US v. Flucas, No. 19-10065 (1-21-22)(Rawlinson; concurrence by Schroeder; dissent by Bybee). This is a jury instruction appeal.  The defendant was convicted of transportation of a minor with intent to engage in criminal sexual activity in violation of 18 USC 2423(a). The defendant (a father who sexually abused his daughters) moved from Oregon to California. He argued he did so because of a better job opportunity, and not to engage in sexual activity. The jury instruction read the government had to prove beyond a reasonable doubt that “a dominate, significant, or motivating purpose” was to engage in sexual activity. The issue focused on “motivating” which was added to the instruction at the second trial. The 9th affirmed the convictions; holding there was no abuse of discretion. The instruction followed precedent and aligned with other circuits.

Dissenting, Bybee argued that “motivating” differed from “dominating or significant purpose,” and the terms were not synonymous or interchangeable.

Concurring, Schroeder takes the dissent to task for relying on a 70 year old Supreme Court case with different issues; not recognizing courts routinely treat “significant” as interchangeable with “motivating;” and finally making the assumption the addition of “motivating” alone resulted in a conviction by the second jury. This cannot be presumed and is unknowable.

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2022/01/21/19-10065.pdf