977 F.3d 764
9th Cir.2020Background
- Levian Pacheco Pacheco was a youth care worker at Casa Kokopelli, a federal-contracted shelter for unaccompanied noncitizen children; he was tried and convicted of multiple counts of abusive sexual contact, sexual abuse, and attempted sexual abuse of wards under 18 U.S.C. §§ 2243(b), 2244(a)(4).
- The victims were roughly 15–17 when taken into federal custody and placed at Casa Kokopelli; each had been served with Notices to Appear and placed into removal (immigration) proceedings while housed there.
- Government witness Jallyn Sualog (deputy director, ORR) testified that removal proceedings were pending against the minors at the time of the offenses, although some minors were later released to sponsors and not deported.
- Pacheco moved for judgment of acquittal under Rule 29, arguing the minors were not "pending . . . deportation" within the meaning of 18 U.S.C. § 2246(5)(A) (a required element of "official detention"). The district court denied the motion (except as to one count); he appealed.
- The Ninth Circuit interpreted "pending . . . deportation" to include unresolved removal proceedings (not requiring a final order or inevitable removal), applied the Jackson sufficiency standard, and held the government presented sufficient evidence that the minors were pending deportation; convictions affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Meaning of "pending . . . deportation" in 18 U.S.C. § 2246(5)(A) | "Pending" covers ongoing removal proceedings once initiated (e.g., after service of Notices to Appear). | "Pending" requires awaiting actual physical removal following a final order of removal (certain/inevitable deportation). | The court held "pending" means unresolved removal proceedings; no final order or inevitable removal required. |
| Sufficiency of evidence that victims were "in official detention" (pending deportation) | Testimony that ICE/Border Patrol had initiated removal proceedings and served Notices to Appear is sufficient for a rational juror to find victims were pending deportation. | Because some minors were later placed with sponsors and not deported, prosecutors failed to prove they were "pending deportation." | Viewing evidence in gov't favor under Jackson, a rational juror could find victims pending deportation; Rule 29 denial and convictions affirmed. |
Key Cases Cited
- Esquivel-Quintana v. Sessions, 137 S. Ct. 1562 (2017) (use of ordinary tools of statutory interpretation for undefined terms)
- Carey v. Saffold, 536 U.S. 214 (2002) (treating "pending" as "in continuance" or "not yet decided")
- Yates v. United States, 574 U.S. 528 (2015) (context matters beyond dictionary definitions)
- Robinson v. Shell Oil Co., 519 U.S. 337 (1997) (statutory language read in context of whole statute)
- Star Athletica, L.L.C. v. Varsity Brands, Inc., 137 S. Ct. 1002 (2017) (give each statutory word its ordinary meaning in context)
- United States v. Ventre, 338 F.3d 1047 (9th Cir. 2003) (de novo review for statutory interpretation)
- Zavala v. Ives, 785 F.3d 367 (9th Cir. 2015) (distinguished — involved detention for potential criminal prosecution, not civil deportation proceedings)
- United States v. Nevils, 598 F.3d 1158 (9th Cir. 2010) (en banc) (Jackson sufficiency standard)
- Jackson v. Virginia, 443 U.S. 307 (1979) (standard for reviewing sufficiency of the evidence)