at trial -- which included C.D.’s lengthy direct testimony and cross examination -- established that, in June 2017, Mathis and a friend picked up C.D. and her seventeen-year-old friend, who were then living at a home for sexually-exploited children, and took them to Mathis's apartment in Duluth, Minnesota. The men plied the girls with drugs and engaged in group sex. The next morning, Mathis proposed that C.D. engage in commercial sex for his benefit. Over the next three weeks, Mathis "trained" C.D. to perform properly for customers. He supplied drugs, committed repeated sexual and physical abuse, took nude pictures of C.D., and advertised her on Facebook.

A co-worker introduced Koech to Mathis, who began visiting Koech at his apartment in Duluth. One evening, Mathis brought C.D. and her friend to Koech's apartment. During this first encounter, Mathis told Koech that C.D. was eighteen. Koech viewed and touched her while the two men discussed the price for C.D.’s sexual services. Mathis set the price at $150. Koech said he did not have enough money. They agreed Mathis and C.D. would return after Koech's next payday. Koech and Mathis exchanged text messages and phone calls, haggling over the price for C.D.’s services before agreeing on $60. On June 26, Mathis and C.D. returned to Koech's apartment. Koech and C.D. drank beer and smoked synthetic marijuana. After Koech paid Mathis, C.D. and Koech went to his bedroom, where Koech told C.D. she was "too beautiful to be eighteen." C.D. replied that she was eighteen, as Mathis had instructed, but she thought Koech did not believe her. They engaged in oral sex and attempted vaginal sex. Koech touched her breasts and genitals, and took nude pictures of her with his cell phone. C.D. left after forty-five minutes.

C.D. further testified that she and Mathis returned to Koech's apartment about three days later, and she and Koech engaged in vaginal intercourse for fifteen minutes before she and Mathis left. There was no confirming evidence of this third encounter, like the texts, phone calls, and pictures corroborating the second encounter. Defense counsel vigorously cross examined C.D. about her subsequent inconsistent statements to law enforcement officers and argued to the jury that she fabricated the third encounter, making her entire testimony not credible. The jury obviously rejected this argument. C.D. estimated that in her three visits to Koech's apartment, she spent up to seven hours in his presence. She testified Koech never inquired about her age.

On July 7, officers conducting a probation sweep of Mathis's apartment found C.D. hiding in a closet. In Mathis's presence, she gave a false name and said she was eighteen but provided information that quickly revealed her identity. The officers took C.D. to the Duluth police station where she told Officer Derek Pemrick that Mathis had forced her to engage in sex acts with Koech in exchange for money.

Pemrick then conducted multiple video-recorded interviews of Koech. He claimed the only money he ever paid Mathis was $60 for a Bluetooth speaker. A warrant search of his cell phone, manufactured in China, revealed extensive calls and text messages between Koech and Mathis that included negotiating for sex acts between C.D. and Koech. Forensic analysis of the phone recovered nude images of C.D. Koech deleted the day of Pemrick's interview. Subsequently, Koech admitted Mathis twice visited his apartment, bringing two girls the first time and one the second time. He said one girl was nineteen and the other (C.D.) was eighteen but admitted that "if a girl says she's eighteen ... two years minus, that's sixteen." He said the meetings were initiated by text messages with Mathis. He denied having sex with either girl but eventually admitted he touched one girl's breasts and stomach and attempted to have sex with her. He also admitted paying Mathis $60 but insisted it was for a speaker, not sex. During a third interview, Koech admitted having sexual contact with C.D. and recording her dressing after they engaged in sexual acts. He said he deleted the pictures because he was "scared of ... being charged with child pornography or something like that."

The jury was instructed that Koech could be convicted of the age element of a § 1591(a) offense if it found beyond a reasonable doubt "that the defendant knew or was in reckless disregard of the fact that [C.D.] had not attained the age of 18 or had a reasonable opportunity to observe that she had not attained the age of 18 years." In closing argument, the government argued, without objection:

And whether you find that the Defendant knew that she was under 18 or he recklessly disregarded ... or had a reasonable opportunity to observe that [C.D.] was under 18, and I submit there was evidence of all of those. Any will do.

The above summarized evidence -- Koech's multiple encounters with C.D., clothed and unclothed; his comments to C.D. and law enforcement...