CAAFlog » September 2013 Term » United States v. Kearns

CAAF decided the Army case of United States v. Kearns, No. 13-0565/AR, 73 M.J. 177 (CAAFlog case page) (link to slip op.), on Friday, March 21, 2014, finding that Appellant’s conviction for transportation of a minor for illegal sexual activity, in violation of 18 U.S.C. § 2423(a), is legally sufficient, and affirming both the findings and the published decision of the Army Court of Criminal Appeals.

Judge Ohlson writes for a unanimous court (and it’s his first opinion of the court).

Appellant was convicted in absentia, contrary to pleas of not guilty entered on his behalf, by a general court-martial composed of officer members, of making a false official statement, aggravated sexual assault of a child, wrongful transportation of a minor through interstate commerce, and a general disorder, in violation of Articles 107, 120, and 134, UCMJ. He was sentenced to confinement for four years, reduction to E-1, total forfeitures, and a bad-conduct discharge.

Judge Ohlson’s opinion provide a succinct summary of the facts:

During the relevant time period, Appellant was a twenty-two year-old soldier stationed at Fort Bliss, Texas. In both November and December of 2009, while Appellant was home on leave in Pennsylvania, he had sexual intercourse with K.O. K.O. was fifteen years old at the time and Appellant knew she was a minor. When Appellant returned to Fort Bliss, Appellant and K.O. stayed in contact via text messages and phone calls.

At some point in their relationship, K.O. falsely told Appellant that she had been sexually assaulted by a family member. Thereafter, in January 2010, Appellant paid a female friend to transport K.O. from Pennsylvania to Texas. However, before the friend and K.O. (along with another minor female) reached the Fort Bliss area, they were stopped by Texas law enforcement for a traffic violation. The police determined that K.O. and the other young female were minors and possible runaways.

Slip op. at 2-3. The defense asserted at trial that Appellant “facilitat[ed] K.O.’s travel across state lines [in order] to remove her from a sexually abusive environment,” and not for the purpose of illegal sex. Slip op. at 4. On review, the Army CCA considered various formulations from the federal circuits of the intent required to violate  § 2423(a). In a published opinion, the court concluded that “as long as the illegal sexual activity is a purpose of the transport and not merely incidental to the travel, the requisite intent is met.” United States v. Kearns, 72 M.J. 586, 587 (A.Ct.Crim.App. 2013) (link to slip op.). The CCA found that Appellant had such intent based upon Appellant’s prior sexual activity with KO, the fact that KO had romantic feelings for Appellant and sent him a sexually suggestive picture, and Appellant’s initial denials of his role in KO’s transportation to Texas and their prior sexual contact.

CAAF granted review to determine:

Whether the evidence was legally sufficient to prove that Appellant had the intent to engage in criminal sexual conduct with KO, a minor, when he facilitated KO’s travel in interstate commerce and was found guilty in Specification 1 of Charge III of violating 18 U.S.C. § 2423(a).

Judge Ohlson begins his discussion by explaining that § 2423(a) states, in pertinent part:

A person who knowingly transports an individual who has not attained the age of 18 years in interstate or foreign commerce . . . with intent that the individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense, shall be fined under this title and imprisoned not less than 10 years or for life.

Slip op. at 8.

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Audio of today’s oral arguments is available at the following links:

United States v. Kearns, No. 13-0565/AR (CAAFlog case page): Oral argument audio.

United States v. Gutierrez, No. 14-0009/AR (CAAFlog case page): Oral argument audio.

CAAF will hear oral argument in the Army case of United States v. Kearns, No. 13-0565/AR (CAAFlog case page), on Tuesday, January 14, 2014. The court will review the published decision of the Army Court of Criminal Appeals that found Appellant’s conviction for transportation of a minor for illegal sexual activity, in violation of 18 U.S.C. § 2423(a), legally sufficient on the issue of whether Appellant intended illegal sex with the minor when he facilitated her transportation. CAAF granted review of a single issue:

Whether the evidence was legally sufficient to prove that Appellant had the intent to engage in criminal sexual conduct with KO, a minor, when he facilitated KO’s travel in interstate commerce and was found guilty in Specification 1 of Charge III of violating 18 U.S.C. § 2423(a).

Appellant was convicted in absentia, contrary to pleas of not guilty entered on his behalf, by a general court-martial composed of officer members, of making a false official statement, aggravated sexual assault of a child, wrongful transportation of a minor through interstate commerce, and a general disorder, in violation of Articles 107, 120, and 134, UCMJ. He was sentenced to confinement for four years, reduction to E-1, total forfeitures, and a bad-conduct discharge.

And because I know you’re wondering, Appellant “is currently in confinement at the Joint Regional Correctional Facility at Fort Leavenworth, Kansas.” App. Br. at 2.

The Army CCA’s published opinion in this case provides a good factual background for the wrongful transportation offense:

Appellant twice had sexual intercourse with a minor, KO, in Pennsylvania. KO was fifteen years old at all relevant times in this case and the sister-in-law of appellant’s brother. Appellant had known the girl for several years. Not long after appellant engaged in sexual intercourse with KO he returned to Texas. Soon thereafter he arranged for KO to accompany another of his paramours, NA, in a car from Pennsylvania to Texas. Once in Texas, police authorities arrested NA and placed KO and one of her friends in detention as runaways.

United States v. Kearns, 72 M.J. 586, 587 (A.Ct.Crim.App. 2013). Appellant’s facilitation of the transportation consisted of providing $700 to NA to drive KO to Texas. While Appellant wasn’t present for trial to testify about his reason for facilitating KO’s travel to Texas, he gave pretrial statements to law enforcement agents that initially denied (though eventually admitted) any sexual contact with the girl. Appellant also explained that the girl had told him that his brother raped and abused her, and Appellant said he facilitated her travel to Texas in order to help her. The ACCA’s opinion continues:

There is no doubt KO complained that appellant’s brother raped her and repeated that complaint to the authorities in Pennsylvania as well as to appellant. These claims turned out to be false. There is also no doubt that KO wanted to be with appellant in Texas. She claimed, however, that neither she nor appellant intended to have sex again before she turned eighteen. Prior to her departure from Pennsylvania, KO and appellant frequently talked by phone and KO admitted to sending appellant a photograph of her naked breast by text message.

Kearns, 72 M.J. at 587. Appellant never admitted to facilitating the travel for the purpose of sex with KO. At trial, the defense argued that Appellant transported KO to rescue her, and not with the intent of having sex with her. The military judge instructed the panel that “the offense required appellant to possess the ‘specific intent to engage in sexual intercourse with [KO] knowing she was a minor.'” Id. at 588. Appellant was convicted.

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