United States v. Price, 15-50556

Decision Date12 April 2019
Docket NumberNo. 15-50556,15-50556
Citation980 F.3d 1211
Parties UNITED STATES of America, Plaintiff-Appellee, v. Juan Pablo PRICE, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Concurrence by Judge Gilman; Concurrence in Order by Judge Wardlaw ; Dissent from Order by Judge Collins


The opinion and concurrence filed on April 12, 2019, and reported at 921 F.3d 777, is amended by the Amended Opinion and Concurrence filed in their place concurrently with this order.

With the Amended Opinion, Judges Wardlaw and Nguyen have voted to deny the petition for panel rehearing and rehearing en banc. Judge Gilman has voted to grant the petition for panel rehearing and recommends granting the petition for rehearing en banc.

The full court was advised of the petition for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R. App. P. 35.

Accordingly, the petition for rehearing and the petition for rehearing en banc are DENIED . A concurrence in the denial by Judge Wardlaw and a dissent from the denial by Judge Collins are filed concurrently with this order. No further petitions for rehearing or rehearing en banc will be entertained.

WARDLAW, Circuit Judge:

It is a federal crime under 18 U.S.C. § 2244(b), enacted as part of the Sexual Abuse Act of 1986, to knowingly engage in sexual contact with another person without that other person's permission on an international flight. During an overnight flight from Tokyo, Japan to Los Angeles, California, Juan Pablo Price, a forty-six-year-old man, moved from his assigned seat to an open seat adjacent to that of a sleeping twenty-one-year-old female Japanese student, where he fondled her breast and slipped his hand into her underwear, touching her vagina. The jury convicted Price under 18 U.S.C. § 2244(b), finding that the government proved beyond a reasonable doubt that Price knowingly had sexual contact with the victim and that the sexual contact was without the victim's permission. Price appeals his conviction, arguing that the district court erred in giving the Ninth Circuit Model Instruction on the elements of § 2244(b), which does not require that the government prove beyond a reasonable doubt that the defendant subjectively knew that his victim did not consent to his conduct.

We reject Price's reading of the statute as contrary to its text, the structure of the statutory scheme and its very purpose in penalizing those who sexually prey upon victims on the seas or in the air within federal jurisdiction. Congress's purpose in enacting the Sexual Abuse Act of 1986 was to criminalize sexual contact by focusing on the defendant's conduct. If the government were required to prove that the defendant subjectively knew he lacked consent, as Price urges here, every accused sexual predator could defend his admitted sexual contact in the face of no objective sign of permission by asserting a supposed subjective belief that the victim was "enjoying herself," a result directly contrary to the purpose of the 1986 Act. Even Price recognized, following his arrest, that "it sure is going to be my job not to touch a woman" whom he doesn't know and hasn't talked to. As the arresting officer responded to Price, "in your forty something years, you should've already known that[ ]."

Because unwanted sexual contact of the type Price engaged in—touching first, and asserting later that he "thought" the victim consented—is precisely what § 2244(b) criminalizes, we reject Price's claim of instructional error. We also conclude that the police had probable cause to arrest Price, that he was properly Mirandized, and that the district court acted within its discretion in refusing to read back to the jury portions of the victim's testimony. We therefore affirm Price's conviction and sentence.


The objective facts are fairly undisputed. Price, then forty-six, was a passenger on the overnight flight from Tokyo, Japan to Los Angeles, California. A.M., a twenty-one-year-old college student, and her friend, Maki Fujita, were traveling on the same flight. After take-off, Price asked A.M. if he could move from his assigned seat to the unoccupied seat next to her, a seat where the video monitor was not working, explaining that his original seat had limited legroom. A.M. said "okay." Price attempted to engage A.M. in conversation, but A.M. could not speak English very well, and he eventually realized that she was not completely understanding what he was saying. A flight attendant, Hidemori Ejima, noticed that Price had changed his seat, and asked him why. When Price responded that he wanted more legroom, Ejima offered Price another seat with a working video monitor and three times more legroom. Price declined the offer—something Ejima had not seen before in his twenty-five years as a flight attendant. After food service, Ejima handed Fujita a note warning Fujita and A.M. to "watch out" for the person sitting next to them. A.M. interpreted the warning to mean that Price might try to steal her wallet or other belongings. She moved her purse and wallet deeper into her bag and fell asleep.

A.M. woke up to Price touching the right side of her body, including her arm, hip, and leg. Thinking that Price was trying to steal the cell phone in her pocket, she moved the phone to inside the seat pocket and went back to sleep. When A.M. awoke again, Price was touching her breast. A.M. began panicking, but did not want to bother the people around her. She tried to avoid Price's touch by pulling the blankets up to her shoulder and crossing her arms in front of her. Undeterred, Price placed his blanket over both of them, covering his arms, and continued to touch her breast, first over her shirt and then under it. Price then moved his hand into A.M.’s jeans and underwear and touched her vagina.

In a state of shock, panic, and fear, and looking for the words to tell Price to stop, A.M. twisted her body toward Fujita on her left, away from Price. Price hauled her back around with "strong force" and tried to pull her jeans down. At this point, Fujita woke up, and, seeing her awake, Price retreated to his seat. When Fujita asked A.M. if she was okay, A.M. responded that she was not and asked what she should do. Fujita told her to tell the flight attendant. A.M. did not have the English words to explain what happened, although she was able to ask for "help."

Price's perception of the encounter differed from the others on the plane. He testified that while his hand was on the armrest, he felt A.M.’s hand touch his. Thinking that this could be an invitation, Price began to rub her hand. Price stated that they started holding and rubbing each other's hands. As he began moving his hands across A.M.’s body and to her breast area, he thought she was "enjoying herself" because she was arching her body, he could feel her heartbeat, her breathing was intense, and she was opening and closing her eyes. It was only when Price tried to move her face toward him and A.M. would not budge that Price thought something was wrong. At that point, Price noticed that Fujita was awake, and A.M. then got up. According to both A.M.’s and Price's accounts, no words were exchanged during this encounter. Price agrees A.M. did not verbally consent to his touching her.

While A.M. got up to tell the flight attendant what happened, Price wrote a note that he never ended up giving to A.M., which said, "If a man touches you and you don't want him to always feel free to say No." The purser or lead chief flight attendant, Yosri Zidan, then obtained written statements from both Price and A.M. Price's story was that he changed seats because he wanted more legroom; he then fell asleep and awoke to find A.M. stroking his hand.

While still in flight, the pilot sent a message to American Airlines employees at Los Angeles International Airport (LAX) that read, "WE NEED LAX POLICE TO MEET AIRPLANE [/] WE HAVE A MOLESTER/FONDLER ON BOARD." The LAX Police Department (LAXPD) then contacted the Transportation Security Administration (TSA), who in turn contacted the Federal Bureau of Investigation (FBI). Special Agent David Gates (S.A. Gates) of the FBI instructed the sergeant at LAX to first investigate the incident to determine if he needed to respond.

On February 18, 2015, after a federal grand jury indicted Price for abusive sexual contact under 18 U.S.C. § 2244(b), Price was formally arrested. Price filed a pre-trial motion to suppress evidence found in his bag and cell phone, and his statements to the LAXPD officers and to S.A. Gates, arguing that he was arrested without probable cause upon the flight's arrival at LAX and that he was questioned without being given Miranda warnings. The government and Price disputed the 18 U.S.C. § 2244(b) jury instruction, based on the statute's use of the word "knowingly." The district court ultimately selected the Ninth Circuit's Model Criminal Jury Instruction for § 2244(b) and the additional instruction proposed by Price that "permission" under § 2244(b) can be express or implied, "that is[,] inferred from words or actions." The district court denied Price's request to instruct the jury that, in addition, the government must prove that Price "knew the sexual contact was without A.M.’s permission." The district court reasoned "that it is appropriate not to read into the statute that which it does not say it requires."

Price timely appeals.


18 U.S.C. § 2244(b) provides:

Whoever, in the special maritime and territorial jurisdiction of the United States ... knowingly engages in sexual contact with another person without that other person's permission shall be fined under this title, imprisoned not more than two years, or both.


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