Tuesday, September 26, 2017

US v. Jayavarman, No. 16-30082 (9-26-17)(Clifton w/Graber & M. Smith). One can be convicted of an attempt to produce child porn outside the US for importation under 18 U.S.C. § 2251(e) even if the "minor" is an adult, despite the fact that the government would have to prove that the minor was a minor for a conviction on the completed offense. In this case, the defendant went to Cambodia, where he filmed himself having sexual relations with a female he claimed was a minor. At trial, and on appeal, he argued that the female was in fact an adult. As a matter of statutory construction, the conviction must be reversed.

The 9th rejects the argument, writing "We conclude that a person may be convicted for attempt to commute the crime charged [2251] if he believes that the victim was a minor, even if the victim was not in fact a minor." The 9th explains the focus is on the defendant's state of mind. In offenses where there is a face to face contact, such as completing the offense, there is no knowledge scientor requirement as the age is a strict liability, although a "mistake of age" defense can be raised. In an attempt, the government does not have to prove the victim is a minor, as what the defendant intended in attempting is key.

The 9th rejects challenges under the First Amendment, sufficiency of the evidence, jury instructions, and mistake of age. The 9th also finds no error in the court admitting evidence despite a 403 objection as it was highly probation and not unduly prejudicial (transcripts of the defendant). The court need not have stated that he read every word, as the defendant argues he must avow under Curtin (pornographic stories); and he need not necessarily read each and every word. The court must know the gist and contents and the 9th was satisfied here the court did. The court did not err in finding that the defendant sufficiently spoke and understood English and did not need a Khmer interpreter.

The 9th dismisses the other conviction of "attempt to aid and abet" travel with intent to engage in illicit sex under 18 U.S.C. § 2243(b). The government concedes that there is no "attempt" offense for this offense.  Under the federal criminal code, there must be a specific "attempt" offense.

The case is remanded for resentencing because of the dismissal. The court had indicated it did a holistic sentence, taking into account both convictions.  The court gets to resentence.

The decision is here:



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