IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
No. 15-50139 FILED
June 7, 2016
SEALED APPELLEE, Lyle W. Cayce
Clerk
Plaintiff - Appellee
v.
SEALED APPELLANT,
Defendant - Appellant
Appeal from the United States District Court
for the Western District of Texas
Before DENNIS, ELROD, and GRAVES, Circuit Judges.
JAMES E. GRAVES, JR., Circuit Judge:
FACTUAL SUMMARY
The appellant (JA-L) 1 was charged in a superseding indictment with
transporting his daughter, a minor under age 12, from Texas to Mexico and
engaging in a sexual activity with her in violation of 18 U.S.C. § 2423(a) and
18 U.S.C. § 2241(c). JA-L was found guilty on both counts after a jury trial.
The district court denied JA-L’s request for a downward departure and
sentenced him, pursuant to the advisory Guidelines, to two concurrent terms
1 This case has been sealed by court order. Thus, we will refer to the parties by initials
or fictitious names.
No. 15-50139
of life imprisonment to be followed by concurrent lifetime terms of supervised
release. JA-L appeals his conviction and sentence. We affirm.
DISCUSSION
I. Sufficiency of the evidence of criminal intent.
JA-L asserts that there was insufficient evidence to prove beyond a
reasonable doubt the intent element of each of the crimes. Because JA-L
properly preserved his challenge to the sufficiency of the evidence, we review
this issue de novo. See United States v. Winkler, 639 F.3d 692, 696 (5th Cir.
2011). Evidence will be deemed sufficient to convict if, “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 in original).
In making this inquiry, “[w]e view the evidence in the light most favorable to
the verdict and indulge all reasonable inferences in favor of the verdict.”
United States v. Mulderig, 120 F.3d 534, 546 (5th Cir. 1997). Further, “we
apply a rule of reason, knowing that the jury may properly rely on their
common sense and evaluate the facts in light of their knowledge of the natural
tendencies and inclinations of human beings.” Id. at 547 (internal quotation
marks and citation omitted). A defendant who challenges the sufficiency of the
evidence “swims upstream.” Id. at 546.
JA-L was charged with two counts in a superseding indictment. Count
1 was the violation of § 2423(a), which prohibits knowingly transporting an
individual under the age of 18 in interstate or foreign commerce “with intent
that the individual engage in prostitution, or in any sexual activity for which
any person can be charged with a criminal offense. . . .” See 18 U.S.C. §
2423(a). Count 2 was the violation of § 2241(c), which prohibits crossing a
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“State line with intent to engage in a sexual act with a person who has not
attained the age of 12 years. . . .” See 18 U.S.C. § 2241(c).
JA-L asserts that the Government failed to present sufficient evidence
to prove that he transported the victim with the intent to commit a sexual act.
Both §§ 2241(c) and 2423(a) require that the defendant had the intent of
engaging in sexual activity with a minor.
This court has addressed the elements of § 2423 by reference to the Mann
Act. See United States v. Campbell, 49 F.3d 1079, 1081-82 (5th Cir. 1995).
Section 2423(a) makes it a crime to “knowingly transport[ ] an individual who
has not attained the age of 18 years in interstate or foreign commerce . . . with
intent that the individual engage in . . . any sexual activity for which any
person can be charged with a criminal offense.” 18 U.S.C. § 2423(a).
Transporting a victim across a state line with the intent to engage in unlawful
sexual activity is an element of the offense. United States v. Lewis, 796 F.3d
543, 547 (5th Cir. 2015). While the intent to engage in criminal sexual activity
need not be the sole purpose of the transportation, it “must be the dominant
motive” of the travel. See Mortensen v. United States, 322 U.S. 369, 374 (1944).
See also United States v. Hitt, 473 F.3d 146, 152 (5th Cir. 2006) (“engaging in
illicit sexual activity was ‘one of the efficient and compelling purposes of the
travel.’”); Campbell, 49 F.3d at 1082.
Relevant here, an offense under § 2241(c) is committed when a person
“crosses a State line with intent to engage in a sexual act with a person who
has not attained the age of 12 years. . . .” 18 U.S.C. § 2241(c). This court has
not yet defined the elements of a § 2241(c) offense nor decided what is
necessary to prove the intent element of the offense. But the Third, Ninth and
Tenth Circuits have held that the offense has three elements: (1) the crossing
of a state line; (2) with the intent to engage in a sexual act with a minor under
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the age of 12 years; (3) and either performing or attempting to perform the act.
United States v. Lukashov, 694 F.3d 1107, 1121 (9th Cir. 2012) (“The essential
conduct elements [of § 2241(c)] are (1) crossing a state line, (2) with intent to
engage in a sexual act with a child, and (3) engaging in or attempting to engage
in a sexual act with a child.”); United States v. King, 604 F.3d 125, 139 (3d Cir.
2010) (“The offense of interstate transportation to engage in sex with a minor
contains three elements: (1) crossing interstate lines; (2) with the intent to
engage in a sexual act with a minor; and (3) either performing or attempting
to perform the act.”); and United States v. Cryar, 232 F.3d 1318, 1322 (10th
Cir. 2000) (Government must show defendant “crossed state lines with the
intent to engage in a sexual act with a child under twelve, and that he
attempted to do so.”). In Cryar, the Tenth Circuit considered a claim that the
evidence was insufficient to support the intent element of this offense and, in
analyzing the claim, echoed Mortensen’s holding that the illicit sexual activity
need not be the sole purpose for traveling across state lines but had to be one
of the “efficient and compelling” or dominant purposes for doing so. Cryar, 232
F.3d at 1324. The Ninth Circuit, citing Cryar, has used the same inquiry.
Lukashov, 694 F.3d at 1119 (“dominant, significant, or motivating purpose”).
These cases are persuasive authority on the intent element of the offense
under § 2241(c). Further, the language of both 2423(a) and 2241(c) requires a
defendant to do an act with the intent of engaging in illicit sexual activity with
a minor. 18 U.S.C. § 2423(a) (transporting a minor in interstate or foreign
commerce with such intent); 18 U.S.C. § 2241(c) (crossing a state line with such
intent). Therefore it is logical to make the same inquiry when considering the
sufficiency of the evidence to support the intent element of either offense.
Moreover, the court’s instruction to the jury echoed Mortensen’s dominant-
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purpose inquiry on intent, and JA-L does not challenge that instruction on
appeal.
The following evidence was presented at trial. JA-L was married to VG,
and Jane Doe is the eldest of their three children. The family lived in Del Rio,
Texas. The couple had a tumultuous marriage and separated multiple times
only to later reconcile. During those short-term separations, VG would take
the children and go stay at JA-L’s mother’s house in Acuna, Mexico, which is
just across the border from Del Rio. The couple permanently separated in
December 2013. For a time, both JA-L and VG remained in Del Rio, and VG
had a boyfriend. In mid-January 2014, JA-L moved to Greenville, Texas, and,
in mid-March 2014, VG moved to Midland, Texas, with the three children.
Between December 2013 when the couple separated and March 2014
when VG moved to Midland, JA-L would pick the children up approximately
once a month on a Friday after school and take them to Acuna for the weekend
to visit his mother and sisters. According to JA-L, the reason he took the
children to his mother’s house in Mexico was because he no longer had a house
in Del Rio where he could visit with them. On Sunday evenings, either VG,
her father, or her aunt would pick the children up in Mexico and bring them
home.
During a visit in January 2014, JA-L and VG fought when JA-L saw
bruising on VG’s neck that she had sustained during an amorous encounter
with another man. During that argument, JA-L threatened to file for divorce,
sue for custody of the children and report VG to the government for receiving
illegal benefits.
On Friday, February 21, 2014, JA-L met VG at a McDonald’s restaurant
in Del Rio to begin his monthly visit. According to VG, Doe did not want to go
with her father for the weekend, but JA-L insisted that he had a right to see
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No. 15-50139
her. When Doe got into the car, VG saw JA-L pointing and waving his hand in
an accusatory manner at Doe, who was in the backseat. When VG went to the
car to see if everything was alright, JA-L “just smirked, smiled and said
nothing is wrong, I’m just asking if she still loves me.” To VG, Doe appeared
scared. At the time of that trip, JA-L already knew that VG would be moving
to Midland with the children the following month.
In April 2014, approximately a month after VG had moved the children
to Midland and enrolled them in school there, Doe disclosed to VG that JA-L
had sexually abused her. VG reported the information to the police in Del Rio
and took Doe to the hospital in Midland for a physical examination. Cori
Armstead, the nurse who conducted the examination of Doe, concluded that
the physical examination of Doe’s genital area supported Doe’s claim that she
had been sexually assaulted. Armstead testified regarding the following
statements that Doe made during that examination. JA-L first sexually
assaulted Doe when she was eight years old, and he had assaulted her many
times. When VG would leave for work, JA-L would grab Doe by the feet and
drag her to another room or he would simply pick her up to carry her and then
drop her on the bed. JA-L last had sex with Doe when the family stayed at
Doe’s grandmother’s house in Mexico. Her father had penetrated her vaginally
and had given her half of a pill to take when he had finished. JA-L threatened
to kill Doe if she revealed the abuse, and Doe felt she could not tell anyone
about the abuse because her father was always around. After the last
occurrence of sexual abuse, Doe did not return to Mexico anymore because of
the problems between VG and JA-L.
Doe testified briefly that JA-L had vaginally penetrated her and that it
had last happened at her grandmother’s house in Mexico. She confirmed that
she had told VG of the abuse and declared that she did not want to live with
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No. 15-50139
JA-L anymore. She also said that JA-L would continually send her text
messages stating that he loved her and asking whether she had told anybody
about what they had done.
JA-L does not assert that he has never sexually assaulted Doe, that he
did not transport her to Mexico, or that she had not yet attained the age of 12.
Rather, JA-L contends that there was insufficient evidence to prove that when
he crossed the border into Mexico, transporting Doe with him, he did so with
the intent to engage in illicit sexual activity with Doe.
In support of his argument, JA-L states that the evidence shows that he
was residing at his mother’s house in Acuna at the time of Doe’s last visit to
Mexico because he did not have a place to live in Del Rio. JA-L did testify to
that effect. The record more accurately reflects, however, that JA-L was living
in Greenville from January to April of 2014. He maintains that the normal
post-separation routine was for him to spend his visitation weekends in Acuna
at the home of either his sister or mother. He points out that VG had regularly
taken the children and stayed with his mother in Acuna during their
separations. He further points out that VG never objected to him taking the
children to Mexico to exercise his visits.
Criminal intent may be “demonstrated by direct or circumstantial
evidence that allows an inference of an unlawful intent, and not every
hypothesis of innocence need be excluded.” United States v. Aggarwal, 17 F.3d
737, 740 (5th Cir. 1994); see United States v. Bennett, 258 F. App’x 671, 683
(5th Cir. 2007) (applying Aggarwal in an appeal from a § 2423(a) conviction).
This court considers “whether the inferences drawn by a jury were rational, as
opposed to being speculative or insupportable.” United States v. Vargas-
Ocampo, 747 F.3d 299, 302 (5th Cir. 2014).
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VG’s acquiescence in the trips to Mexico has no bearing on JA-L’s intent
at the time he brought Doe into Mexico for that last visit. Viewed in the light
most favorable to the verdict, the evidence indicated that JA-L had been having
sexual intercourse with Doe for several years and in her mother’s absence. JA-
L knew at the time of the last trip to Mexico that VG would be moving to
Midland and taking the children with her. JA-L vaginally penetrated Doe
while in Mexico, and Doe’s paternal grandmother stayed in Del Rio that
weekend.
From these facts, a rational factfinder could infer that, despite any
alternative innocent reasons JA-L may have had for crossing into Mexico with
Doe, getting Doe away from her mother in order to have sexual intercourse
again before she moved away to Midland was a dominant, i.e., efficient and
compelling, purpose for the trip. See Mortensen, 322 U.S. at 374; Hitt, 473 F.3d
at 152. Thus, there was sufficient evidence to support the intent element of
the crimes of conviction. See Jackson, 443 U.S. at 319.
The defense’s theory at trial was that when JA-L threatened VG with
divorce, a custody suit, and turning her in for welfare fraud, she became scared
and coached Doe into accusing JA-L of sexual abuse. The evidence showed that
JA-L filed for divorce on March 12, 2014, and that he was arrested in this case
on April 16, 2014. However, the evidence also showed that Doe consistently
repeated the same version of events, that the medical examination revealed
injuries consistent with sexual abuse, and that Doe said she had never told
anyone about the abuse because her father was always around. Doe did not
tell her mother about the abuse until her parents had separated permanently,
she had moved to another city with her mother, she had enrolled in a new
school, and her father was no longer always around.
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For these reasons, we conclude that there is sufficient evidence in the
record from which a rational juror could have found beyond a reasonable doubt
that JA-L had the criminal intent required for a conviction under § 2423(a) and
under § 2241(c). See Jackson, 443 U.S. at 319.
II. Sufficiency of the evidence that a state line was crossed under section
2241(c). 2
JA-L asserts that there was insufficient evidence to prove that he crossed
a state line under § 2241(c). The relevant portion of the statute says that
“[w]hoever crosses a State line.” See 18 U.S.C. § 2241(c). Section 2241(c) is
found in Title 18, Part I, Chapter 109A of the United States Code. The
definitions for Chapter 109A do not include a definition for “state line.” See 18
U.S.C. § 2246.
“State line” has also not been defined in cases. In United States v. Irving,
452 F.3d 110, 114, 116 (2d Cir. 2006), the defendant was convicted under
§ 2241(c) for having traveled to Honduras for the purpose of engaging in sexual
acts with children under the age of 12 years. Irving presented a claim of
evidentiary insufficiency on that count of conviction, but the claim focused on
the evidence used to prove his criminal intent. See id. at 117-19. The Second
Circuit had no occasion to discuss whether it was legally sufficient that Irving,
who lived in New York, had traveled to another country rather than another
state with the requisite criminal intent. Other courts have referenced
“interstate travel” in deciding cases that, indeed, involved “interstate travel.”
2The Government, citing the unpublished case of United States v. Job, 387 F. App’x
445, 456 (5th Cir. 2010), asserts that JA-L’s Rule 29 motions were insufficient to alert the
Government or the district court to the argument he now makes on appeal. Thus, the
Government contends we should review this claim only for a manifest miscarriage of justice.
We disagree and conclude that JA-L’s Rule 29 motion challenged the sufficiency of the
evidence that he crossed state lines for purposes of section 2241(c). Thus, de novo review is
appropriate. See United States v. McDowell, 498 F.3d 308, 312 (5th Cir. 2007).
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See United States v. DeCarlo, 434 F.3d 447, 449 (6th Cir. 2006); United States
v. Farley, 607 F.3d 1294, 1325 (11th Cir. 2010); and King, 604 F.3d at 139.
However, to determine the meaning, we need only look to the plain
language of the statute. United States v. Dison, 573 F.3d 204, 207 (5th Cir.
2009). Section 2241(c) merely says “crosses a State line” and in no way
references into or out of a state or interstate travel. See 18 U.S.C. § 2241(c).
Thus, evidence that JA-L crossed the Texas state line to travel into Mexico is
sufficient to prove this element.
For these reasons, we conclude that there is sufficient evidence in the
record from which a rational juror could have found beyond a reasonable doubt
that JA-L crossed a state line for purposes of § 2241(c).
III. Double jeopardy
JA-L asserts that his conviction under both §§ 2243(a) and 2241(c) for
the same activity on the same date violates the Double Jeopardy Clause of the
Fifth Amendment.
The Double Jeopardy Clause protects against (1) a second prosecution
for the same offense after acquittal; (2) a second prosecution for the same
offense after conviction; and (3) multiple punishments for the same offense.
Brown v. Ohio, 432 U.S. 161, 165 (1977). When a defendant argues that “the
same act or transaction constitutes a violation of two distinct statutory
provisions, the test to be applied to determine whether there are two offenses
or only one, is whether each provision requires proof of a fact which the other
does not.” Blockburger v. United States, 284 U.S. 299, 304 (1932). Under this
standard, we compare the statutes and the elements of the offense. See Brown,
432 U.S. at 165; United States v. Tovar, 719 F.3d 376, 383 (5th Cir. 2013). “If
each [statute] requires proof of a fact that the other does not, the Blockburger
test is satisfied, notwithstanding a substantial overlap in the proof offered to
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establish the crimes.” Tovar, 719 F.3d at 383 (quoting Iannelli v. United
States, 420 U.S. 770 785 n.17 (1975)).
A conviction under § 2423(a) requires proof that the defendant (1)
transported a person under the age of 18 years (2) in interstate or foreign
commerce (3) with the intent that the minor engage in illicit sexual activity.
18 U.S.C. § 2423(a). A conviction under § 2241(c) requires proof that the
defendant (1) crossed a state line (2) with the intent of engaging in illicit sexual
activity (3) with a child under the age of 12 years. 18 U.S.C. § 2241(c).
JA-L relies on the Sixth Circuit’s decision in DeCarlo to support his
argument that an offense under § 2423(a) is a lesser included offense under §
2241(c) because the “‘intent to commit an illegal sex act with a person under
eighteen includes the intent to commit that act with a victim under twelve.’”
However, DeCarlo was convicted under §§ 2423(b) and 2241(c). See DeCarlo,
434 F.3d at 449, 454-55. Section 2423(b) prohibits a person from traveling in
interstate or foreign commerce for the purpose of engaging in illicit sexual
conduct, which by statutory definition includes a sexual act with a person
under the age of 18. 18 U.S.C. § 2423(b), (f)(1); see DeCarlo, 434 F.3d at 455.
The Sixth Circuit described the two charges against DeCarlo as “interstate
travel with intent to have sex with a person under twelve and interstate travel
with intent to have illicit sex with a person under eighteen” and found that the
§ 2423(b) offense was a lesser included offense of the § 2241(c) offense since “an
intent to commit an illegal sex act with a person under eighteen includes the
intent to commit that act with a victim under twelve.” Id. at 456-57.
Notwithstanding the fact that DeCarlo is not binding authority, it can be
distinguished as both of the offenses there involved traveling to have illicit sex
with a minor. DeCarlo was convicted under § 2423(b), whereas JA-L was
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convicted under 2423(a). 3 The offenses here were aggravated sexual abuse
under § 2241(c) for crossing a state line with the intent to engage in a sexual
act with a child under 12 and transportation of a minor under § 2243(a) for
knowingly transporting a minor in interstate or foreign commerce with the
intent to engage in sexual activity.
Under Blockburger v. United States, 284 U.S. 299 (1932), “[t]he
applicable rule is that, where the same act or transaction constitutes a
violation of two distinct statutory provisions, the test to be applied to
determine whether there are two offenses or only one, is whether each
provision requires proof of a fact which the other does not.” Id. at 304. Here,
§ 2423(a) requires knowingly transporting a minor, while § 2241(c) does not.
Accordingly, we conclude that JA-L was not subjected to a double
jeopardy violation.
IV. Sentencing enhancement based on a pattern of activity.
This court “review[s] the district court’s interpretation or application of
the Sentencing Guidelines de novo and its factual findings for clear error.”
United States v. Trujillo, 502 F.3d 353, 356 (5th Cir. 2007). “[S]entencing facts
must be established by a preponderance of the evidence.” United States v.
Harris, 702 F.3d 226, 230 (5th Cir. 2012) (internal quotation marks and
citation omitted). “[D]istrict courts may consider any information which bears
sufficient indicia of reliability to support its probable accuracy.” Id. (internal
quotation marks and citation omitted). “Generally, a PSR bears sufficient
indicia of reliability to be considered as evidence by the sentencing judge in
making factual determinations.” Id. (internal quotation marks and citation
3 The Second Circuit has concluded that there is no double jeopardy violation where a
defendant was convicted under both §§ 2423(a) [transporting] and 2423(c) [traveling]. See
United States v. Weingarten, 713 F.3d 704, 708-09 (2d Cir. 2013).
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omitted). If the PSR does bear sufficient indicia of reliability, the district court
may adopt it unless the defendant presents rebuttal evidence to demonstrate
that it is inaccurate. United States v. Zuniga, 720 F.3d 587, 591 (5th Cir. 2013).
“Rebuttal evidence must consist of more than a defendant’s objection; it
requires a demonstration that the information is materially untrue, inaccurate
or unreliable.” Id. (internal quotation marks and citation omitted).
Under section 4B1.5(b)(1), a defendant’s offense level shall be enhanced
by five levels if the offense of conviction constitutes a “covered sex crime” and
the defendant “engaged in a pattern of activity involving prohibited sexual
conduct.” U.S.S.G. § 4B1.5(b)(1). JA-L does not dispute that his offense was a
“covered sex crime” for purposes of section 4B1.5(b)(1). Rather, he disputes
that the evidence was sufficient to prove a pattern of sexual activity. JA-L
asserts that both counts of the indictment involved the same, single act and
that the majority of the trial evidence went to the event that was the subject
of the indictment. He also asserts that the evidence did not include any specific
dates when he may have abused Doe or transported her for the purpose of doing
so.
The comments to section 4B1.5 establish that “the defendant engaged in
a pattern of activity involving prohibited sexual conduct if on at least two
separate occasions, the defendant engaged in prohibited sexual conduct with a
minor.” § 4B1.5, cmt. n.4(B)(i).
Doe testified at trial that JA-L first had sex with her when she was eight
years old and that he had done so again during her last visit with him in
Mexico. Armstead testified that Doe reported to her that JA-L first had sex
with her when she was eight years old and that it had happened many times
thereafter. The trial court had the opportunity to hear that testimony
firsthand and judge its credibility. The PSR describes the video recording seen
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by the jury as showing Doe stating this same information to a forensic
interviewer and clarifying that it happened in excess of three times.
Additionally, the PSR recounted Armstead’s testimony regarding this same
information. The district court at sentencing found “by a preponderance of the
evidence that there were other occasions other than that for which the
defendant was found guilty beyond a reasonable doubt and charged in the
indictment.”
JA-L’s argument here is that there was no evidence of other specific
dates on which he sexually assaulted Doe. He does not contend that any of the
information in the PSR is “materially untrue, inaccurate, or unreliable.”
Zuniga, 720 F.3d at 591 (internal quotation marks and citation omitted).
Nothing in the Guidelines or its commentary suggests that specific dates of
prior illicit activity must be proven. Instead, it requires only a finding that,
“on at least two separate occasions, the defendant engaged in prohibited sexual
conduct with a minor.” U.S.S.G. § 4B1.5 cmt. n.4(B)(i). Based on the trial
testimony from Doe and Armstead and the information contained in the PSR,
the district court did not clearly err in finding by a preponderance of the
evidence that JA-L had sexual relations with Doe on at least two separate
occasions before she attained the age of 12 years. Accordingly, we conclude
that the district court did not err in applying the five-level enhancement under
section 4B1.5(b)(1).
For the reasons stated herein, we AFFIRM.
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