UNITED STATES OF AMERICA v. MICHAEL LINDSAY
Nos. 16-10349, 16-10384
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
July 23, 2019
Re-submitted March 13, 2019
Charles R. Breyer, District Judge, Presiding
D.C. No. 3:12-cr-00873-CRB-1
FOR PUBLICATION
Appeal from the United States District Court for the Northern District of California Charles R. Breyer, District Judge, Presiding
Argued and Submitted May 14, 2018
Withdrawn from Submission May 21, 2018
San Francisco, California
Before: J. Clifford Wallace and N. Randy Smith, Circuit Judges, and Deborah A. Batts,* District Judge.
Opinion by Judge Wallace
SUMMARY**
Criminal Law
The panel affirmed a jury conviction for illicit sexual conduct abroad and other crimes, vacated defendant‘s sentence, and remanded for resentencing.
Defendant had sex with a minor in the Philippines. Agreeing with the analysis of the Fourth and Tenth Circuits, the panel held that
The panel held that the district court did not err in its jury instruction on the intent element of
The panel held that the district court did not abuse its discretion by excluding defendant‘s foreign deposition testimony, excluding evidence of an extortion plot, or admitting evidence of defendant‘s sexual relations with other underage individuals.
On the government‘s cross-appeal of the sentence, the panel held that the district court miscalculated the Sentencing Guidelines range by failing to apply an obstruction of justice enhancement under
COUNSEL
Ethan A. Balogh (argued) and Dejan M. Gantar, Coleman & Balogh LLP, San Francisco, California, for Defendant-Appellant/Cross-Appellee.
Philip Kopczynski (argued), Assistant United States Attorney; J. Douglas Wilson, Chief, Appellate Division; Brian J. Stretch, United States Attorney; United States Attorney‘s Office, San Francisco, California; for Plaintiff-Appellee/Cross-Appellant.
WALLACE, Circuit Judge:
Michael Lindsay was convicted of travel with intent to engage in illicit sexual conduct, engaging in illicit sexual conduct abroad, attempted witness tampering, and obstruction of justice. At trial, Lindsay raised constitutional, statutory, and evidentiary objections, which the district court overruled. At sentencing, the United States asked the district court to enhance Lindsay‘s base offense level with an obstruction of justice enhancement, which the district court declined to do. Lindsay appeals from his conviction; the United States cross-appeals Lindsay‘s sentence. We have jurisdiction over Lindsay‘s appeal under
I.
A.
Lindsay is a United States citizen born in 1959. In 2012, Lindsay frequently traveled abroad to spend time in the Philippines, where he owned a home.
S.Q. is a Philippine resident born in 1998. According to her testimony at trial, S.Q. met Lindsay in October 2011 near his home in Manila. That night, S.Q., her mother, and other family members stayed at Lindsay‘s home, as part of a scheme to frame Lindsay and extort money from him. No sexual activity between S.Q. and Lindsay occurred that night. S.Q. and an older friend later returned to Lindsay‘s home at her mother‘s urging. S.Q. testified that her friend and Lindsay would often have sex, and that Lindsay paid S.Q.‘s mother in exchange. S.Q.‘s mother pressured S.Q. to do the same, and S.Q. did so in May 2012. S.Q. testified that she and Lindsay had sex “a lot of times” in May, again in August, and that Lindsay paid her mother after every encounter. S.Q. saw Lindsay for the last time on August 22, 2012. After they had sex that day, S.Q.‘s father “showed up” at the condo and took S.Q. home. S.Q.‘s father then went with her to the Philippine police, where she reported the sexual activities. United States law enforcement became involved in September 2012, when they received a “lookout” from Philippine authorities regarding Lindsay. United States authorities then detained Lindsay when he returned to the United States, and began investigating his activities in the Philippines.
B.
The United States filed a criminal complaint against Lindsay in November 2012, and indicted Lindsay in December on two counts of violating
In March 2014, Lindsay moved to take depositions of six individuals in the Philippines. The district court granted the motion, vacated the upcoming trial date, and issued a letter rogatory in August to the judicial authority of the Philippines requesting assistance with the depositions. The district court issued a second letter rogatory in July 2015 again requesting depositions, after the Philippine court responded by suggesting written interrogatories. The record does not reflect whether the Philippine judiciary ever responded to the second letter.
Meanwhile, with no response from the Philippine court forthcoming, Lindsay‘s counsel traveled to the Philippines and deposed five witnesses there.1 Lindsay‘s counsel advised the Assistant United States Attorney assigned to the case of the depositions and invited the United States to participate. The government declined, explaining that under the Consular Convention the Philippines would not allow United States consular officials to attend depositions not presided over by a Philippine judge.
In January 2016, the United States moved to revoke Lindsay‘s pre-trial release, alleging that Lindsay had violated his conditions of release by repeatedly contacting witnesses. The United States argued that Lindsay had contacted defense witnesses, told them not to contact him through email addresses that the government was aware of, instructed them to testify falsely on his behalf, told them to delete his messages to them, and wired money to them. A magistrate judge revoked Lindsay‘s pre-trial release, and shortly thereafter the United States filed a superseding indictment charging Lindsay with attempted witness tampering,
In March 2016, Lindsay moved to admit the five videotaped depositions taken in the Philippines, acknowledging their hearsay nature but arguing that they were admissible as former testimony. See
The case proceeded to a jury trial on the first four counts in May.2 The government‘s theory of the case was that Lindsay traveled to the Philippines with the purpose of having sex with S.Q., and that once there, he did have sex with her. The United States pressed two theories of illicit sexual conduct to the jury: either that Lindsay and S.Q. had commercial sex and S.Q. was under 18, or Lindsay and S.Q. had non-commercial sex and S.Q. was between the ages of 12 and 16. Either way, the prosecution argued, Lindsay had engaged in illicit sexual activity. In support of its theory, the United States introduced S.Q.‘s testimony and evidence to corroborate it, including a notebook found in Lindsay‘s luggage containing a list of names,
Lindsay‘s defense focused on S.Q.‘s credibility and the lack of corroborating witnesses. Lindsay highlighted internal contradictions in S.Q.‘s testimony and introduced witnesses who contradicted her account, including S.Q.‘s boyfriend.
During direct examination of S.Q.‘s boyfriend, Lindsay‘s counsel began asking him questions about his cell phone and messages to S.Q. After Lindsay‘s counsel began asking questions about the existence of specific messages, the district court called a sidebar conference and asked if Lindsay was going to introduce the messages into evidence. When Lindsay‘s counsel responded affirmatively, the court asked, “Does this fall within reciprocal discovery or does it not,” to which counsel responded, “I just found out about it about 40 minutes ago.” The district court then asked if Lindsay had informed the United States of his intention to introduce the messages before beginning the direct examination, and Lindsay‘s counsel responded, “No.” The district court ruled that it was “[t]oo late” to have the United States examine the cell phone before resuming questioning, and instructed the jury to disregard the previous questions about the cell phone. Lindsay also attempted to elicit testimony about S.Q.‘s father speaking to S.Q.‘s grandmother at a Philippine courthouse and asking for money, but the district court ruled that whether or not that occurred was collateral to the main issues in the case.
The jury was instructed on the final day of trial. Relevant to this appeal, the district court instructed that for the
The jury returned a verdict of guilty on all four counts. The verdict form did not distinguish between commercial sexual conduct and non-commercial sexual conduct as the basis for the sex offense counts.
In post-trial proceedings, Lindsay filed a motion for a new trial based in part on his mid-trial discovery of the messages on S.Q.‘s boyfriend‘s cell phone. The motion included a translation from Tagalog into English of the complete message Lindsay had attempted to introduce at trial. The district court denied that motion, ruling in part that the message Lindsay had sought to have admitted was “inadmissible hearsay.”
The district court sentenced Lindsay in August 2016. The district court separately grouped the sex offense convictions and obstruction of justice convictions and for the former arrived at a total offense level of 31. The United States then argued that the level should be increased to 33 for obstructive conduct. See
the United States argued that the enhancement applied even if the district court only considered the obstructive conduct for which Lindsay was separately convicted, the district court again demurred, explaining that to do so would “count it twice.” The district court subsequently imposed a sentence of 96 months for the first group of counts, based on a Guidelines range of 108-135 months. The district court imposed a sentence of 21 months for the second group of charges, to run concurrently with the 96-month sentence.
Lindsay appealed, challenging the district court‘s denial of his motion to dismiss, jury instructions, and evidentiary rulings. The United States cross-appealed, challenging the district court‘s sentence. We heard argument and submitted the case in May 2018, but withdrew submission pending United States v. Pepe, 895 F.3d 679 (9th Cir. 2018) and United States v. Abramov, 741 F. App‘x 531 (9th Cir. 2018). Because neither of those decisions fully resolved this appeal, we resubmitted the case in March 2019 and now issue this opinion.
II.
“We apply de novo review to a denial of a motion to dismiss a criminal indictment on constitutional grounds.” United States v. Andaverde, 64 F.3d 1305, 1308–09 (9th Cir. 1995). “We review de novo whether the district court‘s jury instructions misstated or omitted an element of the charged offense and review the district court‘s formulation of jury instructions for abuse of discretion.” United States v. Chi Mak, 683 F.3d 1126, 1133 (9th Cir. 2012). “We review a district court‘s evidentiary rulings for an abuse of discretion and its interpretation of the Federal Rules of Evidence de novo. We also review de novo whether a district court‘s evidentiary rulings violated a defendant‘s constitutional rights.” United States v. Waters, 627 F.3d 345, 351-52 (9th Cir. 2010). “We review a district court‘s construction and interpretation of the Guidelines de novo and its application of the Guidelines to the facts for abuse of discretion.” United States v. Johnson, 913 F.3d 793, 799 (9th Cir. 2019) (quoting United States v. Simon, 858 F.3d 1289, 1293 (9th Cir. 2017) (en banc)).
III.
We begin our analysis with Lindsay‘s appeal. Lindsay assigns error to the district court on six grounds: (1) that the district court erred in denying his motion to dismiss because enacting
A.
The Commerce Clause provides that “The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
We begin with the text of the relevant statute. At the time of Lindsay‘s conduct,
Any United States citizen or alien admitted for permanent residence who travels in foreign commerce, and engages in any illicit sexual conduct with another person shall be fined under this title or imprisoned not more than 30 years, or both.
(1) a sexual act (as defined in
section 2246 ) with a person under 18 years of age that would be in violation ofchapter 109A if the sexual act occurred in the special maritime and territorial jurisdiction of the United States; or
(2) any commercial sex act (as defined in
section 1591 ) with a person under 18 years of age.
Whoever, in the special maritime and territorial jurisdiction of the United States or in a Federal prison, or in any prison, institution, or facility in which persons are held in custody by direction of or pursuant to a contract or agreement with the head of any Federal department or agency, knowingly engages in a sexual act with another person who—
(1) has attained the age of 12 years but has not attained the age of 16 years; and
(2) is at least four years younger than the person so engaging;
or attempts to do so, shall be fined under this title, imprisoned not more than 15 years, or both.
Altogether then,
We have some assistance when we answer that question. In Clark, we addressed the constitutionality of
Our analysis in Clark started by considering the Commerce Clause as a whole, and how Congress‘s powers under the Foreign Commerce Clause related to the Interstate Commerce Clause and Indian Commerce Clause. 435 F.3d at 1110–13. Recognizing the different opinions on the subjects, we explained that “[r]egardless of how separate the three subclauses may be in theory, the reality is that they have been subject to markedly divergent treatment by the courts” in light of the “considerably different interests at stake when Congress regulates in the various arenas.” Id. at 1111. We then compared the Supreme Court‘s approach to the Interstate Commerce Clause, defined by the three familiar categories of permissible regulation, see United States v. Lopez, 514 U.S. 549, 558–59 (1995); United States v. Morrison, 529 U.S. 598, 609–14 (2000), with its approach to the Indian Commerce Clause, which is not dependent on “the rigid categories of Lopez and Morrison.” Clark, 435 F.3d at 1112–13. We recognized that the Foreign Commerce Clause was more akin to the Indian Commerce Clause than the Interstate Commerce Clause in this way, as the Supreme Court “has been unwavering in reading Congress‘s power over foreign commerce broadly.” Id. at 1113. We also added that there were structural reasons to think that the Foreign Commerce Clause might be broader than the Interstate Commerce Clause, because “[f]ederalism and state sovereignty concerns do not restrict Congress‘s power over foreign commerce.” Id.; see also Japan Line, Ltd. v. Cty. of Los Angeles, 441 U.S. 434, 448 (1979) (“[T]he Founders intended the scope of the foreign commerce power to be the greater“); Bd. of Trs. of Univ. of Ill. v. United States, 289 U.S. 48, 57 (1933) (“The principle of duality in our system of government does not touch the authority of Congress in the regulation of foreign commerce“).
Based on this broad understanding of the Foreign Commerce Clause, we announced that we would review
Clark thus establishes the governing framework for our review here. We must apply rational basis review to
We hold that non-commercial sex with a minor abroad fairly relates to foreign commerce, and that Congress accordingly acted within its constitutional bounds when it enacted the non-commercial part of
First, and most important, we consider the non-commercial part to be an essential component of Congress‘s overall scheme to combat commercial sex tourism by Americans abroad. International sex tourism is a multi-billion dollar industry that relies on the exploitation of women and children in dire economic circumstances. See Kalen Fredette, International Legislative Efforts to Combat Child Sex Tourism, 32 B.C.
Second, Congress could have rationally concluded that the American appetite for sex with minors abroad substantially affects other aspects of foreign commerce because sex with minors is generally illegal in the United States. If Americans believe that traveling to a particular foreign country includes the opportunity for unregulated, non-commercial illicit sexual conduct, they may travel to that country when they otherwise would not, and they may pay more in airfare, lodging costs, vacation packages, or simply stay in the country longer spending money on other things. See Durham, 902 F.3d at 1211; Bollinger, 798 F.3d at 219; see also Fredette, supra, at 9 (“Between 2–14% of the GDPs of Indonesia, Malaysia, the Philippines, and Thailand can be linked to sex tourism“). These substantial collateral effects of American sex tourism, which unquestionably constitute transactions in foreign commerce, thus flow directly from the non-commercial sexual activity prohibited by
These two features together lead us to conclude that
In light of our holding, we need not address the United States‘s alternative arguments that
B.
We next turn to Lindsay‘s statutory arguments, as reflected in the district court‘s instructions to the jury on the
1.
Lindsay did not object to the district court‘s jury instructions concerning
Here, there is no obvious error. In 2012,
engaging in any illicit sexual conduct with another person.7 Lindsay argues that “for the purpose of” clearly refers to a but-for causation standard, contrary to the “dominant, significant, or motivating” standard the district court applied. However, this contention “ignores the human ability and propensity to act in light of multiple motives and purposes.” United States v. Lukashov, 694 F.3d 1107, 1118 (9th Cir. 2012). It is not obviously wrong to interpret “for the purpose of” as applying to any dominant, significant, or motivating purpose to account for that fact, as a plain understanding of the phrase can encompass multiple intentions. For instance, in common conversation a person can travel to the grocery store “for the purpose of” buying milk and getting gas if both milk and gas are motivating reasons for the excursion.
Lindsay‘s argument to the contrary relies on Burrage v. United States, 571 U.S. 204 (2014). However, Burrage is inapposite here. In that case, the Supreme Court held that the phrase “results from” in
2.
We likewise reject Lindsay‘s argument that the district court should have instructed the jury that it was a defense to
There are two “reasonable belief” defenses that could apply to this case.8 First,
Lindsay‘s argument fails because the language of both sections
We therefore hold that there was no plain error in the district court‘s jury instructions.
C.
We next turn to Lindsay‘s evidentiary objections. Lindsay argues that the district court erred or abused its discretion by (1) excluding his foreign deposition testimony, (2) excluding S.Q.‘s Facebook messages and related extortion evidence, and (3) admitting evidence of Lindsay‘s sexual relations with other underage individuals. We address each in turn.
1.
Lindsay does not argue on appeal, nor did he in the district court, that the Philippine depositions are not hearsay subject to Rule 802‘s bar against admission. See
We hold that the district court did not abuse its discretion or violate Lindsay‘s constitutional right to present a defense by excluding the depositions. First, the former testimony exception requires, as relevant to this case, that (1) the declarant be unavailable at trial, (2) the testimony be given at a lawful deposition, and (3) the United States had an opportunity and similar motive to develop the testimony through cross-examination. See
Second, as relevant here the residual exception requires that the hearsay statement (1) have equivalent guarantees of trustworthiness to other hearsay exceptions and (2) best serve the purpose of the rules and the interests of justice.
Finally, the constitutional guarantee of the right to present a defense “is not absolute, since the adversary process could not function effectively without adherence to rules of procedure that govern the orderly presentation of facts and arguments.” United States v. Evans, 728 F.3d 953, 959 (9th Cir. 2013) (quotation marks and citations omitted). In cases such as this one, where exclusion of evidence by the district court was not an abuse of discretion under the Federal Rules of Evidence, we must consider “the probative value of the evidence on the
The district court therefore did not err or abuse its discretion by excluding the Philippine depositions.
2.
We likewise reject Lindsay‘s argument that the district court abused its discretion by excluding S.Q.‘s Facebook messages discovered mid-trial. The thrust of Lindsay‘s argument is that he did not commit a discovery violation because the messages were not in his “possession, custody, or control.” See
The closer question is whether the district court abused its discretion by excluding the evidence in its entirety, rather than attempting to craft a narrower sanction. Although Rule 16 allows district courts to exclude untimely evidence, “[e]xclusion is an appropriate remedy for a discovery rule violation only where ‘the omission was willful and motivated by a desire to obtain a tactical advantage.‘” United States v. Finley, 301 F.3d 1000, 1018 (9th Cir. 2002) (quoting Taylor v. Illinois, 484 U.S. 400, 415 (1988)). In this case, however, even if we were to assume that exclusion was an abuse of discretion, any error would be harmless. In post-trial litigation, the full text of the relevant message was disclosed, and the district court correctly held that it was inadmissible hearsay. See
3.
Finally, we also reject Lindsay‘s argument that the district court abused its discretion by admitting evidence that he had sex with other teenage girls in the Philippines. Lindsay argues that the evidence was inadmissible under Evidence Rule 404(b), but that rule operates only to exclude the propensity inference that can be drawn from evidence of other bad acts. See
That is the case here. While there was a strong propensity inference that could have been drawn from the instant messages, the messages were not admissible or admitted for that purpose. Instead the district court admitted the messages to show the purpose of the list in Lindsay‘s notebook, which made it more likely that Lindsay had sex with S.Q. In other words, the messages did not show that Lindsay must have had sex with S.Q. because he is the sort of person who has sex with teenage girls; they showed that Lindsay was more likely to have had sex with S.Q. because her name appeared on a list of girls, at least some of with whom Lindsay had sex. Such evidence is not prohibited by Rule 404(b) because it does not “prove a person‘s character in order to show that on a particular occasion the person acted in accordance with the character.”
Lindsay‘s stronger argument is that, even if the evidence was not introduced solely for the propensity inference, the prejudice from that inference and the possible negative emotional reaction of the jury to it was so great as to make the evidence “substantially outweighed by a danger of ... unfair prejudice.” See
We therefore hold that there was no abuse of discretion or constitutional error in the district court‘s evidentiary rulings.
D.
Lindsay last argues that, even if none of the errors individually require us to vacate his conviction, the cumulative effect of the errors denied him a fair trial. We reject this argument. Cumulative error applies only when multiple errors exist such that our review of them would be better served by examining the prejudice collectively, rather than through “a balkanized, issue-by-issue harmless error review.” United States v. Wallace, 848 F.2d 1464, 1476 (9th Cir. 1988). There were not multiple errors here and therefore there cannot be cumulative error. See United States v. Jeremiah, 493 F.3d 1042, 1047 (9th Cir. 2007) (“[B]ecause we hold that there was no error committed by the district court, Jeremiah‘s theory of cumulative error necessarily fails“).
We therefore affirm Lindsay‘s conviction.
IV.
We next address the United States‘s cross-appeal, concerning Lindsay‘s sentence. The United States‘s sole argument on cross-appeal is that Lindsay‘s sentence should be set aside because the district court miscalculated Lindsay‘s Guidelines range before imposing the sentence.
Although the United States Sentencing Guidelines are no longer binding, they must be correctly calculated; it is procedural error for a district court to calculate the Guidelines range incorrectly. United States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc). The United States argues that the district court miscalculated Lindsay‘s Guidelines range because it failed to apply a two-level obstruction of justice enhancement,
We conclude that the district court erred by failing to apply the enhancement. There is no dispute that
Lindsay argues that, even if this is true, it is solely because the district court separately grouped the sex offence counts and the obstruction counts, which the United States affirmatively agreed to. We agree that the United States waived any challenge
Nor can we say that the error was harmless. See United States v. Munoz-Camarena, 631 F.3d 1028, 1030 & n.5 (9th Cir. 2011). After incorrectly calculating Lindsay‘s Guidelines range as 108-135 months, the district court sentenced Lindsay to a term of 96 months. While the district court explained the reasons for that variance, “[t]he court must explain, among other things, the reason for the extent of a variance.” Id. at 1031 (emphasis in original). “The extent necessarily is different when the range is different, so a one-size-fits-all explanation ordinarily does not suffice,” and we “are not convinced that the district court would impose the same sentence if the correct Guidelines range was ‘kept in mind throughout the process.‘” Id. (quoting Carty, 520 F.3d at 991). Remand for resentencing is therefore required. We do not opine on the appropriateness of any ultimate sentence, but leave that issue in the district court‘s capable hands.
Therefore, while we affirm Lindsay‘s conviction, we vacate his sentence and remand for resentencing.
AFFIRMED in part, VACATED in part, and REMANDED.