This may be one of the most interestingly written judgments I’ve ever read. Clearly the authoring Judge has both a sense of humor, and a flair for the dramatic. Absolutely worth the read; I’ll try to do it justice here by using as many direct quotes as possible.
“A Predator on the Prowl”/a.k.a. Facts: Appellant (already a registered sex offender) opened up an account on motherless.com and used a profile pic of a young girl holding a penis with something that appeared to be semen on her face and hands. Suffice it to say he writes some incredibly graphic details of what he is looking for. Enter, the undercover, “Jim Stuart.” Stuart poses as a father who has an 8-year-old daughter, and that he would be willing to “work something out.” Appellant and Stuart have significant conversations (email and phone) about plans for the meet-up. Appellant also talks to whom he thinks is the child; he writes a poem for her (I’ll spare you); and sends her inappropriate outfits. Following the plans, Appellant takes a bus from PA to RI, hoping to meet up with Stuart and the child at a hotel for sex acts and photos of said acts. Appellant is arrested the moment he steps off the bus.
Appellant waived Miranda and made a number of critical admissions; but short of an all out confession. He was charged with: crossing a state line with intent to engage in a sex act with a person under 12 (count 1); using the internet-a facility of interstate commerce- to persuade a person under 18 to engage in a sex act for which he could be charged with the criminal offense of child molestation in RI (count 2); traveling in interstate commerce to engage in a sex act with a minor (count 3); transporting child pornography in interstate commerce (count 4); possessing child sexual exploitation images distributed though interstate commerce (count 5); and committing the crimes alleged in counts 1-3 while being required to register as a sex offender (count 6).
Pretrial attack on F.R.E. 414: “The parties dueled below over the admissibility of a certified document showing [Appellant’s] 1993 NJ conviction for aggravated sexual assault and endangering the welfare of a child. The government prevailed, and a NJ probation officer testified at trial that the victim in that case was a nine year old.
Conviction/Sentence: Appellant was convicted on all counts. He was sentenced to: life + 10 years (life for counts 1 -2; 30 years on count 3; 40 years on count 4; 20 years on count 5; and 10 years on count 6—sentences on 1-5 running concurrently and sentence on count 6 running consecutively with sentences on counts 1-3).
Issues: “Unhappy with the outcome below, [Appellant] contests the admissibility of the prior conviction evidence, the validity of the count 6 conviction, and the legality of the life sentences.” We will take up the 414, and sentencing issues here.
Attack on F.R.E. 414 Evidence: “[Appellant’s] thesis has two facets: first, that 414 requires an actual child victim…and second, that the evidence was irrelevant for counts 4-5 and unfairly prejudiced his defense of counts 1-3.” This is reviewed for plain error because Appellant “debuts his actual-child-victim claim on appeal.”
- Appellant did not cite any authority for his argument regarding the need for an actual child victim. “Given this state of affairs, we are worlds away form a plain error – i.e., an error that is indisputable.”
2.a. “We can make quick work of [Appellant’s] claim that the judge should not have admitted the prior conviction evidence because (to his mind, at least) it ‘was irrelevant’ to counts 4-5.” Appellant conceded the relevance portion to counts 1-3 and 6. “That means game, set, and match to the government on this issue, for we know of no case – and [Appellant] cites none-suggesting that evidence must be relevant to all counts.”
2.b. Turning then to the unfair-prejudice issue. “Rule 403 (for those not in the know) lets a judge exclude relevant evidence if ‘its probative value is substantially outweighed’ by its unfairly prejudicial nature.” Appellant complains first that evidence of his New Jersey conviction merely encouraged the jury to infer that he had a propensity to act like a “child molester,” something that he believes is at odds with Rules 404(b) and 403. Not true. Yes, evidence offered under Rule 414 must still pass muster under Rule 403. See Martínez, 608 F.3d at 60–61. But when tackling the problem, judges must be ever mindful that Rule 414 removes Rule 404(b)’s blanket ban on propensity inferences in child- molestation cases. See id. at 60.FN12 And because Rule 414 flags this propensity inference as proper, we cannot brand the inference as unfairly prejudicial under Rule 403. See United States v. Rogers, 587 F.3d 816, 822 (7th Cir.2009) (quoted favorably in Martínez).
“Readers take note, please. Even if no unfair prejudice arises solely because the evidence rests on propensity, that hardly means that there are no dangers to watch out for. The evidence could still cause the jury to condemn a defendant based on passion or bias, for example, which is a no-no.” However, the judge properly instructed the jury on the permissible use of this evidence as well as the burden of proof.
Holding: “The bottom line is that we see no abuse of discretion in the judge’s handling of this aspect of the case. And so we press on.”
Attack on the Life Sentences: Appellant argued that his life sentences on counts 1 and 2 must be vacated “offering a bunch of reasons.”
We start with count 1, which, the reader will recall, charged Jones with violating § 2241(c) by crossing state lines “to engage in a sexual act” with a person under 12. “Sexual act” means (among other things) “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.” 18 U.S.C. § 2246(2)(C). And § 2241(c)—so far as relevant here—requires (emphasis ours) a life sentence “[i]f the defendant has previously been convicted of another Federal offense under this subsection, or a State offense that would have been an offense under either such pro- vision had the offense occurred in a Federal prison.” The judge at sentencing concluded that Jones’s 1993 New Jersey conviction qualified as a predicate offense under § 2241(c). Looking at the state-court judgment and the statute of conviction—not at what Jones did to trigger the statute’s application, see Descamps v. United States, –––U.S. ––––, –––– – ––––, 133 S.Ct. 2276, 2285–86, 186 L.Ed.2d 438 (2013)—we respectfully disagree.
“The state-court judgment shows that a jury convicted Jones on a two-count indictment for aggravated sexual assault and endangering the welfare of a child. See N.J. Stat. Ann. §§ 2C14–2a(1) and 2C24–4a. The state-court judgment also says that the latter count ‘merge[d]’ into the former. So we—like the parties—zero in on § 2C14–2a(1). Section 2C14–2a(1) provides that a person ‘is guilty of aggravated sexual assault if he commits an act of sexual penetration with another person’ and ‘[t]he victim is less than 13 years old.’ One reason that section cannot qualify as a § 2241(c) predicate—and one is all we need—is that unlike § 2241(c), § 2C14–2a(1) does not require proof that the defendant acted with the intent to degrade, humiliate, arouse, etc. see In re T.T., 188 N.J. 321, 907 A.2d 416, 424 (N.J.2006) (explaining how § 2C14–2a(1) lacks that intent element). Enough said on that.”
“Now on to count 2, which, the reader will re- member, charged Jones with infracting § 2422(b) by using the internet to entice a minor to engage in criminal sexual activity. Unlike § 2241(c), § 2422(b) does not have a built-in life-in-prison proviso. But another statute— 18 U.S.C. § 3559(e) —does. And the judge relied on that statute in imposing the life sentence on count 2. Section 3559 (e)(1) pertinently provides that ‘[a] person who is convicted of a Federal sex offense in which a minor is the victim shall be sentenced to life imprisonment if the person has a prior sex conviction in which a minor was the victim.’ Section 3559(e)(2)(A) lists nine crimes that qualify as federal sex offenses, including § 2241(c)—the only one that matters here. Also, § 3559(e)(2)(B) and (C) say (among other things) that a “prior sex conviction” includes a ‘State sex offense,’ which is an offense that ‘consists of conduct that would [constitute] a Federal sex offense.’ And so we are left with the question whether Jones’s state conduct would constitute a crime under § 2241(c)—a question we have already answered ‘no,’ given how § 2C14–2a(1) and § 2241(c) do not share the same intent element. Ultimately, then, § 3559(e)(1) cannot be the basis for the life sentence.”
“Final Words”/a.k.a. Holding: “The short of this longish opinion is that we affirm [Appellant’s] convictions but vacate his sentences on counts 1-5 and remand for a re sentencing consistent with this decision.”