Saturday, November 20, 2010

Case o' The Week: Booker and the Bard - Todd and Mens Rea

"As William Shakespeare said of time in Sonnet 115, its 'million'd accidents creep in' and nothing is completely stable, no plan is beyond alteration." United States v. Todd, 2010 WL 4596380 (9th Cir. Nov. 15, 2010) (as amended on denial of rehearing and rehearing en banc), decision available here.

To illustrate the Bard's wisdom, who would have predicted that a great Apprendi decision from last year would get flipped by the same panel upon the government's petition for rehearing? Id.

Players: Decision by Judge Noonan joined by Judge Pregerson, concurrence by Judge M. Smith.

Facts: Todd gently wooed women into prostitution; once recruited, he beat them to maintain control. Id. at *1. He was convicted after trial of sex trafficking in violation of 18 USC § 1591(a)(1) (the “Trafficking Victim’s Protection Act” (“TVPA”)). Id. at *1.

Under the TVPA it is a crime to recruit a prostitute “knowing that fraud, force, or coercion will be used.” Id. at *3 (quoting 18 USC § 1591(a)(2) (emphasis added). The TVPA dictates an enhanced sentence of fifteen years to life, “if the offense was effectuated by force, fraud or coercion.” Id. at § 1591(b)(1) (emphasis added).

Last year this Ninth Circuit panel found that, under Booker, there was an unconstitutional “hole in the statute.” It accordingly reversed three, twenty-six year sentences under the TVPA. Todd, 584 F.3d 788, 793 (9th Cir. 2009). The panel so held because the jury had not been required to find that Todd had actually “effectuated” the offense “by fraud, force or coercion.” 18 U.S.C. § 1591(b)(1).” Id. at 793. The government petitioned for rehearing.

Issue(s): Was Todd’s statutory maximum sentence for the TVPA counts unconstitutionally raised above ten years, based on an enhancement fact not alleged in the indictment or found by the jury beyond a reasonable doubt – namely, that he recruited women to engage in a commercial sex acts and actually effectuated the offense by fraud, force, or coercion?

In other words, is there a “hole in the statute” that allowed Todd’s higher statutory maximum sentence without a jury finding that he actually used force?

Held: “As I read 18 USC § 1591, there is no ‘hole in the statute.’” 2010 WL 4596380, *6 (M. Smith, J., concurring). “The phrase, “will be used” in subsection (a) does not leave open the possibility that force, fraud, or coercion was not eventually used in committing the offense.” Id. “By using the phrase, ‘will be used’ as opposed to something more speculative such as ‘could be used’ or ‘might be used,’ the statute describes definitive conduct.” Id. “Had force, fraud, or coercion not actually been used to cause the victim to engage in a commercial sex act, Todd could not have been prosecuted under 18 U.S.C. § 1591.” Id. (emphasis added).

Of Note: With all respect, the panel's first decision was far more persuasive. Despite Judge Smith’s assurances, under this statute a defendant can be prosecuted and can receive a higher sentence under the Trafficking Victim’s Protection Act even if no force, fraud, or coercion was actually used. The Todd Court has just effectively held that this fact isn’t an element, the jury isn’t required to find this fact, and there presumably wouldn’t be any bar to indicting a case where this fact is missing. Judge Smith assures us that a defendant can seek a special defense instruction if there is no actual force used, id. at *7 & n.3, but that remedy turns Apprendi on its head – converting a Sixth Amendment right into, essentially, an affirmative defense.

The decade since Apprendi has produced a number of strained legal analyses as courts stretch to save statutes from Sixth Amendment attack. See, e.g., Buckland, 289 F.3d 558 (9th Cir. 2020) (en banc); Booker, 125 S.Ct. 738, 757 (2005) (remedial opinion). Todd, unfortunately, now joins this list.

How to Use: Given the language in Judge Smith's concurrence, it is hard to imagine that any prudent prosecutor or district court would not insist on an instruction, after Todd, that requires the jury to find actual use of “force, fraud, or coercion.” The defense can seek such an instruction as well. 2010 WL 4596380, at *7 & n.3. If this instruction isn’t given, preserve the Apprendi challenge – the Supreme Court still hasn’t weighed-in on this Sixth Amendment issue.

For Further Reading: Here’s Todd’s novel, new mens rea state: a pimp is guilty of this heavy crime when he sweetly woos potential prostitutes, if he knows that fraud, force, or coercion will be used later. In a most curious analogy, Judge Noonan compares this to federal judges who “know” that their clerks will use Westlaw in the future. Id. at *4. Without supporting citation, the Court asserts that “When an act of Congress requires knowledge of a future action, it does not require knowledge in the sense of certainty as to a future act.” Id.


For a persuasive bipartisan attack on the endangered federal mens rea element, see Without Intent: How Congress Is Eroding the Criminal Intent Requirement in Federal Law, available at the Heritage Foundation, here, and at the National Association of Criminal Defense Attorneys, here.

Image of William Shakespeare from

Steven Kalar, Senior Litigator, N.D. Cal. Federal Public Defender. Website at


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