United States v. Jason Jayavarman, 2017 U.S. App. LEXIS 18581

Background

Defendant Jason Jayavarman traveled repeatedly to Cambodia (2010–2012), recorded sexual acts with a woman (“Ann/Ana”), and brought the video files to Anchorage.
Prosecution alleged the woman was a minor when videos were made; defense presented documents suggesting she was an adult; issue of actual age was disputed and jury did not reach a verdict on the completed-offense count (Count 1A).
Jayavarman was charged on two related theories for the §2251 claim: completed offense (produce and transport a depiction of a minor) and attempt to do so (Count 1B); jury convicted on Count 1B only.
Separate charges involved communications with an undercover FBI agent about travel to engage in illicit sexual conduct; jury convicted Jayavarman of attempting to aid and abet the agent’s travel (Count 2B) but the government conceded that attempt-to-aid-and-abet is not a cognizable crime under the applicable statutes.
On appeal, issues included whether attempt liability requires the victim actually be a minor, First Amendment and Foreign Commerce Clause challenges, sufficiency of evidence of defendant’s belief about age, evidentiary rulings (Rule 403), interpreter need, and constructive amendment.
Court affirmed Count 1B (attempt under §2251 based on defendant’s belief victim was a minor), vacated Count 2B (statutory infirmity), and vacated both sentences and remanded for resentencing.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether attempt to violate §2251(c) requires victim actually be a minor	Gov: Attempt may be based on defendant’s belief the victim is a minor; proof of actual minority not required for attempt	Jayavarman: Attempt conviction requires victim actually be a minor (jury must find actual age)	Held: Attempt liability is satisfied by defendant’s belief the victim was a minor even if victim was an adult; district instruction correct
Foreign Commerce Clause—does lack of actual minor undermine nexus with foreign commerce?	Gov: Transporting a depiction from abroad suffices for foreign-commerce nexus regardless of depicted subject	Jayavarman: If depiction does not actually show a minor, statute exceeds Foreign Commerce power	Held: Nexus unaffected by whether the depiction actually shows a minor; clause challenge rejected
First Amendment—does criminalizing attempt based on mistaken belief chill protected adult sexual expression?	Jayavarman: Theory chills lawful adult speech and producers; unconstitutional	Gov: Inchoate crimes based on defendant’s belief are not privileged; mens rea protects against overbreadth	Held: No First Amendment violation where conviction required proof defendant actually believed victim was a minor
Sufficiency of evidence that defendant believed victim was a minor	Jayavarman: Evidence insufficient; documentary evidence suggested victim was adult	Gov: Audio recordings and conduct supported belief that she was under 18	Held: Evidence sufficient; reasonable jury could find beyond a reasonable doubt that defendant believed victim was a minor

Key Cases Cited

United States v. Meek, 366 F.3d 705 (9th Cir. 2004) (belief that target is a minor suffices for attempt under a statute that requires knowledge of minority)
X-Citement Video, Inc. v. Wilson, 513 U.S. 64 (1994) (Congress may impose strict liability as to age for producers of child pornography because producers are better able to verify age)
Williams v. United States, 553 U.S. 285 (2008) (factual impossibility is not a defense to attempt when defendant believes facts that would make conduct criminal)
United States v. Kantor, 858 F.2d 534 (9th Cir. 1988) (reasonable mistake-of-age defense recognized where statute lacks mens rea for age)
United States v. Kuok, 671 F.3d 931 (9th Cir. 2012) (no general federal attempt statute; attempt must be expressly proscribed by the substantive statute)
United States v. Curtin, 489 F.3d 935 (9th Cir. 2007) (district court must review abhorrent exhibits in full before a Rule 403 balancing)