United States v. Chang Ru Meng Backman

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 14-10078
Plaintiff-Appellee,
D.C. No.
v. 1:12-cr-00015-RVM-1

CHANG RU MENG BACKMAN,
Defendant-Appellant. OPINION

Appeal from the United States District Court
for the Northern Mariana Islands
Ramona V. Manglona, Chief District Judge, Presiding

Argued and Submitted
February 11, 2016—University of Hawaii Manoa,
Honolulu, Hawaii

Filed March 30, 2016

Before: Susan P. Graber, Jay S. Bybee,
and Morgan Christen, Circuit Judges.

Opinion by Judge Graber
2 UNITED STATES V. BACKMAN

SUMMARY*

Criminal Law

The panel affirmed a conviction and sentence for sex
trafficking by force, fraud, or coercion, in violation of 18
U.S.C. § 1591(a).

The panel held that because § 1591(a) does not require
commission of a sex act, the district court correctly did not
give an instruction requiring the jury to find that the alleged
coercion was the but-for cause of the victim’s commercial
sex acts. The panel held that the commerce element in
§ 1591(a)(1) has no mens rea requirement, and that the
district court therefore correctly did not give an instruction
requiring the jury to find that the defendant knew her actions
affected interstate or foreign commerce.

The panel held that sufficient evidence supported the
jury’s finding of an effect on interstate commerce.

The panel held that the district court did not abuse its
discretion in denying the defendant’s motion to admit, under
Fed. R. Evid. 412, evidence that the victims engaged in
prostitution after the indictment period, where the motion did
not specify the evidence sought to be admitted. The panel
held that the district court did not abuse its discretion in
denying the defendant an eleventh-hour opportunity to amend
the Rule 412 motion. The panel held that exclusion of the
proffered evidence was within constitutional bounds because

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
 UNITED STATES V. BACKMAN 3

the exclusion was neither arbitrary nor disproportionate to the
purposes of the notice requirement, in that the district court
could not conduct the in camera review and hearing
mandated by Rule 412 without knowledge of the identity of
the victims and the nature of the evidence.

The panel held that the district court correctly applied a
vulnerable victim sentencing enhancement under U.S.S.G.
§ 3A1.1(b)(1).

COUNSEL

David G. Banes (argued), O’Connor Berman Dotts & Banes,
Saipan, Northern Mariana Islands, for Defendant-Appellant.

Garth R. Backe (argued) and Ross K. Naughton, Assistant
United States Attorneys, Saipan, Northern Mariana Islands,
for Plaintiff-Appellee.

OPINION

GRABER, Circuit Judge:

Defendant Chang Ru Meng Backman appeals her
conviction and sentence on one count of sex trafficking by
force, fraud, or coercion, in violation of 18 U.S.C. § 1591(a).
The jury convicted Defendant of forcing into prostitution a
Chinese woman who had been tricked into flying to Saipan
on promises of a work visa and a legal job, when in fact the
victim received only a tourist visa, was effectively
imprisoned, and was told repeatedly that she had nowhere to
turn and must engage in prostitution. On appeal, Defendant
4 UNITED STATES V. BACKMAN

argues that, under two recent Supreme Court decisions, the
jury instructions were improper; that there was insufficient
evidence to support the conviction; that the district court
erred in denying her motion under Federal Rule of Evidence
412 to admit evidence of the victim’s sexual conduct after the
indictment period; and that the district court erred by
applying a sentencing enhancement for a “vulnerable victim”
under U.S.S.G. § 3A1.1(b)(1). We affirm.

FACTUAL AND PROCEDURAL HISTORY

The Trafficking Victims Protection Act of 2000
(“TVPA”) criminalizes, among other acts, sex trafficking by
force, fraud, or coercion. 18 U.S.C. § 1591(a). The 2012
version of the statute, which applies here, provides:

Whoever knowingly—

(1) in or affecting interstate or foreign
commerce, or within the special maritime and
territorial jurisdiction of the United States,
recruits, entices, harbors, transports, provides,
obtains, or maintains by any means a person;
or

(2) benefits, financially or by receiving
anything of value, from participation in a
venture which has engaged in an act described
in violation of paragraph (1),

knowing, or in reckless disregard of the fact,
that means of force, threats of force, fraud,
coercion described in subsection (e)(2), or any
combination of such means will be used to
 UNITED STATES V. BACKMAN 5

cause the person to engage in a commercial
sex act, [is guilty of a crime].

18 U.S.C. § 1591(a) (2012). At trial, the government
introduced evidence that the victim was tricked into flying
from China to Saipan on promises of a work visa and a legal
job but that, upon arrival, she was taken to Defendant’s
brothel, had her travel documents taken from her, and was
coerced into prostitution by Defendant. A jury acquitted
Defendant on two counts concerning two other alleged
victims. But the jury convicted her on the count pertaining to
the victim discussed in this opinion.

At sentencing, the district court adopted the presentence
report’s calculated Guideline range, 188 to 235 months, and
imposed a high-end sentence of 235 months’ imprisonment.
Defendant timely appeals.

STANDARDS OF REVIEW

We review for plain error challenges to the jury
instructions raised for the first time on appeal. United States
v. Moreland, 622 F.3d 1147, 1165–66 (9th Cir. 2010). We
review de novo the sufficiency of the evidence. United States
v. Garcia, 768 F.3d 822, 827 (9th Cir. 2014), cert. denied,
135 S. Ct. 1189 (2015). We review de novo the interpretation
of the Federal Rules of Evidence, but we review for abuse of
discretion the district court’s exclusion of evidence. United
States v. Torres, 794 F.3d 1053, 1059 (9th Cir. 2015), petition
for cert. filed, ___ U.S.L.W. ___ (U.S. Oct. 27, 2015) (No.
15-6793).

“There is an intracircuit split as to whether the standard of
review for application of the Guidelines to the facts is de
6 UNITED STATES V. BACKMAN

novo or abuse of discretion.” United States v. Tanke,
743 F.3d 1296, 1306 (9th Cir. 2014). “There is no need to
resolve this split where, as here, the choice of the standard
does not affect the outcome of the case.” Id.

DISCUSSION

Defendant challenges (A) the jury instructions; (B) the
sufficiency of the evidence; (C) the exclusion of evidence
under Federal Rule of Evidence 412; and (D) the district
court’s application of a “vulnerable victim” sentencing
enhancement. We reject each of Defendant’s arguments.

A. Jury Instructions

Defendant argues that the jury instructions were
erroneous because (1) the instructions did not require “but-for
causation” pursuant to Burrage v. United States, 134 S. Ct.
881 (2014); and (2) the instructions did not require
knowledge of an effect on interstate or foreign commerce
pursuant to Flores-Figueroa v. United States, 556 U.S. 646
(2009). Because Defendant did not object to the instructions
before the district court, we review for plain error. Moreland,
622 F.3d at 1165–66. We conclude at step one of the plain-
error inquiry that there was no error. Accordingly, we do not
reach the other prongs, such as whether the error was “plain.”

1. But-for Causation

In Burrage, 134 S. Ct. at 885, 892, the Supreme Court
held that a statute criminalizing drug distribution when “death
or serious bodily injury results from the use of such
substance” required proof of but-for causation. Here, the
statute requires that the defendant harbor a person (or take
 UNITED STATES V. BACKMAN 7

another specified action) “knowing, or in reckless disregard
of the fact, that means of force, threats of force, fraud,
coercion described in subsection (e)(2), or any combination
of such means will be used to cause the person to engage in
a commercial sex act.” 18 U.S.C. § 1591(a) (emphasis
added). Defendant asserts that, under the reasoning of
Burrage, the district court erred by not giving an instruction
requiring the jury to find that the alleged coercion was the
but-for cause of the victim’s commercial sex acts.

The district court did not err by declining to apply
Burrage here. Causation is not an element in a § 1591(a)
prosecution, because a commercial sex act need not even
occur: “Case law makes clear that ‘commission of a sex act
or sexual contact’ is not an element of a conviction under
18 U.S.C. § 1591.” United States v. Hornbuckle, 784 F.3d
549, 553 (9th Cir. 2015). “What the statute requires is that
the defendant know in the sense of being aware of an
established modus operandi that will in the future coerce a
prostitute to engage in prostitution.” United States v. Brooks,
610 F.3d 1186, 1197 n.4 (9th Cir. 2010) (internal quotation
marks omitted). Because the statute does not require
commission of a sex act, the court correctly refused to require
the jury to find that Defendant caused a sex act to occur.

2. Knowledge of an Effect on Interstate Commerce

In Flores-Figueroa, 556 U.S. at 647, the Supreme Court
considered a criminal statute punishing a person who
“knowingly transfers, possesses, or uses, without lawful
authority, a means of identification of another person.”
(Emphasis omitted.) The Court held that the adverb
“knowingly” applies to “means of identification of another
person” so that a conviction requires that the defendant knew
8 UNITED STATES V. BACKMAN

that the identification belonged to another person. Id. at 657.
The Court reached its conclusion primarily because of “strong
textual reasons”: “As a matter of ordinary English grammar,
it seems natural to read the statute’s word ‘knowingly’ as
applying to all the subsequently listed elements of the crime.”
Id. at 650.

Here, the statute requires proof that Defendant
“knowingly—(1) in or affecting interstate or foreign
commerce, or within the special maritime and territorial
jurisdiction of the United States, recruits, entices, harbors,
transports, provides, obtains, or maintains by any means a
person.” 18 U.S.C. § 1591(a) (emphasis added). Defendant
asserts that, under the reasoning of Flores-Figueroa, the
district court erred by not giving an instruction requiring the
jury to find that Defendant knew that her actions affected
interstate or foreign commerce. In essence, Defendant argues
that, for every criminal statute, the word “knowingly” must
apply to all subsequent phrases in the statutory text.

We previously have rejected that general argument. In
United States v. Stone, 706 F.3d 1145, 1146–47 (9th Cir.
2013), the defendant argued that Flores-Figueroa required
that we apply the adverb “knowingly” to the commerce
element of a firearm statute. We disagreed: “[T]he Court in
Flores-Figueroa did not announce an ‘inflexible rule of
construction.’ Rather, statutory interpretation remains a
contextual matter.” Stone, 706 F.3d at 1147 (citation
omitted). Because of the firearm statute’s context and the
fact that the interstate commerce element is purely
jurisdictional, we held that the adverb “knowingly” did not
apply to the commerce element of the firearm statute. Id.
 UNITED STATES V. BACKMAN 9

Here, it is most natural to read the adverb “knowingly” in
§ 1591(a) to modify the verbs that follow: “recruits, entices,
harbors, transports, provides, obtains, or maintains.” The
phrase “in or affecting interstate or foreign commerce”
describes the nature or extent of those actions but,
grammatically, does not tie to “knowingly.” See United
States v. Jefferson, 791 F.3d 1013, 1017–18 (9th Cir. 2015)
(holding that Flores-Figueroa does not apply to a criminal
statute because the “statutory text and structure are not
parallel to that of” the statute analyzed by the Supreme Court
in Flores-Figueroa), petition for cert. filed, ___ U.S.L.W.
___ (U.S. Feb. 3, 2016) (No. 15-8101); United States v.
Castagana, 604 F.3d 1160, 1166 (9th Cir. 2010) (holding
that, because the grammatical structure of the criminal statute
at issue differed from the statute at issue in Flores-Figueroa,
“Flores-Figueroa is simply not a useful model for
construing” the statute at hand).

Moreover, we agree with and adopt the Seventh Circuit’s
persuasive explanation for rejecting the argument that the
reasoning of Flores-Figueroa applies specifically to the
commerce element in § 1591(a). United States v. Sawyer,
733 F.3d 228 (7th Cir. 2013). The longstanding presumption
is that the jurisdictional element of a criminal statute has no
mens rea. Id. at 229 (citing United States v. Feola, 420 U.S.
671, 676 n.9 (1975)). Nothing in the statute’s text or
legislative history suggests that Congress meant to upend that
presumption in this statute. Id. at 229–31; cf. United States
v. Maciel-Alcala, 612 F.3d 1092, 1101 (9th Cir. 2010)
(“These practical considerations [about the application of the
criminal statute at issue] are markedly different from those
10 UNITED STATES V. BACKMAN

involved in Flores-Figueroa.”). We hold that the commerce
element in § 1591(a)(1) has no mens rea requirement.1

B. Sufficiency of the Evidence

Defendant argues that the evidence was insufficient on the
interstate or foreign commerce element. We must ask
“whether, after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could
have found the essential elements of the crime beyond a
reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319
(1979) (emphasis omitted). Here, sufficient evidence
demonstrated an effect on both foreign and interstate
commerce. “[A]ny individual instance of conduct regulated
by the TVPA need only have a de minimis effect on interstate
commerce.” United States v. Walls, 784 F.3d 543, 548 (9th
Cir.), cert. denied, 136 S. Ct. 226 (2015). “[A]n act or
transaction that is economic in nature and affects the flow of
money in the stream of commerce to any degree affects
interstate commerce.” Id. at 548–49 (internal quotation
marks omitted). Here, Defendant knew that the victim had
flown, in foreign commerce, from China to Saipan. Also, one
of the victim’s customers paid for the sex acts by checks
drawn on an out-of-state bank. Sufficient evidence therefore
supported the jury’s finding of an effect on interstate or
foreign commerce.

1
In addition to the Seventh Circuit, at least one other circuit has reached
the same conclusion, albeit in a pre-Flores-Figueroa case. United States
v. Evans, 476 F.3d 1176, 1180 n.2 (11th Cir. 2007). No circuit has
reached the opposite conclusion.
 UNITED STATES V. BACKMAN 11

C. Exclusion of Evidence under Federal Rule of
Evidence 412

Defendant argues that the district court erred by denying
her motion to admit, under Federal Rule of Evidence 412,
evidence that the victims engaged in prostitution after the
indictment period. As relevant here, Rule 412 states:

(a) Prohibited Uses. The following
evidence is not admissible in a civil or
criminal proceeding involving alleged sexual
misconduct:

(1) evidence offered to prove that a victim
engaged in other sexual behavior; or

(2) evidence offered to prove a victim’s
sexual predisposition.

....

(c) Procedure to Determine Admissibility.

(1) Motion. If a party intends to offer
evidence under Rule 412(b), the party
must:

(A) file a motion that specifically
describes the evidence and states the
purpose for which it is to be offered;

(B) do so at least 14 days before trial
unless the court, for good cause, sets a
different time;
12 UNITED STATES V. BACKMAN

....

(2) Hearing. Before admitting evidence
under this rule, the court must conduct an in
camera hearing and give the victim and
parties a right to attend and be heard. Unless
the court orders otherwise, the motion, related
materials, and the record of the hearing must
be and remain sealed.

On April 10, 2013, the district court presided over a
hearing on the admissibility of certain evidence. At the end
of the hearing, the court noted that trial was set for May 20,
and the court turned to the issue of when any Rule 412
motions would be due. The court noted that, under Rule
412(c)(1)(B), the deadline is 14 days before trial “unless the
Court for cause sets a different time.” The court then
explained that, for scheduling reasons, the due date for a Rule
412 motion was set at April 29, instead of May 6. The court
gave the government until May 3 to file an opposition to any
Rule 412 motion filed by Defendant. Finally, the court
reaffirmed that a pretrial motions hearing would be held on
May 8.

Defendant filed a terse Rule 412 motion on May 3—four
days too late. The motion did not provide any details about
the proffered evidence, other than stating that Defendant
sought “to introduce evidence of the alleged victims’ sexual
conduct after the indictment period.” The motion refers to an
attached declaration of counsel. That declaration is not much
more specific, but it does note unspecified “sexual
commercial activities [that] occurred while [the victims] were
under the protection of the government.” The declaration
also states that “these sexual commercial activities also
 UNITED STATES V. BACKMAN 13

occurred immediately after [the victims] first left Defendant’s
premises on March, 2009, and as described by [a named
witness] in his deposition dated March 06, 2013.” That
nearly 100-page deposition covered many topics and spanned
a time period of many months. Significantly, the deposition
did not refer to any of the victims’ names.

As scheduled, the district court presided over the pretrial
motions hearing on May 8. In response to the court’s
questioning, Defendant’s lawyer confessed that he had
remembered the due date as May 3, not April 29. The court
imposed a fine of $100 on Defendant’s lawyer for the
untimeliness but stated that the court would not hold the
untimeliness against Defendant.

Turning to the merits of the motion, the government’s
lawyer raised the issue of specificity: “[W]e don’t have
specific evidence, Your Honor, the specifics. Whether it’s in
the form of testimony, whether it’s the form of another
witness coming forward. We have vague references to [the
named witness’] testimony but what testimony?” The court
agreed:

Rule 412 requires more details than the
allegation that there’s some other sexual
conduct[.] [E]ven in the declaration that you
submitted . . . in support of the motion and
notice is very vague. Vague as to who. We
have three victims in this case and in regards
to what particular instances we are dealing
with a period from August of 2008 to March
of 2009. So you need more particular
information even if we were to consider it.
14 UNITED STATES V. BACKMAN

The court held that the “Rule 412 motion has failed to
comply with Rule 412(c)(1)(A) that requires that the party
must file a motion that specifically describes the evidence.”
Defendant’s lawyer then moved to amend the motion, which
the government lawyer “vehemently oppose[d].” The court
ruled: “I am denying the defendant’s motion for [Rule] 412
admission for any sexual conduct of the alleged victims
pursuant to Rule [412(c)] for failing to specifically describe
the evidence and your request to amend your motion because
it is untimely and given the lack of opportunity that will be
given to the Government, is denied.” The court elaborated:

A lot of the contents in your motion, as
well as the declaration, are more conclusory
and general reference. Again, we are dealing
with three victims. When we discussed the
issue of the Rule 15 deposition, I myself
pointed out the only names I heard that [the
witness] referenced were, I believe, [two
common first names] and no one ever
attached those names to any of the three
victims that were actually named in the
indictment.

So your declaration doesn’t even help me
pinpoint this information as to which victim
and how this is relevant to the case. So on the
face of your own motion and declaration, this
is far short of the notice requirement to give
the Government an opportunity to properly
respond by any particular arguments of fact or
law.
 UNITED STATES V. BACKMAN 15

We conclude that the district court did not abuse its
discretion in denying Defendant’s motions. The Rule
requires that the party “file a motion that specifically
describes the evidence.” Fed. R. Evid. 412(c)(1)(A). That
requirement makes sense in light of another of the Rule’s
procedural requirements—this one imposed on the
court—that, “[b]efore admitting evidence under this rule, the
court must conduct an in camera hearing and give the victim
and parties a right to attend and be heard.” Fed. R. Evid.
412(c)(2). Because Defendant’s Rule 412 motion specified
neither the precise evidence sought to be admitted nor the
particular victims at issue, the court was unable to comply
with the Rule’s procedural requirements. Given all the
circumstances, including that trial was scheduled for less than
two weeks from the date of the hearing and that consideration
of an amended motion would require a response from the
government and an additional hearing involving the parties
and the victims, it was not an abuse of discretion to deny
Defendant an eleventh-hour opportunity to amend the Rule
412 motion.

We also conclude that the exclusion of the proffered
evidence was within constitutional bounds, because the
exclusion was “neither arbitrary nor disproportionate to the
purposes of the notice requirement.” LaJoie v. Thompson,
217 F.3d 663, 670 (9th Cir. 2000). As just noted, the district
court did not deny the motion on timeliness grounds (even
though the motion was late); instead, the court denied the
motion because it was vague as to the precise nature of the
evidence and because it failed to identify the victims.
Without knowledge of the identity of the victims and the
nature of the evidence, the court could not conduct the in
camera review and hearing mandated by the Rule.
16 UNITED STATES V. BACKMAN

Moreover, this case is unlike LaJoie in an important
respect. There, the government “conceded that [the
proffered] evidence was relevant.” Id. at 671. Here, by
contrast, to the extent that we can discern the nature of
Defendant’s proffered evidence, its relevance, if any, is slight.
We doubt that evidence that the victim engaged in
commercial sex acts after she had been coerced into
prostitution has a bearing on whether Defendant earlier took
coercive actions. But, even assuming some relevance, the
court’s exclusion of the vaguely and insufficiently described
evidence was neither arbitrary nor disproportionate to the
purposes behind Rule 412's procedural requirements.

D. “Vulnerable Victim” Enhancement

The district court imposed a two-level sentencing
enhancement under U.S.S.G. § 3A1.1(b)(1): “If the
defendant knew or should have known that a victim of the
offense was a vulnerable victim, increase by 2 levels.” The
district court found that the victim qualified as a vulnerable
victim for many reasons: She was tricked into arriving on the
false promise of a work visa, when all she actually had was
a tourist visa that prevented her from working legally; she
“had no ties or family or friends on Saipan”; she “did not
speak or read or understand any English whatsoever”; she
needed to earn money for “her son, due to an injury he
sustained”; “she was effectively under lock and key, in that
she was limited in her movement, when and where she could
go [and she] was always accompanied by [Defendant] or her
agent”; and “she was repeatedly informed of the fact that she
had nowhere else to turn to, and that if she did not comply,
she would not be able to earn any other income, because of
her illegal Immigration status.” See United States v. Peters,
962 F.2d 1410, 1417 (9th Cir. 1992) (holding that, in
 UNITED STATES V. BACKMAN 17

determining vulnerability under U.S.S.G. § 3A1.1, the
sentencing court may consider “the characteristics of the
defendant’s chosen victim, the victim’s reaction to the
criminal conduct, and the circumstances surrounding the
criminal act”).

The Guideline “applies to offenses involving an unusually
vulnerable victim in which the defendant knows or should
have known of the victim’s unusual vulnerability.” U.S.S.G.
§ 3A1.1 cmt. n.2. Vulnerability is not measured against the
general population. United States v. Castellanos, 81 F.3d
108, 110 (9th Cir. 1996). Instead, an “unusually vulnerable
victim is one who is less able to resist than the typical victim
of the offense of conviction.” United States v. Castaneda,
239 F.3d 978, 980 (9th Cir. 2001) (internal quotation marks
omitted).

Here, the offense of conviction is “[s]ex trafficking . . . by
force, fraud, or coercion,” and the statute is part of the
Trafficking Victims Protection Act. Defendant correctly
points out that, in Castaneda, 239 F.3d at 982–83, we held
that victims of a Mann Act sex-trafficking crime were not
unusually vulnerable because “indebtedness, low income, and
lack of financial resources or other options that would permit
[the victims] to support themselves or pay for their passage
back to the Phillippines if they left the club” do not
“distinguish them from the typical victims of a Mann Act
violator.” We also acknowledge that, in enacting the TVPA,
Congress recognized that victims of sex trafficking often have
some of the same vulnerabilities that the district court found
here. 22 U.S.C. § 7101. We nevertheless conclude that the
vulnerability enhancement was proper—both because of the
high number of vulnerabilities and the depth of the individual
vulnerabilities. For example, the victim was not only
18 UNITED STATES V. BACKMAN

estranged from her home community, she had no ties at all on
the geographically remote island of Saipan. Similarly, she
did not merely have poor English skills; she “did not speak or
read or understand any English whatsoever,” and she was
illiterate in her native language as well. (Emphasis added.)
And she had more than typical indebtedness because of her
injured son. Viewing all the circumstances, the district court
correctly applied the vulnerability enhancement.

AFFIRMED.