UNITED STATES of America, Plaintiff-Appellee, v. CHANG RU MENG BACKMAN, Defendant-Appellant.
No. 14-10078.
United States Court of Appeals, Ninth Circuit.
March 30, 2016.
817 F.3d 662
Argued and Submitted Feb. 11, 2016.
Our precedent requires the Federal Defenders to consider the environmental impact of the Navy Broadway Complex‘s development, and to inform the public that they have considered environmental concerns in their decision-making process. We conclude that they have taken a hard look at the environmental consequences of their actions, and therefore fulfilled their obligations under NEPA.
AFFIRMED.
CARR, Senior District Judge, dissenting:
I agree that San Luis Obispo Mothers for Peace v. Nuclear Regulatory Commission, 449 F.3d 1016 (9th Cir. 2006), required the Federal Defendants to address the environmental consequences of a possible terrorist attack on the San Diego Navy Broadway Complex. But I respectfully dissent from the majority‘s determination that the Federal Defendants adequately addressed those consequences.
The Naval Criminal Investigative Service determined there was “no known specific threat” of a terrorist attack at the Complex. For that reason, the Federal Defendants deemed the risk of such attacks “too speculative, remote and removed from the environmental effects of the proposed action to merit further analysis[.]”
That reasoning is deeply flawed, as the majority rightly observes. Mothers for Peace makes clear that “[t]he ‘numeric probability of a specific attack is not required in order to assess likely modes of attack, weapons, and vulnerabilities of a facility, and the possible impact of each of these on the physical environment[.]‘” 449 F.3d at 1031.
What is more, the Federal Defendants have not ruled out the possibility of a terrorist attack at the Complex. Cf. Ground Zero Ctr. for Non-Violent Action v. U.S. Dep‘t of the Navy, 383 F.3d 1082 (9th Cir. 2004) (Navy not required to consider environmental impact of accidental missile explosion, where Navy determined risk of such explosion “is between one in 100 million and one in 100 trillion“). Rather, they have acknowledged the “significant” risk of terrorism in the continental United States and identified “a wide variety of attack methods” terrorists are likely to employ. Accordingly, the Federal Defendants could have, and should have, considered the environmental impact of at least a few attack scenarios at the Complex.
I am mindful that the Federal Defendants revised the Environmental Assessment after receiving public comments about a potential terrorist attack at the Complex. But those revisions only strengthened the Complex‘s defenses against a potential terrorist attack; they did not assess the likely environmental impact of such an attack.
For these reasons, I respectfully dissent.
Garth R. Backe (argued) and Ross K. Naughton, Assistant United States Attorneys, Saipan, Northern Mariana Islands, for Plaintiff-Appellee.
Before: SUSAN P. GRABER, JAY S. BYBEE, and MORGAN CHRISTEN, Circuit Judges.
OPINION
GRABER, Circuit Judge:
Defendant Chang Ru Meng Backman appeals her conviction and sentence on one count of sex trafficking by force, fraud, or coercion, in violation of
FACTUAL AND PROCEDURAL HISTORY
The Trafficking Victims Protection Act of 2000 (“TVPA“) criminalizes, among other acts, sex trafficking by force, fraud, or coercion.
Whoever knowingly—
(1) in or affecting interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States, recruits, entices, harbors, transports, provides, obtains, or maintains by any means a person; or
(2) benefits, financially or by receiving anything of value, from participation in a venture which has engaged in an act described in violation of paragraph (1), knowing, or in reckless disregard of the fact, that means of force, threats of force, fraud, coercion described in subsection (e)(2), or any combination of such means will be used to cause the person to engage in a commercial sex act, [is guilty of a crime].
At sentencing, the district court adopted the presentence report‘s calculated Guideline range, 188 to 235 months, and imposed a high-end sentence of 235 months’ imprisonment. Defendant timely appeals.
STANDARDS OF REVIEW
We review for plain error challenges to the jury instructions raised for the first time on appeal. United States v. Moreland, 622 F.3d 1147, 1165-66 (9th Cir. 2010). We review de novo the sufficiency of the evidence. United States v. Garcia, 768 F.3d 822, 827 (9th Cir. 2014), cert. denied, — U.S. —, 135 S.Ct. 1189, 191 L.Ed.2d 144 (2015). We review de novo the interpretation of the
“There is an intracircuit split as to whether the standard of review for application of the Guidelines to the facts is de novo or abuse of discretion.” United States v. Tanke, 743 F.3d 1296, 1306 (9th Cir. 2014). “There is no need to resolve this split where, as here, the choice of the standard does not affect the outcome of the case.” Id.
DISCUSSION
Defendant challenges (A) the jury instructions; (B) the sufficiency of the evidence; (C) the exclusion of evidence under
A. Jury Instructions
Defendant argues that the jury instructions were erroneous because (1) the instructions did not require “but-for causation” pursuant to Burrage v. United States, — U.S. —, 134 S.Ct. 881, 187 L.Ed.2d 715 (2014); and (2) the instructions did not require knowledge of an effect on interstate or foreign commerce pursuant to Flores-Figueroa v. United States, 556 U.S. 646, 129 S.Ct. 1886, 173 L.Ed.2d 853 (2009). Because Defendant did not object to the instructions before the district court, we review for plain error. Moreland, 622 F.3d at 1165-66. We conclude at step one of the plain-error inquiry that there was no error. Accordingly, we do not reach the other prongs, such as whether the error was “plain.”
1. But-for Causation
In Burrage, 134 S.Ct. at 885, 892, the Supreme Court held that a statute criminalizing drug distribution when “death or serious bodily injury results from the use of such substance” required proof of but-for causation. Here, the statute requires that the defendant harbor a person (or take another specified action) “knowing, or in reckless disregard of the fact, that means of force, threats of force, fraud, coercion described in subsection (e)(2), or any combination of such means will be used to cause the person to engage in a commercial sex act.”
The district court did not err by declining to apply Burrage here. Causation is not an element in a
2. Knowledge of an Effect on Interstate Commerce
In Flores-Figueroa, 556 U.S. at 647, 129 S.Ct. 1886, the Supreme Court considered a criminal statute punishing a person who “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.” (Emphasis omitted.) The Court held that the adverb “knowingly” applies to “means of identification of another person” so that a conviction requires that the defendant knew that the identification belonged to another person. Id. at 657, 129 S.Ct. 1886. The Court reached its conclusion primarily because of “strong textual reasons“: “As a matter of ordinary English grammar, it seems natural to read the statute‘s word ‘knowingly’ as applying to all the subsequently listed elements of the crime.” Id. at 650, 129 S.Ct. 1886.
Here, the statute requires proof that Defendant “knowingly—(1) in or affecting interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States, recruits, entices, harbors, transports, provides, ob
We previously have rejected that general argument. In United States v. Stone, 706 F.3d 1145, 1146-47 (9th Cir. 2013), the defendant argued that Flores-Figueroa required that we apply the adverb “knowingly” to the commerce element of a firearm statute. We disagreed: “[T]he Court in Flores-Figueroa did not announce an ‘inflexible rule of construction.’ Rather, statutory interpretation remains a contextual matter.” Stone, 706 F.3d at 1147 (citation omitted). Because of the firearm statute‘s context and the fact that the interstate commerce element is purely jurisdictional, we held that the adverb “knowingly” did not apply to the commerce element of the firearm statute. Id.
Here, it is most natural to read the adverb “knowingly” in
Moreover, we agree with and adopt the Seventh Circuit‘s persuasive explanation for rejecting the argument that the reasoning of Flores-Figueroa applies specifically to the commerce element in
B. Sufficiency of the Evidence
Defendant argues that the evidence was insufficient on the interstate or foreign commerce element. We must ask “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found
C. Exclusion of Evidence under Federal Rule of Evidence 412
Defendant argues that the district court erred by denying her motion to admit, under
(a) Prohibited Uses. The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct:
(1) evidence offered to prove that a victim engaged in other sexual behavior; or
(2) evidence offered to prove a victim‘s sexual predisposition.
. . .
(c) Procedure to Determine Admissibility.
(1) Motion. If a party intends to offer evidence under
Rule 412(b) , the party must:(A) file a motion that specifically describes the evidence and states the purpose for which it is to be offered;
(B) do so at least 14 days before trial unless the court, for good cause, sets a different time;
. . .
(2) Hearing. Before admitting evidence under this rule, the court must conduct an in camera hearing and give the victim and parties a right to attend and be heard. Unless the court orders otherwise, the motion, related materials, and the record of the hearing must be and remain sealed.
On April 10, 2013, the district court presided over a hearing on the admissibility of certain evidence. At the end of the hearing, the court noted that trial was set for May 20, and the court turned to the issue of when any Rule 412 motions would be due. The court noted that, under
Defendant filed a terse Rule 412 motion on May 3—four days too late. The motion did not provide any details about the proffered evidence, other than stating that Defendant sought “to introduce evidence of the alleged victims’ sexual conduct after the indictment period.” The motion refers to an attached declaration of counsel. That declaration is not much
As scheduled, the district court presided over the pretrial motions hearing on May 8. In response to the court‘s questioning, Defendant‘s lawyer confessed that he had remembered the due date as May 3, not April 29. The court imposed a fine of $100 on Defendant‘s lawyer for the untimeliness but stated that the court would not hold the untimeliness against Defendant.
Turning to the merits of the motion, the government‘s lawyer raised the issue of specificity: “[W]e don‘t have specific evidence, Your Honor, the specifics. Whether it‘s in the form of testimony, whether it‘s the form of another witness coming forward. We have vague references to [the named witness‘] testimony but what testimony?” The court agreed:
Rule 412 requires more details than the allegation that there‘s some other sexual conduct[.] [E]ven in the declaration that you submitted . . . in support of the motion and notice is very vague. Vague as to who. We have three victims in this case and in regards to what particular instances we are dealing with a period from August of 2008 to March of 2009. So you need more particular information even if we were to consider it.
The court held that the “Rule 412 motion has failed to comply with
A lot of the contents in your motion, as well as the declaration, are more conclusory and general reference. Again, we are dealing with three victims. When we discussed the issue of the Rule 15 deposition, I myself pointed out the only names I heard that [the witness] referenced were, I believe, [two common first names] and no one ever attached those names to any of the three victims that were actually named in the indictment.
So your declaration doesn‘t even help me pinpoint this information as to which victim and how this is relevant to the case. So on the face of your own motion and declaration, this is far short of the notice requirement to give the Government an opportunity to properly respond by any particular arguments of fact or law.
We conclude that the district court did not abuse its discretion in denying Defendant‘s motions. The Rule requires that the party “file a motion that specifically describes the evidence.”
We also conclude that the exclusion of the proffered evidence was within constitutional bounds, because the exclusion was “neither arbitrary nor disproportionate to the purposes of the notice requirement.” LaJoie v. Thompson, 217 F.3d 663, 670 (9th Cir. 2000). As just noted, the district court did not deny the motion on timeliness grounds (even though the motion was late); instead, the court denied the motion because it was vague as to the precise nature of the evidence and because it failed to identify the victims. Without knowledge of the identity of the victims and the nature of the evidence, the court could not conduct the in camera review and hearing mandated by the Rule.
Moreover, this case is unlike LaJoie in an important respect. There, the government “conceded that [the proffered] evidence was relevant.” Id. at 671. Here, by contrast, to the extent that we can discern the nature of Defendant‘s proffered evidence, its relevance, if any, is slight. We doubt that evidence that the victim engaged in commercial sex acts after she had been coerced into prostitution has a bearing on whether Defendant earlier took coercive actions. But, even assuming some relevance, the court‘s exclusion of the vaguely and insufficiently described evidence was neither arbitrary nor disproportionate to the purposes behind Rule 412‘s procedural requirements.
D. “Vulnerable Victim” Enhancement
The district court imposed a two-level sentencing enhancement under
The Guideline “applies to offenses involving an unusually vulnerable victim in which the defendant knows or should have known of the victim‘s unusual vulnerability.”
Here, the offense of conviction is “[s]ex trafficking . . . by force, fraud, or coercion,” and the statute is part of the Trafficking Victims Protection Act. Defendant correctly points out that, in Castaneda, 239 F.3d at 982-83, we held that victims of a Mann Act sex-trafficking crime were not unusually vulnerable because “indebtedness, low income, and lack of financial resources or other options that would permit [the victims] to support themselves or pay for their passage back to the Philippines if they left the club” do not “distinguish them from the typical victims of a Mann Act violator.” We also acknowledge that, in enacting the TVPA, Congress recognized that victims of sex trafficking often have some of the same vulnerabilities that the district court found here.
AFFIRMED.
SUSAN P. GRABER
UNITED STATES CIRCUIT JUDGE