US v. Price, No. 15-50556 (4-12-19)(Wardlaw w/Nyguyen; concurrence by Gilman). This has been the week for “flight” (as in airplane) opinions (see yesterday’s venue entry).

This opinion deals with the “knowingly” engaging in sexual contact under 18 U.S.C. § 2244(b). The act occurred on an international flight from Tokyo to Los Angeles.  The contact occurred when the victim was asleep at the time.  On appeal, the defendant argues that in addition to the  gov’t proving beyond a reasonable doubt  that he knowingly had sexual contact with the victim, the government also must prove that he subjectively knew the defendant did not consent. The defendant argues that “knowingly” in the statute refers to both engaging in conduct, and knowing that he was acting without consent.

In affirming the conviction, the majority rejected this reading of requiring a subjective “knowing” that the conduct was without permission.  It stated that such a requirement was contrary to the text, the structure of the statutory scheme, and its purpose.  The intent of the legislation in criminalizing sexual conduct within this federal jurisdiction was a focus on the defendant’s conduct.  The 9th’s reading prevents the defendant from asserting a subjective belief that the victim was “enjoying herself.”

The 9th held as well that there was probable cause, and that he was properly Mirandized. The court acted within its discretion in refusing the jury’s request to read back portions of the victim’s testimony.

Concurring, Gilman would require that “knowingly” in the statute be applied to “without that other person’s permission.” He argues  that this is a better reading the text, and one supported by the Supreme Court in Flores-Figueroa v. US, 556 US 646 (2009)(knowingly applied to each element of the statute).  The statute does not criminalize innocent sexual conduct based on a fact – lack of permission – unknown to the defendant.  The lack of permission can be proved by the gov’t by circumstantial evidence.

There is now arguably a split with the 8th Circuit’s reading of a related statute, 2242(2), in US v. Bruguier, 735 F.3d 754 (8th Cir. 2013)(en banc).

Gilman concurs because any error was harmless.  He notes too that his “concurrence” was taken from a draft opinion authored by Judge Reinhardt before his death. Nguyen replaced him.  This was consequential.

Deputy Federal Defender Jonathan Libby of Cal Central (L.A.) presented the “knowingly” issue well.  Again, we apparently have a circuit split.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2019/04/12/15-50556.pdf