UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JUAN PABLO PRICE, Defendant-Appellant.
No. 15-50556
D.C. No. 2:15-cr-00061-GHK-1
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
April 12, 2019
Argued and Submitted November 6, 2017; Submission Vacated May 18, 2018;
FOR PUBLICATION
OPINION
Appeal from the United States District Court for the Central District of California George H. King, District Judge, Presiding
Pasadena, California
Filed April 12, 2019
Before: Ronald Lee Gilman,* Kim McLane Wardlaw, and Jacqueline H. Nguyen,** Circuit Judges.
Opinion by Judge Wardlaw; Concurrence by Judge Gilman
SUMMARY***
Criminal Law
The panel affirmed a conviction for knowingly engaging in sexual contact with another person without that other person‘s permission on an international flight, in violation of
The panel rejected the defendant‘s contention that the government was required to prove beyond a reasonable doubt that he subjectively knew that his victim did not consent, and held that the district court did not err in denying the defendant‘s request to instruct the jury accordingly. The panel held that in addition to proving beyond a reasonable doubt that the defendant knowingly had sexual contact with the victim, the government need only prove that the victim did not consent as an objective matter.
The panel held that the police had probable cause to arrest the defendant, that he was properly Mirandized, and that the district court acted within its discretion in refusing to read back to the jury portions of the victim‘s testimony.
Concurring that the conviction should be affirmed, Sixth Circuit Judge Gilman disagreed with the majority‘s holding that “knowingly” in
COUNSEL
Jonathan D. Libby (argued), Deputy Federal Public Defender; Hilary L. Potashner, Federal Public Defender; Office of the Federal Public Defender, Los Angeles, California; for Defendant-Appellant.
Christopher C. Kendall (argued), Assistant United States Attorney; Lawrence S. Middleton, Chief, Criminal Division; United States Attorney‘s Office,
OPINION
WARDLAW, Circuit Judge:
It is a federal crime under
We reject Price‘s reading of the statute as contrary to its text, the structure of the statutory scheme and its very purpose in penalizing those who sexually prey upon victims on the seas or in the air within federal jurisdiction. Congress‘s purpose in enacting the Sexual Abuse Act of 1986 was to criminalize sexual contact by focusing on the defendant‘s conduct. If the government were required to prove that the defendant subjectively knew he lacked consent, as Price urges here, every accused sexual predator could defend his admitted sexual contact in the face of no objective sign of permission by asserting a supposed subjective belief that the victim was “enjoying herself,” a result directly contrary to the purpose of the 1986 Act. Even Price recognized, following his arrest, that “it sure is going to be my job not to touch a woman” whom he doesn‘t know and hasn‘t talked to. As the arresting officer responded to Price, “in your forty something years, you should‘ve already known that[].”
Because unwanted sexual contact of the type Price engaged in—touching first, and arguing later that he “thought” the victim consented—is precisely what
I.
The objective facts are fairly undisputed. Price, then forty-six, was a passenger on the overnight flight from Tokyo, Japan to Los Angeles, California. A.M., a twenty-one-year-old college student, and her friend, Maki Fujita, were traveling on the same flight. After take-off, Price asked A.M. if he could move from his assigned seat to the unoccupied seat next to her, a seat where the video monitor was not
A.M. woke up to Price touching the right side of her body, including her arm, hip, and leg. Thinking that Price was trying to steal the cell phone in her pocket, she moved the phone to inside the seat pocket and went back to sleep. When A.M. awoke again, Price was touching her breast. A.M. began panicking, but did not want to bother the people around her. She tried to avoid Price‘s touch by pulling the blankets up to her shoulder and crossing her arms in front of her. Undeterred, Price placed his blanket over both of them, covering his arms, and continued to touch her breast, first over her shirt and then under it. Price then moved his hand into A.M.‘s jeans and underwear and touched her vagina.
In a state of shock, panic, and fear, and looking for the words to tell Price to stop, A.M. twisted her body toward Fujita on her left, away from Price. Price hauled her back around with “strong force” and tried to pull her jeans down. At this point, Fujita woke up, and, seeing her awake, Price retreated to his seat. When Fujita asked A.M. if she was okay, A.M. responded that she was not and asked what she should do. Fujita told her to tell the flight attendant. A.M. did not have the English words to explain what happened, although she was able to ask for “help.”
Price‘s perception of the encounter differed from the others on the plane. He testified that while his hand was on the armrest, he felt A.M.‘s hand touch his. Thinking that this could be an invitation, Price began to rub her hand. Price stated that they started holding and rubbing each other‘s hands. As he began moving his hands across A.M.‘s body and to her breast area, he thought she was “enjoying herself” because she was arching her body, he could feel her heartbeat, her breathing was intense, and she was opening and closing her eyes. It was only when Price tried to move her face toward him and A.M. would not budge that Price thought something was wrong. At that point, Price noticed that Fujita was awake, and A.M. then got up. According to both A.M.‘s and Price‘s accounts, no words were exchanged during this encounter. Price agrees A.M. did not verbally consent to his touching her. While A.M. got up to tell the flight attendant what happened, Price wrote a note that he never ended up giving to A.M., which said, “If a man touches you and you don‘t want him to always feel free to say No.” The purser or lead chief flight attendant, Yosri Zidan, then obtained written statements from both Price and A.M. Price‘s story was that he changed seats because he wanted more legroom; he then fell asleep and awoke to find A.M. stroking his hand.
While still in flight, the pilot sent a message to American Airlines employees
On February 18, 2015, after a federal grand jury indicted Price for abusive sexual contact under
Price timely appeals.
II.
Whoever, in the special maritime and territorial jurisdiction of the United States ... knowingly engages in sexual contact with another person without that other person‘s permission shall be fined under this title, imprisoned not more than two years, or both.
“Sexual contact” is defined as “the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.”
The defendant is charged in [Count ___ of] the indictment with abusive sexual contact in violation of Section 2244(b) of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt: First, the defendant knowingly had sexual contact with [name of victim]; Second, the sexual contact was without [name of victim]‘s permission; and Third, the offense was committed at [specify place of federal jurisdiction]. In this case, “sexual contact” means [specify statutory definition].
Manual of Model Criminal Jury Instructions § 8.180 (2010) (Ninth Cir. Jury Instructions Comm., amended 2015). The model instruction does not ask the jury to find that the defendant subjectively knew that he lacked the victim‘s permission. Price argues that the model instruction was given in error.
Whether “a jury instruction misstates elements of a statutory crime” is an issue we review de novo. United States v. Knapp, 120 F.3d 928, 930 (9th Cir. 1997). We have not yet addressed whether the term “knowingly” in
A.
Our analysis begins with the text of the statute. “In determining what mental state is required to prove a violation of the statute, we look to its words and the intent of Congress.” United States v. Johal, 428 F.3d 823, 826 (9th Cir. 2005). We keep in mind the “background rules of the common law in which the requirement of some mens rea for a crime is firmly embedded.” Staples v. United States, 511 U.S. 600, 605 (1994) (citation omitted). We begin with the statutory text and interpret “statutory terms in accordance with their ordinary meaning, unless the statute clearly expresses an intention to the contrary.” I.R. ex rel. E.N. v. L.A. Unified Sch. Dist., 805 F.3d 1164, 1167 (9th Cir. 2015) (citation omitted). Examining the text of
In United States v. X-Citement Video, Inc., the Supreme Court examined the Protection of Children Against Sexual Exploitation Act of 1977, which punishes, inter alia, any person who “knowingly transports or ships in interstate or foreign commerce” or who “knowingly receives, or distributes ... or knowingly reproduces” from such commerce “any visual depiction, if—(A) the producing of such visual depiction involves the use of a minor engaging in sexually explicit conduct.” 513 U.S. 64, 68 (1994) (quoting
We followed suit in construing the most natural grammatical reading of a statute in United States v. Backman, 817 F.3d 662 (9th Cir. 2016). There we construed an analogous mens rea requirement in a criminal sex trafficking statute, the Trafficking Victims Protection Act of 2000. That statute required proof that the 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, obtains, or maintains by any means a person.” Id. at 666-67 (quoting
Similarly, here, the phrase “without that other person‘s permission” describes the nature or extent of the prohibited action “engag[ing] in sexual contact” but, grammatically, does not tie to the term “knowingly.”
Our reading of
Here, the other elements of
Flores-Figueroa v. United States, 556 U.S. 646 (2009), is inapposite. In Flores-Figueroa, the Supreme Court considered a federal aggravated identity theft statute that provided for an increased criminal penalty of an additional two years of imprisonment for certain offenses if the offender “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.”
Price argues that Flores-Figueroa requires us to adopt his interpretation of
Second, and most importantly, in Flores-Figueroa, the mens rea requirement was necessary to “separate wrongful conduct from otherwise innocent conduct.” Elonis, 135 S. Ct. at 2010 (internal quotation marks and citation omitted). By contrast, “[h]ere, there is no potential for the penalization of innocent conduct nor do we face constitutional avoidance concerns.” United States v. Jefferson, 791 F.3d 1013, 1016-18 (9th Cir. 2015) (finding it unnecessary to extend the “knowingly or intentionally” mens rea to the type and quantity of drugs at issue, where the requirement that the government prove the other elements of the case was “sufficient to ensure the statute penalizes only culpable conduct“). We have explicitly rejected the notion that the Court‘s reading of “knowingly” in Flores-Figueroa compels
As the X-Citement Video Court advised, however, this does not necessarily end our analysis “because of the respective presumptions that some form of scienter is to be implied in a criminal statute even if not expressed.” 513 U.S. at 69. We therefore next examine the structure, Marks v. Crunch San Diego, LLC, 904 F.3d 1041, 1051 (9th Cir. 2018), and legislative history of the statute, to determine if we, like the X-Citement Video Court, should be reluctant to “simply follow the most grammatical reading of the statute,” 513 U.S. at 70.
B.
Section 2244(b) is part of a statutory scheme criminalizing abusive sexual contact. First, subsection (a) criminalizes conduct that, “had the sexual contact been a sexual act,” would be “punished [elsewhere] by this chapter.”
Subsections 2244(a) and 2244(b) work in parallel ways, and we must read the two
for the second element); see also United States v. Jennings, 496 F.3d 344, 352 (4th Cir. 2007) (concluding that to determine a violation of
Price argues that reading the statute along with its neighboring provisions,
more severe penalties would require more stringent mens rea requirements. See Staples, 511 U.S. at 618 (“[A] severe penalty is a further factor tending to suggest that Congress did not intend to eliminate a mens rea requirement.“); cf. United States v. Gomez-Leon, 545 F.3d 777, 793 (9th Cir. 2008) (“Commensurate with lesser punishment is a lesser mens rea requirement ....” (citation omitted)). Thus, Congress‘s decision to expressly eliminate the mens rea requirements in
Furthermore, Price‘s logic would produce absurd results in interpreting
C.
“Although we need not rely on legislative history because the statute is unambiguous, the legislative history of the statute and common sense support” our conclusion. Castagana, 604 F.3d at 1164. Congress‘s stated purpose in enacting the Sexual Abuse Act of 1986 was to “modernize[] and reform[] Federal rape provisions by ... defining the offenses so that the focus of a trial is upon the conduct of the defendant” and “expanding the offenses to reach all forms of sexual abuse of another,” among other changes. H.R. Rep. No. 99-594, at 10-11 (1986). The House Report also communicated Congress‘s expectation that the law would “simplify law enforcement” activities. Id. at 21. It would be inconsistent with these goals to hold that Congress intended to require proof that the defendant subjectively knew the victim did not consent.
In enacting the 1986 Act, Congress was concerned with whether lack of consent needed to be an element at all, and it consistently described this element in objective terms. See, e.g., id. at 13 (“Where the Committee believes it appropriate to the offense to require the prosecution to show that the conduct was engaged in without the victim‘s permission, such a requirement has explicitly been set forth.“). Congress would not have singled out
III.
Price also argues that all of his statements and the evidence seized from him when he was escorted from the plane and handcuffed by LAXPD Officers Christopher Faytol and Ngan Lee, and at least one U.S. Customs and Border Protection officer, should be suppressed. He contends that the officers lacked probable cause to arrest him at the arrival gate. The district court concluded that because the officers did not arrest Price at that time, there was no need to demonstrate probable cause. While we disagree with the district court as to whether an arrest occurred, we conclude that the officers had probable cause to arrest Price as he disembarked from the plane. Therefore, the district court did not err by denying Price‘s suppression motion.
We review de novo the denial of a motion to suppress, although we review underlying factual findings for clear error. United States v. Fernandez-Castillo, 324 F.3d 1114, 1117 (9th Cir. 2003). “The determination of probable cause to arrest a suspect is a mixed question of law and fact
In the context of an international border, an arrest occurs when “a reasonable person would believe that he is being subjected to more than the temporary detention occasioned by border crossing formalities.” United States v. Bravo, 295 F.3d 1002, 1009 (9th Cir. 2002) (internal quotation marks and citation omitted). We ask, considering the totality of the circumstances, “whether a reasonable innocent person in such circumstances would conclude that after brief questioning he or she would not be free to leave.” Id. (internal quotation marks and citation omitted). “[H]andcuffing is a substantial factor in determining whether an individual has been arrested“—although it “alone is not determinative.” Id. at 1010; see also United States v. Guzman-Padilla, 573 F.3d 865, 884 (9th Cir. 2009) (“[O]fficers with a particularized basis to believe that a situation may pose safety risks may handcuff or point a gun at an individual without converting an investigative detention into an arrest.“).
Price was escorted by three armed law enforcement officers off the plane at a remote gate, while the rest of the passengers remained seated. Officer Faytol performed a pat-down search and Officer Lee handcuffed him. This was not a routine border airport screening and search process, as the district court found. Although the officers cited safety justifications for handcuffing Price, including the fear that Price might become aggressive as other passengers deplaned, the officers kept Price in handcuffs until the FBI interviewed him—from the time Price deplaned at approximately 9:08 AM, until after S.A. Gates arrived at around 11:30 AM. This was not a “temporary detention occasioned by border crossing formalities“; this was an arrest. Bravo, 295 F.3d at 1009 (citation omitted).
We nevertheless conclude that the officers had probable cause to believe Price had committed a crime when they arrested him. Police may arrest a suspect if “under the totality of circumstances known to the arresting officers, a prudent person would have concluded that there was a fair probability that the defendant had committed a crime.” Beier v. City of Lewiston, 354 F.3d 1058, 1065 (9th Cir. 2004) (internal alteration marks and citation omitted). We must “consider the nature and trustworthiness of the evidence of criminal conduct available to the police.” Id. at 1064. The police need not know, however, precisely what offense has been committed. See United States v. Chatman, 573 F.2d 565, 567 (9th Cir. 1977) (per curiam) (findingprobable cause where officers believed only that the defendant was “clandestinely engaging in illegal business of some kind“).
Here, the officers had “reasonably trustworthy information” to arrest Price as he deplaned. Beier, 354 F.3d at 1064. They knew that a female passenger had reported that Price had perpetrated a sexual offense. The pilot had sent an advance message asking LAXPD to meet the airplane, stating “WE HAVE A MOLESTER/FONDLER ON BOARD.” The actions of the flight crew demonstrated that they viewed the allegations as credible as they sought law enforcement assistance.
We reject Price‘s argument that the officers lacked probable cause because the information available to the officers was not trustworthy. We acknowledge the minor differences in the officers’ recollections of the event at the suppression hearing—Faytol recalled that the incident was a “290,” the code for sexual battery, while Lee recalled that the incident was a “311,”
IV.
Price also moved to suppress the statements he made to S.A. Gates when he was interviewed, contending that he did not adequately understand his rights when he waived them. He points to the transcript of the interview where he expressed confusion as to whether he was being arrested. We agree with the district court, however, that though Price may have been confused about whether he was under arrest, there was no doubt that his Miranda waiver was knowing, intelligent, and voluntary, and that his statements were voluntarily made. “We review a district court‘s ruling on a Miranda waiver under two standards: Whether the waiver was knowing and intelligent is a question of fact that we review for clear error. Whether the waiver was voluntary is a mixed question of fact and law, which we review de novo.” United States v. Rodriguez-Preciado, 399 F.3d 1118, 1127 (9th Cir.) (citation omitted), amended by 416 F.3d 939 (9th Cir. 2005). “We review de novo the voluntariness of a confession and the factual findings supporting the determination for clear error.” United States v. Heller, 551 F.3d 1108, 1112 (9th Cir. 2009) (citation omitted).
Before S.A. Gates interviewed Price, he removed the handcuffs. S.A. Gates then explained to Price his Miranda rights, describing it as “just like you see on T.V.” Price first sought clarification that he was not arrested, which S.A. Gates confirmed, and S.A. Gates then recited the Miranda rights, as Price read along and responded “Mm-hmm” at various points. At the end, Price asked once again whether or not he was under arrest, noting that in movies, when you hear Miranda rights, “you know that somebody is being arrested.” S.A. Gates again assured Price that he was notunder arrest. Price signed the “Advice of Rights” form. At the end of the interview, S.A. Gates cited Price with simple assault and allowed him to leave.
“To admit an inculpatory statement made by a defendant during custodial interrogation, the defendant‘s waiver of Miranda rights must be voluntary, knowing, and intelligent.” United States v. Shi, 525 F.3d 709, 727 (9th Cir. 2008) (internal quotation marks and citation omitted). In determining the knowing and intelligent nature of the waiver, we consider the totality of the circumstances, including
- the defendant‘s mental capacity;
- whether the defendant signed a written waiver;
- whether the defendant was advised in his native tongue or had a translator;
- whether the defendant appeared to understand his rights;
- whether the defendant‘s rights were individually and repeatedly explained to him; and
- whether the defendant had prior experience with the criminal justice system.
United States v. Crews, 502 F.3d 1130, 1140 (9th Cir. 2007) (citation omitted).
Price disputes only the fourth factor—whether he understood his rights. Price argues that his questions to S.A. Gates showed that he did not understand that he could exercise his Miranda rights. However, Price‘s questions were all directed towards clarifying whether or not he was actually under arrest. As the district court found, Price “was not confused as to the nature and extent of his rights” but rather “was confused about why (‘the reason‘) he was beingread his rights given that SA Gates had told him only moments earlier that he was not under arrest.”
We must also find that both Price‘s waiver and the statements themselves were voluntary. A Miranda “waiver is voluntary if, under the totality of the circumstances, the confession was the product of a free and deliberate choice rather than coercion or improper inducement.” United States v. Doe, 155 F.3d 1070, 1074 (9th Cir. 1998) (en banc) (citation omitted). We find the confession voluntary unless, “considering the totality of the circumstances, the government obtained the statement by physical or psychological coercion or by improper inducement so that the suspect‘s will was overborne.” Heller, 551 F.3d at 1112 (citation omitted).
We agree with the district court that both Price‘s waiver and his statements were voluntary. Price mischaracterizes the record of the interview. S.A. Gates never threatened Price with his power to detain him unless he answered S.A. Gates‘s questions. It is evident from the record that S.A. Gates stated in a jocular manner that he could find a reason to arrest Price if Price wanted—a joke that elicited Price‘s laughter—and S.A. Gates explained that it was his expectation that Price would “walk out of here” that day. The interview does not reveal any sign of coercion: Price was not in handcuffs or otherwise physically restrained, and the FBI agents asked Price if he was doing okay and if he needed water or to use the bathroom.
V.
The district court did not abuse its discretion by declining to read back A.M.‘s testimony when requested by the jury. We review denials of a jury‘s request to read back a witness‘s testimony for abuse of discretion and have noted“the district court‘s great latitude to address requests for readbacks.” United States v. Medina Casteneda, 511 F.3d 1246, 1249 (9th Cir. 2008). “In general, rereading is disfavored because of the emphasis it places on specific testimony and the delay it causes in the trial.” United States v. Nolan, 700 F.2d 479, 486 (9th Cir. 1983) (citation omitted). During deliberations, the jury asked for a transcript of Price‘s FBI interview and of A.M.‘s testimony. We reject Price‘s argument that because the district court acquiesced to the jury‘s request by replaying the recording of Price‘s FBI interview, the simultaneous decision not to read back A.M.‘s testimony was improper.
Here, the district court gave two appropriate reasons for denying the readback. First, it cited the logistical difficulties in preparing a readback, and second, it expressed concern that reading back A.M.‘s testimony without also reading back Price‘s testimony would lead to an unfair focus on one part of the trial over others. We have determined that the district court‘s rationale is appropriate as a basis for declining a readback of testimony. See, e.g., Medina Casteneda, 511 F.3d at 1249 (finding no abuse of discretion in the district court‘s denial of the jury‘s request for a readback because of the concern that the
VI.
In enacting the Sexual Abuse Act of 1986, of which
GILMAN, Circuit Judge, concurring:
I concur in the lead opinion‘s conclusion that Juan Pablo Price‘s conviction should be affirmed. But I respectfully disagree with its holding that the term “knowingly” in
In order to obtain a conviction under
Accordingly, the district court erred in refusing to instruct the jury that such knowledge was necessary to convict Price under
Introductory Note
Prior to his death in March 2018, Judge Stephen Reinhardt was a member of this panel and prepared a draft opinion holding that the “knowingly” mens rea requirement contained in
I.
This case requires us to interpret the following statute:
Whoever, in the special maritime and territorial jurisdiction of the United States, knowingly engages in sexual contact with another person without that other person‘s permission shall be fined under this title, imprisoned not more than two years, or both.
In Flores-Figueroa v. United States, 556 U.S. 646 (2009), the Supreme Court interpreted a statute that provided for increased criminal penalties for certain offenses if theoffender “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.” Id. at 648. The Court held that, “[i]n ordinary English, where a transitive verb has an object, listeners in most contexts assume that an adverb (such as knowingly) that modifies the transitive verb tells the listener how the subject performed the entire action, including the object as set forth in the sentence.” Id. at 650 (emphasis added). Moreover, “courts ordinarily read a phrase in a criminal statute that introduces the elements of a crime with the word ‘knowingly’ as applying that word to each element.” Id. at 652; see also id. at 660 (Alito, J., concurring) (“I think it is fair to begin with a general presumption that the specified mens rea applies to all the elements of an offense . . . .“).
The statute that we are asked to interpret, just like the one in Flores-Figueroa, lists all of the elements of the offense in a single phrase that begins with the word “knowingly.” Flores-Figueroa therefore requires us to presume that the word “knowingly” dictates how the defendant must have “performed the entire action“—that is, that he knew that he was engaging in sexual contact and that he knew he was doing so without the other person‘s permission. See id. at 650 (majority opinion). Sexual contact with permission and sexual contact without permission are legally worlds apart.
The Eighth Circuit reached the same conclusion in interpreting a related statute in United States v. Bruguier, 735 F.3d 754 (8th Cir. 2013) (en banc). That statute,
The case for applying the Flores-Figueroa presumption to
The lead opinion disagrees, contending that Flores-Figueroa is inapposite for two reasons. First, the lead opinion argues that Flores-Figueroa does not apply to
Second, the lead opinion argues that, “in Flores-Figueroa, the mens rea requirement was necessary to ‘separate wrongful conduct from otherwise innocent conduct,‘” whereas
The inclusion of some mens rea requirement is not necessarily enough to ensure that “a broad range of apparently innocent conduct” is not swept into a criminal prohibition. Liparota v. United States, 471 U.S. 419, 426 (1985). If a mens rea requirement is interpreted to require knowledge of only innocent facts, then a person could be convicted despite genuinely believing that his acts were entirely proper. Staples v. United States, 511 U.S. 600, 612, 618-19 (1994).
Knowingly engaging in sexual contact is, of course, not illegal. Innocent people do it all the time. The element in
I acknowledge that the lead opinion cites cases in which this court has held that Flores-Figueroa‘s reading of “knowingly” does not compel the same reading in every criminal statute that uses the word “knowingly.” Lead Op. 13-14. Although the lead opinion is correct in stating that “the inquiry into a sentence‘s meaning is a contextual one,” Flores-Figueroa, 556 U.S. at 652, the cases it cites are distinguishable from the present case.
In United States v. Jefferson, 791 F.3d 1013, 1016-18 (9th Cir. 2015), for example, this court determined that Flores-Figueroa did not apply because the text of the statute before it,
The lead opinion also cites United States v. Backman, 817 F.3d 662 (9th Cir. 2016), which dealt with a sex-trafficking statute requiring proof that the “[d]efendant ‘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.‘” Id. at 666-67 (quoting
Backman, however, is no more persuasive on the issue before us than is Jefferson, Stone, or Castagana. The Backman court addressed a jurisdictional element, an element that turns what would otherwise be a state crime into a federal crime because of its nexus to some aspect of federal jurisdiction. Id. That decision rested in large part on “[t]he longstanding presumption . . . that the jurisdictional element of a criminal statute has no mens rea,” and thus has norelevance to our analysis in this case of a substantive, rather
In sum, I find the lead opinion unpersuasive in arguing that the most natural grammatical reading of
B.
In addition to its text,
Most important to our analysis in this case are
As the Eighth Circuit explained in exhaustive detail when comparing
Sections 2241 and 2243, the two sections addressing sexual contact with minors, include provisions that expressly limit their mens rea requirements. Section 2241(d) provides that “the Government need not prove that the defendant knew that the other person engaging in the sexual act had notattained the age of 12 years,” while
Commenting on the lack of any provision analogous to
Moreover, interpreting the knowledge requirement in section 2242(2) to extend only to knowledge of the sexual act would raise interpretive concerns with sections 2241 and 2243. . . . If section 2242(2)‘s knowledge requirement were construed to apply only to knowledge of the sexual act, then this same construction logically should apply to the knowledge requirement in sections 2241(c)and 2243(a). Doing so, however, would render superfluous sections 2241(d) and 2243(d), both of which explicitly narrow the respective statutes’ knowledge requirements. This would run afoul of “the cardinal principle of statutory construction that it is our duty to give effect, if possible, to every clause and word of a statute.”
Id. (quoting Bennett v. Spear, 520 U.S. 154, 173 (1997)).
I agree with the Eighth Circuit‘s analysis, which applies equally to
“It is inconceivable that Congress meant to create a strict liability crime by omission in one section of a statute when Congress affirmatively created strict liability crimes by inclusion in [two other] sections of the same statute.” Bruguier, 735 F.3d at 766-67 (Riley, C.J., concurring) (emphases in original); see also H.R. Rep. No. 99-594, at 15-18 (discussing and justifying the inclusion of thestrict-liability age elements); id. at 19 (discussing
The lead opinion‘s only response to the comparison among
But the lead opinion suggests that the presumption that “some indication of congressional intent, express or implied, is required to dispense with mens rea as an element of a crime,” Staples, 511 U.S. at 606, applies only when the penalty is severe. Staples, however, did not hold that the presumption applies only to crimes with high penalties. See id. at 617-18. If that were the rule, then courts would have to determine what constitutes a “high penalty” versus a “low penalty” in all these type of cases. Surely a defendant charged with a violation of
The lead opinion also attempts to use the difference in penalties to suggest that requiring the government to prove that a defendant knew that he lacked permission to engage in sexual contact under
But the less severe penalties of
(A) contact between the penis and the vulva or the penis and the anus, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however slight;
(B) contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus;
(C) the penetration, however slight, of the anal or genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person; or
(D) the intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.
But that argument overlooks the longstanding distinction between knowledge of the underlying criminal law and knowledge of the facts that constitute the offense. Courts almost never interpret criminal statutes to require knowledge of applicable criminal law. See, e.g., Cheek v. United States, 498 U.S. 192, 199 (1991) (“The general rule that ignorance of the law or a mistake of law is no defense to criminal prosecution is deeply rooted in the American legal system.“). On the other hand, as highlighted
C.
In further support of its argument, the lead opinion highlights two statements from the House Report on the Sexual Abuse Act of 1986 bill. First, the lead opinion says that Congress expected that the Act would “simplify law enforcement activities.” Lead Op. 20 (quoting H.R. Rep. No. 99-594, at 21 (1986)). But that statement has been taken out of context. The House Report does not indicate that Congress sought to achieve the goal of “simplifying law enforcement activities” by eliminating mens rea requirements from certain subsections of the statute. Instead, the Report says that the Act “may simplify law enforcement activities” by “provid[ing] much more specific definitions of federal sexual abuse offenses . . . [and] mak[ing] conforming amendments to a number of other statutes that currently refer to rape.” H.R. Rep. No. 99-594, at 21. The Report says nothing about the mens rea issue in question here.
The second statement from the House Report that the lead opinion relies on provides that “[w]here the Committee believes it appropriate to the offense to require the prosecution to show that the conduct was engaged in without the victim‘s permission, such a requirement has explicitly been set forth.” Lead Op. 20 (quoting H.R. Rep. No. 99-594, at 13). But that statement says nothing about the defendant‘s knowledge “that the conduct was engaged in without the victim‘s permission.” See H.R. Rep. No. 99-594, at 13. Andonly two paragraphs later, the Report explains that proposed
Other parts of the legislative history actively undermine the lead opinion‘s interpretation of the statute. The House Report, for example, explains that “[the Sexual Abuse Act of 1986 was] drafted employing the format, conventions and techniques used in drafting the Criminal Code Revision Act of 1980.”
Rather than confronting the stark difference between the provisions adopted as part of the same Act, the lead opinion instead attributes a broad intention to Congress‘s goal of modernizing sexual assault laws “to focus on the defendant‘s conduct” rather than the victim‘s state of mind. Lead Op. 4.But the goal of focusing on the defendant‘s conduct rather than the victim‘s state of mind does not support the lead opinion‘s position. Price asks us to hold that the government must prove that he knew he was engaging in sexual contact without A.M.‘s permission. Reading the statute to include that requirement advances the goal that the government attributes to Congress: it focuses on the defendant‘s conduct rather than the victim‘s state of mind. Requiring the government to prove something about Price‘s state of mind at the time of his offensive conduct does nothing to implicate the victim‘s state of mind.
As a final thought on this issue, I address the lead opinion‘s contention that “[i]f the government were required to prove that the defendant subjectively knew he lacked consent, as Price urges here, every accused sexual predator could defend his admitted sexual contact in the face of no objective sign of permission by asserting a supposed subjective belief that the victim was ‘enjoying herself.‘” Lead Op. 4. The government made a similar statement at oral argument, contending that a knowledge requirement would allow defendants to avoid conviction under this statute simply by “get[ting] up on the stand and say[ing], ‘Oh, I didn‘t know.‘” But the defendant‘s subjective knowledge is and always has been an extremely common requirement in criminal statutes, one that the government is almost always required to prove. It typically does this by circumstantial evidence and by asking the jury to reject what the government views as self-serving and incredible claims of innocence. The criminal system has hardly ground to a halt as a result.
In sum, under the interpretive rule recognized in Flores-Figueroa, the plain text of
II.
Despite my disagreement with the lead opinion‘s analysis of
Price conceded that A.M. never gave him explicit permission to touch her breasts or vagina. The only remaining question is whether there is any reasonable possibility that the jury could have found that Pricesubjectively believed he had A.M.‘s implicit permission to engage in sexual contact with her. In light of the strong circumstantial evidence showing that Price had to have known that A.M. had not consented to his advances, the answer is no.
By convicting Price, the jury determined that he in fact lacked both explicit and implicit permission to touch A.M.‘s breasts and vagina. The jury therefore believed A.M.‘s story of what occurred on the flight over Price‘s story. And according to that story, A.M. was asleep when Price began running his hand up and down her side and her leg. A sleeping person clearly gives no implicit permission to be touched. A.M. then moved her cell phone, thinking that Price might have been trying to steal it, and fell back asleep. She woke up once again when he began touching her breast. In response, A.M. put a blanket over her shoulder and crossed her arms in front of her.
These actions, if anything, negate any implicit permission to be touched. Yet Price continued to touch A.M.‘s breast and then moved his hand down to her legs, first over her jeans and finally inside of them, touching her vagina. In a state of shock, panic, and fear, and in a final effort to ward off Price, she turned her body away from him and towards her friend Fujita. Despite A.M.‘s negative reaction to Price‘s advances, she testified that he “tried to move my body towards” him “[w]ith strong force” and tried to pull her jeans down. A.M., moreover, never spoke to Price while he was touching her nor even looked at him during their encounter. Under all of these circumstances, no reasonable juror could have found that Price subjectively believed that he had permission to touch A.M., especially once A.M. physically turned her back to him and towards her friend.Price‘s statements after the incident further support a finding that he knew he lacked permission to touch A.M. He said that he “knew . . . it was wrong” to be “engaging like this with somebody who is totally a stranger” without first having had a “proper conversation.” Price also agreed with Special Agent Gates, the FBI agent who interviewed Price, that, at his age, he should have known that it was his “job not to touch” A.M. without her permission. And finally, when the customs officers searched Price‘s bags, they found a note that read: “If a man touches you and you don‘t want him to always feel free to say no.” Price said that he wrote the note to A.M. after she got up and left her seat, indicating that he knew A.M. had not given him permission to touch her.
I would therefore hold that the error in the district court‘s jury instructions was harmless because “it is clear beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the error.” See United States v. Anchrum, 590 F.3d 795, 801 (9th Cir. 2009) (internal quotation marks omitted). The government‘s evidence, which the jury had to believe in order to find Price guilty, overwhelmingly demonstrated that Price knew that he lacked permission to engage in sexual contact with A.M. See United States v. Cherer, 513 F.3d 1150, 1155 (9th Cir. 2008) (holding that an erroneous jury instruction regarding mens rea was harmless
For all of the
Notes
(A) contact between the penis and the vulva or the penis and the anus, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however slight;
(B) contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus;
(C) the penetration, however slight, of the anal or genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person; or
(D) the intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.