and Submitted August 16, 2017 Anchorage, Alaska
from the United States District Court for the District of
Alaska D.C. No. 3:13-cr-00097-SLG Sharon L. Gleason, District
Cristina Weidner-Tafs (argued) and Phillip Paul Weidner
(argued), Weidner & Associates APC, Anchorage, Alaska,
Goldman (argued), Attorney; Sung-Hee Suh, Deputy Assistant
Attorney General; Leslie R. Caldwell, Assistant Attorney
General; Criminal Division, Appellate Section, United States
Department of Justice, Washington, D.C.; Ravi Sinha,
Assistant United States Attorney, United States
Attorney's Office, Portland, Oregon; Audrey J. Renschen,
Assistant United States Attorney; Karen L. Loeffler, United
States Attorney; United States Attorney's Office,
Anchorage, Alaska; for Plaintiff-Appellee.
Before: Susan P. Graber, Richard R. Clifton, and Milan D.
Smith, Jr., Circuit Judges.
panel affirmed a conviction for attempt to produce and
transport into the United States a visual depiction of a
minor engaged in sexually explicit conduct in violation of 18
U.S.C. § 2251(e) (Count 1B), vacated a conviction for
attempt to aid and abet travel with intent to engage in
illicit sexual conduct in violation of 18 U.S.C. §
2243(b) (Count 2B), vacated the sentence as to both counts,
and remanded for resentencing.
panel accepted the government's concession that the
conviction as to Count 2B must be vacated because § 2423
does not cover attempted aiding and abetting.
panel held that a defendant may be convicted of an attempt to
produce and transport a visual depiction of a minor engaged
in sexually explicit conduct when he believes that the victim
is a minor, regardless of the victim's actual age.
panel rejected the defendant's contentions (1) that the
Constitution's Foreign Commerce Clause does not authorize
Congress to prohibit transportation of a sexually explicit
visual depiction pursuant to 18 U.S.C. § 2251(c) if the
depiction does not depict an actual minor; and (2) that
prohibiting an attempt to make a sexually explicit video with
a performer who the producer mistakenly believes to be a
minor would chill lawful speech in violation of the First
panel rejected the defendant's contention that the jury
instruction as to Count 1B constituted a constructive
amendment of the indictment.
the defendant's sufficiency-of-the-evidence challenge,
the panel held that a rational jury could have found that the
government proved beyond a reasonable doubt that the
defendant believed the victim was a minor at the time he made
and transported the visual depictions.
the defendant's challenge to the district court's
grant of the government's motion in limine to admit audio
recordings of the defendant's statements, the panel
concluded that the district court did review the transcripts,
and that even if the district court had not read every word,
the error would have been harmless because the exhibits were
clearly admissible under Fed.R.Evid. 403.
the defendant's contention that the district court erred
under the Court Interpreters Act, the panel held that the
district court did not clearly err in determining that the
defendant was sufficiently proficient in English that he did
not require an interpreter.
addition to vacating the defendant's conviction as to
Count 2B, the panel vacated his sentence as to Count 1B and
remanded for resentencing as to both counts because his
sentence as to Count 1B was likely affected by his conviction
as to Count 2B.
CLIFTON, CIRCUIT JUDGE
It is a
crime to produce outside the United States a visual depiction
of a minor engaged in sexually explicit conduct and to then
transport that visual depiction into the United States. 18
U.S.C. § 2251(c). It is also a crime to attempt to
produce and transport into the United States a visual
depiction of a minor engaged in sexually explicit conduct. 18
U.S.C. § 2251(e).
case, we consider what happens when a defendant believes that
the victim appearing in a depiction is a minor but the victim
turns out to be an adult. That defendant cannot be convicted
of the completed version of the crime, but can he be
convicted of attempt? We answer that question in the
affirmative: a defendant attempts to produce and transport a
visual depiction of a minor engaged in sexually explicit
conduct when he believes that the victim is a minor,
regardless of the victim's actual age.
conclusion undermines a number of the grounds on which the
defendant in this case challenges his conviction for
attempted production and transportation of a visual depiction
of a minor engaged in sexually explicit conduct. We reject
the other grounds on which he challenges that conviction, and
we affirm that conviction. As the government concedes we
must, we vacate his conviction for attempting to aid and abet
an undercover FBI agent's travel with intent to engage in
illicit sexual conduct because the statute does not proscribe
an attempt to aid and abet such travel. We vacate his
sentences on both counts and remand for resentencing.
2010 and 2012, Defendant-Appellant Jason Jayavarman, who is a
dual citizen of the United States and Cambodia, traveled
repeatedly from his residence in Anchorage to Cambodia. While
in Cambodia, Jayavarman had sexual relations with a female,
referred to as "Ann" or "Ana." He made
video recordings of the sexual relations and transported the
recordings back to his residence in Anchorage.
disputed whether the victim was actually a minor and whether
Jayavarman believed she was a minor at the time he made and
transported the recordings. At trial, the jury heard audio
recordings of Jayavarman stating that the victim was fourteen
years old at the time he began having sexual relations with
her and that he began making the video recordings of their
sexual relations either at that time or the next year.
Documents of questionable provenance that purported to be the
victim's birth certificate and national ID card, as well
as an attestation, were also introduced into evidence. The
documents asserted that the victim was born on a date that
would have meant she was an adult at the time the recordings
was tried in federal court for his conduct, and the jury was
asked to consider two related subcounts. Count 1A asked the
jury to determine whether Jayavarman had produced a visual
depiction of a minor engaged in sexually explicit conduct
while outside the United States and then transported the
depiction into the United States in violation of 18 U.S.C.
§ 2251(c). Count 1B asked the jury to determine whether
Jayavarman had attempted to perform the conduct described in
Count 1A in violation of 18 U.S.C. § 2251(e), which
criminalizes attempted violations of any of § 2251's
subsections. The jury did not return a verdict on Count 1A,
apparently not reaching a conclusion on the issue of whether
the victim was actually a minor. The jury found Jayavarman
guilty on Count 1B.
was tried for other alleged misconduct at the same time he
was tried for the alleged violations of 18 U.S.C. § 2251
described above. Specifically, it was alleged that Jayavarman
engaged in a number of telephone and in-person conversations
in 2013 with an undercover FBI agent who pretended to be
interested in traveling to Cambodia to have sexual relations
with minors. Jayavarman made arrangements to travel to
Cambodia and expressed an intent to meet the agent in
Cambodia. Jayavarman was arrested before he left on the trip.
It was disputed whether Jayavarman intended to have illicit
sexual relations when he arrived in Cambodia and how he
intended to assist the FBI agent. The jury was asked to
consider two related subcounts. Count 2A asked the jury
whether Jayavarman had, while a United States citizen,
attempted to travel to a foreign country with the intent to
engage in illicit sexual conduct in violation of 18 U.S.C.
§§ 2423(b) and (e). Count 2B asked the jury whether
Jayavarman had attempted to aid and abet another person in
performing the conduct described in Count 2A. The jury did
not return a verdict on Count 2A and found Jayavarman guilty
on Count 2B. As was true with Counts 1A and 1B, most of the
evidence in support of the conviction consisted of recordings
of Jayavarman's conversations with law enforcement
filing several post-trial motions, Jayavarman timely appealed
his convictions on a number of grounds. In its answering
brief on appeal, the government conceded that the conviction
as to Count 2B must be vacated because the statute does not
cover attempted aiding and abetting, the theory of the crime
on which Jayavarman was convicted. We accept the concession and
vacate Jayavarman's conviction and sentence as to Count
challenges his conviction on a variety of theories, most of
which relate to his contention that a jury must find that the
victim was actually a minor, as opposed to finding that the
defendant believed the victim was a minor, in order to
convict a defendant of an attempted violation of 18 U.S.C.
§ 2251(c). He makes this argument as a matter of
statutory construction, and he further contends that his
conviction on the basis of his belief that the victim was a
minor violated the Foreign Commerce Clause and the First
Amendment and also constituted a constructive amendment of
the indictment. Relatedly, he claims that there was
insufficient evidence to prove that he believed the victim
was a minor. Jayavarman also argues that the district court
did not adequately review exhibits before admitting them over
his challenges made pursuant to Federal Rule of Evidence 403.
Finally, he contends that the district court erred in
concluding that he did not need an interpreter, an issue that
he did not raise until the trial was over. We are not
persuaded by any of these challenges.