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.
The CCA reviewed the case for legal and factual sufficiency on the issue of Appellant’s intent. Considering various formulations from the federal circuits, the CCA 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.” Kearns, 72 M.J. at 589 (citing United States v. Campbell, 49 F.3d 1079, 1083 (5th Cir. 1995)). 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.
Notably, the CCA rejected Appellant’s claim that the sole purpose of the transportation of KO was to help her escape further abuse, and the court rejected KO’s assertion that she and Appellant planned to wait until she turned 18 before engaging in any further sexual activity. The court then applied the preemption doctrine to reverse Appellant’s conviction for disorderly conduct.
18 U.S.C. § 2423(a) states:
Transportation With Intent To Engage in Criminal Sexual Activity.— A person who knowingly transports an individual who has not attained the age of 18 years in interstate or foreign commerce, or in any commonwealth, territory or possession of the United States, 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.
(link to statutory text). Appellant’s brief makes a two-pronged attack on the CCA’s decision. First, Appellant asserts that the CCA’s conclusion about the requisite intent – that sex need only be “a purpose” of the transportation – was wrong:
The Army Court erred when it rejected SPC Kearns’ argument that the government had to prove that the intent to engage in “illegal sexual activity with KO was a motivating, compelling, or significant purpose” for the interstate travel.
App. Br. at 12 (emphasis added). If CAAF reverses the CCA on this point, the added quantum of intent could well tip the balance in Appellant’s favor in this highly circumstantial case. And the circumstances are the second prong of Appellant’s attack:
Specialist Kearns’ compelling or significant motivation to transport KO from Pennsylvania to Texas was to remove KO from a situation where KO reported to SPC Kearns that she was subjected to sexual assault from SPC Kearns’ brother. According to KO, she did not discuss having sex with SPC Kearns prior to attempting her travel to Texas. . . . Thus, SPC Kearns compelling or significant purpose of having KO travel to Texas was not to engage in illegal sexual conduct. If KO intended to initiate sexual activity with SPC Kearns in Texas then that conduct would have been merely incidental to the travel and would not be reflective of SPC Kearns’ intent. Specialist Kearns’ desire to remove KO from a dangerous situation predominated over any lesser motivations.
App. Br. at 14-15 (citation omitted). The brief also discusses the prior sexual encounters between Appellant and KO:
The first sexual encounter occurred while SPC Kearns was home on leave in Pennsylvania for Thanksgiving. KO initiated this sexual encounter while SPC Kearns was drunk. The second sexual encounter in December 2009 between SPC Kearns and KO was equally isolated and once again initiated by KO. Specialist Kearns was again highly intoxicated.
App. Br. at 16 (citations to record omitted).
Applying principles of statutory construction while recognizing a circuit split, the Government’s response focuses on the absence of modifiers in the statutory text:
Nevertheless, a number of federal circuits address the “intent” or “purpose” element through the use of modifiers. Accordingly, in these circuits, the illicit sexual act must be a “dominant”, “motivating”, or “significant” reason why a minor is transported in interstate commerce. Conversely, other federal circuits hold that so long “a” purpose of transporting the minor in interstate commerce was to engage in illicit sexual activity, the mens rea element is satisfied. This approach directly applies the unambiguous text of the Mann Act without any superfluous modifiers.
Gov’t Br. at 10. The Government urges CAAF to reject Appellant’s argument for a greater intent requirement, because “The statute by its text only requires the government to prove that an accused intended to engage in illicit sexual conduct at the time he transported a minor in interstate commerce.” Gov’t Br. at 12. And of this intent, the Government asserts that “there was overwhelming evidence.” Id.
This court may review the conduct of the parties within the three months prior to KO’s trip to infer appellant’s intent, which clearly supports a finding that a purpose for appellant transporting KO in interstate commerce was for her to engage in sexual intercourse with him. Appellant’s intent may be established by circumstantial evidence, which includes the conduct of the parties within a reasonable time before and after the trip.
Gov’t Br. at 14-15 (marks and footnote omitted). The “conduct of the parties” that the Government considers relevant includes:
appellant’s previous sexual relationship with the victim . . . that they communicated on a daily basis and continued an intimate relationship. . . . that shortly before her travel to Texas, KO sent appellant a nude picture of herself without any protest from appellant. . . . [and] the fact that appellant and KO also discussed her coming to be with appellant and eventually getting married shortly before she left her home in Pennsylvania.
Gov’t Br. at 15. The Government’s brief also undercuts Appellant’s claimed innocent motive of helping KO based on the facts that Appellant didn’t report KO’s allegation of abuse by his brother to authorities, that his second sexual encounter with KO was after she made the abuse allegation to him, and that (as if this case wasn’t strange enough) after arriving in Texas, KO “would be living with a stripper, who was also one of appellant’s sexual partners.” Gov’t Br. at 16. Finally, the Government asserts that Appellant’s false statements to law enforcement about the nature of his relationship with KO are evidence of his consciousness of guilt.
Curiously, the Government’s brief claims that KO sent Appellant a “nude photograph of herself” (Gov’t Br. at 5 (citing JA at 26)) while Appellant’s brief claims that she sent “topless pictures of herself” (App. Br. at 18 (citing JA at 26)). There is, of course, an enormously significant difference between “nude” and “topless” photographs of a minor; child pornography includes images that show a “lascivious exhibition of the genitals or pubic area,” and a merely “topless” photograph doesn’t meet this definition (as the AFCCA recently acknowledged in United States v. Piolunek, 72 M.J. 830, No. 38099 (A.F.Ct.Crim.App. Oct 21, 2013) (discussed here)).
Ultimately, while I think the assertion in the Government’s brief that the evidence is “overwhelming” is a stretch, there is certainly some evidence on which an argument can be made that Appellant did intend to continue his sexual relationship with KO. And the Government’s brief does a good job of making that argument. CAAF’s review will be limited to legal sufficiency (as Article 67(c) states that it can “take action only with respect to matters of law”), and the difference between factual and legal sufficiency is a big one:
The test for legal sufficiency requires courts to review the evidence in the light most favorable to the Government. If any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt, the evidence is legally sufficient.
The test for factual sufficiency is whether, after weighing the evidence in the record of trial and making allowances for not having personally observed the witnesses, the court is “convinced of the accused’s guilt beyond a reasonable doubt.
United States v. Reed, 54 M.J. 37, 41 (C.A.A.F. 2000) (marks and citations omitted) (emphases added).
This raises an interesting possibility likely to affect the oral argument. If CAAF decides that the CCA erred in finding that illegal sex need only be “a purpose” of the transportation, agreeing with Appellant that it must be a “motivating, compelling, or significant purpose,” it will have to remand the case to the CCA for a new factual sufficiency review under the correct measure of intent before it can affirm the conviction on legal sufficiency grounds. See United States v. Phillips, 70 M.J. 161, 167 (C.A.A.F. 2011) (discussed here). Though, presumably, CAAF could just reverse on legal sufficiency grounds and avoid the need for a factual sufficiency review.
But while the appellate defense counsel undoubtedly wants CAAF to decide the case in Appellant’s favor on legal sufficiency grounds, the fact that a legal sufficiency review requires CAAF to view the evidence in the light most favorable to the Government means that Appellant’s best bet for reversal might ultimately be with the CCA that has already denied him relief.