United States v. Malcom Copeland, 2016 U.S. App. LEXIS 7913

In 2013 Malcom Deandre Copeland and codefendants recruited and advertised minors for commercial sex; two victims (15 and 17) were charged in the indictment.
Copeland was convicted by a jury on two counts of sex trafficking of children under 18 U.S.C. § 1591(a) & (b)(2) and sentenced to concurrent 216-month terms plus supervised release and restitution.
Section 1591(a) requires that the defendant act knowingly and know or recklessly disregard that the person is under 18 or will be caused to engage in a commercial sex act.
Section 1591(c) (2008 version applicable here) provided that, if the defendant had a reasonable opportunity to observe the person, the Government need not prove the defendant knew the person was under 18.
At trial the jury was instructed it could find the age mens rea satisfied by (1) actual knowledge, (2) reckless disregard, or (3) a reasonable opportunity to observe the victim (the § 1591(c) route). Copeland objected and appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 1591(c) eliminates mens rea for victim's age (i.e., imposes strict liability)	Copeland: §1591(c)’s "reasonable opportunity to observe" option imposes strict liability as to age, relieving Government of proving scienter	Government: §1591(c) provides a permissible alternative to proving knowledge; statute still requires knowing involvement in the commercial sex act	Court: §1591(c) supplies an alternative to proving mens rea as to age—the Government need not prove knowledge or reckless disregard of age if defendant had reasonable opportunity to observe the victim (joins Robinson and Phea)
Whether the lack of mens rea as to age violates due process	Copeland: Removing scienter on age violates Due Process because criminal liability requires mens rea	Government: Congress may constitutionally limit or eliminate mens rea for age in sex crimes involving minors; other statutes do so and courts uphold them	Court: No due process violation; Congress can impose strict liability as to a minor’s age in these offenses and §1591(c) is constitutional as applied

United States v. Phea, 755 F.3d 255 (5th Cir. 2014) (upholding similar jury instruction and addressing mens rea issue under §1591)
United States v. Robinson, 702 F.3d 22 (2d Cir. 2012) (held §1591(c) allows Government to prove a reasonable opportunity to observe in lieu of mens rea about age)
Morissette v. United States, 342 U.S. 246 (1952) (presumption that criminal statutes include mens rea, with noted exceptions)
X-Citement Video, Inc. v. Federal Communications Commission, 513 U.S. 64 (1994) (discussing mens rea presumptions in sexual-offense contexts)
United States v. Ransom, 942 F.2d 775 (10th Cir. 1991) (upholding no-mens-rea rule for victim’s age in aggravated sexual abuse statute)
United States v. Wilcox, 487 F.3d 1163 (8th Cir. 2007) (upholding lack of mens rea requirement about minor’s age in sexual-abuse statute)
United States v. Ruggiero, 791 F.3d 1281 (11th Cir. 2015) (upholding strict-liability approach for victim age in child exploitation statute)