[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
January 26, 2004
No. 02-15095
THOMAS K. KAHN
________________ CLERK
D.C. Docket No. 01-00502-CR-1-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
RUSSELL A. BREITWEISER,
Defendant-Appellant.
__________________
Appeal from the United States District Court for the
Northern District of Georgia
___________________
(January 26, 2004)
Before TJOFLAT, BIRCH and GOODWIN*, Circuit Judges.
GOODWIN, Circuit Judge:
A jury convicted defendant Russell Breitweiser of abusive sexual contact
*
Honorable Alfred T. Goodwin, United States Circuit Judge for the Ninth Circuit, sitting by
designation.
with a minor as a repeat sex offender in violation of 18 U.S.C. §§ 2244(a)(3) and
2247, and simple assault of a minor in violation of 18 U.S.C. § 113(a)(5).
Breitweiser contends on appeal that the district court abused its discretion in
admitting some evidence and excluding other evidence, erred in finding that venue
was proper in the Northern District of Georgia, and incorrectly enhanced his
sentence. Because the district court did not err, we affirm both the conviction and
sentence.
BACKGROUND
On January 11, 2001, fourteen-year-old A.B. and J.B., her eighteen-year-old
sister, were at the Houston International Airport, waiting to board their flight to
Atlanta, Georgia. Breitweiser, who was waiting for the same flight, approached
the girls and began speaking with them. When the girls’ row was called to board,
Breitweiser told them to wait for him. Breitweiser boarded directly after the girls,
first going to his seat and then returning to the girls’ row. He asked the girls if he
could sit in the empty seat beside A.B. and they agreed.
At takeoff the lights dimmed and Breitweiser told the girls to hold hands
with each other during this “romantic part” of the flight. During the plane ride,
Breitweiser talked constantly to the girls, listened in on their conversations and
asked personal questions. Although A.B. was uncomfortable, she said nothing but
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attempted to move further away from Breitweiser in her seat. Breitweiser took a
crayon that A.B. was using and put it in his mouth and nose before returning it.
Breitweiser put his hand on A.B.’s leg with his fingers spread out and rubbed it up
and down her inner thigh. At some point, A.B. looked over at Breitweiser and saw
his hand moving in his lap underneath some pillows and a magazine. A.B.
testified that she thought he was masturbating.
Breitweiser left his seat to visit the restroom and a passenger behind the
girls asked them if they knew Breitweiser. They replied that Breitweiser was
making them uncomfortable and the passenger offered to walk them to their
connecting flight to Florida. The passenger then notified the flight attendants that
Breitweiser was making the girls uncomfortable. Towards the end of the flight,
the flight attendants asked the girls to wait in the first class cabin when the plane
landed in Atlanta. After the other passengers had deplaned, one flight attendant
walked the girls to their connecting flight.
Breitweiser was charged with two counts of inappropriate contact with A.B.
The first count, abusive sexual contact with a minor, involved Breitweiser’s
rubbing of A.B.’s thigh. Count two, simple assault of a minor, involved
Breitweiser’s unwanted touching of A.B.’s legs, hands, face, and hair.
Prior to trial, the government filed a notice of its intention to introduce
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evidence, pursuant to Federal Rule of Evidence 413, of Breitweiser’s prior acts of
sexual contact with minors. The evidence consisted of the accusation and
judgment of conviction arising from incidents in which Breitweiser fondled two
thirteen-year-old girls, and testimony from a store clerk who saw Breitweiser
masturbating near a girl several months after the events at issue in this case. The
district court admitted the evidence under Rule 404(b). The court refused to allow
Breitweiser to introduce testimony of a doctor who examined Breitweiser during
his hospitalization at the Carrier Clinic, a New Jersey psychiatric hospital, eleven
days after his alleged assault of A.B. Breitweiser claimed that the doctor’s
testimony would show that he suffered from a bipolar disorder and made “bizarre
movements” during his hospitalization, which would explain the touching and the
alleged masturbation. The court ruled that this evidence was irrelevant and
inadmissible under Rule 403.
After the jury convicted Breitweiser on both counts, the district court spent
two days addressing his sentence. The conviction on the count one violation
normally triggers a two-year maximum sentence, but 18 U.S.C. § 2247(a) allows
for a doubling of the maximum for a defendant with a “prior sex offense
conviction.” The court held that Breitweiser’s 1996 conviction under a New
Jersey criminal statute triggered the sentence enhancement under § 2247(a) and
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issued an order explaining its holding. United States v. Breitweiser, 220 F. Supp.
2d 1374 (N.D. Ga. 2002). The second sentencing issue involved the application of
a Sentencing Guidelines provision increasing the base offense level if an offense
was committed by the means set forth in 18 U.S.C. § 2242. A defendant violates §
2242 when he “causes another person to engage in a sexual act by placing that
other person in fear.” The court held that an offense level increase was warranted
because Breitweiser committed the offense in question by placing A.B. in fear.
Breitweiser was sentenced to forty-six months of imprisonment on count one and a
concurrent twelve-month sentence on count two.
A. Venue
The Constitution, the Sixth Amendment, and Rule 18 of the Federal Rules
of Criminal Procedure guarantee defendants the right to be tried in the district in
which the crime was committed. United States v. Cabrales, 524 U.S. 1, 6 (1998);
United States v. Roberts, 308 F.3d 1147, 1152 (11th Cir. 2002). The standard this
court applies when venue is challenged is “whether, viewing the evidence in the
light most favorable to the government and making all reasonable inferences and
credibility choices in favor of the jury verdict . . . the Government proved by a
preponderance of the evidence” that the crimes occurred in the district in which
the defendant was prosecuted. United States v. Males, 715 F.2d 568, 569 (11th
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Cir. 1983) (quoting United States v. White, 611 F.2d 531, 535 (5th Cir. 1980)).
The “locus delicti [of a crime] must be determined from the nature of the crime
alleged and the location of the act or acts constituting it.” United States v.
Rodriguez-Moreno, 526 U.S. 275, 279 (1999) (quoting Cabrales, 524 U.S. at 6-7).
Congress has provided a means for finding venue for crimes that involve the
use of transportation. The violations of the statutes here are “continuing offenses”
under 18 U.S.C. § 3237. United States v. McCulley, 673 F.2d 346, 350 (11th Cir.
1982). The second paragraph of § 3237(a) reads:
Any offense involving the use of . . . 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.
There are no venue provisions in either 18 U.S.C. §§ 2241 et seq. or 18 U.S.C. §
113 that preclude the application of § 3237. To establish venue, the government
need only show that the crime took place on a form of transportation in interstate
commerce. See McCulley, 673 F.2d at 350 (holding that to prosecute a crime that
involved hiding in an airplane’s luggage compartment and cutting open mail
pouches, venue was proper in any state through which the plane passed).
The government met its burden by showing that Breitweiser committed the
crimes on an airplane that ultimately landed in Georgia. Breitweiser’s argument
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that the government must show that the crime was committed in the Northern
District of Georgia or its airspace fails; a showing that transportation in interstate
commerce was involved is sufficient. It would be difficult if not impossible for
the government to prove, even by a preponderance of the evidence, exactly which
federal district was beneath the plane when Breitweiser committed the crimes. In
McCulley, this court explained, “[§ 3237] is a catchall provision designed to
prevent a crime which has been committed in transit from escaping punishment for
lack of venue. Its enactment was designed to eliminate the need to insert venue
provisions in every statute where venue might be difficult to prove.” 673 F.2d at
350. Accordingly, we conclude that the district court properly found that there
was venue under § 3237(a) to prosecute this case in the Northern District of
Georgia.
B. Evidentiary rulings
We review a district court’s evidentiary rulings for abuse of discretion.
Schafer v. Time, 142 F.3d 1361, 1370 (11th Cir. 1998). An evidentiary ruling will
stand “unless the complaining party has shown a ‘substantial prejudicial effect.’”
Id. (quoting Judd v. Rodman, 105 F.3d 1339, 1341 (11th Cir. 1997)).
Federal Rule of Evidence 404(b) bars evidence of other crimes, wrongs, or
acts to show a person’s character. This kind of evidence may be presented,
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however, to prove other relevant aspects of a crime or event, such as motive,
intent, or lack of mistake. Fed. R. Evid. 404(b). This circuit has developed a
three-part test to determine whether evidence is admissible under Rule 404(b).
“‘First, the evidence must be relevant to an issue other than the defendant's
character. Second, as part of the relevance analysis, there must be sufficient proof
so that a jury could find that the defendant committed the extrinsic act.’ Third, the
evidence must possess probative value that is not substantially outweighed by its
undue prejudice, and the evidence must meet the other requirements of Rule 403.”
United States v. Miller, 959 F.2d 1535 (11th Cir. 1992) (quoting Huddleston v.
United States, 485 U.S. 681, 689 (1988)).
The district court did not err in admitting evidence that Breitweiser
previously engaged in sexual conduct with children. The evidence was relevant to
show Breitweiser’s motive, intent, knowledge, plan and preparation, and lack of
mistake when he touched A.B. The evidence was substantial, and it was not more
prejudicial than it was probative. Because the evidence is admissible under Rule
404(b), we do not consider the admissibility of the evidence under Rule 413.
Breitweiser’s argument that evidence of his hospitalization eleven days after
the incident in question should have been admitted fails the relevance test. The
district court did not abuse its discretion in barring the evidence.
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A. Sentencing
A court considering the application of a sentencing enhancement on the
basis of a defendant’s recidivism “is generally required to consider only the fact of
conviction and the statutory definition of the prior offense.” United States v.
Krawczak, 331 F.3d 1302, 1306 (11th Cir. 2003); see also United States v. Taylor,
495 U.S. 575, 602 (1990). The circumstances under which a court may depart
from this “categorical approach” are very limited. United States v. Spell, 44 F.3d
936, 939 (11th Cir. 1995); United States v. Fulford, 267 F.3d 1241, 1249 (11th
Cir. 2001). The danger of having to conduct “mini-trials” on a defendant’s prior
conviction counsels against looking beyond the statute of conviction. Spell, 44
F.3d at 939.
However, there are exceptions to the general rule. Although the
“categorical approach” must be used when a sentence enhancement statute
requires proof of the elements of a prior offense, a court may look beyond the
conviction when sentence enhancements are based on a defendant’s prior conduct
or crime. Fulford, 267 F.3d at 1250-51 (distinguishing the statute at issue, which
called for enhancement on the basis of “an offense that has as its elements,” from
those in Spell and Taylor, which referenced the defendant’s prior crime) (quoting
18 U.S.C. § 3559(c)(2)) (emphasis added). A court may look behind the judgment
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of conviction when it is impossible to determine from the face of the judgment or
statute whether the prior crime satisfies the enhancement statute. Spell, 44 F.3d at
939. As this court explained in Krawczak, “[T]he ability to look behind a state
conviction . . . is limited to instances where the judgment of conviction and the
statue are ambiguous.” 331 F.3d at 1306. This kind of ambiguity may occur
where the statutory language of the prior conviction “encompasse[s] some
offenses that would satisfy the enhancement statute and others that would not.”
Fulford, 267 F.3d at 1249 (citing Taylor, 495 U.S. at 602); Spell, 44 F.3d at 939-
40.
The sentence enhancement statute in this case, 18 U.S.C. § 2247, is
triggered when a defendant has a “prior sex offense conviction.” 18 U.S.C. §
2247(a). A “prior sex offense conviction” is defined as an “offense consisting of
conduct that would have been an offense” under, among other provisions, § 2244.
Breitweiser, 220 F. Supp. 2d at 1376 (quoting 18 U.S. C. § 2426(b)(1)(B))
(emphasis added). Section 2244 makes it a crime to cause sexual contact with a
minor between the ages of twelve and sixteen and at least four years younger than
the defendant. 18 U.S.C. §§ 2243(a), 2244(a)(3). The prior predicate offense in
this case is Breitweiser’s 1996 guilty plea to two counts of endangering the
welfare of a child under a New Jersey criminal statute. The statute made it a crime
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to “engage[] in sexual conduct which would impair or debauch the morals of [a]
child.” N.J. Stat. § 2C:24-4.
The district court properly looked past the conviction. First, the sentence
enhancement statute focuses on the defendant’s conduct, not on the elements of
the previous offense. Second, the state criminal statute for the prior offense here
is ambiguous and encompasses some conduct which would trigger the sentence
enhancement and some which would not. It is not possible to determine from the
face of the statute whether a person convicted of impairing or debauching the
morals of a child has committed conduct sufficient to trigger the sentence
enhancements of § 2247. A person convicted of violating the New Jersey statute
may have had sexual contact with a minor, or he may have not. For these reasons,
the district court did not err in looking beyond the elements of the prior crime.
Separate consideration must be given to whether the court appropriately
looked at Breitweiser’s plea colloquy in determining that the sentence enhancing
statute applied. As this court stated in Spell, a sentencing court must avoid
holding a “mini-trial” on the defendant’s prior crimes in looking beyond a
conviction. 44 F.3d at 939; see also Krawczak, 331 F.3d at 1306. Following the
Tenth Circuit, this court has held that a sentencing court may only examine certain
“easily produced and evaluated court documents, including the judgment of
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conviction, charging papers, plea agreement, presentence report adopted by the
court, and the findings of a sentencing judge.” Spell, 44 F.3d at 939 (citing United
States v. Smith, 10 F.3d 724, 734 (10th Cir. 1993). It is also appropriate to look at
sworn statements by the defendant from the record to determine whether or not his
prior conduct or crime triggers a sentence enhancement provision. Cf. Smith, 10
F.3d at 734 (looking at a police report that was a part of the charging papers).
We hold that the district court did not commit reversible error in looking at
Breitweiser’s plea colloquy. The plea colloquy was an uncontested statement on
the record made by Breitweiser that was readily available to the court considering
the sentence enhancement. The colloquy makes clear that Breitweiser’s prior
crime qualifies him for the sentence enhancement provided by § 2247. In his
detailed description of the events that led to his arrest under the New Jersey
statute, Breitweiser admitted to fondling two thirteen-year-old girls. This conduct
is sexual contact with a minor and constitutes an offense under §§ 2243 and 2244,
and triggers § 2247.
For the foregoing reasons, the district court did not err in applying the
sentence maximum doubling provision of § 2247.
We find no clear error in the district court’s separate finding that the
defendant committed the acts in question by means of threat or fear, meeting the
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requirements of § 2242 and warranting a base offense level increase under U.S.
Sentencing Guidelines Manual § 2A3.4.
AFFIRMED.
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