United States v. Juan Price

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 15-50556
Plaintiff-Appellee,
D.C. No.
v. 2:15-cr-00061-
GHK-1
JUAN PABLO PRICE,
Defendant-Appellant. OPINION

Appeal from the United States District Court
for the Central District of California
George H. King, District Judge, Presiding

Argued and Submitted November 6, 2017
Submission Vacated May 18, 2018
Resubmitted April 12, 2019
Pasadena, California

Filed April 12, 2019

Before: Ronald Lee Gilman, * Kim McLane Wardlaw,
and Jacqueline H. Nguyen **, Circuit Judges.

*
The Honorable Ronald Lee Gilman, United States Circuit Judge
for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
**
This case was submitted to a panel that included Judge Stephen
R. Reinhardt. Following Judge Reinhardt’s death, Judge Nguyen was
drawn by lot to replace him. Ninth Circuit General Order 3.2.h. Judge
2 UNITED STATES V. PRICE

Opinion by Judge Wardlaw;
Concurrence by Judge Gilman

SUMMARY ***

Criminal Law

The panel affirmed a conviction for knowingly engaging
in sexual contact with another person without that other
person’s permission on an international flight, in violation of
18 U.S.C. § 2244(b).

The panel rejected the defendant’s contention that the
government was required to prove beyond a reasonable
doubt that he subjectively knew that his victim did not
consent, and held that the district court did not err in denying
the defendant’s request to instruct the jury accordingly. The
panel held that in addition to proving beyond a reasonable
doubt that the defendant knowingly had sexual contact with
the victim, the government need only prove that the victim
did not consent as an objective matter.

The panel held that the police had probable cause to
arrest the defendant, that he was properly Mirandized, and
that the district court acted within its discretion in refusing
to read back to the jury portions of the victim’s testimony.

Nguyen has read the briefs, reviewed the record, and listened to oral
argument.
***
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. PRICE 3

Concurring that the conviction should be affirmed, Sixth
Circuit Judge Gilman disagreed with the majority’s holding
that “knowingly” in § 2244(b) does not extend to the phrase
“without that other person’s permission.” He wrote that
despite the district court’s error in refusing to instruct the
jury that such knowledge was necessary to convict, the error
was harmless because no reasonable juror could have
concluded that the defendant subjectively believed he had
permission to touch a sleeping stranger’s breast.

COUNSEL

Jonathan D. Libby (argued), Deputy Federal Public
Defender; Hilary L. Potashner, Federal Public Defender;
Office of the Federal Public Defender, Los Angeles,
California; for Defendant-Appellant.

Christopher C. Kendall (argued), Assistant United States
Attorney; Lawrence S. Middleton, Chief, Criminal Division;
United States Attorney’s Office, Los Angeles, California;
for Plaintiff-Appellee.

OPINION

WARDLAW, Circuit Judge:

It is a federal crime under 18 U.S.C. § 2244(b), enacted
as part of the Sexual Abuse Act of 1986, to knowingly
engage in sexual contact with another person without that
other person’s permission on an international flight. During
an overnight flight from Tokyo, Japan to Los Angeles,
California, Juan Pablo Price, a forty-six-year-old man,
moved from his assigned seat to an open seat adjacent to that
4 UNITED STATES V. PRICE

of a sleeping twenty-one-year-old female Japanese student,
where he fondled her breast and slipped his hand into her
underwear, touching her vagina. The jury convicted Price
under 18 U.S.C. § 2244(b), finding that the government
proved beyond a reasonable doubt that Price knowingly had
sexual contact with the victim and that the sexual contact
was without the victim’s permission. Price appeals his
conviction, contending that the government was also
required to prove beyond a reasonable doubt that he
subjectively knew that his victim did not consent.

We reject Price’s reading of the statute as contrary to its
text, the structure of the statutory scheme and its very
purpose in penalizing those who sexually prey upon victims
on the seas or in the air within federal jurisdiction.
Congress’s purpose in enacting the Sexual Abuse Act of
1986 was to criminalize sexual contact by focusing on the
defendant’s conduct. If the government were required to
prove that the defendant subjectively knew he lacked
consent, as Price urges here, every accused sexual predator
could defend his admitted sexual contact in the face of no
objective sign of permission by asserting a supposed
subjective belief that the victim was “enjoying herself,” a
result directly contrary to the purpose of the 1986 Act. Even
Price recognized, following his arrest, that “it sure is going
to be my job not to touch a woman” whom he doesn’t know
and hasn’t talked to. As the arresting officer responded to
Price, “in your forty something years, you should’ve already
known that[].”

Because unwanted sexual contact of the type Price
engaged in—touching first, and arguing later that he
“thought” the victim consented—is precisely what § 2244(b)
criminalizes, we reject Price’s claim of instructional error.
We also conclude that the police had probable cause to arrest
 UNITED STATES V. PRICE 5

Price, that he was properly Mirandized, and that the district
court acted within its discretion in refusing to read back to
the jury portions of the victim’s testimony. We therefore
affirm Price’s conviction and sentence.

I.

The objective facts are fairly undisputed. Price, then
forty-six, was a passenger on the overnight flight from
Tokyo, Japan to Los Angeles, California. A.M., a twenty-
one-year-old college student, and her friend, Maki Fujita,
were traveling on the same flight. After take-off, Price asked
A.M. if he could move from his assigned seat to the
unoccupied seat next to her, a seat where the video monitor
was not working, explaining that his original seat had limited
legroom. A.M. said “okay.” Price attempted to engage A.M.
in conversation, but A.M. could not speak English very well,
and he eventually realized that she was not completely
understanding what he was saying. A flight attendant,
Hidemori Ejima, noticed that Price had changed his seat, and
asked him why. When Price responded that he wanted more
legroom, Ejima offered Price another seat with a working
video monitor and three times more legroom. Price declined
the offer—something Ejima had not seen before in his
twenty-five years as a flight attendant. After food service,
Ejima handed Fujita a note warning Fujita and A.M. to
“watch out” for the person sitting next to them. A.M.
interpreted the warning to mean that Price might try to steal
her wallet or other belongings. She moved her purse and
wallet deeper into her bag and fell asleep.

A.M. woke up to Price touching the right side of her
body, including her arm, hip, and leg. Thinking that Price
was trying to steal the cell phone in her pocket, she moved
the phone to inside the seat pocket and went back to sleep.
When A.M. awoke again, Price was touching her breast.
6 UNITED STATES V. PRICE

A.M. began panicking, but did not want to bother the people
around her. She tried to avoid Price’s touch by pulling the
blankets up to her shoulder and crossing her arms in front of
her. Undeterred, Price placed his blanket over both of them,
covering his arms, and continued to touch her breast, first
over her shirt and then under it. Price then moved his hand
into A.M.’s jeans and underwear and touched her vagina.

In a state of shock, panic, and fear, and looking for the
words to tell Price to stop, A.M. twisted her body toward
Fujita on her left, away from Price. Price hauled her back
around with “strong force” and tried to pull her jeans down.
At this point, Fujita woke up, and, seeing her awake, Price
retreated to his seat. When Fujita asked A.M. if she was
okay, A.M. responded that she was not and asked what she
should do. Fujita told her to tell the flight attendant. A.M.
did not have the English words to explain what happened,
although she was able to ask for “help.”

Price’s perception of the encounter differed from the
others on the plane. He testified that while his hand was on
the armrest, he felt A.M.’s hand touch his. Thinking that this
could be an invitation, Price began to rub her hand. Price
stated that they started holding and rubbing each other’s
hands. As he began moving his hands across A.M.’s body
and to her breast area, he thought she was “enjoying herself”
because she was arching her body, he could feel her
heartbeat, her breathing was intense, and she was opening
and closing her eyes. It was only when Price tried to move
her face toward him and A.M. would not budge that Price
thought something was wrong. At that point, Price noticed
that Fujita was awake, and A.M. then got up. According to
both A.M.’s and Price’s accounts, no words were exchanged
during this encounter. Price agrees A.M. did not verbally
consent to his touching her.
 UNITED STATES V. PRICE 7

While A.M. got up to tell the flight attendant what
happened, Price wrote a note that he never ended up giving
to A.M., which said, “If a man touches you and you don’t
want him to always feel free to say No.” The purser or lead
chief flight attendant, Yosri Zidan, then obtained written
statements from both Price and A.M. Price’s story was that
he changed seats because he wanted more legroom; he then
fell asleep and awoke to find A.M. stroking his hand.

While still in flight, the pilot sent a message to American
Airlines employees at Los Angeles International Airport
(LAX) that read, “WE NEED LAX POLICE TO MEET
AIRPLANE [/] WE HAVE A MOLESTER/FONDLER ON
BOARD.” The LAX Police Department (LAXPD) then
contacted the Transportation Security Administration
(TSA), who in turn contacted the Federal Bureau of
Investigation (FBI). Special Agent David Gates (S.A.
Gates) of the FBI instructed the sergeant at LAX to first
investigate the incident to determine if he needed to respond.

On February 18, 2015, after a federal grand jury indicted
Price for abusive sexual contact under 18 U.S.C. § 2244(b),
Price was formally arrested. Price filed a pre-trial motion to
suppress evidence found in his bag and cell phone, and his
statements to the LAXPD officers and to S.A. Gates, arguing
that he was arrested without probable cause upon the flight’s
arrival at LAX and that he was questioned without being
given Miranda warnings. The government and Price
disputed the 18 U.S.C. § 2244(b) jury instruction, based on
the statute’s use of the word “knowingly.” The district court
ultimately selected the Ninth Circuit’s Model Criminal Jury
Instruction for § 2244(b) and the additional instruction
proposed by Price that “permission” under § 2244(b) can be
express or implied, “that is[,] inferred from words or
actions.” The district court denied Price’s request to instruct
8 UNITED STATES V. PRICE

the jury that, in addition, the government must prove that
Price “knew the sexual contact was without A.M.’s
permission.” The district court reasoned “that it is
appropriate not to read into the statute that which it does not
say it requires.”

Price timely appeals.

II.

18 U.S.C. § 2244(b) provides:

Whoever, in the special maritime and
territorial jurisdiction of the United States . . .
knowingly engages in sexual contact with
another person without that other person’s
permission shall be fined under this title,
imprisoned not more than two years, or both.

“Sexual contact” is defined as “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). The Ninth Circuit’s model instruction provides:

The defendant is charged in [Count _______
of] the indictment with abusive sexual
contact in violation of Section 2244(b) of
Title 18 of the United States Code. In order
for the defendant to be found guilty of that
charge, the government must prove each of
the following elements beyond a reasonable
doubt: First, the defendant knowingly had
sexual contact with [name of victim]; Second,
the sexual contact was without [name of
 UNITED STATES V. PRICE 9

victim]’s permission; and Third, the offense
was committed at [specify place of federal
jurisdiction]. In this case, “sexual contact”
means [specify statutory definition].

Manual of Model Criminal Jury Instructions § 8.180 (2010)
(Ninth Cir. Jury Instructions Comm., amended 2015). The
model instruction does not ask the jury to find that the
defendant subjectively knew that he lacked the victim’s
permission. Price argues that the model instruction was
given in error.

Whether “a jury instruction misstates elements of a
statutory crime” is an issue we review de novo. United
States v. Knapp, 120 F.3d 928, 930 (9th Cir. 1997). We have
not yet addressed whether the term “knowingly” in
§ 2244(b) applies to the phrase “without that other person’s
permission.” As a matter of statutory interpretation, we
generally consider the statute’s language, purpose, history,
and past decisions and controlling law to determine whether
the district court properly instructed the jury. See Taylor v.
United States, 495 U.S. 575, 581 (1990); United States v. Lo,
447 F.3d 1212, 1229 (9th Cir. 2006).

A.

Our analysis begins with the text of the statute. “In
determining what mental state is required to prove a
violation of the statute, we look to its words and the intent of
Congress.” United States v. Johal, 428 F.3d 823, 826 (9th
Cir. 2005). We keep in mind the “background rules of the
common law in which the requirement of some mens rea for
a crime is firmly embedded.” Staples v. United States,
511 U.S. 600, 605 (1994) (citation omitted).
10 UNITED STATES V. PRICE

We begin with the statutory text and interpret “statutory
terms in accordance with their ordinary meaning, unless the
statute clearly expresses an intention to the contrary.” I.R.
ex rel. E.N. v. L.A. Unified Sch. Dist., 805 F.3d 1164, 1167
(9th Cir. 2015) (citation omitted). Examining the text of
§ 2244(b), we conclude that its most natural grammatical
meaning is that the government must prove that the
defendant knew he engaged in sexual contact, not that it
prove that the defendant subjectively knew he lacked
consent. The term “knowingly” modifies only the verb
phrase “engages in sexual contact with another person” and
does not modify the adverbial prepositional phrase “without
that other person’s permission.”

In United States v. X-Citement Video, Inc., the Supreme
Court examined the Protection of Children Against Sexual
Exploitation Act of 1977, which punishes, inter alia, any
person who “knowingly transports or ships in interstate or
foreign commerce” or who “knowingly receives, or
distributes . . . , or knowingly reproduces” from such
commerce “any visual depiction, if—(A) the producing of
such visual depiction involves the use of a minor engaging
in sexually explicit conduct.” 513 U.S. 64, 68 (1994)
(quoting 18 U.S.C. § 2252(a) (1988 ed. & Supp. V 1993)).
The “critical determination” the Court had to make was
whether the term “knowingly,” in the phrases “knowingly
transports or ships” and “knowingly receives, or distributes”
modifies not only those verbs but also the phrase “the use of
a minor.” Id. The Court recognized that “[t]he most natural
grammatical reading . . . suggests that the term ‘knowingly’
modifies only the surrounding verbs: transports, ships,
receives, distributes, or reproduces.” Id. at 68. Nevertheless
the Court was “reluctan[t] to simply follow the most
grammatical reading of the statute,” because the results of
that reading were “positively absurd” and would “sweep
 UNITED STATES V. PRICE 11

within the ambit of the statute actors who had no idea that
they were even dealing with sexually explicit material.” Id.
at 69–70.

We followed suit in construing the most natural
grammatical reading of a statute in United States v.
Backman, 817 F.3d 662 (9th Cir. 2016). There we construed
an analogous mens rea requirement in a criminal sex
trafficking statute, the Trafficking Victims Protection Act of
2000. That statute required proof that the 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.” Id. at 666–67 (quoting 18 U.S.C. § 1591(a)). We
rejected the defendant’s argument that the government must
prove, in addition to proving knowing recruitment, that he
knew his acts affected interstate or foreign commerce,
concluding “it is most natural to read the adverb ‘knowingly’
in [18 U.S.C.] § 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.’” Id. at 667.

Similarly, here, the phrase “without that other person’s
permission” describes the nature or extent of the prohibited
action “engag[ing] in sexual contact” but, grammatically,
does not tie to the term “knowingly.” 18 U.S.C. § 2244(b).
Price attempts to distinguish Backman on the ground that the
phrase “in or affecting interstate or foreign commerce” is
jurisdictional, but that was only a secondary rationale for our
Backman holding, which we found persuasive in a Seventh
Circuit opinion, United States v. Sawyer, 733 F.3d 228 (7th
Cir. 2013). The principal rationale in Backman was our view
12 UNITED STATES V. PRICE

of the statute’s most natural grammatical reading, which
demonstrates the statute’s ordinary meaning.

Our reading of § 2244(b) is consistent with our precedent
for interpreting mens rea requirements in criminal statutes.
“When interpreting federal criminal statutes that are silent
on the required mental state, we read into the statute only
that mens rea which is necessary to separate wrongful
conduct from otherwise innocent conduct.” Elonis v. United
States, 135 S. Ct. 2001, 2010 (2015) (internal quotation
marks and citation omitted). Thus, although courts must be
careful not to interpret crimes too broadly, “[i]n some cases,
a general requirement that a defendant act knowingly is itself
an adequate safeguard.” Id.

Here, the other elements of § 2244(b) provide that
adequate safeguard. First, the statute already provides for a
mens rea requirement that the defendant engage in sexual
contact knowingly, rendering unnecessary a second mens rea
requirement. See Lo, 447 F.3d at 1230 (finding that a
conviction under 21 U.S.C. § 841(c)(2) did not require
knowledge that the substance was a listed chemical, because
the mens rea requirement that the defendant knowingly
possessed or distributed the chemical was sufficient to
ensure that “apparently innocent conduct is not
criminalized”). Second, the government must also prove
beyond a reasonable doubt that the sexual contact was
without the victim’s permission, which is sufficient to render
it wrongful. See, e.g., United States v. Gavin, 959 F.2d 788,
791–92 (9th Cir. 1992). As the district court properly
recognized in instructing the jury on “permission,” although
it is an objective concept, it includes both explicit and
implicit permission, and may be proven by circumstantial
evidence. Thus, hewing close to the natural grammatical
reading of “knowingly” here does not portend “absurd”
 UNITED STATES V. PRICE 13

results that would sweep up innocent actors not intended to
be covered by the statute. Cf. X-Citement Video, 513 U.S.
at 69.

Flores-Figueroa v. United States, 556 U.S. 646 (2009),
is inapposite. In Flores-Figueroa, the Supreme Court
considered a federal aggravated identity theft statute that
provided for an increased criminal penalty of an additional
two years of imprisonment for certain offenses if the
offender “knowingly transfers, possesses, or uses, without
lawful authority, a means of identification of another
person.” 18 U.S.C. § 1028A(a)(1). The Court concluded
that the term “knowingly” modified the entire sentence such
that the government needed to show that the defendant knew
that the “means of identification” belonged to “another
person.” Flores-Figueroa, 556 U.S. at 657; see also id. at
650 (“It makes little sense to read the provision’s language
as heavily penalizing a person who ‘transfers, possesses, or
uses, without lawful authority’ a something, but does not
know, at the very least, that the ‘something’ (perhaps inside
a box) is a ‘means of identification.’ Would we apply a
statute that makes it unlawful ‘knowingly to possess drugs’
to a person who steals a passenger’s bag without knowing
that the bag has drugs inside?”).

Price argues that Flores-Figueroa requires us to adopt
his interpretation of § 2244(b) because “courts ordinarily
read a phrase in a criminal statute that introduces the
elements of a crime with the word ‘knowingly’ as applying
that word to each element.” Id. at 652. But Price
erroneously takes the Flores-Figueroa holding out of the
context of the aggravated identity theft statute. As the Court
reasoned, Flores-Figueroa’s directives were specific to
particular grammatical contexts that “[i]n ordinary English,
where a transitive verb has an object, listeners in most
14 UNITED STATES V. PRICE

contexts assume that an adverb (such as knowingly) that
modifies the transitive verb tells the listener how the subject
performed the entire action, including the object as set forth
in the sentence.” Id. at 650. This grammatical structure does
not appear in § 2244(b), where the phrase in question—
“without that other person’s permission”—is not the object
of the sentence but an adverbial prepositional phrase.

Second, and most importantly, in Flores-Figueroa, the
mens rea requirement was necessary to “separate wrongful
conduct from otherwise innocent conduct.” Elonis, 135 S.
Ct. at 2010 (internal quotation marks and citation omitted).
By contrast, “[h]ere, there is no potential for the penalization
of innocent conduct nor do we face constitutional avoidance
concerns.” United States v. Jefferson, 791 F.3d 1013, 1016–
18 (9th Cir. 2015) (finding it unnecessary to extend the
“knowingly or intentionally” mens rea to the type and
quantity of drugs at issue, where the requirement that the
government prove the other elements of the case was
“sufficient to ensure the statute penalizes only culpable
conduct”). We have explicitly rejected the notion that the
Court’s reading of “knowingly” in Flores-Figueroa compels
the same reading in every criminal statute that uses the word
“knowingly.” See id. at 1017–18 (“Because [21 U.S.C.]
§ 960’s statutory text and structure are not parallel to that of
§ 1028A(a)(1), the ordinary grammatical interpretive rules
articulated in Flores-Figueroa do not apply here.”); United
States v. Stone, 706 F.3d 1145, 1147 (9th Cir. 2013) (“[T]he
Court in Flores-Figueroa did not announce an ‘inflexible
rule of construction.’ Rather, statutory interpretation
remains a contextual matter.” (citations omitted)); United
States v. Castagana, 604 F.3d 1160, 1166 (9th Cir. 2010)
(rejecting the argument that the court “treat ‘with intent’ the
same way the Supreme Court treated ‘knowingly’ in Flores-
Figueroa” because “the language of the statute in Flores-
 UNITED STATES V. PRICE 15

Figueroa is not parallel to that of [18 U.S.C.] § 1038(a)(1)”).
Indeed, the Flores-Figueroa Court itself cautioned that “the
inquiry into a sentence’s meaning is a contextual one.”
556 U.S. at 652.

As the X-Citement Video Court advised, however, this
does not necessarily end our analysis “because of the
respective presumptions that some form of scienter is to be
implied in a criminal statute even if not expressed.” 513 U.S.
at 69. We therefore next examine the structure, Marks v.
Crunch San Diego, LLC, 904 F.3d 1041, 1051 (9th Cir.
2018), and legislative history of the statute, to determine if
we, like the X-Citement Video Court, should be reluctant to
“simply follow the most grammatical reading of the statute,”
513 U.S. at 70.

B.

Section 2244(b) is part of a statutory scheme
criminalizing abusive sexual contact. First, subsection (a)
criminalizes conduct that, “had the sexual contact been a
sexual act,” would be “punished [elsewhere] by this
chapter.” 18 U.S.C. § 2244(a). Second, subsection (b)
criminalizes sexual contact “[i]n other circumstances.” Id.
§ 2244(b). Finally, subsection (c) enhances the sentence
“[i]f the sexual contact that violates this section (other than
subsection (a)(5)) is with an individual who has not attained
the age of 12 years.” Id. § 2244(c).

Subsections 2244(a) and 2244(b) work in parallel ways,
and we must read the two subsections together. See United
States v. Lewis, 67 F.3d 225, 228–29 (9th Cir. 1995)
(“Particular phrases must be construed in light of the overall
purpose and structure of the whole statutory scheme.”).
Both § 2244(a) and (b) require that the defendant
“knowingly” have “sexual contact” and set forth one
16 UNITED STATES V. PRICE

additional element of the offense. In § 2244(a), the
additional element the government must prove is that the
sexual contact would be punishable by certain other statutes
if the sexual contact had instead been a sexual act; 1 in
§ 2244(b), the additional element is the victim’s lack of
permission. The government is not required to prove that the
defendant knew that the second element of § 2244(a) was
met—in other words, the government need not prove that the
defendant knew that the sexual contact he engaged in would
have been punished by another law if the contact had risen
to the level of a sexual act. We have not read § 2244(a)(3)
to tie the word “knowingly” to the second element. Courts
have instead read the second element as subject to objective
proof. United States v. Granbois, 376 F.3d 993, 995 (9th
Cir. 2004) (delineating the elements for conviction under
§ 2244(a)(3), which does not include a mens rea requirement

1
18 U.S.C. § 2246(2) defines the term “sexual act” as

(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;

(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.
 UNITED STATES V. PRICE 17

for the second element); see also United States v. Jennings,
496 F.3d 344, 352 (4th Cir. 2007) (concluding that to
determine a violation of § 2244(a)(3), “under the
straightforward language of the statute, we are to read
§ 2243(a) and determine whether [the defendant] had
committed that offense, substituting for ‘sexual act’ the term
‘sexual contact’”). To read “knowingly” to apply to the
second element in § 2244(a) would both be grammatically
unnatural and produce absurd results. Because a conviction
under § 2244(a) does not require that the government prove
the defendant’s knowledge of the additional element, we
should read § 2244(b) in the same manner.

Price argues that reading the statute along with its
neighboring provisions, 18 U.S.C. § 2241(c) and § 2243(a),
requires the opposite interpretation. Section 2244(b) follows
the same general sentence structure as the other two
subsections—although the other two subsections address
sexual acts with minors, a more serious crime than sexual
contact. According to Price, because § 2241(d) and
§ 2243(d) expressly provide that “the Government need not
prove that the defendant knew” the age of the minor, the
absence of such a provision in § 2244(b) indicates that
Congress intended that the government must prove that the
defendant knew that sexual contact was without permission.
We disagree.

Sections 2241 (aggravated sexual abuse) and 2243
(sexual abuse of a minor or ward) impose severe penalties,
with maximum sentences of life imprisonment and fifteen
years, respectively. By contrast, § 2244(b) prescribes a
maximum sentence of no more than two years. 2 We
generally expect that criminal laws subject to potentially

2
The district court sentenced Price to probation for three years.
18 UNITED STATES V. PRICE

more severe penalties would require more stringent mens rea
requirements. See Staples, 511 U.S. at 618 (“[A] severe
penalty is a further factor tending to suggest that Congress
did not intend to eliminate a mens rea requirement.”); cf.
United States v. Gomez-Leon, 545 F.3d 777, 793 (9th Cir.
2008) (“Commensurate with lesser punishment is a lesser
mens rea requirement . . . .” (citation omitted)). Thus,
Congress’s decision to expressly eliminate the mens rea
requirements in § 2241 and § 2243 is not instructive of the
proper interpretation of § 2244(b). Sections 2241 and 2243,
with their harsh sentencing maximums, require the explicit
statement that “the Government need not prove that the
defendant knew” the age of the minor victim in order to
overcome the strong presumption “that Congress did not
intend to eliminate a mens rea requirement.” Staples,
511 U.S. at 618. Section 2244(b) does not give rise to the
same strong presumption because its violation bears a
dramatically less severe consequence. Moreover, § 2243(c)
provides that mistake about age can be a defense, making
§ 2243(d) necessary to clarify that knowledge of age is not
an element. Therefore, Congress’s decision not to explicitly
eliminate the knowledge requirement in § 2244(b) is of no
import. It would have been redundant to do so because it
was already clear from the language of the statute itself,
together with its relatively light penal consequence, that the
government need not prove knowledge as to the second
element. 3

3
Price points to an Eighth Circuit opinion that relied on this
comparison with § 2241(c) and § 2243(a) to hold that 18 U.S.C.
§ 2242(2), which addresses sexual abuse of an incapacitated person,
requires that the defendant knew the victim was incapacitated or unable
to grant consent. United States v. Bruguier, 735 F.3d 754, 761 (8th Cir.
2013) (en banc). We are not persuaded by Price’s argument because
§ 2242(2) also has a severe maximum penalty of life imprisonment,
 UNITED STATES V. PRICE 19

Furthermore, Price’s logic would produce absurd results
in interpreting § 2244 as a whole. Subsection 2244(c)
provides that, “If the sexual contact that violates this section
(other than subsection (a)(5)) is with an individual who has
not attained the age of 12 years, the maximum term of
imprisonment that may be imposed for the offense shall be
twice that otherwise provided in this section.” That the only
mens rea requirement in § 2244(a) and (b) is the defendant’s
knowing engagement in sexual contact is only bolstered by
§ 2244(c)’s omission of any explicit provision that the
defendant need not know the person was under the age of
twelve. Price’s argument would read into subsection (c) a
requirement that the government prove that the defendant
knew that the child was under twelve to sustain a conviction
under § 2244(c). Congress could not have intended to
impose that extra mens rea requirement on sexual contact
with a child under § 2244(c), with less severe penalties,
when it chose not to impose that requirement on sexual abuse
of a child under § 2241(c) and § 2243(a), with penalties as
severe as life in prison.

C.

“Although we need not rely on legislative history
because the statute is unambiguous, the legislative history of
the statute and common sense support” our conclusion.
Castagana, 604 F.3d at 1164. Congress’s stated purpose in
enacting the Sexual Abuse Act of 1986 was to “modernize[]
and reform[] Federal rape provisions by . . . defining the
offenses so that the focus of a trial is upon the conduct of the
defendant” and “expanding the offenses to reach all forms of
sexual abuse of another,” among other changes. H.R. Rep.

unlike § 2244(b). We do not think the Eighth Circuit’s interpretation of
§ 2242(2) affects our analysis of § 2244(b) in any way.
20 UNITED STATES V. PRICE

No. 99-594, at 10–11 (1986). The House Report also
communicated Congress’s expectation that the law would
“simplify law enforcement” activities. Id. at 21. It would be
inconsistent with these goals to hold that Congress intended
to require proof that the defendant subjectively knew the
victim did not consent.

In enacting the 1986 Act, Congress was concerned with
whether lack of consent needed to be an element at all, and
it consistently described this element in objective terms.
See, e.g., id. at 13 (“Where the Committee believes it
appropriate to the offense to require the prosecution to show
that the conduct was engaged in without the victim’s
permission, such a requirement has explicitly been set
forth.”). Congress would not have singled out § 2244(b) for
an onerous burden of proof without comment given that its
goal was to facilitate prosecutions. See id. at 12 (explaining
that the 1986 Act was “drafted broadly to cover the widest
possible variety of sexual abuse”); cf. Lo, 447 F.3d at 1231
(9th Cir. 2006) (“[I]t seems very unlikely that Congress
would have chosen to make prosecution more difficult by
requiring proof that the defendant knew that the chemical
was a listed chemical, while at the same time seeking to
expand the scope of prosecution for the possession and
distribution of precursor chemicals by increasing the number
of chemicals that could provide the basis for prosecution.”). 4

4
We agree with Judge Gilman’s conclusion that even if the statute
required the government to prove that Price subjectively knew the sexual
contact was without permission, any error in the jury instruction was
harmless. See United States v. Pierre, 254 F.3d 872, 877 (9th Cir. 2001).
Given the totality of the circumstances, it was clear beyond a reasonable
doubt that Price subjectively knew that he did not have permission to
have sexual contact with A.M.
 UNITED STATES V. PRICE 21

III.

Price also argues that all of his statements and the
evidence seized from him when he was escorted from the
plane and handcuffed by LAXPD Officers Christopher
Faytol and Ngan Lee, and at least one U.S. Customs and
Border Protection officer, should be suppressed. He
contends that the officers lacked probable cause to arrest him
at the arrival gate. The district court concluded that because
the officers did not arrest Price at that time, there was no
need to demonstrate probable cause. While we disagree with
the district court as to whether an arrest occurred, we
conclude that the officers had probable cause to arrest Price
as he disembarked from the plane. Therefore, the district
court did not err by denying Price’s suppression motion.

We review de novo the denial of a motion to suppress,
although we review underlying factual findings for clear
error. United States v. Fernandez-Castillo, 324 F.3d 1114,
1117 (9th Cir. 2003). “The determination of probable cause
to arrest a suspect is a mixed question of law and fact
reviewed de novo.” United States v. Nava, 363 F.3d 942,
944 (9th Cir. 2004) (citation omitted).

In the context of an international border, an arrest occurs
when “a reasonable person would believe that he is being
subjected to more than the temporary detention occasioned
by border crossing formalities.” United States v. Bravo,
295 F.3d 1002, 1009 (9th Cir. 2002) (internal quotation
marks and citation omitted). We ask, considering the totality
of the circumstances, “whether a reasonable innocent person
in such circumstances would conclude that after brief
questioning he or she would not be free to leave.” Id.
(internal quotation marks and citation omitted).
“[H]andcuffing is a substantial factor in determining
whether an individual has been arrested”—although it
22 UNITED STATES V. PRICE

“alone is not determinative.” Id. at 1010; see also United
States v. Guzman-Padilla, 573 F.3d 865, 884 (9th Cir. 2009)
(“[O]fficers with a particularized basis to believe that a
situation may pose safety risks may handcuff or point a gun
at an individual without converting an investigative
detention into an arrest.”).

Price was escorted by three armed law enforcement
officers off the plane at a remote gate, while the rest of the
passengers remained seated. Officer Faytol performed a pat-
down search and Officer Lee handcuffed him. This was not
a routine border airport screening and search process, as the
district court found. Although the officers cited safety
justifications for handcuffing Price, including the fear that
Price might become aggressive as other passengers
deplaned, the officers kept Price in handcuffs until the FBI
interviewed him—from the time Price deplaned at
approximately 9:08 AM, until after S.A. Gates arrived at
around 11:30 AM. This was not a “temporary detention
occasioned by border crossing formalities”; this was an
arrest. Bravo, 295 F.3d at 1009 (citation omitted).

We nevertheless conclude that the officers had probable
cause to believe Price had committed a crime when they
arrested him. Police may arrest a suspect if “under the
totality of circumstances known to the arresting officers, a
prudent person would have concluded that there was a fair
probability that the defendant had committed a crime.”
Beier v. City of Lewiston, 354 F.3d 1058, 1065 (9th Cir.
2004) (internal alteration marks and citation omitted). We
must “consider the nature and trustworthiness of the
evidence of criminal conduct available to the police.” Id. at
1064. The police need not know, however, precisely what
offense has been committed. See United States v. Chatman,
573 F.2d 565, 567 (9th Cir. 1977) (per curiam) (finding
 UNITED STATES V. PRICE 23

probable cause where officers believed only that the
defendant was “clandestinely engaging in illegal business of
some kind”).

Here, the officers had “reasonably trustworthy
information” to arrest Price as he deplaned. Beier, 354 F.3d
at 1064. They knew that a female passenger had reported
that Price had perpetrated a sexual offense. The pilot had
sent an advance message asking LAXPD to meet the
airplane, stating “WE HAVE A MOLESTER/FONDLER
ON BOARD.” The actions of the flight crew demonstrated
that they viewed the allegations as credible as they sought
law enforcement assistance.

We reject Price’s argument that the officers lacked
probable cause because the information available to the
officers was not trustworthy. We acknowledge the minor
differences in the officers’ recollections of the event at the
suppression hearing—Faytol recalled that the incident was a
“290,” the code for sexual battery, while Lee recalled that
the incident was a “311,” the code for indecent exposure.
However, these differences did not render the information
untrustworthy. Price also points to S.A. Gates’s testimony
that mid-flight reports can be unreliable because they
involve a series of messengers. Although we disagree that
mid-flight reports are categorically so untrustworthy that
they can never establish probable cause, we need not address
these concerns here because before arresting Price, the
officers spoke directly with the purser, lead flight attendant
Zidan, who reported that a female passenger had complained
about a male passenger touching her and gave details about
where both individuals were sitting on the plane. Based on
purser Zidan’s report, “a prudent person would have
concluded that there was a fair probability that the defendant
24 UNITED STATES V. PRICE

had committed a crime.” Id. at 1065 (internal alteration
marks and citation omitted).

IV.

Price also moved to suppress the statements he made to
S.A. Gates when he was interviewed, contending that he did
not adequately understand his rights when he waived them.
He points to the transcript of the interview where he
expressed confusion as to whether he was being arrested.
We agree with the district court, however, that though Price
may have been confused about whether he was under arrest,
there was no doubt that his Miranda waiver was knowing,
intelligent, and voluntary, and that his statements were
voluntarily made. “We review a district court’s ruling on a
Miranda waiver under two standards: Whether the waiver
was knowing and intelligent is a question of fact that we
review for clear error. Whether the waiver was voluntary is
a mixed question of fact and law, which we review de novo.”
United States v. Rodriguez-Preciado, 399 F.3d 1118, 1127
(9th Cir.) (citation omitted), amended by 416 F.3d 939 (9th
Cir. 2005). “We review de novo the voluntariness of a
confession and the factual findings supporting the
determination for clear error.” United States v. Heller,
551 F.3d 1108, 1112 (9th Cir. 2009) (citation omitted).

Before S.A. Gates interviewed Price, he removed the
handcuffs. S.A. Gates then explained to Price his Miranda
rights, describing it as “just like you see on T.V.” Price first
sought clarification that he was not arrested, which S.A.
Gates confirmed, and S.A. Gates then recited the Miranda
rights, as Price read along and responded “Mm-hmm” at
various points. At the end, Price asked once again whether
or not he was under arrest, noting that in movies, when you
hear Miranda rights, “you know that somebody is being
arrested.” S.A. Gates again assured Price that he was not
 UNITED STATES V. PRICE 25

under arrest. Price signed the “Advice of Rights” form. At
the end of the interview, S.A. Gates cited Price with simple
assault and allowed him to leave.

“To admit an inculpatory statement made by a defendant
during custodial interrogation, the defendant’s waiver of
Miranda rights must be voluntary, knowing, and
intelligent.” United States v. Shi, 525 F.3d 709, 727 (9th Cir.
2008) (internal quotation marks and citation omitted). In
determining the knowing and intelligent nature of the
waiver, we consider the totality of the circumstances,
including

(i) the defendant’s mental capacity;
(ii) whether the defendant signed a written
waiver; (iii) whether the defendant was
advised in his native tongue or had a
translator; (iv) whether the defendant
appeared to understand his rights;
(v) whether the defendant’s rights were
individually and repeatedly explained to him;
and (vi) whether the defendant had prior
experience with the criminal justice system.

United States v. Crews, 502 F.3d 1130, 1140 (9th Cir. 2007)
(citation omitted).

Price disputes only the fourth factor—whether he
understood his rights. Price argues that his questions to S.A.
Gates showed that he did not understand that he could
exercise his Miranda rights. However, Price’s questions
were all directed towards clarifying whether or not he was
actually under arrest. As the district court found, Price “was
not confused as to the nature and extent of his rights” but
rather “was confused about why (‘the reason’) he was being
26 UNITED STATES V. PRICE

read his rights given that SA Gates had told him only
moments earlier that he was not under arrest.”

We must also find that both Price’s waiver and the
statements themselves were voluntary. A Miranda “waiver
is voluntary if, under the totality of the circumstances, the
confession was the product of a free and deliberate choice
rather than coercion or improper inducement.” United States
v. Doe, 155 F.3d 1070, 1074 (9th Cir. 1998) (en banc)
(citation omitted). We find the confession voluntary unless,
“considering the totality of the circumstances, the
government obtained the statement by physical or
psychological coercion or by improper inducement so that
the suspect’s will was overborne.” Heller, 551 F.3d at 1112
(citation omitted).

We agree with the district court that both Price’s waiver
and his statements were voluntary. Price mischaracterizes
the record of the interview. S.A. Gates never threatened
Price with his power to detain him unless he answered S.A.
Gates’s questions. It is evident from the record that S.A.
Gates stated in a jocular manner that he could find a reason
to arrest Price if Price wanted—a joke that elicited Price’s
laughter—and S.A. Gates explained that it was his
expectation that Price would “walk out of here” that day.
The interview does not reveal any sign of coercion: Price
was not in handcuffs or otherwise physically restrained, and
the FBI agents asked Price if he was doing okay and if he
needed water or to use the bathroom.

V.

The district court did not abuse its discretion by
declining to read back A.M.’s testimony when requested by
the jury. We review denials of a jury’s request to read back
a witness’s testimony for abuse of discretion and have noted
 UNITED STATES V. PRICE 27

“the district court’s great latitude to address requests for
readbacks.” United States v. Medina Casteneda, 511 F.3d
1246, 1249 (9th Cir. 2008). “In general, rereading is
disfavored because of the emphasis it places on specific
testimony and the delay it causes in the trial.” United States
v. Nolan, 700 F.2d 479, 486 (9th Cir. 1983) (citation
omitted). During deliberations, the jury asked for a
transcript of Price’s FBI interview and of A.M.’s testimony.
We reject Price’s argument that because the district court
acquiesced to the jury’s request by replaying the recording
of Price’s FBI interview, the simultaneous decision not to
read back A.M.’s testimony was improper.

Here, the district court gave two appropriate reasons for
denying the readback. First, it cited the logistical difficulties
in preparing a readback, and second, it expressed concern
that reading back A.M.’s testimony without also reading
back Price’s testimony would lead to an unfair focus on one
part of the trial over others. We have determined that the
district court’s rationale is appropriate as a basis for
declining a readback of testimony. See, e.g., Medina
Casteneda, 511 F.3d at 1249 (finding no abuse of discretion
in the district court’s denial of the jury’s request for a
readback because of the concern that the jury would focus
on “one particular piece of evidence at the expense of other
evidence”).

VI.

In enacting the Sexual Abuse Act of 1986, of which
18 U.S.C. § 2244(b) is a part, Congress sought to expand
criminal culpability for sexual acts and contacts and
facilitate prosecution of those crimes. Thus it placed the
burden on the actor who knowingly engages in sexual
contact with another person to first obtain that person’s
consent, objectively given. The government need not prove
28 UNITED STATES V. PRICE

that the defendant subjectively knew he lacked consent, as
Price asserted here. It need only prove that the victim did
not consent as an objective matter. Because Price’s
remaining contentions also lack merit, we AFFIRM his
conviction and sentence.

GILMAN, Circuit Judge, concurring:

I concur in the lead opinion’s conclusion that Juan Pablo
Price’s conviction should be affirmed. But I respectfully
disagree with its holding that the term “knowingly” in
18 U.S.C. § 2244(b) modifies only the phrase “engages in
sexual contact with another person” and does not extend to
the phrase “without that other person’s permission.” That
holding is contrary to the plain text of the provision and its
place in the overall statutory scheme.

In order to obtain a conviction under 18 U.S.C.
§ 2244(b), I believe that the government has the burden of
proving that Price subjectively knew that he was acting
without A.M.’s permission. The statute, in other words, does
not criminalize otherwise innocent sexual contact based on
a factCthe lack of permissionCunknown to the defendant.
That the defendant knew he lacked permission may be
proved by circumstantial evidence but, nevertheless, the
defendant’s subjective knowledge is an issue to be resolved
by the jury.

Accordingly, the district court erred in refusing to
instruct the jury that such knowledge was necessary to
convict Price under 18 U.S.C. § 2244(b). Despite the court’s
faulty instructions, however, the error was harmless beyond
a reasonable doubt because no reasonable juror could have
concluded that Price subjectively believed that he had
 UNITED STATES V. PRICE 29

permission to touch a sleeping stranger’s breast. I therefore
concur in the ultimate judgment reached by the lead opinion.

Introductory Note

Prior to his death in March 2018, Judge Stephen
Reinhardt was a member of this panel and prepared a draft
opinion holding that the “knowingly” mens rea requirement
contained in 18 U.S.C. § 2244(b) should be applied to each
element of the offense, including that the sexual contact be
without the other person’s permission. Unabashedly, much
of this concurrence can be attributed to the portions of Judge
Reinhardt’s draft opinion with which I fully agree.

I.

This case requires us to interpret the following statute:

Whoever, in the special maritime and
territorial jurisdiction of the United States,
. . . knowingly engages in sexual contact with
another person without that other person’s
permission shall be fined under this title,
imprisoned not more than two years, or both.

18 U.S.C. § 2244(b) (emphases added). For the following
reasons, I disagree with the lead opinion’s conclusion that a
conviction under § 2244(b) does not require the government
to prove that the defendant knew that he lacked permission
to engage in sexual contact with the other person.

A.

In Flores-Figueroa v. United States, 556 U.S. 646
(2009), the Supreme Court interpreted a statute that provided
for increased criminal penalties for certain offenses if the
30 UNITED STATES V. PRICE

offender “knowingly transfers, possesses, or uses, without
lawful authority, a means of identification of another
person.” Id. at 648. The Court held that, “[i]n ordinary
English, where a transitive verb has an object, listeners in
most contexts assume that an adverb (such as knowingly)
that modifies the transitive verb tells the listener how the
subject performed the entire action, including the object as
set forth in the sentence.” Id. at 650 (emphasis added).
Moreover, “courts ordinarily read a phrase in a criminal
statute that introduces the elements of a crime with the word
‘knowingly’ as applying that word to each element.” Id. at
652; see also id. at 660 (Alito, J., concurring) (“I think it is
fair to begin with a general presumption that the specified
mens rea applies to all the elements of an offense . . . .”).

The statute that we are asked to interpret, just like the
one in Flores-Figueroa, lists all of the elements of the
offense in a single phrase that begins with the word
“knowingly.” Flores-Figueroa therefore requires us to
presume that the word “knowingly” dictates how the
defendant must have “performed the entire action”Cthat is,
that he knew that he was engaging in sexual contact and that
he knew he was doing so without the other person’s
permission. See id. at 650 (majority opinion). Sexual
contact with permission and sexual contact without
permission are legally worlds apart.

The Eighth Circuit reached the same conclusion in
interpreting a related statute in United States v. Bruguier,
735 F.3d 754 (8th Cir. 2013) (en banc). That statute,
18 U.S.C. § 2242(2), applies to anyone who, in certain
extended federal jurisdictions, “knowingly— . . . engages in
a sexual act with another person if that other person is—
(A) incapable of appraising the nature of the conduct; or
(B) physically incapable of declining participation in, or
 UNITED STATES V. PRICE 31

communicating willingness to engage in, that sexual act.”
Pursuant to Flores-Figueroa, the Eighth Circuit held that
“there is a presumption that ‘knowingly’ in section 2242(2)
applies to the circumstances following the conjunction ‘if.’”
Id. at 758.

The case for applying the Flores-Figueroa presumption
to § 2244(b) is even stronger than it is for applying that
presumption to § 2242(2). In Bruguier, the dissent identified
three aspects of the text of § 2242(2) that, it argued,
counseled against applying the Flores-Figueroa
presumption: (1) “[t]he requirement of ‘knowingly’ is . . .
set apart by two sets of interruptive punctuation” from the
element at issue, (2) the relevant elements in § 2242(2) are
contained in a “conditional ‘if’ clause,” and (3) the relevant
elements in § 2242(2) are contained in “separate subsections
describing the victim’s condition.” Bruguier, 735 F.3d at
775–77 (Murphy, J., concurring in part and dissenting in
part). None of those facts are true of § 2244(b). If the
Flores-Figueroa presumption applies to § 2242(2), then it
certainly applies to the much simpler and more
straightforward phrase defining the offense in § 2244(b).

The lead opinion disagrees, contending that Flores-
Figueroa is inapposite for two reasons. First, the lead
opinion argues that Flores-Figueroa does not apply to
§ 2244(b) because “the phrase in question—‘without that
other person’s permission’—is not the object of the sentence
but an adverbial prepositional phrase.” Lead Op. 14. Even
assuming that the lead opinion’s grammatical analysis is
correct, the conclusion reached does not logically follow.
Flores-Figueroa did not turn on whether the element
modified the verb or the object, nor did it transform us into
“a panel of grammarians.” Flora v. United States, 362 U.S.
145, 150 (1960). Rather, it recognized a broadly applicable
32 UNITED STATES V. PRICE

principle—i.e., that “knowingly” typically tells us how the
defendant “performed the entire action.” Flores-Figueroa,
556 U.S. at 650.

Second, the lead opinion argues that, “in Flores-
Figueroa, the mens rea requirement was necessary to
‘separate wrongful conduct from otherwise innocent
conduct,’” whereas § 2244(b) without a mens rea
requirement for its lack of permission element would not
penalize innocent conduct. Lead Op. 14. But the lead
opinion fails to explain why § 2244(b) would not in fact do
exactly that if the government need not prove that the
defendant subjectively knew that he lacked permission to
engage in sexual contact with the other person.

The inclusion of some mens rea requirement is not
necessarily enough to ensure that “a broad range of
apparently innocent conduct” is not swept into a criminal
prohibition. Liparota v. United States, 471 U.S. 419, 426
(1985). If a mens rea requirement is interpreted to require
knowledge of only innocent facts, then a person could be
convicted despite genuinely believing that his acts were
entirely proper. Staples v. United States, 511 U.S. 600, 612,
618–19 (1994).

Knowingly engaging in sexual contact is, of course, not
illegal. Innocent people do it all the time. The element in
§ 2244(b) requiring that the sexual contact be “without [the]
other person’s permission” is the actual linchpin of the
offense. Therefore, if § 2244(b) requires a guilty mind, then
the mens rea requirement must apply to the lack-of-
permission element. The requirement that the defendant
knew that he was engaging in sexual contact per se does
nothing to separate innocent from criminal behavior.
 UNITED STATES V. PRICE 33

Nor does the requirement that the government prove that
the sexual contact was objectively without the other person’s
permission obviate the need for a second mens rea
requirement. See Lead Op. 12–13. Again, the element
requiring that the sexual contact be “without [the] other
person’s permission” is what makes the sexual contact
illegal under the statute. This means that “the presumption
in favor of a scienter requirement should apply” to the
permission element of § 2244(b) because that is the element
“criminaliz[ing] otherwise innocent conduct.” See United
States v. X-Citement Video, Inc., 513 U.S. 64, 72–73 (1994)
(holding that because “the age of the performers is the
crucial element separating legal innocence from wrongful
conduct” under a child-pornography statute, the statute
requires that the defendant have knowledge of the
performer’s age).

I acknowledge that the lead opinion cites cases in which
this court has held that Flores-Figueroa’s reading of
“knowingly” does not compel the same reading in every
criminal statute that uses the word “knowingly.” Lead Op.
13–14. Although the lead opinion is correct in stating that
“the inquiry into a sentence’s meaning is a contextual one,”
Flores-Figueroa, 556 U.S. at 652, the cases it cites are
distinguishable from the present case.

In United States v. Jefferson, 791 F.3d 1013, 1016–18
(9th Cir. 2015), for example, this court determined that
Flores-Figueroa did not apply because the text of the statute
before it, 21 U.S.C. § 960(a), was not parallel to the statute
at issue in Flores-Figueroa. The Jefferson court held that
the “knowingly” mens rea requirement did not apply to an
element that was contained in a different sentence—indeed,
in an entirely separate subsection. Id. at 1015; see also
United States v. Stone, 706 F.3d 1145, 1147 (9th Cir. 2013)
34 UNITED STATES V. PRICE

(holding that 18 U.S.C. § 924(a)(2)’s mens rea requirement
for possessing ammunition did not apply to 18 U.S.C.
§ 922(g)’s requirement that the ammunition travel in
interstate commerce); United States v. Castagana, 604 F.3d
1160, 1166 (9th Cir. 2010) (declining to apply Flores-
Figueroa to 18 U.S.C. § 1038(a)(1), but addressing a
specific mens rea requirement that formed its own self-
contained phrase). Accordingly, the cases cited by the lead
opinion do not concern statutes that resemble the statute
here, where the word “knowingly” is at the beginning of a
phrase defining all the elements of the offense.

The lead opinion also cites United States v. Backman,
817 F.3d 662 (9th Cir. 2016), which dealt with a sex-
trafficking statute requiring proof that the “[d]efendant
‘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.’” Id. at 666–67 (quoting 18 U.S.C. § 1591(a)). This
court held that the government need not prove, in addition to
proving knowing recruitment, that the defendant knew that
his acts affected interstate or foreign commerce. It reasoned
that “[t]he phrase ‘in or affecting interstate or foreign
commerce’ describes the nature or extent of those actions
but, grammatically, does not tie to ‘knowingly.’” Id. at 667.

Backman, however, is no more persuasive on the issue
before us than is Jefferson, Stone, or Castagna. The
Backman court addressed a jurisdictional element, an
element that turns what would otherwise be a state crime into
a federal crime because of its nexus to some aspect of federal
jurisdiction. Id. That decision rested in large part on “[t]he
longstanding presumption . . . that the jurisdictional element
of a criminal statute has no mens rea,” and thus has no
 UNITED STATES V. PRICE 35

relevance to our analysis in this case of a substantive, rather
than jurisdictional, element. Id. The structure of the
sentence at issue in Backman is also markedly different from
the one before us. That statute’s jurisdictional element (“in
or affecting interstate or foreign commerce”) comes between
“knowingly” and the verbs that they both modify, and the
element is set off from both by a dash and a comma. Section
2244(b)’s structure is very different: even if “without that
other person’s permission” were read to modify “engages,”
it follows the verb and is not set off in any way.

In sum, I find the lead opinion unpersuasive in arguing
that the most natural grammatical reading of § 2244(b) does
not require the government to prove that the defendant
subjectively knew that he lacked permission to engage in
sexual contact. The text, in tandem with Supreme Court
precedent, strongly suggests otherwise.

B.

In addition to its text, § 2244(b)’s statutory scheme
strongly indicates that the “knowingly” mens rea
requirement applies to the lack-of-permission element of the
crime. Section 2244 was adopted as part of the Sexual
Abuse Act of 1986, Pub. L. No. 99-646, § 87(b), 100 Stat.
3592, 3620B23. Several other provisions were also adopted
as part of this same Act, including § 2242 (the statute at issue
in Bruguier), § 2241, and § 2243. Each of these sections
addresses forms of sexual assault within certain extended
federal jurisdictions.

Most important to our analysis in this case are § 2241(c)
and § 2243(a), which deal with sexual acts that are criminal
due to the other person’s age. Section 2241(c) applies to
anyone who, in certain extended federal jurisdictions,
“knowingly engages in a sexual act with another person who
36 UNITED STATES V. PRICE

has not attained the age of 12 years,” while § 2243(a) applies
to anyone who, in certain extended federal jurisdictions,
“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.”

As the Eighth Circuit explained in exhaustive detail
when comparing § 2242(2) to § 2241(c) and § 2243(a), the
structure of the three provisions is very similar: each bars
knowingly engaging in a sexual act when certain
circumstances are also present. Section 2244(b), the statute
in question here, follows the same structure as the other three
sections, although it addresses sexual contact rather than
sexual acts. See United States v. Bruguier, 735 F.3d 754,
759 (8th Cir. 2013) (en banc) (charting the parallel structure
of §§ 2241(c), 2242(2), and 2243(a)). Section 2244(a)(1)–
(5) provides for criminal penalties for “knowingly
engag[ing] in or caus[ing] sexual contact with or by another
person” when doing so would violate various provisions of
§§ 2241–43 “had the sexual contact been a sexual act,”
further confirming the close relationship between § 2244 and
the other three sections. “The interrelationship and close
proximity of these provisions of the statute presents a classic
case for application of the normal rule of statutory
construction that identical words used in different parts of
the same act are intended to have the same meaning.”
Comm’r v. Lundy, 516 U.S. 235, 250 (1996) (internal
quotation marks omitted).

Sections 2241 and 2243, the two sections addressing
sexual contact with minors, include provisions that expressly
limit their mens rea requirements. Section 2241(d) provides
that “the Government need not prove that the defendant
knew that the other person engaging in the sexual act had not
 UNITED STATES V. PRICE 37

attained the age of 12 years,” while § 2243(d) states that “the
Government need not prove that the defendant knewC(1) the
age of the other person engaging in the sexual act; or (2) that
the requisite age difference existed between the persons so
engaging.” Neither § 2242(2) nor § 2244(b) contains an
analogous provision relieving the government of its burden
to prove that the defendant knew of the circumstances that
make the sexual contact a crimeCin § 2242(2), the other
person’s incapacity; in § 2244(b), the lack of permission.

Commenting on the lack of any provision analogous to
§ 2241(d) and § 2243(d) in § 2242(2), the Eighth Circuit
invoked the “general rule of statutory construction that
‘[w]here Congress includes particular language in one
section of a statute but omits it in another section of the same
Act, it is generally presumed that Congress acts intentionally
and purposely in the disparate inclusion or exclusion.’”
Bruguier, 735 F.3d at 759–60 (quoting Rodriguez v. United
States, 480 U.S. 522, 525 (1987)). Thus, the court explained,
“reading section 2242(2) in the broader context of the Act,
and applying Rodriguez’s presumption that ‘disparate
inclusion or exclusion’ of statutory language is intentional,
. . . reinforces the conclusion that ‘knowingly’ in
section 2242(2) applies to the victim-incapacity element of
the offense.” Id. at 760. The court went on to say:

Moreover, interpreting the knowledge
requirement in section 2242(2) to extend only
to knowledge of the sexual act would raise
interpretive concerns with sections 2241 and
2243. . . . If section 2242(2)’s knowledge
requirement were construed to apply only to
knowledge of the sexual act, then this same
construction logically should apply to the
knowledge requirement in sections 2241(c)
38 UNITED STATES V. PRICE

and 2243(a). Doing so, however, would
render superfluous sections 2241(d) and
2243(d), both of which explicitly narrow the
respective statutes’ knowledge requirements.
This would run afoul of “the cardinal
principle of statutory construction that it is
our duty to give effect, if possible, to every
clause and word of a statute.”

Id. (quoting Bennett v. Spear, 520 U.S. 154, 173 (1997)).

I agree with the Eighth Circuit’s analysis, which applies
equally to § 2244(b). The overall structure of these
interrelated statutes reflects Congress’s understanding that,
unless expressly limited, the “knowingly” mens rea
requirements would apply to all the elements of the offense
and not to only the sexual act itself, or else Congress would
not have included limits on the mens rea requirement in
§ 2241(d) and § 2243(d). This understanding is apparent not
only from the text, but is also expressly stated in the
legislative history. In explaining why § 2241(d) was
included in the statute, for example, the House Report states
that “[a]bsent this provision, the government would have had
to prove that the defendant knew that a victim was less than
12 years old, since the state of mind required for the
conduct—knowing—is also required for the circumstance of
the victim’s age.” H.R. Rep. No. 99-594, at 15 n.59 (1986).

“It is inconceivable that Congress meant to create a strict
liability crime by omission in one section of a statute when
Congress affirmatively created strict liability crimes by
inclusion in [two other] sections of the same statute.”
Bruguier, 735 F.3d at 766–67 (Riley, C.J., concurring)
(emphases in original); see also H.R. Rep. No. 99-594,
at 15–18 (discussing and justifying the inclusion of the
 UNITED STATES V. PRICE 39

strict-liability age elements); id. at 19 (discussing § 2244(b)
with no reference to any strict-liability element). Taken
together, therefore, the Flores-Figueroa presumption and
the statutory context clearly establish that the government
must prove that the defendant knew that the sexual contact
was without the other person’s permission in order to obtain
a conviction under 18 U.S.C. § 2244(b).

The lead opinion’s only response to the comparison
among § 2244(b), § 2241(c), and § 2243(a) is that § 2241
and § 2243 impose more severe penalties than § 2244 and,
therefore, § 2241 and § 2243 require an explicit statement
that the government need not prove that the defendant knew
the age of the victim in order to overcome the strong
presumption of such a mens rea requirement.
Section 2244(b), the lead opinion argues, does not give rise
to the same strong presumption because of its less severe
penalties. Lead Op. 17–18. The lead opinion also
distinguished the Eighth Circuit’s decision in Bruguier on
those grounds because § 2242(2), the statute at issue in
Bruguier, “has a severe maximum penalty of life
imprisonment, unlike § 2244(b).” Lead Op. 18 n.3.

But the lead opinion suggests that the presumption that
“some indication of congressional intent, express or implied,
is required to dispense with mens rea as an element of a
crime,” Staples v. United States, 511 U.S. 600, 606 (1994),
applies only when the penalty is severe. Staples, however,
did not hold that the presumption applies only to crimes with
high penalties. See id. at 617–18. If that were the rule, then
courts would have to determine what constitutes a “high
penalty” versus a “low penalty” in all these type of cases.
Surely a defendant charged with a violation of § 2244(b),
which carries a penalty of up to two years of imprisonment,
would argue that a two-year term of imprisonment is a very
40 UNITED STATES V. PRICE

high penalty for an offense where, according to the lead
opinion, there is no mens rea required for the element of the
offense that turns otherwise legal conduct into a crime.

The lead opinion also attempts to use the difference in
penalties to suggest that requiring the government to prove
that a defendant knew that he lacked permission to engage
in sexual contact under § 2244(b) would produce an absurd
result. Lead Op. 19. It notes that § 2244(c), which provides
that “[i]f the sexual contact that violates this section . . . is
with an individual who has not attained the age of 12 years,
the maximum term of imprisonment that may be imposed for
the offense shall be twice that otherwise provided in this
section,” does not contain any explicit provision disposing
of a mens rea requirement regarding the victim’s age. The
lead opinion therefore argues that, under my reading of the
statute, the government must prove that the defendant knew
that the child was under 12 years old in order to obtain a
§ 2244(c) conviction. Because § 2244(c) has less severe
penalties than § 2241(c) and § 2243(a), and because the
latter two statutes explicitly eliminate a mens rea
requirement regarding the victim’s age, the lead opinion
argues that Congress could not have intended to impose the
extra mens rea requirement on defendants charged with
violations of the less serious penalties under § 2244(c). Lead
Op. 19.

But the less severe penalties of § 2244(c) are explainable
regardless of its mens rea requirement. This is because
§ 2244 criminalizes certain sexual contact, whereas § 2241
and § 2243 criminalize certain sexual acts. “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.” 18 U.S.C. § 2246(3). A “sexual
 UNITED STATES V. PRICE 41

act,” in contrast, is significantly more intrusive,
encompassing:

(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;

(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.

Id. § 2246(2). The difference in penalties between
§ 2244(c), § 2241(c), and § 2243(a) is therefore warranted,
and requiring the government to prove the defendant’s
knowledge of the victim’s age for a conviction under
§ 2244(c) but not under the other two statutes would not
produce an absurd result.
42 UNITED STATES V. PRICE

Finally, the lead opinion compares § 2244(a) and
§ 2244(b) in an attempt to demonstrate that the statutory
scheme supports its conclusion. Both § 2244(a) and
§ 2244(b) require that the defendant “knowingly” have
“sexual contact” plus one additional element. In § 2244(a),
the additional element that the government must prove is that
the sexual contact would be punishable by another
delineated statute if the sexual contact had instead been a
sexual act; in § 2244(b)—the statute under which Price was
convicted—the additional element is a lack of permission.
The lead opinion argues that because the government is not
required to prove that the defendant knew that the second
element of § 2244(a)—that the sexual contact he engaged in
would have been punished by another law if the contact was
a sexual act—was met, the government is also not required
to prove that the defendant knew that the second element of
§ 2244(b)—a lack of permission—was met. Lead Op. 15–
17.

But that argument overlooks the longstanding distinction
between knowledge of the underlying criminal law and
knowledge of the facts that constitute the offense. Courts
almost never interpret criminal statutes to require knowledge
of applicable criminal law. See, e.g., Cheek v. United States,
498 U.S. 192, 199 (1991) (“The general rule that ignorance
of the law or a mistake of law is no defense to criminal
prosecution is deeply rooted in the American legal system.”).
On the other hand, as highlighted several times throughout
this concurring opinion, courts presumptively do interpret
criminal statutes to require knowledge of the facts that
constitute the offense. See, e.g., Staples v. United States,
511 U.S. 600, 618–19 (1994) (“[W]here . . . dispensing with
mens rea would require the defendant to have knowledge
only of traditionally lawful conduct, . . . the usual
presumption that a defendant must know the facts that make
 UNITED STATES V. PRICE 43

his conduct illegal should apply.”). I therefore find the lead
opinion’s comparison of § 2244(a) and § 2244(b)
unpersuasive, and conclude that the statutory scheme at hand
requires that the “knowingly” mens rea requirement of
§ 2244(b) be applied to the lack-of-permission element of
the crime.

C.

In further support of its argument, the lead opinion
highlights two statements from the House Report on the
Sexual Abuse Act of 1986 bill. First, the lead opinion says
that Congress expected that the Act would “simplify law
enforcement activities.” Lead Op. 20 (quoting H.R. Rep.
No. 99-594, at 21 (1986)). But that statement has been taken
out of context. The House Report does not indicate that
Congress sought to achieve the goal of “simplifying law
enforcement activities” by eliminating mens rea
requirements from certain subsections of the statute.
Instead, the Report says that the Act “may simplify law
enforcement activities” by “provid[ing] much more specific
definitions of federal sexual abuse offenses . . . [and]
mak[ing] conforming amendments to a number of other
statutes that currently refer to rape.” H.R. Rep. No. 99-594,
at 21. The Report says nothing about the mens rea issue in
question here.

The second statement from the House Report that the
lead opinion relies on provides that “[w]here the Committee
believes it appropriate to the offense to require the
prosecution to show that the conduct was engaged in without
the victim’s permission, such a requirement has explicitly
been set forth.” Lead Op. 20 (quoting H.R. Rep. No. 99-594,
at 13). But that statement says nothing about the defendant’s
knowledge “that the conduct was engaged in without the
victim’s permission.” See H.R. Rep. No. 99-594, at 13. And
44 UNITED STATES V. PRICE

only two paragraphs later, the Report explains that proposed
§ 2243(d) “sets forth a proof requirement concerning the
defendant’s state of mind [because t]he Committee does not
. . . believe a corroboration requirement is justified and has,
therefore, intentionally not imposed such a requirement.” Id.
at 14. The Report, in contrast, says nothing about “a proof
requirement concerning the defendant’s state of mind” for
§ 2244(b). In fact, nothing in the hearings or reports on the
Act suggests that any of the participants in its passage had
any intention of making 18 U.S.C. § 2244(b) a strict-liability
offense.

Other parts of the legislative history actively undermine
the lead opinion’s interpretation of the statute. The House
Report, for example, explains that “[the Sexual Abuse Act
of 1986 was] drafted employing the format, conventions and
techniques used in drafting the Criminal Code Revision Act
of 1980.” Id. at 13 (citing H.R. Rep. No. 96-1396 (1980)).
One such convention was that, “[t]he state of mind required
for conduct will apply to circumstances and results unless
otherwise specified. This rule makes it unnecessary to
distinguish among the components of an offense (conduct,
circumstances and results) in order to determine the
applicable state of mind.” H.R. Rep. No. 96-1396, at 34.
The lead opinion’s argument that “knowingly” applies only
to the element of sexual contact, but not to the element of
lack of permission, is contrary to this understanding that
mens rea would apply equally to every element of the
offense.

Rather than confronting the stark difference between the
provisions adopted as part of the same Act, the lead opinion
instead attributes a broad intention to Congress’s goal of
modernizing sexual assault laws “to focus on the defendant’s
conduct” rather than the victim’s state of mind. Lead Op. 4.
 UNITED STATES V. PRICE 45

But the goal of focusing on the defendant’s conduct rather
than the victim’s state of mind does not support the lead
opinion’s position. Price asks us to hold that the government
must prove that he knew he was engaging in sexual contact
without A.M.’s permission. Reading the statute to include
that requirement advances the goal that the government
attributes to Congress: it focuses on the defendant’s conduct
rather than the victim’s state of mind. Requiring the
government to prove something about Price’s state of mind
at the time of his offensive conduct does nothing to implicate
the victim’s state of mind.

As a final thought on this issue, I address the lead
opinion’s contention that “[i]f the government were required
to prove that the defendant subjectively knew he lacked
consent, as Price urges here, every accused sexual predator
could defend his admitted sexual contact in the face of no
objective sign of permission by asserting a supposed
subjective belief that the victim was ‘enjoying herself.’”
Lead Op. 4. The government made a similar statement at
oral argument, contending that a knowledge requirement
would allow defendants to avoid conviction under this
statute simply by “get[ting] up on the stand and say[ing],
‘Oh, I didn’t know.’” But the defendant’s subjective
knowledge is and always has been an extremely common
requirement in criminal statutes, one that the government is
almost always required to prove. It typically does this by
circumstantial evidence and by asking the jury to reject what
the government views as self-serving and incredible claims
of innocence. The criminal system has hardly ground to a
halt as a result.

In sum, under the interpretive rule recognized in Flores-
Figueroa, the plain text of 18 U.S.C. § 2244(b) applies the
“knowingly” requirement to each element of the offense,
46 UNITED STATES V. PRICE

including that the sexual contact be without the other
person’s permission. That interpretation is not rebutted by
any special context; in fact, the context of the Sexual Abuse
Act of 1986 strongly reaffirms the conclusion that
“knowingly” applies to every element. I would therefore
hold that the “knowingly” requirement applies to the element
of the sexual contact being without the other person’s
permission. Section 2244(b)’s language and the context
provided by the other related provisions compel this result.
The legislative history and the weighty presumption against
strict-liability offenses further support my conclusion.

II.

Despite my disagreement with the lead opinion’s
analysis of 18 U.S.C. § 2244(b), I join its ultimate
conclusion for a totally different reason—that the district
court’s error in relieving the government of its need to prove
that Price subjectively knew he lacked A.M.’s permission to
engage in sexual contact with her was harmless. “An error
in criminal jury instructions requires reversal unless there is
no reasonable possibility that the error materially affected
the verdict or, in other words, that the error was harmless
beyond a reasonable doubt.” United States v. Pierre,
254 F.3d 872, 877 (9th Cir. 2001) (internal quotation marks
and brackets omitted). In the district court’s instructions to
the jury, it defined “permission” as “[t]he act of permitting,
a license or liberty to do something, or authorization,”
explaining that permission can be express or implied, and
explaining that implied permission “means permission that
is inferred from words or actions.”

Price conceded that A.M. never gave him explicit
permission to touch her breasts or vagina. The only
remaining question is whether there is any reasonable
possibility that the jury could have found that Price
 UNITED STATES V. PRICE 47

subjectively believed he had A.M.’s implicit permission to
engage in sexual contact with her. In light of the strong
circumstantial evidence showing that Price had to have
known that A.M. had not consented to his advances, the
answer is no.

By convicting Price, the jury determined that he in fact
lacked both explicit and implicit permission to touch A.M.’s
breasts and vagina. The jury therefore believed A.M.’s story
of what occurred on the flight over Price’s story. And
according to that story, A.M. was asleep when Price began
running his hand up and down her side and her leg. A
sleeping person clearly gives no implicit permission to be
touched. A.M. then moved her cell phone, thinking that
Price might have been trying to steal it, and fell back asleep.
She woke up once again when he began touching her breast.
In response, A.M. put a blanket over her shoulder and
crossed her arms in front of her.

These actions, if anything, negate any implicit
permission to be touched. Yet Price continued to touch
A.M.’s breast and then moved his hand down to her legs,
first over her jeans and finally inside of them, touching her
vagina. In a state of shock, panic, and fear, and in a final
effort to ward off Price, she turned her body away from him
and towards her friend Fujita. Despite A.M.’s negative
reaction to Price’s advances, she testified that he “tried to
move my body towards” him “[w]ith strong force” and tried
to pull her jeans down. A.M., moreover, never spoke to
Price while he was touching her nor even looked at him
during their encounter. Under all of these circumstances, no
reasonable juror could have found that Price subjectively
believed that he had permission to touch A.M., especially
once A.M. physically turned her back to him and towards
her friend.
48 UNITED STATES V. PRICE

Price’s statements after the incident further support a
finding that he knew he lacked permission to touch A.M. He
said that he “knew . . . it was wrong” to be “engaging like
this with somebody who is totally a stranger” without first
having had a “proper conversation.” Price also agreed with
Special Agent Gates, the FBI agent who interviewed Price,
that, at his age, he should have known that it was his “job not
to touch” A.M. without her permission. And finally, when
the customs officers searched Price’s bags, they found a note
that read: “If a man touches you and you don’t want him to
always feel free to say no.” Price said that he wrote the note
to A.M. after she got up and left her seat, indicating that he
knew A.M. had not given him permission to touch her.

I would therefore hold that the error in the district court’s
jury instructions was harmless because “it is clear beyond a
reasonable doubt that a rational jury would have found the
defendant guilty absent the error.” See United States v.
Anchrum, 590 F.3d 795, 801 (9th Cir. 2009) (internal
quotation marks omitted). The government’s evidence,
which the jury had to believe in order to find Price guilty,
overwhelmingly demonstrated that Price knew that he
lacked permission to engage in sexual contact with A.M. See
United States v. Cherer, 513 F.3d 1150, 1155 (9th Cir. 2008)
(holding that an erroneous jury instruction regarding mens
rea was harmless when “the government’s evidence
overwhelmingly show[ed] that [the defendant] believed [the
victim] was fourteen years old”).

For all of the foregoing reasons, I concur with the lead
opinion’s conclusion that Price’s conviction should be
affirmed.