4 F.4th 706
9th Cir.2021Background
- Lopez, a Guam resident who worked on Andersen AFB, communicated online with an undercover agent posing as a 13-year-old (“Brit”), sending explicit messages, photos, and arranging on-base meetings; he was arrested when he appeared at the agreed location on base.
- After arrest Lopez gave an ~80-minute recorded interrogation in which he admitted communicating with someone claiming to be underage but consistently asserted he believed the account was a law-enforcement sting and offered alternative motives for continuing contact.
- A federal grand jury indicted Lopez on two counts: (1) attempted enticement of a minor under 18 in violation of 18 U.S.C. § 2422(b) (the indictment referenced Guam First Degree Criminal Sexual Conduct as a “to wit” predicate), and (2) attempted transfer of obscenity to a minor under 16 in violation of 18 U.S.C. § 1470.
- At trial the Government introduced eleven short, edited video excerpts of the interrogation omitting agents’ questions and some exculpatory surrounding statements; the district court excluded the remainder as inadmissible hearsay over Lopez’s Rule 106 objections.
- Lopez moved twice for judgment of acquittal under Fed. R. Crim. P. 29 arguing insufficient evidence he believed the target was underage; he also objected to jury instructions. The jury convicted on both counts; Lopez appealed.
Issues
| Issue | Plaintiff's Argument (Lopez) | Defendant's Argument (U.S.) | Held |
|---|---|---|---|
| 1) Admissibility under Fed. R. Evid. 106 of edited interrogation clips | Admission of isolated excerpts was misleading; Rule 106 required admitting the full recording or excluding excerpts. | Excerpts were admissible as party-opponent admissions; remaining footage was hearsay and properly excluded. | Court: District court abused discretion by categorically excluding remainder under Rule 802 after admitting excerpts (Rule 106 entitles defendant to limited additional context), but error was harmless given overwhelming evidence and Lopez’s trial testimony; conviction affirmed. |
| 2) Element of § 2422(b): whether Government must charge/prove a specific predicate offense (and jurisdiction to prosecute that predicate) | § 2422(b) requires proving the sexual activity would be an offense the defendant himself could be charged with (i.e., the indictment’s cited Guam statute); here that predicate could not have been prosecuted by Guam on-base. | § 2422(b) asks whether the proposed sexual conduct would be criminal in any relevant jurisdiction (objective “any person” inquiry); no requirement to allege or prove a particular predicate statute or jurisdictional prosecution. | Court: As a matter of first impression, § 2422(b) does not require indictment/proof of a specific predicate offense; proof that a person in the defendant’s position could be charged under some relevant territorial law is sufficient. No plain error; conviction affirmed. |
| 3) Jury instruction on “laws of Guam” / failure to instruct on elements of the Guam predicate statute in indictment | Failure to instruct on the specific elements of the Guam statute (listed in indictment) violated due process. | Court’s agreed script adequately stated § 2422(b) elements; no requirement to instruct on a particular state predicate because § 2422(b) doesn’t incorporate a specific predicate. | Court: Trial court should have defined the relevant Guam law to the jury, but omission was non-prejudicial (no reasonable probability outcome would differ); plain-error standard not met. |
| 4) § 1470 count and indictment/verdict form: attempt vs completed transfer of obscenity | Indictment/ instructions/ verdict form treated § 1470 as completed transfer to an actual minor; insufficient evidence because there was no proof transfer to a real minor. | Indictment’s operative text charged an attempt; Lopez approved instructions and verdict form, waiving objections. | Court: Indictment charged attempt in its body (caption surplusage); Lopez waived objections to instructions/verdict form; no plain error. |
Key Cases Cited
- United States v. Collicott, 92 F.3d 973 (9th Cir.) (Rule 106/Rule 802 interplay; completeness doctrine)
- United States v. Dorrell, 758 F.2d 427 (9th Cir.) (scope of Rule 106 in interrogation contexts)
- United States v. Vallejos, 742 F.3d 902 (9th Cir.) (Rule 106 admission to correct misleading excerpts)
- United States v. Bailey, 696 F.3d 794 (9th Cir.) (harmless-error standard for trial errors)
- United States v. Dhingra, 371 F.3d 557 (9th Cir.) (§ 2422(b) applies against local standards; jury evaluates local law)
- United States v. Tello, 600 F.3d 1161 (9th Cir.) (jurisdictional analysis where acts span states; sufficiency review under § 2422(b))
- United States v. Goetzke, 494 F.3d 1231 (9th Cir.) (elements/substantial-step sufficiency in § 2422(b) prosecutions)
- United States v. Garcia-Paz, 282 F.3d 1212 (9th Cir.) (indictment “to wit” language may be surplusage; elements determined by statute)
- United States v. Ward, 747 F.3d 1184 (9th Cir.) (constructive amendment/variance doctrine for indictments)
- United States v. D’Amelio, 683 F.3d 412 (2d Cir.) (variance between indicted means and proof; core of criminality unchanged)