Case o' The Week: No "But For" in Store - Backman and Causation
United States v. Backman, 2016 WL 1237505 (9th Cir. Mar. 30, 2016), decision available here.
Players: Decision by Judge Graber, joined by Judges Bybee and Christen.
Facts: Backman tricked a victim into flying to Saipan, with promises of a work visa and a legal job. Id. at *1. Instead, the victim was taken to Backman’s brothel, travel documents were taken from her, and the victim was coerced into prostitution. Id. Backman was convicted after a jury trial of a count of sex trafficking by force, fraud, or coercion in violation of 18 USC § 1951(a). Id. The defense didn’t object to the jury instructions. Id.
Issue(s): Defendant argues that the jury instructions were erroneous because . . . the instructions did not require ‘but-for causation’ pursuant to Burrage v. United States, . . . 134 S.Ct. 881, 187 . . . (2014) . . . .” Id. at *2.
Held: “We conclude at step one of the plain-error inquiry that there was no error . . . . 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.’ 18 U.S.C. § 1591(a) (emphasis added). Defendant asserts that, under the reasoning of Burrage, the district court erred by not giving an instruction requiring the jury to find that the alleged coercion was the but for cause of the victim's commercial sex acts. The district court did not err by declining to apply Burrage here. Causation is not an element in a § 1591(a) prosecution, because a commercial sex act need not even occur: ‘Case law makes clear that ‘commission of a sex act or sexual contact’ is not an element of a conviction under 18 U.S.C. § 1591.’ . . . Hornbuckle, 784 F.3d 549, 553 (9th Cir.2015). ‘What the statute requires is that the defendant know in the sense of being aware of an established modus operandi that will in the future coerce a prostitute to engage in prostitution.’ . . . Brooks, 610 F.3d 1186, 1197 n. 4 (9th Cir.2010) (internal quotation marks omitted). Because the statute does not require commission of a sex act, the court correctly refused to require the jury to find that Defendant caused a sex act to occur.’” Id. at *2.
Of Note: The “but for” holding is the first defense loss; the second is a frustrating statutory interpretation holding. Id. at *5. Backman argued that in Flores-Figueroa, the Supreme Court had looked at another statute and held that the mens rea “knowingly” applies “all subsequently listed elements of the crime.” Id. at *3. By the same logic, Backman argued that she had to know her actions affected interstate or foreign commerce – a listed element of this sex crime. Id. The Ninth doesn’t buy it (and had rejected a similar argument regarding the commerce clause in a gun statute in Stone). Id. Jurisdictional elements, sadly, get a mens rea pass. Id. at *4.
How to Use: Much of Backman discusses (then upholds) the exclusion of FRE 412 evidence that the defense tried to admit at trial. FRE 412 controls the admissibility of the alleged sexual misconduct of a victim – it is one of the comparatively few rules imposing very detailed discovery requirements on the defense. FRE 412 requires any party to first move to admit the evidence, specifically describe the evidence and its purpose, and to do so “at least 14 days before trial unless the court, for good cause, sets a different time.” Id. at *4 (quoting FRE 412). The evidence in Backman was doubly problematic: the motion was four days too late, and it had no details about the proffered evidence and was thus of questionable relevance. Id. If you’re contemplating FRE 412 evidence, Backman is a worthwhile read on the minefields to avoid. Id. at *5.
For Further Reading: Evidence in sex crimes cases is tricky stuff. For a fairly thorough (though not defense-leaning) overview, see Evidentiary Matters in Sexual Offense Cases, 4 Geo. J. Gender & L. 525 (2002).
Image of Saipan from http://www.pokernews.com/news/2014/08/imperial-pacific-plans-to-build-a-3-billion-casino-resort-19021.htm
Steven Kalar, Federal Public Defender ND Cal. Website at www.ndcalfpd.org