United States v. Ortner
| Decision Date | 25 January 2023 |
| Docket Number | 21-5075 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. CARL GENE ORTNER, JR., Defendant-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
(D.C. No. 4:20-CR-00237-JFH-1) (N.D. Okla.)
Before HARTZ, KELLY, and MORITZ, Circuit Judges.
Defendant Carl Gene Ortner, Jr. was convicted after a jury trial of transportation of a minor with intent to engage in criminal sexual activity, 18 U.S.C. § 2423(a) (Count 1); sexual abuse of a child in Indian country, 18 U.S.C. §§ 1151, 1152 &2243(a) (Count 2); abusive sexual contact in Indian country, 18 U.S.C. §§ 1151, 1152 &2244(b)(3) (Count 3); possession of parts of a bald eagle 16 U.S.C. § 668(a) (Count 4); and possession of parts of a golden eagle, 16 U.S.C. § 668(a) (Count 5). He was sentenced to concurrent terms of life as to Count 1 180 months as to Count 2; 24 months as to Count 3; 12 months as to Counts 4 and 5; and supervised release of varying terms in the event he was ever released from imprisonment. On appeal, he argues that the jury instructions for Count 1-3 constituted plain error due to a lack of an accurate explanation of criminal intent and specification of an underlying state offense (Count 1) and failing to require a finding that Mr. Ortner was a non-Indian (Counts 2 and 3). He also argues that the district court erred by (1) failing to sever the sex offense counts (1-3) from the eagle parts counts (4-5), and (2) imposing a $100,000 fine. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm.
In 2016, Mr. Ortner, then 53-years-old, met S.W., then 14-years-old and a member of the Wyandotte Nation tribe. At the time of their introduction, S.W. and her parents, Mr. and Mrs. Wright, were grieving the death of S.W.'s sister who had been involved in a fatal car accident one year earlier. S.W. became acquainted with Mr. Ortner by virtue of her participation in tribal powwows, where she and Mr. Ortner would perform traditional dances. Mr. Ortner began to spend time with S.W.'s family, offering to help S.W. recover from the loss of her sister. To affiliate with her family and to get close to S.W., Mr. Ortner portrayed himself as a member of the Native American community. Mr. Ortner gave S.W regalia he constructed from eagle feathers for her to wear in tribal dances. Such items are considered sacred and a great honor to receive from an elder in the tribal community.
Mr. Ortner was not registered as a member of any tribe, and during an investigation, Mr. Ortner "advised that he was not Native American." 3 R. 194. However, the record suggests that Mr. Ortner was informally accepted as an elder in the Indian community. 3 R. 107, 179-80. Mr. Ortner gave S.W. eagle feathers and bought S.W. other gifts, including jewelry and underwear Mr. Ortner termed "big girl panties." 3 R. 64. At a certain point in their relationship, Mr. Ortner began to engage in a pattern of abuse. At first, S.W. described "sensual touching," groping, and kissing, while the pair played basketball at a gym on Wyandotte land. 3 R. 59-61, 68-69. Around November 2017, S.W. testified that outside a convenience store on Wyandotte, Mr. Ortner touched her under her clothes and put his hand in her vagina. 3 R. 67.
In January 2018, Mr. Ortner traveled to Joplin, Missouri from Wyandotte, Oklahoma, with S.W, who was 15. See 3 R. 70-71. At trial, S.W. stated that leading up to this trip, Mr. Ortner asked her various questions related to sex. Mr. Ortner described the trip as an errand relating to his work for an advertising agency and testified that S.W. "ran with [him]." 3 R. 70, 250. The government theorized that Mr. Ortner had planned to have sex with S.W. in Joplin, where that plan was realized. Aplee. Br. at 8. S.W. testified that on this trip they had sex for the first time, in a conference room at Mr. Ortner's office at night. 3 R. 72-73. Mr. Ortner recalled that the trip occurred in daylight and that he waited until after the trip to have sex with S.W., when she would turn 16. 3 R. 250-51, 275, 310-11. S.W. recounted multiple sexual encounters following the Joplin trip, in various locations including Mr. Ortner's home and car.
In April 2018, the abuse was reported by S.W.'s high school after S.W. sent a Snapchat message to high school friends, prompting a law enforcement investigation. In August 2018, officers searched Mr. Ortner's home, through which officers discovered bald eagle and golden eagle parts. The parties agree that these parts/feathers were not the same as those used to lure S.W., as the latter were ceremonially burned and buried before execution of the search warrant.
The district court denied a pretrial motion to sever the sex counts from those involving eagle parts, finding evidentiary overlap and de minimis potential prejudice. At trial, the jury learned that in 2019, Mr. Ortner pled guilty to a state charge of second-degree rape of a minor. 3 R. 297, 304. Also admitted: Mr. Ortner's prior sworn statement that between November 17, [2017] and April 18, [2018], he had sexual intercourse with S.W. who was under the age of 16 at that time. See 3 R. 304-05. The jury was instructed that it could consider the state conviction for the purpose of impeachment only. 3 R. 346. At the close of evidence, as to Counts 2 and 3, the government dismissed the § 1153 charges and proceeded only under § 1152, given the lack of evidence that Mr. Ortner was an Indian. Mr. Ortner did not object. 3 R. 335.
Mr. Ortner challenges the district court's instructions to the jury as to Count 1. Having raised no objection at trial, our review is for plain error. United States v. Smalls, 752 F.3d 1227, 1245 (10th Cir. 2014). To that end, the court "examine[s] the[ ] [instructions] as a whole to determine whether the instructions provided the jury with an accurate statement of the applicable law." United States v. Harmon, 996 F.2d 256, 258 (10th Cir. 1993). To warrant reversal under this standard, the district court must have committed (1) legal error, (2) that was clear and not reasonably debatable, (3) which violated the Defendant's substantial rights, and (4) was so grave as to "seriously affect the fairness, integrity or public reputation of judicial proceedings." Puckett v. United States, 556 U.S. 129, 135 (2009).
The court instructed the jury as follows:
Mr. Ortner argues the instruction is faulty because it does not require the jury to find (i) defendant's dominant purpose in taking S.W. to Missouri was for her to engage in illicit sexual activity and (ii) defendant violated a specific criminal statute. Mr. Ortner argues that the jury wasn't told that illicit sexual activity needed to be a "motive- dominant or otherwise-for the interstate transport of the minor." Aplt. Br. at 13 (emphasis in original).
We find no error, plain or otherwise. As a whole, the instructions "provided the jury with an accurate statement of the applicable law." United States v. Scisum, 32 F.3d 1479, 1484 (10th Cir. 1994). The instructions properly focused Mr. Ortner's intent at the time of the interstate transportation and ensured the jury found an aim of the trip was to engage in unlawful sexual conduct. See 18 U.S.C. § 2423(a); United States v. Scott, 529 F.3d 1290, 1303 (10th Cir. 2008).
As for the requisite motive, the "illicit sexual activity need not be the only purpose" for the trip but is enough if it was one of the defendant's motivating purposes. United States v. Lacy, 904 F.3d 889, 901 (10th Cir. 2018) (emphasis added). The word "intent" is "of common enough usage to be clear to any reasonable lay juror." Scisum, 32 F.3d at 1485. The instructions thus reflected our precedent and plain error only occurs when a claimed error violates "current well-settled law." Lacy, 904 F.3d at 893. That additional explanation might have been given does not mean that the absence of such language constitutes plain error. Cf. United States v. Knight, 659 F.3d 1285, 1293 (10th Cir. 2011) ().
Defendant's next assertion-that 18 U.S.C. § 2423(a)'s third element requires the jury to find that the government proved violation of a specific criminal statute-is not something this court has ever held. The government notes that the court did not instruct on the specific state statute which would make the contemplated sex unlawful given the age difference between Mr. Ortner and S.W., but that the age difference would have rendered the sex unlawful in any jurisdiction. Aplee. Br. at 30 (); id. at 35. The issue of whether the violation of a specific state statute is an element of the offense or merely a means of proving the third element is one on which courts may differ. Compare United States v. Doak, 47 F.4th 1340, 1352 (11th Cir. 2022) (...
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