United States v. Bennett

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
_________________________________ Fifth Circuit

FILED
No. 06-41233 December 13, 2007
_________________________________
Charles R. Fulbruge III
UNITED STATES OF AMERICA Clerk
Plaintiff-Appellee

v.

PAUL LANCE CAMERON BENNETT
Defendant-Appellant

_________________________________

Appeal from the United States District Court
for the Southern District of Texas
No. 04-22
_________________________________

Before DENNIS, PRADO, Circuit Judges, and ENGELHARDT, District Judge.*

KURT D. ENGELHARDT, District Judge:**

Paul Lance Cameron Bennett now appeals his conviction for violating the Mann Act, 18

U.S.C. § 2423(a), as well as the sentence he received, raising various grounds of error. For the

following reasons, we affirm in all respects.

*
District Judge for the Eastern District of Louisiana, sitting by designation.
**
Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.
 FACTS AND PROCEEDINGS

On March 17, 2005, Paul Lance Cameron Bennett was charged by superseding

indictment with one count of kidnaping and two counts of violating the Mann Act, which

criminalizes transporting a minor child across state lines to engage in criminal sexual

activity.1

The minor victim in this case, identified by M.C.W., was born on October 30,

1990. She lived with her parents, Cynthia and David, in League City Texas, in the

Southern District of Texas. During the summer of 2004, M.C.W. was 13 years old and

preparing to enter the eighth grade at Webster Intermediate, where she was enrolled in the

gifted and talented program.

M.C.W. had a troubled home life. She testified that her father had physically and

verbally abused her for as long as she could remember. She also testified that her father

would touch her breasts and other body parts in a sexual manner and sometimes would

get into bed with her and fondle her. M.C.W.’s friend, identified by A.L., testified that

M.C.W. complained to her that her father would get drunk, call her fat, and physically

abuse her. A.L. also testified that M.C.W. “always talked about running away.” M.C.W.

testified that she lost her virginity at age eleven. At trial, M.C.W.’s parents admitted to

1
Count One alleged a violation of 18 U.S.C. §§ 1201(a)(1) and 1201(g) (kidnaping a
minor). Count Two alleged a violation of 18 U.S.C. § 2422(a)(knowingly persuading, inducing, and
enticing a thirteen-year-old to travel in interstate commerce to engage in criminal sexual activity).
Count Three alleged a violation of § 2423(a)(knowingly transporting a thirteen-year-old in interstate
commerce with intent that the thirteen-year-old engage in criminal sexual activity). Particularly, the
“criminal sexual activity” in this case consisted of violations of California and Nebraska statutes
criminalizing the act of sexual intercourse with a person under 16 years of age.

2
having problems with both alcohol and drugs.

M.C.W. often spent time on a website called Elfwood, a science fiction and

fantasy art site that functioned in part as an interactive art gallery where users posted their

art and received feedback from others. M.C.W. created her own webpage on Elfwood.

She also frequented Elfwood’s companion website, Elftown, where people posted

personal information and profiles in order to meet others. In her Elftown profile, M.C.W.

listed her age and described herself as bisexual.

While using Elftown, M.C.W. came upon Paul Bennett’s website. Bennett, who

was born on December 18, 1981, dropped out of high school after his first year. In 2004,

he was 22 years old. During the summer of 2004, Bennett lived at home with his mother

in Walla Walla, Washington. On July 24, 2004, after noticing that M.C.W. had visited

his webpage, Bennett sent M.C.W. an email asking her what she thought about his page.

M.C.W. responded, and over the next few months, M.C.W. and Bennett communicated

frequently via email and instant messaging.

In the emails, which were produced at trial, M.C.W. and Bennett discussed various

things, including Bennett’s roommate problems, marijuana use,2 M.C.W.’s abusive

2
The subject of M.C.W.’s marijuana use was discussed at several points during the trial. In
one of the emails to Bennett, she revealed that she and her mother had smoked marijuana together
when M.C.W. was twelve. At trial, M.C.W. confirmed this fact and also revealed that she and her
mother smoked marijuana together in the FBI-provided hotel room in San Francisco on the night that
M.C.W. was recovered.

3
relationship with her father, and M.C.W.’s relationship with her then-boyfriend,

Anthony, whom she had also met online.3 In other emails, M.C.W. discussed her

bisexual experiences, revealed that the boys at school viewed her as a “slut,” boasted that

she was good at sex, and stated that she had a preference for dating older guys. M.C.W.

testified that she was interested in Bennett and that in many of the emails, she was flirting

with him and trying to get him interested in her.

Bennett’s tone and language in the emails became increasingly flattering,

romantic, and suggestive. For example, during many of the communications, Bennett

complimented M.C.W., telling her that she was “awesome” and that he thought she was

“a doll.” In one email he told her: “The hair looks great as do you, as usual . . . I really

missed you . . . .” Bennett often referred to M.C.W. as his “other half” and his “love.” In

one email he told M.C.W., in response to her revelation about being sexually abused, that

he would “come and kill all those stupid people” and that he loved her.

In another email Bennett told M.C.W. that he’d grown to like her more and more

and that he didn’t think she was “stupid or a little girl trying to get attention.” In the

response email, M.C.W. specifically mentioned their nine year age difference, to which

3
Unlike Bennett, Anthony and M.C.W. were close in age. M.C.W.’s mother testified that
she found out from Anthony’s mother that he and M.C.W. were planning on running away together.
M.C.W.’s friend, A.L., testified that M.C.W. informed her of this plan. M.C.W. testified that her
relationship with Anthony ended when his parents discovered naked pictures of M.C.W. that she had
given to him.

4
Bennett replied, “You do not seem 13.” Bennett then told M.C.W. that he wished she

“was not 13 and far away.” In another email, Bennett described himself as a “hopeless

romantic” and says that he “really like[d] talking to [her] very much.” M.C.W.

responded:

Well, suffice it to say were you close, Anthony would have serious
competition for my attention. But since you don’t and even if you were,
I’m a minor, I guess it’s pointless to speculate. It’s a pity though. I do
enjoy talking to you a lot and you seem like someone I’d enjoy the
company of too.

Bennett responded by asking M.C.W. whether there was “a law about minors

hanging out with people older,” to which M.C.W. responded:

If parents don’t approve, yes, but even so, I’d find it hard to pass up an
opportunity for a slightly more than platonic relationship [with] you had I
the ability, so it would end up illegal either way most likely.

Soon after, Bennett’s emails included discussions of the possibility of him moving

to Texas to live with his half-sister. He suggested more than once that M.C.W. could

show him around and be his guide. He then asked M.C.W, “just hypothetically, if I came

to take you to anyplace you wanted to go, you would not run away with me?” M.C.W.

responded that the proposal was “a pretty powerful lure, you and being able to travel, yes,

bottom line, yes.” During the month of August, M.C.W. and Bennett often told each

other they loved each other and began to discuss moving in together somewhere in Texas.

Soon after, Bennett purchased a car.

5
 On August 29, 2004, Bennett posted an entry on his webpage stating that he was

moving to Texas to be with his love and start a new life. Bennett then moved to Pilot

Point, Texas and began residing with his half-sister. It was at this point that he and

M.C.W. began to communicate by telephone as well.

Eventually, in August or September of 2004, M.C.W. and Bennett arranged to

meet in person. Bennett’s friend Charles Massey drove him to a movie theater where

M.C.W. had been dropped off with her friend, A.L. Once Massey and Bennett arrived,

A.L. went into the theater, as planned, and M.C.W. got into the car. Massey then drove

to a restaurant and went inside to eat while Bennett and M.C.W. remained inside the car.

During this time, M.C.W. and Bennett kissed, and at one point, Bennett removed his

shirt.4 M.C.W. testified that their plan at that time was to have a “romantic but platonic

relationship” and to wait to have sex until she was legal. However, she also testified that

if they had not been interrupted by A.L.’s phone call reminding them to return to the

movie theater, she believes she and Bennett might have had sex in the car. A.L. testified

that M.C.W. told her that she and Bennett did have sex in the car.

M.C.W. testified that, during a weekend in late October 2004, her father, who was

drunk, pushed her against the wall, grabbed her chest area, and pinned her down. She

4
The government produced a photo depicting Bennett without his shirt. M.C.W. had posted
this photo on her webpage, with a caption indicating that it was taken after she and Bennett were
“interrupted” by A.L.’s phone call.

6
testified that she then escaped, locked herself in her room, and decided she was going to

run away and hitchhike if necessary. After this confrontation, she slept at A.L.’s house

and told A.L. that she was going to run away with Bennett. She then sent Bennett a text

message telling him that she urgently needed him to come and get her, that she was

afraid, and that she was going to leave. M.C.W. testified that she insinuated to Bennett

that something physical and sexual had occurred with her father. M.C.W. testified that

Bennett responded by comforting her and asking her if she was sure (presumably about

her decision to leave). The next day, M.C.W. asked Bennett if he would come and get

her that night, and Bennett agreed. That night, October 25, 2004, after M.C.W.’s parents

went to bed, she left notes for both parents,5 cut the screen of her window, jumped out,

and waited outside until Bennett picked her up. Later that night, M.C.W.’s mother

noticed she was gone and reported her missing.

That night, Bennett drove M.C.W. to Huntsville, Texas, where they spent the night

at a motel and had sexual intercourse more than once. M.C.W. testified that during their

5
M.C.W.’s note to her mother, which was produced at trial, reads, in part, as follows:
Mom, I’m so sorry. You deserve a much better daughter. I’ve been
planning this trip for years. You didn’t do anything wrong. This isn’t
your fault. I need a vacation, a long vacation. There is no way to
describe the things I’m feeling or to justify the pain I’m putting you
through, but it has to happen, I have to get away, go far away for a
while, just me, myself and I. I love you more than anything in the
universe and I’m sorry for everything that happens in my absence, just
as I’m sorry I couldn’t be a better daughter. I would suggest you
don’t go looking for me, but I know you will anyway. . . .

7
first sexual encounter of the evening, they used a condom provided by Bennett. She

further testified that it was her idea to have sex and that Bennett resisted at first.

The next day, after receiving an angry voicemail from M.C.W.’s father, Bennett

had his cell phone disconnected. M.C.W. testified that they traveled to Dallas, where

they attempted to spend the night at Massey’s house. Once they arrived, they were

turned away because Massey knew that M.C.W. was underage. That night, M.C.W. and

Bennett slept in an apartment complex parking lot in the car.

M.C.W. testified that their plan at this point was to travel to Washington to stay

with Bennett’s mother.6 M.C.W. testified that the next day, they continued heading north

and drove into Oklahoma, where Bennett called his mother from a payphone. Bennett’s

mother informed Bennett that the FBI was looking for him and urged him to turn himself

in. M.C.W. testified that she then told Bennett that she refused to return but that she

“wouldn’t hold it against him” if he turned himself in. M.C.W. testified that Bennett

responded that they would continue on.

At that point, Bennett and M.C.W. abandoned the car and most of their

possessions, and began hitchhiking on a path that led them through Oklahoma, California,

6
M.C.W. testified that, at some point before they left League City, Texas together, she and
Bennett discussed the prospect of living in Texas with his half-sister. She further testified that on the
drive north through Texas, they did not discuss this possibility because they knew that Bennett’s half-
sister was aware that M.C.W. was underage.

8
Nevada, Arizona, Oregon, and finally, back in California, specifically, San Francisco,

where they remained for about two weeks until they were found.

During their time in San Francisco, Bennett and M.C.W. slept in parks, shelters,

and at the home of a friend of a hitchhiker they met during their travels. M.C.W. testified

that during this time, they used drugs, including marijuana and mushrooms. She further

testified that during this time, she and Bennett had sex about every other night. On

November 23, 2004, Bennett sent an email to M.C.W.’s mother from a computer at a

McDonald’s in San Francisco. The email was a response to an October 25, 2004 email

that Cynthia sent to Bennett, imploring him to at least let her know that M.C.W. was all

right. In the response, Bennett stated that he loved M.C.W. “more than life itself,” that he

understood Cynthia’s pain, and that they were “trying to figure out some middle ground

in all of this.” Bennett went on to state that “[their departure] may have been a bit rash”

and that “[M.C.W.] begged and pleaded with [him] to leave.” M.C.W. also sent her

mother an email from this computer, stating that she was sorry she hadn’t called sooner,

that she was doing “really well,” that she was “not doing anything [her mother] wouldn’t

support,” that she loved and missed her, that she was sorry for leaving like she did, that

she didn’t leave because of her, that Bennett was a “deeply good person” who was “so

good to her,” that she didn’t need to worry about her as long as she was with Bennett, and

9
that she was “learning a lot and growing a lot.” The next day, November 24, 2004,

Bennett and M.C.W. were arrested after the IP address on the computer was traced.

At trial, when asked by the prosecutor whether, looking back on all that had

occurred, she could say that she was thinking right or thinking clearly at the time,

M.C.W. responded, “I made some unwise choices, but I mostly feel guilty for

manipulating Paul.”

A search of Bennett’s hard drive revealed that during the time he was

communicating with M.C.W., he was engaging in similar online communications, some

of an erotic and sexual nature, with other teenage girls. These emails were produced at

trial, which began on April 24, 2006.

After hearing the evidence, the jury returned a verdict of guilty as to both Count

One (kidnaping) and Count Three (§ 2423(a) of the Mann Act, transporting a person in

interstate commerce with intent to engage in criminal sexual activity). The jury acquitted

Bennett on Count Two (§ 2422(a) of the Mann Act, enticing the minor victim to travel in

interstate commerce to engage in sexual activity). The district court denied Bennett’s

motion for judgment of acquittal at both the close of the government’s case and at the

close of all evidence.

After the jury was excused, Bennett reurged his motion for judgment of acquittal,

which the district court granted as to Count One, kidnaping, and denied as to Count

10
Three. Specifically, the district court acquitted Bennett on Count One because he

reasoned that M.C.W. willingly went with Bennett and was not forced to go against her

will. Bennett was sentenced to 81 months of imprisonment, to be followed by a 10-year

term of supervised release. Bennett timely filed a notice of appeal, wherein he brings the

following six challenges: (1) that the district court abused its discretion in admitting the

expert testimony of Martha Finnegan; (2) that the district court erred in instructing the

jury that a presumption exists that a person under the age of 14 is incapable of consenting

to travel or being transported and that it was the defense’s burden to prove by a

preponderance of the evidence that M.C.W. had the capacity to consent; (3) that the

evidence was insufficient to support Bennett’s Mann Act conviction; (4) that the

government engaged in improper and prejudicial closing argument warranting reversal;

(5) that venue was improper in the Southern District of Texas; and (6) that his sentence

was unreasonable under 18 U.S.C. § 3553(a).

ANALYSIS

1) The Expert Testimony of Martha Finnegan

This Court reviews a district court’s decision to admit or exclude evidence under

an abuse of discretion standard. United States v. Cantu, 167 F.3d 198, 203 (5th Cir.

1999). A decision to admit expert testimony is governed by the standards in Daubert v.

Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). See Moore v. Ashland Chem.

11
Inc., 151 F.3d 269, 274 (5th Cir. 1998)(en banc). Expert testimony is admissible “‘if

scientific, technical, or other specialized knowledge will assist the trier of fact. . . .’” Id.

at 274 n.5 (quoting Fed. R. Evid. 702).

On April 19, 2006, Bennett filed a motion to strike the expert testimony of Martha

Finnegan, and in the alternative, for a continuance in order to prepare for Finnegan’s

testimony and to obtain and consult with his own expert. The district court denied the

motion. At trial, after voir dire, Bennett’s counsel objected to the admission of the

testimony. The district court overruled the objection.

On appeal, Bennett argues that Finnegan was not properly qualified to testify

about the topic of “compliant victims.”7 He also argues that her testimony was unreliable

and irrelevant. First, Bennett argues that Finnegan was not qualified to testify about

teenagers in general or about compliant victims in particular for the following reasons: (1)

her experience consisted only of interviewing victims or witnesses to alleged crimes; (2)

she had not conducted any studies of normal teenagers outside criminal investigations;

and (3) she had no education, training, or experience pertaining to normal teenagers that

would permit her to distinguish between victims and non-victims.

7
Compliant victims were described by Finnegan as “victim[s] who ha[ve] participated
in [their] own victimization.”

12
 As to Finnegan’s qualifications, the government argues that Finnegan’s personal

experience, education, training, and observations sufficiently qualified her to testify

regarding compliant victims and adolescent behavior. We agree.

For two years, Finnegan worked as a child interviewer with the FBI’s Innocent

Images Initiative, the goal of which was to combat the online exploitation of children.

After this, she worked in the FBI’s office of victim assistance, where she interviewed

children that were exploited online and in other ways, including children that have been

abducted, sexually abused, and physically abused. Finnegan also trained others in the

technique of interviewing children. Before working for the FBI, Finnegan worked for

about two years for the National Center for Prosecution of Child Abuse and trained

prosecutors, law enforcement officers, victim advocates, and forensic interviewers on

how to interview children. Before that, she worked for the Center for Child Protection at

Children’s Hospital in San Diego for about three years, during which time she conducted

forensic interviews of both victims of physical and sexual abuse, and witnesses of

domestic violence or homicides. Finnegan estimated that she had conducted about 500

interviews with children or adolescents, the majority of which involved children that had

been exploited online. She estimated that approximately 100 of the victims she

interviewed were “compliant victims.” In light of this extensive experience, we find that

the district court acted within its discretion in finding that Finnegan was qualified to

13
testify on the subject of compliant victims.

Second, Bennett argues that Finnegan’s testimony was unreliable because she did

not point to any peer reviewed study, article, or body of work that she relied on in

defining compliant victims as a group or in categorizing the behavior of such persons. As

we found in United States v. Hitt, 473 F.3d 146, 158-59 (5th Cir. 2006), a district court’s

decision to admit expert testimony regarding behavior sometimes exhibited by sexual

abuse victims in returning to their abusers (“return-to-the-abuser behavior”) was not an

abuse of discretion. District courts are afforded deference in “gate-keeping” scientific

evidence, and the application of Daubert should be flexible. The “return-to-the-abuser”

testimony upheld in Hitt is similar to the “compliant victim” testimony admitted in this

case. Both deal with the tendency of sexual abuse victims to exhibit behaviors that

facilitate further abuse.

Third, Bennett contends that Finnegan’s testimony was irrelevant to the case

because Finnegan never interviewed M.C.W., did not listen to M.C.W.’s trial testimony,

and did not appear to have any real knowledge of the facts of the case. Bennett also

argues that Finnegan’s testimony that a person who runs away from victimization does

not fit the definition of a compliant victim establishes that M.C.W. was not, in fact, a

compliant victim because she ran away from her father. We disagree. The fact that

M.C.W. ran away from her abusive home life does not mean that she was not a compliant

14
victim with respect to Bennett. In fact, Finnegan’s testimony indicated that, as is

common with sexual abuse victims, M.C.W.’s prior sexual abuse made it more likely that

she would later become a compliant victim of an older adult male.

Bennett further asserts that Finnegan’s testimony, coupled with the government’s

characterization of M.C.W. as a “compliant victim,” encouraged the jury to disregard

M.C.W.’s testimony that the purpose of the travel was to get away from her abusive home

and that sex was merely incidental to the travel. According to Bennett, Finnegan’s

testimony suggested that M.C.W. was incapable of comprehending Bennett’s purposes in

traveling, which in turn, caused the jury to disregard her testimony, which, if considered,

would have provided more than ample reason to acquit Bennett on Count Three.

This argument fails because Count Three, at most, requires that sex be one of the

purposes of travel, not the only purpose. United States v. Garcia-Lopez, 234 F.3d 217,

220 (5th Cir. 2000). Regardless of what M.C.W. believed Bennett’s purpose(s) in

transporting her was, and regardless of the weight the jury gave to M.C.W.’s belief,

sufficient evidence was put forth at trial for a rational jury to find that one of Bennett’s

purposes in transporting M.C.W. was to engage in sexual activity with her.

Bennett also argues that the district court abused its discretion in denying his

motion for continuance, which was urged in the alternative to his motion to strike, in

order to obtain an expert of his own to contradict or explain Finnegan’s testimony. The

15
government responds that it was not even required to give notice of the expert to Bennett

because he failed to request notice of the expert under Rule 16(a)(1)(G) of the Federal

Rules of Criminal Procedure. The government further asserts that Bennett has failed to:

(1) show due diligence to obtain the attendance of an expert to refute Finnegan’s

testimony, (2) show that this expert was available and willing to testify, and (3) show that

the testimony would be favorable. United States v. Scott, 48 F.3d 1389, 1394 (5th Cir.

1995)(citations omitted).

This Court reviews the denial of a request for continuance for an abuse of

discretion. United States v. Olaniyi-Oke, 199 F.3d 767, 771 (5th Cir. 1999). During oral

argument on the motion to strike, the district court noted that it was highly unlikely that

any expert would testify that teenagers were not susceptible to flattery. The district court

asked Bennett’s counsel what he would seek to have such an expert testify to at trial.

Bennett’s counsel responded that the expert would argue “[that] this is not even a

recognized field for the qualified testimony.” The district court responded that such an

issue “under 104(e) goes to weight and not its admissibility.” (Rec. Doc. No. 128). We

agree. The district court, thus, did not abuse its discretion in denying the motion to

continue.

Given the district court’s wide latitude in exercising its gate-keeping function, it

acted within its discretion in allowing Finnegan’s testimony.

16
2) The District Court’s Jury Instructions Regarding Presumption

This Court ordinarily reviews challenges to jury instructions for an abuse of

discretion. United States v. Monroe, 178 F.3d 304, 307 (5th Cir. 1999). However, the

issue of whether the jury instructions violated Bennett’s Sixth Amendment right to trial

by jury and his Fifth Amendment right to a conviction based upon proof beyond a

reasonable doubt are constitutional questions of law, which are reviewed de novo.

United States v. Webster, 162 F.3d 308, 333 (5th Cir. 1998). If a constitutional violation

occurred, the next question is whether the error was harmless beyond a reasonable doubt.

Chapman v. California, 386 U.S. 18, 24 (1967).

During voir dire, immediately after instructing the jury regarding the burden of

proof, the district court explained to the jury:

[T]he question is going to be or arguably would be: Did MCW, a minor in
this case at the time of the alleged [offense] at the age of 13 years and 51
weeks, consent to activities, to wit, being transported across state lines
against her will?

I’m going to instruct you that the law presumes that an alleged victim of
such a crime cannot consent at that age. But that presumption can be
overcome by a preponderance of the evidence. In other words, if the
defendant offers evidence that the victim was, in fact, not coerced against
her will but voluntarily and willingly went along this and establishes that by
a preponderance of the evidence, you can set that presumption aside and
decide that, in fact, she was not forced to go. But the law is that she is
presumed not to be able to consent to that absent a showing by a
preponderance of the evidence.

17
 Later during voir dire, after explaining the elements of Count Three (the count of

conviction) to the jury, the district court told the jury:

[I]t is presumed that the defendant [sic, victim] at the age of 13 years and
51 weeks cannot consent to being transported across state lines to engage in
sexual activities. That is a rebuttable presumption and can be rebutted by a
preponderance of the evidence, in other words, a showing that you believe
is more preponderant or preponderates however much in favor of the offer
of that defense in the case.

At the close of the evidence, the district court instructed the jury as follows

regarding the kidnaping charge (Count 1):

To “kidnap” a person means to unlawfully hold, keep, detain, or confine the
person against that person’s will. Involuntariness or coercion in connection
with the victim’s detention is an essential part of the offense.

However, where the alleged victim is under 14 years of age at the time of the
alleged offense, there is a rebuttable presumption that the victim does not
have the capacity to consent. Any confinement of such child must be proven
to have been with authorization from a parent or legal guardian, because the
victim is rebuttably presumed not to be able to consent to being abducted,
carried away, inveigled, or kidnapped by a defendant. This presumption can
be rebutted by evidence that convinces you by a preponderance of the
evidence, that the victim indeed possessed capacity to consent. To prove
something by a preponderance of the evidence means to prove that it is more
likely so than not so. Preponderance of the evidence is determined by
considering all the evidence and deciding which evidence is more
convincing. . . . If the evidence appears to be equally balanced, or if you
cannot say upon which side it weighs heavier, you must resolve this question
against the Defendant. However, remember that the burden of proof always
remains on the Government to prove each element of each crime alleged in
the Indictment.
Bennett contends that the instructions in question placed an improper burden on the

defense, diluted the other instructions regarding proof beyond a reasonable doubt, and

18
undermined M.C.W.’s credibility to Bennett’s detriment. Bennett argues that the

instructions in question violated his Sixth Amendment right to a trial by jury and his Fifth

Amendment right to be convicted only on proof beyond a reasonable doubt.

Bennett argues that the federal law does not include a presumption of incapacity to

consent based on age, and the reliance on Chatwin v. United States, 326 U.S. 455 (1946)

for the crafting of such presumption was improper. The government asserts that any error

was harmless beyond a reasonable doubt. Bennett argues that the Court in Chatwin

specifically rejected any per se rule of incapacity to consent based on the victim’s

minority status.

The Court in Chatwin did, indeed, reject such a rule; however, the context in which

it did so is not as clearly delineated as suggested by Bennett. In Chatwin, a 15-year-old

girl who allegedly had a mental age of seven, ran away with members of a fundamentalist

Mormon cult and participated in a celestial marriage with one of its members. The

prosecution argued that the girl was incapable of understanding the nature of celestial

marriage and defendants’ solicitations due to “her tender years and extremely low

mentality.” Id. at 459. The Court stated that “[i]f the victim is of such an age or mental

state as to be incapable of having a recognizable will, the confinement then must be

against the will of the parents or legal guardian of the victim.” Id. at 460. The Court

found that there was “no competent or substantial proof that the [fifteen-year-old] girl was

19
of such an age or mentality as necessarily to preclude her from understanding the doctrine

of celestial marriage and from exercising her own free will, thereby making the will of her

parents . . . the important factor.” Id. at 461.

The Court went on to state that “[t]here is no legal warrant for concluding that such

an age [of 15 years and 8 months] is ipso facto proof of mental incapacity in view of the

general rule that incapacity is to be presumed only where a child is under the age of 14.”

Id. (citing Wigmore on Evidence (3d ed.)). The Court further reasoned that, even if it had

been proven that the girl had a mental age of seven, such age “cannot be said necessarily

to preclude one from understanding and judging the principles of celestial marriage and

from acting in accordance with one’s beliefs in the matter.” Id. at 462.

The serious crime of kidnaping should turn on something more substantial
than such an unexplained mathematical approximation of the victim’s mental
age. There must be competent proof beyond a reasonable doubt of a
victim’s mental incapacity in relation to the very acts in question before
criminal liability can be sanction in a case of this nature.

Id.

Under Chatwin, the presumption crafted by the district court in this case was

improper. If a “mental age of seven” is not sufficient to presume incapacity to join a cult

and participate in a celestial marriage, for example, then it would seem a fortiori that an

actual age of fourteen “cannot be said necessarily to preclude one from” consenting to

traveling or being transported. Thus, it seems that this presumption improperly relieved

20
the prosecution of its burden of persuasion on the consent element of the kidnaping

offense, Francis v. Franklin, 471 U.S. 307, 315 (1985), and Bennett’s constitutional rights

were violated.

However, even so, such error was harmless beyond a reasonable doubt. See

Chapman v. California, 386 U.S. 18, 24 (1967). In this case, the jury convicted Bennett

on the kidnaping charge (Count One). However, the district court later granted Bennett’s

motion for judgment of acquittal with respect to Count One. Thus, any error was harmless

with regard to Count One.

As to Count Three, on which Bennett was also convicted, Bennett contends that the

district court’s instructions on the presumption made it “virtually impossible for the jury to

compartmentalize the issues of capacity and consent from the purposes of her being

transported” and diluted other instructions regarding the government’s burden of proof.

When a jury charge is challenged, it must be judged in the context of the overall charge.

Cupp v. Naughten, 414 U.S. 141, 147 (1973). The judge gave the jury the following

instruction:

A separate crime is charged in each count of the Indictment. Each count,
and the evidence pertaining to it, should be considered separately. The fact
that you may find the Defendant guilty or not guilty as to one of the crimes
charged should not control your verdict as to any other.

It is undisputed that consent is not an element of the offense on which Bennett was

ultimately convicted under the Mann Act. If the jury heeded the above instruction, as it is

21
presumed to have done, then it did not consider the presumption of lack of consent in

connection with its deliberations on Count Three.

Morever, even if the lack of consent presumption did “spill over” into the jury’s

deliberations on Count Three, our conclusion would be the same. Even if the jury did

presume that M.C.W. could not consent to being transported in connection with its

deliberations on Count Three, consent is irrelevant to a conviction under § 2423(a).

Indeed, the very purpose for enactment of the Mann Act was to address situations where

the victim consented to the exploitation.

Last, as for Bennett’s argument that the presumption caused the jury to discredit

M.C.W.’s testimony on Bennett’s intent and purpose in transporting her, there was ample

evidence in this case (discussed infra), which demonstrated that Bennett transported

M.C.W. with the intent to have sex with her. Thus, even if a violation did occur, we find

the error was harmless beyond a reasonable doubt.

3) Sufficiency of the Evidence

Because Bennett moved for judgment of acquittal at the close of the Government’s

case and at the close of all evidence, he properly preserved his sufficiency of the evidence

challenge, which is reviewed de novo. See United States v. Izydore, 167 F.3d 213, 219

(5th Cir. 1999).

22
 This Court must affirm a conviction if the evidence, viewed in the light most

favorable to the verdict, with all reasonable inferences and credibility choices made in

support of it, is such that any rational trier of fact could have found the essential elements

of the crime beyond a reasonable doubt. United States v. Ramirez, 954 F.2d 1035, 1039

(5th Cir. 1992). The inquiry is whether the jury made a rational decision, not whether the

jury’s verdict was ultimately correct. United States v. Jaramillo, 42 F.3d 920, 923 (5th

Cir. 1995). “The intent necessary to support a conviction can 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). However, reversal is required if the evidence viewed in a light most

favorable to the verdict “gives equal or nearly equal circumstantial support to a theory of

guilt and a theory of innocence of the crime charged.” Jaramillo, 42 F.3d at 923 (internal

quotations and citations omitted).

Bennett challenges the sufficiency of the evidence underlying his conviction under

the Mann Act for transporting a minor with the intent to engage in criminal sexual activity

(Count Three). According to Bennett, the government failed to prove beyond a reasonable

doubt that Bennett transported M.C.W. for an unlawful sexual purpose.

“To establish a violation of the Mann Act, one of the essential elements is that the

defendant transported his victim with the intent that she engage in [criminal sexual

23
activity].” United States v. Campbell, 49 F.3d 1079, 1082 (5th Cir. 1995). “While this

intention to engage in illicit activity must be a ‘dominant motive’ of such a trip, Mortensen

v. United States, 322 U.S. 369, 374, 64 S. Ct. 1037, 1040, 88 L. Ed. 1331 (1944), this

circuit has interpreted this phrase narrowly, allowing prosecution when a defendant had

several purposes for the travel.” Id. This circuit has stated that:

[I]t is not necessary to a conviction under the Act that the sole and single
purpose of the transportation of a female in interstate commerce was such
immoral practices. It is enough that one of the dominant purposes was
[criminal sexual activity]. It suffices if one of the efficient and compelling
purposes in the mind of the accused in the particular transportation was
illicit conduct of that kind. The illicit purpose denounced by the Act may
have coexisted with other purpose or purposes, but it must have been an
efficient and compelling purpose.

Id. at 1082-83 (citing Forrest v. United States, 363 F.2d 348-49 (5th Cir. 1966).

We note, if only for academic purposes, that the Supreme Court in Mortensen, in

holding that the intention to engage in illicit activity must be a “dominant motive ” of such

a trip, effectively added a motive requirement to the burden of proof. Without getting into

the necessity and/or propriety of the Court’s addition of motive as a layer of proof8 in this

case, the evidence presented at trial sufficiently establishes both that Bennett transported

8
18 U.S.C. § 2423(a) makes no mention of purpose or motive. It simply requires that the
transportation of the individual be “with intent that the individual engage in [criminal sexual activity].”
Interestingly, § 2423(b) specifically mentions purpose (“A person who travels in interstate commerce
or travels into the United States . . . for the purpose of engaging in any illicit sexual conduct with
another person . . .”)(emphasis added). It seems that if Congress meant for “purpose,” at least to the
extent that purpose means motive, to be part of § 2423(a), it would have included such language.

24
M.C.W. with the intent to have sex with her and that this intent to have sex with her was

one of his dominant purposes for transporting her.

Bennett contends that the government failed to prove that the unlawful sexual

activity was one of the principal or dominant purposes of the travel. Bennett asserts that

“the government failed to show that sex motivated the travel at all.” According to

Bennett, the evidence demonstrated, at most, that the sexual activity was incidental to

travel. He argues that the evidence showed that Bennett’s intent was to stay in Texas and

not to travel interstate.

We agree with the government’s assertion that the evidence of Bennett’s email

communications with M.C.W., particularly when viewed in light of his erotic emails with

other persons purporting to be teenage girls, supports the inference that Bennett wanted to

transport M.C.W. so that he would be able to have a sexual relationship with her. In fact,

the jury was specifically instructed that, although it could “not consider any of this

evidence in deciding if Defendant possessed a certain character and acted in conformity

therewith,” it could:

consider this evidence . . . to determine whether or not Defendant’s actions
prove motive, opportunity, intent, preparation, plan, knowledge, or absence
of mistake or accident, in relation to the acts charged in the Indictment.

The jury was further instructed:

If you find beyond a reasonable doubt from other evidence in this case that
the Defendant did commit the acts charged in the Indictment, then you may

25
 consider evidence of similar acts allegedly committed on other occasions to
determine whether the Defendant had the state of mind or intent necessary to
commit the crime charged in the indictment.

Further evidence supporting an inference that Bennett intended to engage in sexual

activity with M.C.W. is the fact that, as M.C.W. testified, on the night that Bennett and

M.C.W. first met, they were kissing and might have had sex had they not been interrupted.

At this point, as the photograph taken by M.C.W. and produced at trial demonstrated,

Bennett was already naked from the waist up. In light of this evidence, a rational jury

could easily have inferred that Bennett had the intent to have sex with M.C.W., wherever

their travels took them.

Furthermore, within hours after picking up M.C.W. from her home, Bennett

checked them into a motel in Huntsville, Texas and had sex with her using a condom that

he had brought. The next day, after being turned away from Massey’s house in Dallas, it

became apparent to Bennett that, if he and M.C.W. were going to continue this sexual

relationship, they would need to leave the state of Texas. That day, they crossed over the

state line into Oklahoma, and they continued to have sex on a regular basis for the

duration of the trip. A jury could rationally infer from the sexual activity that occurred

both before and after state lines were crossed, that Bennett transported M.C.W. with intent

to engage in sexual activity with her.

26
 In conclusion, the government presented sufficient circumstantial evidence from

which a jury could rationally conclude that Bennett had the illicit intent necessary to

support the Mann Act conviction. The evidence presented and reasonable inferences

drawn therefrom certainly supported the finding of fact that before leaving Texas, Bennett

had formed the intent to engage in sexual activity with M.C.W. See United States v. Diaz,

95 Fed.App’x. 535, 538 (5th Cir. 2004), vacated on other grounds, 543 U.S. 1099 (2005).

4) The Government’s Closing Statement

During closing argument, the prosecutor stated that “[i]f the law has a name for

men who like little girls, who have sex with little girls, that is pedophile.” Bennett’s trial

counsel objected, and the trial judge overruled the objection. Bennett now argues that this

remark was prejudicial, that there was no cautionary instruction given, and the evidence of

his guilt was “very weak.”

Improper prosecutorial comments constitute reversible error only where the

defendant’s right to a fair trial is substantially affected. United States v. Bernard, 299

F.3d 467, 488 (5th Cir. 2002). “The determinative question is whether the prosecutor’s

remarks cast serious doubt on the correctness of the jury’s verdict.” United States v.

Holmes, 406 F.3d 337, 356 (5th Cir. 2005). “A criminal conviction is not to be lightly

overturned on the basis of a prosecutor’s comments standing alone.” United States v.

Lowenberg, 853 F.2d 295, 302 (5th Cir. 1988) (internal quotation marks omitted).

27
“Improper argument warrants reversal when ‘taken as a whole in the context of the entire

case, [it] prejudicially affect[ed] substantial rights of the defendant.’” United States v.

Hitt, 473 F.3d 146, 161 (5th Cir. 2006)(quoting United States v. Corona, 551 F.2d 1386,

1388 (5th Cir. 1977)). Bennett must establish that the comment substantially affected the

jury’s verdict. See United States v. Freeman, 434 F.3d 369, 375 (5th Cir. 2005). To make

this showing, the court focuses on three factors: (1) the magnitude of the prejudicial effect

of the prosecutor’s remarks; (2) the efficacy of any cautionary instruction by the judge;

and (3) the strength of the evidence supporting the conviction. Lowenberg, 853 F.2d at

302.

As for the first factor, we find that the prejudicial effect of labeling Bennett a

“pedophile” was not substantial. Although it is undisputed that M.C.W. and Bennett had

sex, it is also undisputed that at the time they had sex, Bennett was 22 and M.C.W. was 13

and, later, 14 years old. The criminal statutes that formed the basis of the Mann Act

charges were state statutes criminalizing the act of having sex with a person under the age

of 18. The government admitted evidence of several emails wherein Bennett spoke in a

sexually suggestive manner to persons who identified themselves as being teenage girls. A

pedophile is an adult who is sexually attracted to a child or children.9 Based on this

definition, we can reasonably assume that the members of the jury already had associated

9
The American Heritage Dictionary of the English Language 1296 (4th ed. 2000).

28
the word “pedophile” once they heard testimony that Bennett had sex with a child. Thus,

while the fact that the prosecutor said this word in closing arguments may have caused

some prejudice, it did not cause substantial prejudice as the word is fairly common and,

more likely than not, had occurred to the jurors after hearing the evidence.

In Lowenberg, the prosecutor referred to the defendant as a “filthy pimp.” 853

F.2d at 302. This Court found the error to be harmless, noting that the trial court gave a

cautionary instruction, and that the statement was made to “reinforce the prosecution’s

interpretation of [the defendant]’s actions” in putting “one of the witnesses into the

prostitution business and collecting a portion of her earnings.” Id. The Court found that

“filthy pimp” in those circumstances was a “fair interpretation of the evidence.” Id.

Similarly, in this case, the Court concludes that the prosecutor’s use of the term

“pedophile” was a fair interpretation of the evidence.

With respect to the second factor, the Court did, indeed, give a cautionary

instruction, contrary to Bennett’s assertion on appeal. The judge instructed the jury that

they were to “consider only the evidence presented during the trial, including the sworn

testimony of the witnesses and the exhibits.” He further instructed the jury that “any

statements, objections, or arguments made by the lawyers are not evidence.”

29
 On the third and final factor, the Court has already determined that the strength of

evidence supporting the conviction was strong. Thus, reversal is not warranted based on

the prosecutor’s comment in closing argument.

5) Venue

This Court generally reviews venue issues for abuse of discretion. United States v.

Delgado-Nunez, 295 F.3d 494, 496 (5th Cir. 2002). However, this question is effectively

de novo because “[a] district court by definition abuses its discretion when it makes an

error of law.” Id. (internal quotation marks omitted).

The general venue statute provides, in pertinent part:

Any offense involving . . . transportation in interstate or foreign
commerce . . . is a continuing offense and, except as otherwise
expressly provided by enactment of Congress, may be inquired of
and prosecuted in any district from, through, or into which such
commerce . . . moves.

18 U.S.C. § 3237(a).

Bennett argues that, for purposes of venue, the government failed to prove that any

part of the offense occurred in the Southern District of Texas. Bennett supports this

argument by contending that he did not form the intent to travel to another state until he

left the Southern District of Texas.

The government correctly asserts that although the interstate transportation

requirement of the Mann Act is an element of federal jurisdiction, it is not part of the

30
knowledge requirement for a Mann Act conviction. This circuit has recognized that the

transportation of the victim in interstate commerce is jurisdictional and not an element of

the crime. United States v. Jackson, 978 F.2d 903, 910-11 (5th Cir. 1992)(kidnaping

statute did not require defendant’s knowledge that victim would be moved in interstate

commerce); United States v. Barksdale-Contreras, 972 F.2d 111, 114 (5th Cir.

1992)(“Proof of transportation of a kidnapped victim in interstate or foreign commerce is

necessary to establish federal jurisdiction. Knowledge by the kidnappers of the crossing

of boundaries is not a necessary element of the offense.”); United States v. Bankston, 603

F.2d 528, 532 (5th Cir. 1979)(kidnaping statute did not require defendant’s knowledge

that he was crossing state lines)(quoting United States v. Napier, 518 F.2d 316, 319 (9th

Cir. 1975)(“requirement that the offender cross state lines merely furnishes a basis for the

exercise of federal jurisdiction and does not constitute an element of the [kidnaping]

offense”).

Viewed in the light most favorable to the verdict, the evidence supports a finding

that venue in the Southern District of Texas was proper. Because transportation in

interstate commerce is an element of 18 U.S.C. § 2423(a), under the venue statute,

§2423(a) is a continuing offense. The venue statute provides, in pertinent part:

Except as otherwise expressly provided by enactment of Congress,
any offense against the United States begun in one district and
completed in another, or committed in more than one district, may be

31
 inquired of and prosecuted in any district in which such offense was
begun, continued, or completed.

Any offense involving the use of the mails, transportation in
interstate or foreign commerce, or the importation of an object or
person into the United States is a continuing offense and, except as
otherwise expressly provided by enactment of Congress, may be
inquired of and prosecuted in any district from, through, or into
which such commerce, mail matter, or imported object or person
moves.

18 U.S.C. § 3237(a). This element does not require proof that the defendant knew he was

traveling in interstate commerce. Thus, the fact that Bennett may not have decided to

leave the state until after he left the Southern District of Texas is irrelevant to the venue

determination. Under § 3237(a), venue is proper because Bennett moved both from and

through the Southern District of Texas.

6) The Weight Given to the Sentencing Guidelines

Because Bennett’s trial counsel did not object to the weight given to the Sentencing

Guidelines in the trial court, the government argues that this Court’s review should be

limited to review for plain error. See United States v. Everist, 368 F.3d 517, 520 (5th Cir.

2004)(review for plain error of claim that a sentencing court did not comply with the

statutory requirement to consider the §3553(a) factors in determining whether to order

concurrent sentences.) Bennett, on the other hand, contends that the proper standard for

this Court to employ is abuse of discretion. United States v. Reinhart, 442 F.3d 857, 862

(5th Cir. 2006). This Court invokes the plain error standard; however, we note that our

32
decision would be the same under either standard as we find that the sentence given to

Bennett was reasonable and justified in all respects and was, thus, neither plainly

erroneous nor an abuse of discretion.

In support of this assertion on appeal, Bennett argues that this Court has improperly

established a presumption that guidelines sentences are reasonable. According to Bennett,

this court has “reestablished the primacy of the Sentencing Guidelines in a manner that

discourages district courts from considering all the 18 U.S.C. § 3553(a) factors and

imposing sentences that diverge substantially from the Guidelines range.” However,

Bennett concedes that his disagreement with the presumption of reasonableness is

foreclosed under current Fifth Circuit law. Instead, he raises the issue here in an effort to

preserve it for further review in the event the Supreme Court alters the current federal

sentencing landscape in the future.

Next, Bennett contends that his sentence is unreasonable even under the current

regime of reasonableness review. He claims that the district court’s sentence (1) failed to

account for factors that should have received significant weight and (2) represented a clear

error of judgment in balancing the sentencing factors.

Bennett initially entered a plea of guilty to Count 2, pursuant to a plea agreement in

which the government agreed to recommend a 24-month term of imprisonment. At the

rearraignment, the district court indicated that, even though it considered the Guidelines

33
“so useful as to be binding, in all practical matters,” it was willing and likely to accept the

non-Guideline sentence recommended by the government. The presentence investigation

report was prepared, and after giving Bennett a three-level reduction for acceptance of

responsibility, it calculated his Guideline sentence as between 57 and 71 months. On the

day of sentencing, the district court informed the government and the defendant that it had

“no problem at all operating within the guidelines” and that it was “not going to agree to a

24-month deal . . . .” Bennett then withdrew his guilty plea and the case proceeded to

trial.

After the jury verdict, a new presentence investigation report was prepared, which

calculated the Guideline range, without an adjustment for acceptance of responsibility, at

78 to 97 months. Count Three carried a mandatory minimum sentence of five years

imprisonment. The district court imposed an 81 month sentence of imprisonment, to be

followed by a 10-year term of supervised release.

Bennett now claims that the district court failed to explain why it rejected the 24-

month recommendation from the government and merely noted that it was inclined to

operate within the guidelines. Bennett also insists that many mitigating factors came to

light at trial, specifically, testimony that “M.C.W. was being sexually abused at home, and

that M.C.W. fled from that environment,” that she “had planned on running away for a

34
long time, and had always wanted to go to San Francisco, where the couple was eventually

arrested.”

Bennett claims that the district court had no justification for imposing the “extra

fifty-seven months” other than “blind adherence to the guidelines.” In support of his

argument that the district court put undue weight on the guidelines, Bennett refers to “the

district court’s statement that it views the sentencing guidelines to be binding.”

The sentence given to Bennett was reasonable and justified. First, the district

court’s exact words, which Bennett quotes in his brief, were: “[I]t is my intention to be

bound by the sentencing guidelines. Even though they are not mandatory, I consider them

so useful as to be binding, in all practical matters.” Second, at the rearraignment, the

district court specifically admonished Bennett that “once a presentence investigation

report is prepared and promulgated or you do something completely goofy between now

and sentencing, I have the discretion not to [accept the 24-month recommended

sentence].” The plea agreement at issue contained a condition that Bennett “have no

contact in any way with the victim in this case.” The final pre-sentence report reviewed

by the Court prior to sentencing indicated that Bennett had written a letter to M.C.W.,

despite being ordered not to contact her. Third, in imposing the sentence, the district court

specifically referred to the trial evidence, including the evidence of the sexually explicit

emails Bennett sent to other teenage girls, pointing to the dangerous nature of the

35
defendant. This evidence establishes more than a reasonable justification for the sentence

imposed.

CONCLUSION

Finding no merit in any of Defendant’s arguments, we AFFIRM both his conviction

and sentence.

36