United States v. Duong, 10th Cir. (2017)
United States v. Duong, 10th Cir. (2017)
TENTH CIRCUIT
Plaintiff - Appellant,
v. No. 16-6078
Defendants - Appellees.
Michael L. Brooks, The Brooks Law Firm (John W. Coyle, III, Coyle Law Firm,
R. Scott Adams and Robert W. Gray, Adams & Associates, P.C., Oklahoma City,
Oklahoma, Richard E. Stout, Stout & Stout, Edmond, Oklahoma, and Laura K.
Deskin, Laura K. Deskin, PLLC, Oklahoma City, Oklahoma, with him on the
brief), Oklahoma City, Oklahoma, for Defendants-Appellees.
sex trafficking and conspiracy to engage in child sex trafficking. See 18 U.S.C.
1591, 1594 (2008). 1 The superseding indictment asserted only one basis by
which the government would seek to prove mens rea as to the child victims 2
indictment, arguing it failed to allege the mens rea element of child sex
The government appeals, arguing it can meet its burden of proving the mens
rea with regard to Defendants awareness of the child victims age by showing
only that Defendants had a reasonable opportunity to observe the victim. See
1
Unless otherwise indicated, all citations to 18 U.S.C. 1591 are to the
version of the statute which took effect on December 23, 2008. See William
Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub. L.
No. 110-457, tit. II, 222(b)(5), 122 Stat. 5044, 5069-70 (Dec 23, 2008).
2
The superseding indictment identified two child victims, R.W. and M.M.
3
Appellees filed a supplemental appendix containing, inter alia, a portion
of the trial transcript in a related case, including images of the child victim. The
unopposed motion to seal this supplemental appendix was conditionally granted.
The government then moved to strike the supplemental appendix. This appeal can
be resolved by taking judicial notice of all filings of the parties and rulings of the
(continued...)
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II. Background
Curtis A. Anthony, were charged by a federal grand jury with child sex
U.S.C. 1591(a)(1), (a)(2), (b)(2), (c), and 1594. The only element of the
charged crime relevant to this appeal is Defendants mens rea with respect to the
victims status as a minor. See United States v. Brinson, 772 F.3d 1314, 1325
(10th Cir. 2014) (setting out the elements of child sex trafficking). 4 The original
indictment charged three bases to satisfy this element: (1) knowledge, (2) reckless
3
(...continued)
district court in United States v. Ehrens, No. 15-CR-200-C (W.D. Okla.). See
United States v. Smalls, 605 F.3d 765, 768 n.2 (10th Cir. 2010). Accordingly, the
governments motion to strike the supplemental appendix is granted. The motion
to permanently seal the supplement appendix is denied as moot but the
supplemental appendix shall remain sealed pursuant to this courts order dated
August 18, 2016. The Clerk of the Court shall destroy the supplemental appendix
and all copies in its possession when the time for filing a petition for writ of
certiorari has expired. Should there be a petition for writ of certiorari, the
supplemental appendix shall be disposed of as provided in a further order of this
court.
4
The Brinson court addressed whether the evidence presented at trial was
sufficient to support each of the elements of child sex trafficking. See United
States v. Brinson, 772 F.3d 1314, 1325-26 (10th Cir. 2014). Because the evidence
was sufficient to show the defendant knew or recklessly disregarded the fact the
victim was a minor, Brinson did not consider the question presented in this
appeal. See id. at 1326 (noting the minors high school registration form was
found in the defendants vehicle and it indicated she was fourteen years old).
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In December 2015, the government prosecuted a related case against a
(W.D. Okla.). Ehrens was charged with child sex trafficking. The indictment
alleged he engaged in a commercial sex act with the child victim knowing and in
reckless disregard of the fact that [the victim] had not attained the age of eighteen
years and having had a reasonable opportunity to observe [the victim]. In the
Ehrens matter, the government sought a jury instruction permitting the jury to
find that Ehrens had the required mens rea with respect to the victims age solely
on the basis that he had a reasonable opportunity to observe the victim. The
the Ehrens matter, the government sought a superseding indictment in the instant
awareness of the child victims age, the superseding indictment charged only that
also filed a motion in limine, asserting it intended to prove Defendants mens rea
opportunity to observe the child that he obtained, not that he had knowledge of
that childs age or was in reckless disregard of her age. Accordingly, the
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district court denied the motion, ruling the government was required to produce
the victims age. The court also dismissed the superseding indictment,
concluding it failed to allege each element of the crime charged. In this appeal,
the government challenges the district courts ruling dismissing the superseding
indictment.
III. Discussion
United States v. Todd, 446 F.3d 1062, 1067 (10th Cir. 2006). Here, however, the
government is asking this court to resolve the purely legal question of whether 18
proves the defendant had a reasonable opportunity to observe the victim, but does
not also show the defendant knew or recklessly disregarded the underage status of
the victim. Although this is a question of law reviewed de novo, [a]n error of
1216, 1219 (10th Cir. 2011); see also Todd, 446 F.3d at 1067 (We review the
the plain language at issue. Tuckel v. Grover, 660 F.3d 1249, 1252 (10th Cir.
2011). During that examination, we must keep in mind that [t]he plainness or
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ambiguity of statutory language is determined by reference to the language itself,
the specific context in which that language is used, and the broader context of the
statute as a whole. Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997). Having
considered all these factors, this court joins the Second and Fifth Circuits in
which the government can satisfy the mens rea element with respect to the age of
a victim of child sex trafficking. 5 Accord United States v. Copeland, 820 F.3d
809, 813 (5th Cir. 2016); United States v. Robinson, 702 F.3d 22, 31 (2d Cir.
2012).
At the time the alleged criminal acts occurred, 1591(a) provided that:
5
Defendants argue the Eleventh Circuit has adopted their interpretation of
18 U.S.C. 1591(c). In United States v. Mozie, 752 F.3d 1271, 1282 (11th Cir.
2014), the Eleventh Circuit addressed the defendants argument that 1591(c)
was unconstitutional on its face because it lowered the governments burden of
proof below the beyond-a-reasonable-doubt standard by allowing conviction
based on a showing that the defendant only recklessly disregarded the victims
age. The court rejected this argument, stating it conflated mens rea with burden
of proof. Id. at 1282. The court also held that the Due Process Clause does not
prevent Congress from criminalizing conduct that is done with reckless disregard
instead of actual knowledge, stating that if the government proved the
defendant had a reasonable opportunity to observe the victim, it need prove only
that he recklessly disregarded the fact that she was under the age of eighteen, not
that the defendant knew she was. Id. The court repeated this standard when it
addressed the defendants challenge to the sufficiency of the evidence but did not
apply it, concluding instead that the evidence was sufficient to show the
defendant knew the ages of the victims. Id. at 1286. Because the Mozie court
neither engaged in an analysis of the statutory language nor applied the standard
it stated, that opinion is not persuasive on the issue of whether a defendants
reasonable opportunity to observe the child victim satisfies the mens rea element
as to the victims age.
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Whoever knowingly
Id. 1591(c). Our analysis begins and ends with the statutory language.
Victims Protection Act of 2000 (the TVPA), Pub. L. No. 106-386, div. A,
112(a)(2), 114 Stat. 1464, 1487-88 (Oct. 28, 2000). A stated purpose of the
TVPA was to combat trafficking in persons, especially into the sex trade,
slavery, and involuntary servitude. 114 Stat. at 1464. In conformity with that
purpose, 1591 was added to Title 18 of the United States Code to provide
federal criminal penalties for individuals who force or coerce a person to engage
in a commercial sex act or who cause a minor to engage in a commercial sex act.
114 Stat. at 1487 (codified at 18 U.S.C. 1591(a), (b) (2000)). With respect to
criminal activity involving a minor, as originally enacted the statute required the
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government to prove the defendant knew the child victim was a minor. 114 Stat.
burden, the penalty provisions were harsh: imprisonment up to life if the child
victim was less than fourteen years old and imprisonment up to twenty years if
the child victim was between fourteen and eighteen. 114 Stat. at 1487 (codified
The mens rea provision in the original version of 1591(a) was amended
of 2008 (the TVPRA), Pub. L. No. 110-457, tit. II, 222(b)(5), 122 Stat. 5044,
5069 (Dec. 23, 2008). Under the amended statute, a second method by which the
government could prove the relevant mens rea was added to the statute.
acted in reckless disregard of the fact that the child victim was a minor. 122
governments burden of proof was wholly consistent with the objective of the
5044.
The specific provision at issue here, 1591(c), was also added to the
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1591(c) is worded in terms of what the government need not prove when the
5069 (codified at 18 U.S.C. 1591(c)). When this need not prove language is
U.S. 1, 6 (1999) (In interpreting the statute at issue, we consider not only the
bare meaning of the critical word or phrase but also its placement and purpose in
expressly states the government need not prove knowledge when a defendant
had a reasonable opportunity to observe the child victim, relieves the government
1591(a), which permits the government to meet its burden of proving the
relevant mens rea element in one of two ways: (1) the defendant knew the child
victim was a minor, or (2) the defendant recklessly disregarded the fact the child
amended by the TVPRA and decreased the prosecutions burden of proving mens
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two provisions together to give effect to both, indicates that 1591 must be
interpreted to give the prosecution three methods by which it can prove the
relevant mens rea. The government can prove knowledge, the most difficult
burden to meet and, prior to the enactment of the TVPRA, the only method
available to the prosecution. With the changes made to 1591(a) by the TVPRA,
the government can also prove the defendant acted in reckless disregard of the
child victims age. Finally, 1591(c), by its plain language, permits the
notwithstanding the fact that 1591(c) references only knowledge. They assert
this result fails to give effect to all provisions of the statute because the
standardbecomes irrelevant. Defendants argue the only way to give effect to all
the lesser burden of proving reckless disregard only in situations where the
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satisfied its burden under the knowledge standard and there is no need for it to
also prove the defendant recklessly disregarded the fact the victim was a minor.
Thus, Defendants are correct that the governments burden of proving the relevant
mens rea is fully met in situations where the defendant had a reasonable
opportunity to observe the child victim and the reckless disregard standard has no
situations where a defendant did not have a reasonable opportunity to observe the
child victim and the government does not have direct evidence of knowledge, the
reckless disregard standard provides the government with an avenue to prove the
relevant mens rea. Thus, our interpretation of 1591(c) does not write the
that it is consistent with the purposes of the TVPRA because it relieves the
government to meet its burden in one of two waysby proving either (1)
proof of actual knowledge. Under the interpretation we adopt, both 1591(a) and
(c) are given effect: (1) 1591(a) lowers the governments burden from one of
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proving knowledge to one of proving knowledge or reckless disregard and (2)
1591(c) further lowers the governments burden in situations where the defendant
interpretation would restrict the governments ability to show mens rea under the
reckless disregard standard and, thus, is at odds with the plain language of
statute as a whole, this court concludes that any burden on the part of the
prosecution to prove mens rea with respect to the age of the victim of child sex
the victim. This interpretation satisfies the stated purpose of the TVPRAto
governments burden in child sex trafficking cases. It also gives effect to all
governments burden of showing mens rea with respect to the age of the child
victim could be satisfied in one of three ways: (1) Defendants knew she was a
minor, or (2) Defendants recklessly disregarded the fact she was a minor, or (3)
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superseding indictment which only charged reasonable opportunity to observe the
victim was sufficient and the district court erred by dismissing it.
the district court erred by dismissing the conspiracy counts. Relying on a case
from the Seventh Circuit, they assert they could not have agreed to commit the
crime of child sex trafficking without knowing the victim was a minor at the time
they entered into any agreement to violate 18 U.S.C. 1591. See United States v.
Salgado, 519 F.3d 411, 415 (7th Cir. 2008) (holding [t]he crime of conspiracy is
persons, and knowing and in reckless disregard of the fact that such person or
persons so recruited, enticed, obtained, and maintained had not attained the age
Defendants had knowledge the victim was a minor for purposes of the conspiracy
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counts. See supra III.A. Accordingly, the indictment charges the mens rea
element of the crime of conspiring to engage in child sex trafficking and the
IV. Conclusion
The judgment of the district court is reversed and the matter remanded for
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