PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 06-4854
RYAN DOUGLAS JENNINGS,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of Virginia, at Alexandria.
T. S. Ellis, III, District Judge.
(1:05-cr-00559)
Argued: May 25, 2007
Decided: August 3, 2007
Before WILKINSON, NIEMEYER, and GREGORY,
Circuit Judges.
Affirmed by published opinion. Judge Niemeyer wrote the opinion,
in which Judge Wilkinson and Judge Gregory joined.
COUNSEL
ARGUED: Frances Hemsley Pratt, Research and Writing Attorney,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Alexandria,
Virginia, for Appellant. Patricia Tolliver Giles, Assistant United
States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Alexandria, Virginia, for Appellee. ON BRIEF: Michael S. Nach-
manoff, Acting Federal Public Defender, Alexandria, Virginia, for
2 UNITED STATES v. JENNINGS
Appellant. Chuck Rosenberg, United States Attorney, Michael E.
Rich, Assistant United States Attorney, OFFICE OF THE UNITED
STATES ATTORNEY, Alexandria, Virginia, for Appellee.
OPINION
NIEMEYER, Circuit Judge:
Ryan Jennings, age 24, was convicted for repeatedly touching a 13-
year-old girl’s buttocks, inner thighs, and genitalia during a "red-eye"
transcontinental flight from San Diego, California, to Washington,
D.C. (Dulles International Airport in Virginia), in violation of 18
U.S.C. § 2244(a)(3) (criminalizing "abusive sexual contact" with a
minor).
On appeal, Jennings contends (1) that the testimony of passengers
relating statements made by the 13-year-old girl to the passengers
regarding Jennings’ abuse was improperly admitted into evidence
under an exception to the hearsay rule; (2) that the district court erred
in instructing the jury that the government need not prove that Jen-
nings knew the victim’s age to prove a conviction under § 2244(a)(3);
and (3) that the district court abused its discretion in giving a "deliber-
ate ignorance" instruction to the jury.
We conclude that the hearsay testimony of two passengers about
what the child said to them fell within the excited utterance exception
to the hearsay rule, Federal Rule of Evidence 803(2); that
§ 2244(a)(3) does not require that the defendant know the victim’s
age; and that the district court did not abuse its discretion in giving
a deliberate ignorance instruction. Accordingly, we affirm the judg-
ment of the district court.
I
On the evening of December 18, 2005, the mother of Casey, a 13-
year-old girl within days of her 14th birthday, and Ryan, an 11-year-
old boy, accompanied her children through security at the San Diego
International Airport to the gate of their red-eye flight to Dulles Inter-
UNITED STATES v. JENNINGS 3
national Airport, where their father was to pick them up to spend the
Christmas holiday with him. The children’s mother waited with them
at the departure gate for half an hour, and then departed. Ryan Jen-
nings, age 24, who was booked on the same flight, sat across from the
children in the departure gate’s waiting area. After their mother left,
Jennings struck up a conversation with them, asking if they were trav-
eling alone, to which Casey responded, "Yes." Linda Columbus, a fel-
low passenger on the flight, overheard Jennings say to the children,
"Everybody tells you not to talk to strangers, but I’m cool."
After boarding the plane, Casey sat in seat 7A, the window seat,
and her brother sat in seat 6A, a window seat directly in front of her.
Jennings took seat 7B, directly next to Casey, even though his
assigned seat was ten rows back. Jennings told Casey he wanted to
sit next to her because he "thought [she] was beautiful." Another male
passenger sat in seat 7C, the aisle seat.
A few minutes into the flight, Jennings made attempts to engage
Casey in conversation. Casey smelled alcohol on Jennings’ breath (he
had been partying prior to arriving at the airport). Casey asked Jen-
nings how old he was, and he answered, "21," even though he was 24.
Jennings, on the other hand, did not want to know how old Casey
was, saying, "In my mind, you are 18. I want to make this right." Jen-
nings then expressed his belief to Casey that it was "really wrong"
that a friend of his had been charged with statutory rape, "because if
two people want to be together, then they should, regardless of age."
While saying this, Jennings placed his left hand on Casey’s inner right
thigh. Casey crossed her legs in an attempt to get it off, but Jennings
left his hand there. By this time, the male passenger in seat 7C was
asleep.
When the fasten-seatbelt sign was turned off, Casey got up to go
to the lavatory. As Casey moved past Jennings toward the aisle, Jen-
nings "grabbed [her] butt, and then his fingers touched [her] vagina."
After returning from the lavatory, Casey noticed that Jennings had
raised the armrest separating his seat from hers. He was also drinking
from a bottle of wine. Jennings complained that he was cold, and
Casey offered him a blanket that she had brought along. After cover-
ing himself with the blanket, Jennings tried to cover Casey’s legs with
4 UNITED STATES v. JENNINGS
it as well. Casey resisted, saying that she was "really hot," but Jen-
nings persisted. After he covered Casey’s legs, Jennings again placed
his left hand on Casey’s inner thigh. When Jennings leaned in to give
Casey a kiss on the cheek, he spilled wine on the blanket. Jennings
cursed at his clumsiness, seized the blanket, and went to the lavatory
to clean it off. While Jennings was gone, Casey tried to convince her
brother to move back to seat 7B and sit by her, but Ryan said that he
was sleeping and was too tired to move. Jennings returned from
cleaning the blanket and tried again to cover Casey and himself with
the blanket. This time, Casey grabbed the blanket and put it into her
backpack.
The absence of cover did not deter Jennings, and he again put his
left hand on Casey’s inner thigh. Casey again crossed her legs, but
this did not discourage Jennings. He hooked his hand between
Casey’s crossed legs, using the opportunity to reach under Casey and
rub her buttocks. With his hand between Casey’s legs, Jennings
rubbed Casey’s buttocks and inner thighs constantly for 15 minutes.
Casey did not say anything because she "was scared" and "shocked."
She "just thought that if [she] pretended to be sleeping, that maybe
he would get bored and go away." Jennings asked Casey for her tele-
phone number, saying, "Maybe we could hook up when we get back
to San Diego."
Eventually Jennings got up to sit between Casey’s brother Ryan in
seat 6A and Karen Schmidt in seat 6C, in the row directly in front of
Casey. Ryan was still sleeping, and Jennings began to talk to Schmidt.
Casey testified that she overheard Jennings tell Schmidt that he
thought Casey was beautiful, to which Schmidt asked, "Well, do you
know how old she is?" Jennings replied, "No," and Schmidt told him
that Casey was 13 or 14. "It doesn’t matter," Jennings said. Schmidt
testified that Jennings "reeked" of alcohol and that he continued to
drink from his bottle of wine. Jennings repeatedly told Schmidt how
"hot" he thought Casey was, and that he wanted to join the "mile high
club" with her. Schmidt told Jennings, "I’m sure this isn’t the first
time you’ve done this." "No, it’s not," Jennings replied, "I have
always had a thing for young girls."
Jennings’ conversation with Schmidt ended abruptly when Jen-
nings again spilled wine, which landed on the feet and bag of the pas-
UNITED STATES v. JENNINGS 5
senger slumbering in seat 7C. That passenger moved, leaving Casey
alone to stretch out over the three seats in the row. Jennings asked
Casey if she wanted him to return and sit next to her. Casey said,
"No," but Jennings ignored Casey’s response, moved her feet, sat
down, and placed her legs on his lap. Casey told Jennings that she had
overheard his conversation with Schmidt and that she knew that he
knew her age. Jennings grimaced and said that it did not matter, "be-
cause in his mind, [she] was still 18." Jennings suggested that Casey
take out her blanket again so nobody would see what was going to
happen. Casey pretended not to hear Jennings and put on her iPod.
Throughout this conversation, Jennings was rubbing Casey’s lower
legs.
Linda Columbus, the fellow passenger who had observed Jennings
talking to the children at the departure gate, saw that Jennings was
seated next to Casey and leaning in close to her. Alarmed, she con-
tacted a flight attendant and requested that Jennings be moved to a
seat away from Casey. The flight attendant ordered Jennings to sit in
his assigned seat, and five minutes thereafter Casey moved to sit next
to her brother.
When Casey sat down in seat 6B between her brother and Schmidt,
Casey felt "shocked, angry, kind of like confused." Schmidt asked
Casey what had happened, and Casey recounted in detail Jennings’
words and actions. As Casey did so, she "became hysterical" and
began to cry.
The plane landed approximately an hour and a half after Jennings
was moved to his assigned seat. When the plane stopped at the arrival
gate, Jennings, with his hood pulled over his head, rushed to the front
of the plane to talk to Casey. Casey, who "was still crying," exited the
aircraft as quickly as she could, pretending not to see Jennings. Jen-
nings caught up to Casey and said, "Casey, I’m sorry the flight atten-
dants [ ] had to move me." Casey kept on walking, grabbing her
brother to speed him up. Jennings stopped following them as they left
the gate terminal, at which point Casey paused and broke down into
tears. Linda Columbus witnessed Jennings talk to Casey and Casey’s
immediate tearful reaction. Columbus approached Casey to ask if she
was okay. "Tears were streaming down her face," Columbus testified.
"She couldn’t really speak. She was really upset." Columbus testified
6 UNITED STATES v. JENNINGS
that when she asked what had happened, Casey exclaimed that Jen-
nings had "touched her butt and between her legs." Columbus sent the
children on to meet their father, and then she went in search of secur-
ity. She found the pilots of their flight and reported what Casey had
told her. The captain of the flight approached Jennings and detained
him until airport security arrived.
Based on the special aircraft jurisdiction of the federal criminal
laws provided by 49 U.S.C. § 46506(1), Jennings was indicted in one
count for abusive sexual contact of a minor, in violation of 18 U.S.C.
§ 2244(a)(3). Before trial, Jennings filed a motion in limine that
Karen Schmidt and Linda Columbus not be permitted to testify about
the statements made to them by Casey concerning Jennings’ conduct.
The district court denied the motions, finding that the statements were
admissible under Federal Rule of Evidence 803(2) (the "excited utter-
ance" exception to the hearsay rule). Jennings renewed the objection
during the trial.
At trial, the district court instructed the jury that Jennings’ knowl-
edge of Casey’s age was not an element of the offense. Jennings did
not object to the instruction; indeed, he explicitly agreed to it.
After the jury returned a guilty verdict, Jennings filed a motion for
a new trial, claiming for the first time that 18 U.S.C. § 2244(a)(3)
required the government to prove, as an element of the offense, that
he knew of Casey’s age. The district court denied the motion, constru-
ing § 2244(a)(3) not to require that the defendant have knowledge of
the victim’s age.
On appeal, Jennings claims that the district court abused its discre-
tion in admitting Schmidt and Columbus’ testimony about what
Casey had told them; in denying the motion for a new trial, arguing
that § 2244(a)(3) required the government to prove beyond a reason-
able doubt that he knew of Casey’s age; and in giving a "deliberate
ignorance" instruction to the jury.
II
Jennings contends first that the district court abused its discretion
in admitting the hearsay statements of Karen Schmidt and Linda
UNITED STATES v. JENNINGS 7
Columbus, passengers to whom Casey had related what had occurred
on the flight.
The government offered the testimony of Schmidt and Columbus,
claiming that it was admissible under either Federal Rule of Evidence
803(1) (permitting admission of "statement[s] describing or explain-
ing an event or condition made while the declarant was perceiving the
event or condition, or immediately thereafter") or Rule 803(2) (per-
mitting admission of "statement[s] relating to a startling event or con-
dition made while the declarant was under the stress of excitement
caused by the event or condition"). Schmidt’s testimony related to
statements Casey made to her five minutes after Jennings was
removed from his seat and Casey moved to seat 6B, next to Schmidt.
After Casey moved, Schmidt asked her what happened. Casey, who
later testified she was "shocked, angry, and confused" at the time,
began to recount Jennings’ misdeeds, and she quickly began to "un-
ravel," sob, and become "hysterical." Casey told Schmidt "what hap-
pened," and "what was said and how [Jennings] touched [her]," telling
her how Jennings repeatedly rubbed her inner thigh, locked his hand
between her crossed legs in order to rub her buttocks, stroked her
neck and hair, kissed her on her cheek and neck, and grabbed her but-
tocks when she passed by him on the way to the lavatory.
Linda Columbus’ testimony related to statements made by Casey
immediately after Jennings had spoken to her upon departing the air-
craft. In the gate after exiting the aircraft, Jennings said to Casey,
"Casey, I’m sorry the flight attendants had to move me." Casey
stopped walking and broke down into tears, whereupon Columbus
testified that, after witnessing this, she immediately approached
Casey, who then blurted out that Jennings had "touched her butt and
between her legs."
The district court admitted the testimony of both Schmidt and
Columbus as excited utterances under Rule 803(2), although later, the
court thought that the testimony might better have been admitted
under Federal Rule of Evidence 803(1) (the present sense impression
exception).
To qualify under the excited utterance exception, (1) the declarant
must have "experienced a startling event or condition"; (2) she must
8 UNITED STATES v. JENNINGS
have related the statement "while under the stress or excitement of
that event or condition, not from reflection"; and (3) the statement or
utterance must have "related[ed] to the startling event or condition."
Morgan v. Foretich, 846 F.2d 941, 947 (4th Cir. 1988); Fed. R. Evid.
803(2). The justification for admitting an excited utterance as an
exception to the hearsay rule is based on the "assumption that an
excited declarant will not have had time to reflect on events to fabri-
cate." Morgan, 846 F.2d at 946. Additionally, errors in memory will
have had less time to accumulate.
The testimony of Karen Schmidt related statements made by Casey
five minutes after Jennings was moved to his assigned seat and while
Casey was in a state of shock, anger, and confusion. Shortly after
Casey began relating the events that had just occurred, she broke
down crying and became hysterical. In view of what Casey had expe-
rienced at the hands of Jennings during the course of the flight over
a lengthy period of time, we have little difficulty concluding that
Casey was making statements about a startling event, as that term is
used in the Rule. Jennings grabbed Casey’s buttocks and touched her
genitalia, repeatedly and methodically groped her upper and inner
thighs, and locked his hand between her crossed legs in order to reach
under her to grab her buttocks. While doing this, he spoke approv-
ingly of statutory rape, told Casey to retrieve her blanket so that
nobody would see what was going to happen, and advocated "hooking
up" with Casey once they both returned to San Diego.
Just as we readily conclude that Casey was relating a startling
event, we also readily conclude that Casey recounted the events to
Schmidt while Casey was "under the stress of excitement caused by
the event." Morgan, 846 F.2d at 947. In reaching this conclusion, we
have considered relevant factors such as "(1) the lapse of time
between the event and the declarations; (2) the age of the declarant;
(3) the physical and mental state of the declarant; (4) the characteris-
tics of the event; and (5) the subject matter of the statements." Id.
Casey clearly made the statements while under stress caused by Jen-
nings’ abusive sexual contact. Even though Casey waited five minutes
before moving to sit next to Schmidt, she remained "shocked, angry,
and . . . confused" and "started talking right away," as she began to
recount Jennings’ misdeeds to Schmidt. She then began to "unravel,"
sob, and become "hysterical." Even Jennings has not suggested that
UNITED STATES v. JENNINGS 9
the statements made by a 13-year-old in these circumstances were in
any sense fabricated.
While Jennings does not contend that Casey’s statements were fab-
rications, he does argue that the time elapsed — five minutes — made
them deliberative statements and not excited utterances. He asserts
that Casey had made a deliberate choice not to contact a flight atten-
dant when Jennings was away from her, maintaining that Casey’s fail-
ure to report the abuse to flight attendants at her earliest opportunity
precludes the government from using Casey’s statements made to
Schmidt. See Morgan, 846 F.2d at 948. Jennings’ reliance upon Mor-
gan, however, is completely misplaced. Morgan does not create a rule
that requires children to report sexual abuse at the earliest opportunity
in order for their statements to be considered excited utterances. To
the contrary, it affirmatively rejected such a mechanical approach to
the excited utterance exception. In Morgan, we were concerned that
courts would "place undue emphasis on the spontaneity requirement
in child sexual abuse cases," and so we sought to focus their attention
"not only simply on the time between the abuse and the declaration,"
but also on "the child’s first real opportunity to report the incident."
Id. at 947-48. Morgan thus elongated the temporal view courts should
take when considering whether a child was in an excited state, and it
eschewed the use of the very type of bright-line rule that Jennings
would have us adopt. In this case, Casey stated that she did not report
the abuse to flight attendants because she was "scared." Indeed, she
was not free of Jennings’ influence to have a real opportunity of
reporting the incidents until after she was safely with her father in the
airport.
At bottom, the analysis must focus on whether the declarant’s
statement was trustworthy by being made in circumstances where it
would not be reasonable to conclude that the declarant fabricated the
statement or incorrectly remembered the events related. Morgan, 846
F.2d at 947-48. The lapse of time between the event and the declara-
tion is just one of several factors to consider in the analysis. Id. at
947.
In this case we have little difficulty in concluding that Casey’s
statements to Schmidt related a startling event and were made while
Casey was still under the stress of the event. Therefore, they were
10 UNITED STATES v. JENNINGS
properly admitted under the excited utterance exception to the hearsay
rule.
With respect to Casey’s statements made to Linda Columbus while
in the gate after departing the plane, we again have little difficulty in
concluding that Casey’s statement was an excited utterance that falls
within the hearsay exception. Casey made the statements to Columbus
immediately after Jennings had stated to Casey that he was sorry the
flight attendants had to move him and Casey had broken down crying.
At that moment of emotional distress, Columbus testified that Casey
blurted out to her that Jennings had "touched her butt and between her
legs." Again, this was a statement about a startling event made while
the declarant was under stress of excitement caused by the event.
Even though the core acts of abuse took place during the course of
the long flight, an hour or two earlier, Casey was still being pursued
by Jennings. It was not until Jennings finally left that Casey broke
down crying and instantaneously related the simple statement to
Columbus.
In short, we conclude that the district court did not abuse its discre-
tion in admitting the testimony of Schmidt and Columbus, relating
what Casey had told them.
III
Jennings next contends that the district court erred in failing to
instruct the jury that the government had to prove, as an element of
the offense under 18 U.S.C. § 2244(a)(3), that he knew, at the time of
the alleged misconduct, that Casey had not yet attained the age of 16.
Jennings raised this issue for the first time after the jury’s guilty ver-
dict, in a motion for new trial, and now argues that the district court
abused its discretion in denying his motion for a new trial.
The government argues that because Jennings failed to object to the
jury’s instruction — indeed, he "asked for the very instruction about
which he has since complained" — we should review the instruction
under the plain error standard of Federal Rule of Criminal Procedure
52(b). The government maintains that the district court did not err and
certainly did not plainly err.
UNITED STATES v. JENNINGS 11
We agree with the government that Jennings forfeited his right to
challenge the jury instruction by not timely objecting to it in accor-
dance with Federal Rule of Criminal Procedure 30(d) (requiring spe-
cific objections and grounds for them before the jury retires to
deliberate). Accordingly, we review for plain error. See United States
v. Olano, 507 U.S. 725, 731 (1993) (quoting with approval Yakus v.
United States, 321 U.S. 414, 444 (1944) ("No procedural principle is
more familiar to this Court than that a . . . right may be forfeited in
criminal as well as civil cases by the failure to make timely assertion
of the right before a tribunal having jurisdiction to determine it")). As
part of that standard of review, Jennings has the burden of establish-
ing, among other things, that the court committed error and that the
error was plain. Id.
Jennings asserts that the district court erred in failing to instruct the
jury that the government must prove, in establishing a violation of
§ 2244(a)(3), that he had knowledge of Casey’s age. Our review of
this claim begins with the language of the statute, which provides:
(a) Whoever . . . knowingly engages in or causes sexual con-
tact with or by another person, if so to do would violate —
***
(3) subsection (a) of section 2243 of this title had the sexual
contact been a sexual act, shall be fined under this title,
imprisoned not more than two years, or both.
Section 2243(a), which is incorporated, provides:
(a) Whoever . . . knowingly engages in a sexual act with
another person who —
(1) has attained the age of 12 years but has not
attained the age of 16 years; and
(2) is at least four years younger than the person
so engaging;
12 UNITED STATES v. JENNINGS
or attempts to do so, shall be fined under this title, impris-
oned not more than 15 years, or both.
Section 2243(d) provides that in proving a violation of § 2243(a), "the
Government need not prove that the defendant knew (1) the age of the
other person engaging in the sexual act; or (2) that the requisite age
difference existed between the person so engaging." 18 U.S.C.
§ 2243(d). Section 2243 does, however, afford the defendant an affir-
mative defense to prove that he did not know that the defendant had
not attained the age of 16. See 18 U.S.C. § 2243(c)(1).
Instructing the jury on the requirements of proving a § 2244(a)(3)
violation, the district court stated:
[I]t is not necessary that the government prove that the
defendant knew Casey had reached the age of 12, but had
not yet reached the age of 16, or that the defendant knew
that Casey was at least four years younger than the defen-
dant.
Now, in a prosecution such as this for sexual contact with
a minor, it is a defense, which the defendant must establish
by a preponderance of the evidence, that the defendant rea-
sonably believed that the other person had attained the age
of 16 years.
We conclude that the district court properly instructed the jury.
Section 2244(a)(3) provides that a defendant is guilty of sexual con-
tact with a minor if his conduct would have violated § 2243(a) "had
the sexual contact been a sexual act." (Emphasis added). Thus, under
the straightforward language of the statute, we are to read § 2243(a)
and determine whether Jennings had committed that offense, substi-
tuting for "sexual act" the term "sexual contact."* Doing so, we read
*The statute distinguishes a sexual act from sexual contact as follows:
[T]he term "sexual act" means —
(A) contact between the penis and the vulva or the penis and
the anus, and for purposes of this subparagraph contact involving
the penis occurs upon penetration, however, slight;
UNITED STATES v. JENNINGS 13
§ 2243(a) to criminalize "[sexual contact] with another person who
. . . (1) has attained the age of 12 years but has not attained the age
of 16 years; and (2) is at least four years younger than the person so
engaging." To prove this violation of § 2243(a), however, the govern-
ment need not "prove that the defendant knew the age of the other
person engaging in the sexual act." See 18 U.S.C. § 2243(d). Since a
violation of § 2243(a) does not require that the defendant know the
age of the victim, a violation of § 2244(a)(3) likewise does not require
that the defendant know the age of the victim, because § 2244(a)(3)
explicitly criminalizes conduct that "would violate" § 2243(a) had the
"sexual contact" been a "sexual act." In other words, a violation of
§ 2244(a)(3) is in pari materia with a violation of § 2243(a), the only
difference being whether the conduct involved sexual contact or a
sexual act. The key language in § 2244(a)(3) is the language provid-
ing that "if so to do would violate § 2243(a)." (Emphasis added).
Because a violation of § 2243(a) is proven without demonstrating that
the defendant knew of the victim’s age, so too is a violation of
§ 2244(a)(3) so proved.
Jennings contends that § 2244(a)(3) incorporates only subsection
(a) of § 2243, but not subsection (d), and therefore, by negative impli-
(B) contact between the mouth and the penis, the mouth and
the vulva, or the mouth and the anus;
(C) the penetration, however slight, of the anal or genital
opening of another by a hand or finger or by any object, with an
intent to abuse, humiliate, harass, degrade, or arouse or gratify
the sexual desire of any person; or
(D) the intentional touching, not through the clothing, of the
genitalia of another person who has not attained the age of 16
years with an intent to abuse, humiliate, harass, degrade, or
arouse or gratify the sexual desire of any person.
18 U.S.C. § 2246(2). And:
[T]he term "sexual contact" means the intentional touching,
either directly or through the clothing, of the genitalia, anus,
groin, breast, inner thigh, or buttocks of any person with an
intent to abuse, humiliate, harass, degrade, or arouse or gratify
the sexual desire of any person.
18 U.S.C. § 2246(3).
14 UNITED STATES v. JENNINGS
cation, § 2244(a)(3) includes a mens rea for the victim’s age. This
argument, however, ignores the language of § 2244(a)(3) relating to
a violation of § 2243(a) and the fact that a violation of § 2243(a) does
not require proof of mens rea with respect to the victim’s age. See 18
U.S.C. § 2243(d).
Moreover, Jennings’ argument would require us to assume that
Congress intended to divide the sexual abuse of minors into two cate-
gories, "abusive sexual acts" and "abusive sexual contact," and to
require less proof for convicting defendants of the more serious cate-
gory of conduct, with its considerably more substantial penalties.
"Abusive sexual acts" includes rape, sodomy, oral sex, penetration by
object, and direct touching of the victim’s unclothed private parts, see
18 U.S.C. § 2246(2), whereas "sexual contact" constitutes a less seri-
ous form of sexual abuse and includes "intentional touching, either
directly or through the clothing, of sexual areas," see id. § 2246(3).
Thus under Jennings’ construction, it would be easier for the govern-
ment to prove the more serious "sexual act" offenses than the less
serious "sexual contact" offenses. Additionally, the defendant would
have an affirmative mistake-of-age defense for penetration and touch-
ing under the clothes, but not for the less serious sexual contact
offense of simply touching through the clothes. Such anomalous
results do not find any support in the statutory scheme created by
Congress for punishing the broad category of sexual abuse.
Under the statutory scheme, abusive sexual acts are criminalized in
§§ 2241-2243. Section 2241 criminalizes abusive sexual acts involv-
ing the use of force or involving threats of death, serious bodily
injury, or kidnapping. It also criminalizes sexual acts with children
under the age of 12. See 18 U.S.C. § 2241(c). Section 2242 criminal-
izes abusive sexual acts that involve threats of bodily injury of a less
serious nature or involving those who are disabled. Finally, § 2243 is
directly addressed at sexual acts involving minors aged 12 to 15,
regardless of whether any threat or force was involved. In the two
instances where the victim’s age is an element of the crime, Congress
included a provision specifically clarifying that courts must not inter-
pret the element to require the government to prove the defendant’s
knowledge of the victim’s age. See 18 U.S.C. § 2241(d) ("The govern-
ment need not prove that the defendant knew that the other person
UNITED STATES v. JENNINGS 15
engaging in the sexual act had not attained the age of 12 years"); 18
U.S.C. § 2243(d) (similar).
Instead of creating a separate scheme for abusive sexual contact in
§ 2244, Congress simply repeated the scheme it had laid out for abu-
sive sexual acts in §§ 2241 through 2243 by incorporating those pro-
visions into § 2244. Thus, for abusive sexual contact involving the
use of force, § 2244(a)(1) incorporates § 2241(a) and (b); for abusive
sexual contact involving a minor under the age of 12, § 2244(a)(5)
incorporates § 2241(c); for abusive sexual contact involving a minor
aged 12 to 15, § 2244(a)(3) incorporates § 2243(a), and so forth.
There are no qualifications in the incorporations, thus revealing Con-
gress’ intent to incorporate the entire offenses, including their lack of
mens rea requirements with respect to age.
Even if we were to consider Jennings’ argument that we look only
at subsection (a) of § 2243 and not subsection (d), we are still left
with statutory language of mens rea that fails to support Jennings’
position. Section 2243(a) punishes anyone who "knowingly engages
in a sexual act with another person who (1) has attained the age of
12 years but has not attained the age of 16 years; and (2) is at least
four years younger than the person so engaging." Under Jennings’
construction of the statute, the adverb "knowingly" applies not only
to the verb "engages," but also to the age-defining clauses thereafter.
This approach, however, was recently rejected by us in United States
v. Jones, 471 F.3d 535 (4th Cir. 2006).
In Jones, the question was whether the government was required
to prove the defendant’s knowledge of the victim’s minority status in
a prosecution brought under 18 U.S.C. § 2423(a), which punishes a
"person who knowingly transports an individual who has not attained
the age of 18 years in interstate or foreign commerce . . . with intent
that the individual engage in prostitution." In holding that the adverb
"knowingly" only modified the verb "transports," but not the clauses
thereafter, we stated, "Adverbs generally modify verbs, and the
thought that they would typically modify the infinite hereafters of
statutory sentences would cause grammarians to recoil." Id. at 539.
Accordingly, we saw "nothing on the face of [§ 2423(a)] to suggest
that the modifying force of ‘knowingly’ extends beyond the verb to
the other components of the offense." Id.
16 UNITED STATES v. JENNINGS
The same grammatical reasoning applies with equal, if not
stronger, force to § 2243(a). The efficacy of the adverb "knowingly"
extends no further than the verb "engages," and, whereas the statutory
sentence in Jones comprised a single undivided subsection, the age
requirements of the victim in § 2243(a) are set off from "knowingly"
by subsections (1) and (2), thus severing them more completely from
the adverb’s modifying force. If it was an implausible grammatical
reading in Jones to extend the adverb’s reach beyond the verb in a
single unified sentence, it is doubly implausible here to extend the
adverb’s reach not only through prepositional, relative, and conjunc-
tive phrases and clauses, but also through statutory paragraphs.
While Jennings could argue that our grammatical reading of
§ 2243(a) in isolation renders subsection (d) superfluous, such an
argument would overlook the fact that in the scheme of crimes relat-
ing to abusive sexual acts, Congress distinguished between crimes in
which age was an element and crimes in which age was not an ele-
ment, making it manifestly clear that when age was an element, it was
not part of the mens rea. If nothing more, subsection (d) acts as an
insurance policy in the event that a court misconstrued § 2243(a)’s
grammar as Jennings does.
Finally, Jennings argues that § 2244(a)(3) should be construed in
the same manner as the Supreme Court construed the Federal Child
Pornography statutes, 18 U.S.C. §§ 2252 and 2252A. In United States
v. X-Citement Video, Inc., 513 U.S. 64, 68 (1994), the Supreme Court
held that, even though it was not the "most natural grammatical read-
ing" of the statute, the adverb "knowingly" in § 2252 modifies the
minority status of the children depicted in the pornography. The Court
reasoned that "the presumption in favor of a scienter requirement
should apply to each of the statutory elements that criminalize other-
wise innocent conduct." Id. at 72. In the case of child pornography,
"the age of the performers is the crucial element separating legal inno-
cence from wrongful conduct," as the "trafficking in sexually explicit,
though not obscene, materials involving adults" is not criminalized.
Id. at 72-73. The reasoning of X-Citement Video, which "was directed
at awareness of the elements that define circumstances upon which
criminality turns," United States v. Bostic, 168 F.3d 718, 722 (4th Cir.
1999), is inapplicable here. "[T]he minority of the victim is hardly a
factor that distinguishes the defendant’s actions from ‘innocent con-
UNITED STATES v. JENNINGS 17
duct.’" Jones, 471 F.3d at 541. Having sexual contact with an adult
against his or her will is already unlawful under federal law. See 18
U.S.C. § 113(a)(5) (federal assault statute).
It is incontrovertibly clear that for abusive sexual acts involving
minors, Congress did not intend to require the government to prove
that the defendant knew the victim’s age. See 18 U.S.C. §§ 2241(d),
2243(d). It only makes sense to conclude that Congress had equal
concern for minors who were the victims of abusive sexual contact.
The plain purpose of § 2244(a)(3) is to protect minors, as is the pur-
pose of §§ 2241(d) and 2243(d), and our reading furthers that Con-
gressional purpose.
Accordingly, we conclude that the district court did not err in
instructing the jury that the government need not prove that the defen-
dant knew the victim’s age in order to establish a violation of 18
U.S.C. § 2244(a)(3), and therefore there was no error, plain or other-
wise.
IV
Finally, Jennings contends that the district court abused its discre-
tion in instructing the jury on "deliberate ignorance." The court
instructed the jury that a
finding beyond a reasonable doubt of an intent of a defen-
dant to avoid knowledge or enlightenment would permit the
jury to infer knowledge. Stated another way, a defendant’s
knowledge of a particular fact may be inferred from a delib-
erate or intentional ignorance or deliberate or intentional
blindness to the existence of that fact.
Jennings argues that if the government was not required to prove
knowledge of Casey’s age, "then the deliberate ignorance instruction
was simply irrelevant to any issue before the jury."
The district court’s deliberate ignorance instruction was not, how-
ever, sequentially related to its instruction regarding the lack of a
mens rea requirement for the victim’s age. Rather, it was part of the
18 UNITED STATES v. JENNINGS
district court’s general explanation of the term "knowingly," which
was relevant because the statute required the government to prove, as
an element of the offense, that Jennings "knowingly engage[d] in or
cause[d] sexual contact" with Casey. See 18 U.S.C. § 2244(a)(3).
Moreover, the balance of the instructions made clear to the jury
that the government did not need to prove knowledge of Casey’s age,
and we "will not reverse a conviction so long as the instructions taken
as a whole adequately state the controlling law." United States v.
McIver, 470 F.3d 550, 557-58 (4th Cir. 2006) (quoting United States
v. Wills, 346 F.3d 476, 492 (4th Cir. 2003)).
We conclude therefore that it was not an abuse of discretion for the
district court to have given that instruction to the jury.
***
For the reasons given, we affirm the judgment of the district court.
AFFIRMED