United States v. Pepe
| Docket Number | 22-50024 |
| Decision Date | 28 August 2023 |
| Parties | UNITED STATES OF AMERICA, Plaintiff-Appellee, v. MICHAEL JOSEPH PEPE, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Argued and Submitted June 27, 2023 Pasadena, California
Appeal from the United States District Court for the Central District of California No. 2:07-cr-00168- DSF-1 Dale S Fischer, District Judge, Presiding
James H. Locklin (argued), Deputy Federal Public Defender Cuauhtemoc Ortega, Federal Public Defender; Federal Public Defender's Office, Los Angeles, California; for Defendant-Appellant.
Elana Shavit Artson (argued), Stephanie S. Christensen, and Damaris Diaz, Assistant United States Attorneys; Bram M. Alden Assistant United States Attorney, Criminal Appeals Section Chief; E. Martin Estrada, United States Attorney; United States Attorney's Office, Los Angeles, California; for Plaintiff-Appellee.
Before: N. Randy Smith, Kenneth K. Lee, and Lawrence VanDyke, Circuit Judges.
The panel affirmed Michael Pepe's jury conviction on two counts of violating 18 U.S.C. § 2423(b) by traveling in foreign commerce with the purpose of committing illicit sexual acts and two counts of violating 18 U.S.C. § 2241(c) by crossing a state line to sexually abuse a child under 12 and then so doing.
Pepe contended that no rational finder of fact could have found beyond a reasonable doubt that he violated §§ 2423(b) and 2241(c). He argued that the Supreme Court in Mortensen v. United States, 322 U.S. 369 (1944), ruled categorically that a jury cannot rationally find that a defendant who leaves his home for an innocent purpose on a round trip returns for a criminal purpose. Declining Pepe's invitation to expand Mortensen beyond its rationale and facts, the panel wrote that Mortensen does not remove from the jury's province its ability to rationally find that a person embarked on a trip with an innocent purpose but returned home with a motivating purpose of illicit conduct. The panel held that a jury could rationally find that the sexual abuse of children was one of Pepe's primary motivations for returning from the United States to Cambodia, which is sufficient to uphold his convictions under § 2423(b) (Counts 1 and 2). Noting that § 2241(c) (Counts 3 and 4) requires the jury to find a slightly more specific motivating purpose, the panel held that a rational trier of fact could have found that Pepe's charged victims were, in fact, under 12, and that Pepe crossed state lines with a motivating purpose of sexually abusing girls under 12.
Because Mortensen does not preclude the government's theory of the case, and Ninth Circuit precedent clearly establishes that a defendant can have mixed motives for traveling, the panel held that the district court did not err in declining to instruct the jury on Pepe's innocent round trip theory of defense.
The panel also held that the district court did not err in its instructions to the jury on the requisite mens rea. The panel wrote that Congress's 2018 amendment of § 2423(b) is not clearly irreconcilable with this court's precedent upholding a "motivating purpose" as sufficient for conviction, the district court did not abuse its discretion in declining Pepe's request to add a requirement that the government prove that the criminal sexual activity was "not merely incidental," and the district court properly declined to instruct the jury that the improper conduct must be a but-for cause of the travel.
Michael Pepe moved from the United States to Cambodia in the spring of 2003. Between June 2005 and June 2006, he sexually abused young girls, eight of whom eventually testified against him at trial. The government presented evidence at trial from which a jury could infer that one of Pepe's primary activities in Cambodia was molesting children. A jury convicted Pepe of two counts of violating 18 U.S.C. § 2423(b) by traveling in foreign commerce with the purpose of committing illicit sexual acts and two counts of violating 18 U.S.C. § 2241(c) by crossing a state line with intent to sexually abuse a child under 12 and then so doing. Pepe appeals the sufficiency of the evidence for each of these convictions, as well as the district court's instructions to the jury. Because the evidence was sufficient for the jury to rationally find beyond a reasonable doubt that Pepe was guilty on all counts and the district court did not err or abuse its discretion in instructing the jury, we affirm.
Pepe is a citizen of the United States. In March 2003, when he was nearly fifty, Pepe moved to Phnom Penh, Cambodia. Pepe told his sister that Cambodia "was a very dysfunctional country" and that "it was like the wild, wild west there; ... there weren't any rules."
Sometime after Pepe arrived in Cambodia but before May 2004, Pepe hired a woman known as Basang as a prostitute.[2] Basang later procured children for Pepe to sexually abuse and taught at least some of the children how to behave when being abused by Pepe. Soon after his May 2005 travel, Pepe received a letter from a pen pal called "Mack," thanking Pepe for loaning Mack money. Pepe would later thank Mack for sending Pepe an "email with pictures," an email that "help[ed Pepe] make up [his] mind to continue to stay . longer."
On May 26, 2005, Pepe returned to his Cambodian residence from a trip to the United States. Two weeks later, Basang brought N.P., a young Cambodian girl, to Pepe's house where Pepe raped her and, over the span of at least 13 days, took 67 photos of her, including nude photos. [3] N.P. was the first of eight girls whom Pepe sexually abused and who ultimately testified at his trial.
On or before August 6, 2005, Basang brought K.S. to Pepe's house. Photos were taken of K.S. at Pepe's house with Pepe's camera on August 6, 2005. Pepe admitted to taking nude photos of two of Basang's "nieces" and acknowledges in his briefing that K.S. was one of Basang's nieces. K.S. testified that she stayed in Pepe's house for "several months." Pepe raped K.S., leading her to be hospitalized for a week.
On September 3, 2005, Pepe returned to Cambodia from a trip to the United States. In late October or early November, Basang brought L.K. to Pepe's house, where she remained for "[a]bout eight months" until the Cambodian police searched the home in June 2006. Pepe took photos of L.K. and, between November 2005 and June 2006, his camera captured 493 photos of L.K. Pepe persisted in "raping [L.K.] the entire time that [she] lived at his house." L.K. testified that Pepe raped her once a week, "sometime[s] every day or once every two weeks."
Pepe's photos of S.R., yet another girl, date from as early as November 26, 2005, although, as is true for perhaps all of the girls, the evidence does not precisely establish the date when S.R. arrived at Pepe's house. S.R. testified that Pepe sexually abused her every night he was home during her time at his house. Pepe took photos of S.R. and the government found at least 315 photos of her taken from his camera. S.R.'s sister, S.S., arrived at Pepe's house by, at latest, December 4, 2005, the date of the first photo of her on Pepe's camera. The government recovered 278 photos of S.S. from Pepe's camera. S.S. testified that Pepe sexually abused her "frequently." Meanwhile, Basang taught S.S. to perform sexual acts with Pepe. Photos of S.S. and S.R. were taken at Pepe's house as late as June 11, 2006.
T.C. spent nearly a month at Pepe's house, and although the dates of her arrival and departure are unclear, photos of T.C. taken at Pepe's house span from February 14, 2006, to February 28, 2006. While T.C. was at his house, Pepe raped her four times.
N.T.D. arrived at Pepe's house during the Vietnamese lunar new year. N.T.D. testified that Pepe raped N.T.D. "[a]t least one time a day" during her time at Pepe's house, which was "[a]bout a week." She also testified that Pepe brought in another girl-unidentified here-and sexually abused her. At least a dozen photos of N.T.D. were taken at Pepe's house on April 17, 2006.
I.T. could not recall when Basang brought her to Pepe's house, but photos of I.T. were taken with Pepe's camera between April 21, 2006, and May 20, 2006. Pepe raped I.T. multiple times. Basang eventually took I.T. back home. When she returned home, I.T. told her grandmother about pain she was suffering and I.T. later led "the police to [Pepe's] house."
The Cambodian police, along with a United States agent observer arrested Pepe in June 2006. When searching Pepe's home, the police found condoms, drugs, KY jelly, baby oil, rope, and "strips of cloth that were tied together." The drugs included Viagra and drugs that, according to an expert, could be used to sedate a child. The police also found a bedroom close to Pepe's bedroom that had stuffed animals, children's bedding, and children's clothes. In the space between the children's room and Pepe's room, there was a massage table and photos of Pepe's victims. The police found digital storage devices that contained more than a thousand photos, including the photos of the victims discussed above. Among other items, the police also found cuttings of newspaper articles discussing pedophiles in Cambodia. Soon after the police searched Pepe's house and arrested him, Dr. Laura Watson, who at that time "work[ed] at an International Clinic in Phnom Penh, Cambodia," examined some of Pepe's victims on June 20, 2006. She then reexamined those same victims, as well...
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