United States v. Moran
| Citation | 70 F.4th 797 |
| Docket Number | 21-4411 |
| Decision Date | 21 June 2023 |
| Parties | UNITED STATES of America, Plaintiff - Appellee, v. Emilio R. MORAN, Defendant - Appellant. |
| Court | U.S. Court of Appeals — Fourth Circuit |
Appeal from the United States District Court for the Eastern District of North Carolina, at Raleigh. James C. Dever III, District Judge. (5:19-cr-00479-D-1)
ARGUED: Deborrah Lynn Newton, NEWTON LAW, Raleigh, North Carolina, for Appellant. David A. Bragdon, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee. ON BRIEF: Michael F. Easley, Jr., United States Attorney, Lucy Partain Brown, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Raleigh, North Carolina, for Appellee.
Before GREGORY, Chief Judge, and NIEMEYER and RICHARDSON, Circuit Judges.
Dismissed by published opinion. Judge Richardson wrote the opinion, in which Chief Judge Gregory and Judge Niemeyer joined.
While living in Japan, Emilio Moran sexually abused a young girl. When he got caught, he tried to escape the consequences by fleeing back to the United States. But the government brought charges under the Military Extraterritorial Jurisdiction Act. The Act allows for the federal prosecution of crimes committed outside the United States when the defendant is accompanying, employed by, or a member of the United States Armed Forces. The government's theory was that Moran was employed by the Armed Forces because he worked for a Department of Veterans Affairs subcontractor. Or, the government argued, he was accompanying a member of the Armed Forces because he lived with his wife who worked on the Kadena Air Base in Japan. On appeal, Moran seeks to challenge those theories.
Yet he chose to not press that challenge below. Instead, Moran took a deal. He pleaded guilty to two charges in exchange for the government's dropping the rest. As part of the deal, he also agreed to waive any right to appeal. The district court accepted the plea agreement and sentenced Moran to 420 months' imprisonment. But, despite his waiver, Moran still appeals. He wants to argue that he fell outside the scope of the Military Extraterritorial Jurisdiction Act while living in Japan. His problem is that he must get around his appeal waiver. He tries to do this by arguing that, since jurisdiction cannot be waived, he has every right to proceed. But Moran confuses a crime's jurisdictional element with federal courts' subject-matter jurisdiction. Moran is not challenging the district court's subject-matter jurisdiction. He's challenging the sufficiency of the evidence on his crimes' jurisdictional element. And since a sufficiency-of-the-evidence challenge falls under his appeal waiver, we dismiss his appeal.
Moran's journey to Japan started with his service in the United States Marine Corps. His career in the Marines took him around the world before first landing in Japan in 2003. Two years later, his wife and child joined him there. But around 2008, they moved back to the United States as their marriage dissolved. Moran carried on his military career, during which he met his second wife. With her, he headed back to Japan in December 2012. Her family lived in Okinawa, Japan, so he accepted a position there with the Marines. Four years later, Moran was court-martialed and discharged from the Marines for conduct unrelated to this case. Yet Moran stayed in Japan after his discharge. He was briefly unemployed, but then became a janitor for a local church in Okinawa around November 2016. He worked at the church until March 2018 when he "obtained a position as a career counselor for Serco, Inc. and he was placed at the Veteran's Affairs Transition Assistance Program at Kadena Air Base in Okinawa, Japan." J.A. 137.
While working as a janitor at the church, Moran met and began sexually abusing a fourteen-year-old girl. After meeting her, he befriended her family, groomed her, and enticed her into sexual activity. They had an illicit eight-month relationship—beginning around the end of Moran's time at the church and continuing during his employment with Serco—which included a five-month period when they had sex multiple times a week. He often filmed and photographed their interactions. And he cajoled her into sending him sexually explicit photographs.
Moran also went to great lengths to cover up his crimes. He took the girl to a pharmacy to get birth control under false identification. He told her to delete evidence on her phone, and he threw his own phone in the ocean after smashing it. He told the girl to wash her vagina with vinegar in hopes that it would clear any DNA remnants. And he even offered her money to run away from her family.
Despite those efforts, Moran got caught. The girl's parents discovered his behavior and reported him. When the Air Force began investigating, Moran fled black to the United States. But the Military Extraterritorial Jurisdiction Act meant that he couldn't escape the consequences of his actions. See 18 U.S.C. § 3261.
The Act permits prosecuting:
§ 3261(a). The Act, in turn, gives the phrase "employed by or accompanying the Armed Forces" a capacious definition. It says that "employed by the Armed Forces outside the United States" includes any civilian employee, (sub)contractor, or employee of a (sub)contractor of the Department of Defense or other federal agency "to the extent such employment relates to supporting the mission of the Department of Defense overseas" who is "present or residing outside the United States in connection with such employment" and is "not a national of or ordinarily resident in the host nation." 18 U.S.C. § 3267(1). And it defines "accompanying the Armed Forces outside the United States" to include a "dependent" who is "residing" with a member of the military or employee of the military—as defined in § 3267(1)—who is "not a national of or ordinarily resident in the host nation." § 3267(2).
Under the government's theory, the Act authorized prosecuting Moran because his employment with Serco qualified him as an employee under § 3267(1) and his residency with his wife (who worked on Kadena Air Base) qualified him as a dependent under § 3267(2). So the government took the case to a grand jury. He was indicted on eight counts.1
After being indicted, Moran entered a plea agreement. He agreed to plead guilty to both sexually abusing and enticing a minor. In exchange, the government dropped his remaining charges. The plea agreement also included an appeal-waiver provision that Moran would "waive knowingly and expressly the right to appeal the conviction and whatever sentence is imposed on any ground . . . excepting an appeal or motion based upon grounds of ineffective assistance of counsel or prosecutorial misconduct . . . ." J.A. 120.
The district court accepted Moran's plea at a Rule 11 hearing. At the hearing, the district court found that Moran was competent to plead and understood the rights he was giving up. The district court even singled out "one term in particular" to review with Moran: the appeal-waiver term. J.A. 43. Moran was clear. He understood he was giving up his right to appeal.
The district court also reviewed the indictment with Moran, including the specific facts supporting prosecution under § 3261. Reading from the indictment, the district court told Moran that, as accused:
J.A. 34-35. Later, when taking Moran's pleas on the two counts, the district court did not re-read the indictment's allegations supporting prosecution under § 3261 but "incorporate[d] that by reference." J.A. 46. Moran admitted that he had committed both crimes. The government then proffered the evidence that they would have shown had the case proceeded to trial. Finding the factual basis sufficient, the district court accepted the pleas.
The court ultimately sentenced Moran to 420 months' imprisonment. He appealed. Citing the appeal waiver, the government moved to dismiss.
When the government invokes an appeal waiver, we enforce it " 'if it is valid and if the issue being appealed falls within' the scope of the waiver." United States v. Boutcher, 998 F.3d 603, 608 (4th Cir. 2...
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