Sealed v. SealedSealed v. Sealed
for judgment as a matter of law and/or for a new trial. A new trial is appropriate if the verdict is “against the clear weight of the evidence” or “is based on evidence which is false” or “will result in a miscarriage of justice.” Buckley v. Mukasey, 538 F.3d 306, 317 (4th Cir. 2008). Here, the sole basis for appellants’ demand for a new trial is the district court‘s alleged skepticism about certain plaintiffs’ testimony regarding dates and hours worked. Mere challenges to witness credibility on appeal, however, fall well short of the standard for granting a new trial. Moreover, the district court found that “[n]either party has provided financial records,” and so the best evidence available came from plaintiffs’ own recollection, which the jury duly considered along with defendants’ objections to its accuracy. J.A. 1018-19. It would impede the goals of the FLSA to penalize employees for their employers’ inadequate recordkeeping. In short, we find no grounds for reversal in the clubs’ quibbles with the jury instructions, the verdict sheet, or the denial of its new trial motion.
IV.
We must be mindful in the end that we are applying a statute which Congress thought was necessary to provide “fair labor standards” for employees, including those marginalized workers unable to exert sufficient leverage or bargaining power to achieve adequate wages in the absence of statutory protections. To rule for the clubs under the circumstances here would run too great a risk of undercutting the Act‘s basic aim. Accordingly, and for the reasons given above, the judgment
AFFIRMED.
jury trial. The district court denied JA-L‘s request for a downward departure and sentenced him, pursuant to the advisory Guidelines, to two concurrent terms of life imprisonment to be followed by concurrent lifetime terms of supervised release. JA-L appeals his conviction and sentence. We affirm.
Before DENNIS, ELROD, and GRAVES, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:
FACTUAL SUMMARY
The appellant (JA-L)1 was charged in a superseding indictment with transporting his daughter, a minor under age 12, from Texas to Mexico and engaging in a sexual activity with her in violation of
DISCUSSION
I. Sufficiency of the evidence of criminal intent.
JA-L asserts that there was insufficient evidence to prove beyond a reasonable doubt the intent element of each of the crimes. Because JA-L properly preserved his challenge to the sufficiency of the evidence, we review this issue de novo. See United States v. Winkler, 639 F.3d 692, 696 (5th Cir. 2011). Evidence will be deemed sufficient to convict if, “after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original). In making this inquiry, “[w]e view the evidence in the light most favorable to the verdict and indulge all reasonable inferences in favor of the verdict.” United States v. Mulderig, 120 F.3d 534, 546 (5th Cir. 1997). Further, “we apply a rule of reason, knowing that the jury may properly rely on their common sense and evaluate the facts in light of their knowledge of the natural tendencies and inclinations of human beings.” Id. at 547 (internal quotation marks and citation omitted). A defendant who challenges the sufficiency of the evidence “swims upstream.” Id. at 546.
JA-L asserts that the Government failed to present sufficient evidence to prove that he transported the victim with the intent to commit a sexual act. Both
This court has addressed the elements of
Relevant here, an offense under
These cases are persuasive authority on the intent element of the offense under
The following evidence was presented at trial. JA-L was married to VG, and Jane Doe is the eldest of their three children. The family lived in Del Rio, Texas. The couple had a tumultuous marriage and separated multiple times only to later reconcile. During those short-term separations, VG would take the children and go stay at JA-L‘s mother‘s house in Acuna, Mexico, which is just across the border from Del Rio. The couple permanently separated in December 2013. For a time, both JA-L and VG remained in Del Rio, and VG had a boyfriend. In mid-January 2014, JA-L moved to Greenville, Texas, and, in mid-March 2014, VG moved to Midland, Texas, with the three children.
Between December 2013 when the couple separated and March 2014 when VG moved to Midland, JA-L would pick the children up approximately once a month on a Friday after school and take them to Acuna for the weekend to visit his mother and sisters. According to JA-L, the reason he took the children to his mother‘s house in Mexico was because he no longer had a house in Del Rio where he could visit with them. On Sunday evenings, either VG, her father, or her aunt would pick the children up in Mexico and bring them home.
During a visit in January 2014, JA-L and VG fought when JA-L saw bruising on VG‘s neck that she had sustained during an amorous encounter with another man. During that argument, JA-L threatened to file for divorce, sue for custody of the children and report VG to the government for receiving illegal benefits.
On Friday, February 21, 2014, JA-L met VG at a McDonald‘s restaurant in Del Rio to begin his monthly visit. According to VG, Doe did not want to go with her father for the weekend, but JA-L insisted that he had a right to see her. When Doe got into the car, VG saw JA-L pointing and waving his hand in an accusatory manner at Doe, who was in the backseat. When VG went to the car to see if everything was alright, JA-L “just smirked, smiled and said nothing is wrong, I‘m just asking if she still loves me.” To VG, Doe appeared scared. At the time of that trip, JA-L already knew that VG would be moving to Midland with the children the following month.
In April 2014, approximately a month after VG had moved the children to Midland and enrolled them in school there, Doe disclosed to VG that JA-L had sexually abused her. VG reported the information to the police in Del Rio and took Doe to the hospital in Midland for a physical examination. Cori Armstead, the nurse who conducted the examination of Doe, concluded that the physical examination of Doe‘s genital area supported Doe‘s claim that she had been sexually assaulted. Armstead testified regarding the following statements that Doe made during that examination. JA-L first sexually assaulted
Doe testified briefly that JA-L had vaginally penetrated her and that it had last happened at her grandmother‘s house in Mexico. She confirmed that she had told VG of the abuse and declared that she did not want to live with JA-L anymore. She also said that JA-L would continually send her text messages stating that he loved her and asking whether she had told anybody about what they had done.
JA-L does not assert that he has never sexually assaulted Doe, that he did not transport her to Mexico, or that she had not yet attained the age of 12. Rather, JA-L contends that there was insufficient evidence to prove that when he crossed the border into Mexico, transporting Doe with him, he did so with the intent to engage in illicit sexual activity with Doe.
In support of his argument, JA-L states that the evidence shows that he was residing at his mother‘s house in Acuna at the time of Doe‘s last visit to Mexico because he did not have a place to live in Del Rio. JA-L did testify to that effect. The record more accurately reflects, however, that JA-L was living in Greenville from January to April of 2014. He maintains that the normal post-separation routine was for him to spend his visitation weekends in Acuna at the home of either his sister or mother. He points out that VG had regularly taken the children and stayed with his mother in Acuna during their separations. He further points out that VG never objected to him taking the children to Mexico to exercise his visits.
Criminal intent may be “demonstrated by direct or circumstantial evidence that allows an inference of an unlawful intent, and not every hypothesis of innocence need be excluded.” United States v. Aggarwal, 17 F.3d 737, 740 (5th Cir. 1994); see United States v. Bennett, 258 Fed.Appx. 671, 683 (5th Cir. 2007) (applying Aggarwal in an appeal from a
VG‘s acquiescence in the trips to Mexico has no bearing on JA-L‘s intent at the time he brought Doe into Mexico for that last visit. Viewed in the light most favorable to the verdict, the evidence indicated that JA-L had been having sexual intercourse with Doe for several years and in her mother‘s absence. JA-L knew at the time of the last trip to Mexico that VG would be moving to Midland and taking the children with her. JA-L vaginally penetrated Doe while in Mexico, and Doe‘s paternal grandmother stayed in Del Rio that weekend.
From these facts, a rational factfinder could infer that, despite any alternative innocent reasons JA-L may have had for crossing into Mexico with Doe, getting Doe away from her mother in order to have sexual intercourse again before she moved away to Midland was a dominant, i.e., effi-
cient
The defense‘s theory at trial was that when JA-L threatened VG with divorce, a custody suit, and turning her in for welfare fraud, she became scared and coached Doe into accusing JA-L of sexual abuse. The evidence showed that JA-L filed for divorce on March 12, 2014, and that he was arrested in this case on April 16, 2014. However, the evidence also showed that Doe consistently repeated the same version of events, that the medical examination revealed injuries consistent with sexual abuse, and that Doe said she had never told anyone about the abuse because her father was always around. Doe did not tell her mother about the abuse until her parents had separated permanently, she had moved to another city with her mother, she had enrolled in a new school, and her father was no longer always around.
For these reasons, we conclude that there is sufficient evidence in the record from which a rational juror could have found beyond a reasonable doubt that JA-L had the criminal intent required for a conviction under
II. Sufficiency of the evidence that a state line was crossed under section 2241(c).2
JA-L asserts that there was insufficient evidence to prove that he crossed a
state line under
“State line” has also not been defined in cases. In United States v. Irving, 452 F.3d 110, 114, 116 (2d Cir. 2006), the defendant was convicted under
However, to determine the meaning, we need only look to the plain language of the statute. United States v. Dison, 573 F.3d 204, 207 (5th Cir. 2009).
For these reasons, we conclude that there is sufficient evidence in the record from which a rational juror could have found beyond a reasonable doubt that JA-L crossed a state line for purposes of
III. Double jeopardy
JA-L asserts that his conviction under both
The Double Jeopardy Clause protects against (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. Brown v. Ohio, 432 U.S. 161, 165 (1977). When a defendant argues that “the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Blockburger v. United States, 284 U.S. 299, 304 (1932). Under this standard, we compare the statutes and the elements of the offense. See Brown, 432 U.S. at 165; United States v. Tovar, 719 F.3d 376, 383 (5th Cir. 2013). “If each [statute] requires proof of a fact that the other does not, the Blockburger test is satisfied, notwithstanding a substantial overlap in the proof offered to establish the crimes.” Tovar, 719 F.3d at 383 (quoting Iannelli v. United States, 420 U.S. 770, 785 n. 17 (1975)).
A conviction under
JA-L relies on the Sixth Circuit‘s decision in DeCarlo to support his argument that an offense under
Notwithstanding the fact that DeCarlo is not binding authority, it can be distinguished as both of the offenses there involved traveling to have illicit sex with a minor. DeCarlo was convicted under
der
Under Blockburger v. United States, “[t]he applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.” Id. at 304. Here,
Accordingly, we conclude that JA-L was not subjected to a double jeopardy violation.
IV. Sentencing enhancement based on a pattern of activity.
This court “review[s] the district court‘s interpretation or application of the Sentencing Guidelines de novo and its factual findings for clear error.” United States v. Trujillo, 502 F.3d 353, 356 (5th Cir. 2007). “[S]entencing facts must be established by a preponderance of the evidence.” United States v. Harris, 702 F.3d 226, 230 (5th Cir. 2012) (internal quotation marks and citation omitted). “[D]istrict courts may consider any information which bears sufficient indicia of reliability to support its probable accuracy.” Id. (internal quotation marks and citation omitted). “Generally, a PSR bears sufficient indicia of reliability to be considered as evidence by the sentencing judge in making factual
determinations.” Id. (internal quotation marks and citation omitted). If the PSR does bear sufficient indicia of reliability, the district court may adopt it unless the defendant presents rebuttal evidence to demonstrate that it is inaccurate. United States v. Zuniga, 720 F.3d 587, 591 (5th Cir. 2013). “Rebuttal evidence must consist of more than a defendant‘s objection; it requires a demonstration that the information is materially untrue, inaccurate or unreliable.” Id. (internal quotation marks and citation omitted).
Under section 4B1.5(b)(1), a defendant‘s offense level shall be enhanced by five levels if the offense of conviction constitutes a “covered sex crime” and the defendant “engaged in a pattern of activity involving prohibited sexual conduct.” U.S.S.G. § 4B1.5(b)(1). JA-L does not dispute that his offense was a “covered sex crime” for purposes of section 4B1.5(b)(1). Rather, he disputes that the evidence was sufficient to prove a pattern of sexual activity. JA-L asserts that both counts of the indictment involved the same, single act and that the majority of the trial evidence went to the event that was the subject of the indictment. He also asserts that the evidence did not include any specific dates when he may have abused Doe or transported her for the purpose of doing so.
The comments to section 4B1.5 establish that “the defendant engaged in a pattern of activity involving prohibited sexual conduct if on at least two separate occasions, the defendant engaged in prohibited sexual conduct with a minor.” § 4B1.5, cmt. n.4(B)(i).
Doe testified at trial that JA-L first had sex with her when she was eight years old and that he had done so again during her
JA-L‘s argument here is that there was no evidence of other specific dates on which he sexually assaulted Doe. He does not contend that any of the information in the PSR is “materially untrue, inaccurate, or unreliable.” Zuniga, 720 F.3d at 591 (internal quotation marks and citation omitted). Nothing in the Guidelines or its commentary suggests that specific dates of prior illicit activity must be proven. Instead, it requires only a finding that, “on at least two separate occasions, the defendant engaged in prohibited sexual conduct with a minor.” U.S.S.G. § 4B1.5 cmt. n.4(B)(i). Based on the trial testimony from Doe and Armstead and the information contained in the PSR, the district court did not clearly err in finding by a preponderance of the evidence that JA-L had sexual relations with Doe on at least two separate occasions before she attained the age of 12 years. Accordingly, we conclude that the district court did not err in applying the five-level enhancement under section 4B1.5(b)(1).
For the reasons stated herein, we AFFIRM.
UNITED STATES of America, Plaintiff-Appellee v. Debbie Pebbles VELASQUEZ, Defendant-Appellant.
No. 15-40855
Summary Calendar
United States Court of Appeals, Fifth Circuit.
FILED June 8, 2016