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United States v. Jayavarman

United States Court of Appeals, Ninth Circuit

September 26, 2017

United States of America, Plaintiff-Appellee,
v.
Jason Jayavarman, Defendant-Appellant.

          Argued and Submitted August 16, 2017 Anchorage, Alaska

         Appeal from the United States District Court for the District of Alaska D.C. No. 3:13-cr-00097-SLG Sharon L. Gleason, District Judge, Presiding

          A. Cristina Weidner-Tafs (argued) and Phillip Paul Weidner (argued), Weidner & Associates APC, Anchorage, Alaska, for Defendant-Appellant.

          Ross 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.

         SUMMARY [*]

         Criminal Law

         The 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.

         The 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.

         The 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.

         The 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 Amendment.

         The panel rejected the defendant's contention that the jury instruction as to Count 1B constituted a constructive amendment of the indictment.

         Rejecting 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.

         Rejecting 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.

         Rejecting 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.

         In 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.

          OPINION

          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).

         In this 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.

         This 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.

         I. Background

         Between 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.

         It was 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 were made.

         Jayavarman 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.

         Jayavarman 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 officers.

         After 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.[1] We accept the concession and vacate Jayavarman's conviction and sentence as to Count 2B.

         II. Discussion

         Jayavarman 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.

          A. ...


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