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.
This statue has a specific intent element, but Judge Ohlson explains that “there is no requirement under this statute that the intended unlawful sexual activity actually occurred. Rather, all that is required is that the mens rea of intent coincided with the actus reus of crossing state lines.” Slip op. at 9 (marks and citations omitted). And CAAF agrees with the CCA that the element is met if “the illegal sexual activity is a purpose of the transportation across state lines, and not merely incidental to the travel.” Slip op. at 13 (emphasis in original). In reaching this conclusion, Judge Ohlson considers and rejects reasoning of the Second, Third, Fifth, Ninth, and Tenth Circuits, all of which have added to the intent requirement in some way. Instead, his opinion concludes that “§ 2423(a) is clear on its face, and thus we decline to graft additional modifiers onto it.” Slip op. at 13.
With the ACCA’s decision on the intent element affirmed, CAAF need not remand the case for a new factual sufficiency review (where the evidence is not viewed in the light most favorable to the Government). Instead, Judge Ohlson makes quick work of the question of legal sufficiency, concluding that:
The record in this case shows: that Appellant had sexual intercourse with K.O. on at least two occasions in the two months prior to the point when he orchestrated her transportation across state lines; that Appellant went so far as to climb in the second-story window of K.O.’s bedroom in order to have sex with her; that shortly before the trip K.O. sent Appellant a photo of her naked breast and Appellant did not object to this action; that Appellant paid a stripper with whom he had a sexual relationship a substantial sum of money to transport K.O. to Texas; and that Appellant planned to have K.O. live near him. These are all facts that the panel could have considered and relied upon in reaching its decision that Appellant transported K.O. across state lines “with intent” to engage in illegal sexual activity with her.
Accordingly, we hold that there was sufficient evidence for the panel to conclude beyond a reasonable doubt that Appellant facilitated the transportation of a minor across state lines with intent that she engage in criminal sexual activity in violation of 18 U.S.C. § 2423(a).
Slip op. at 14.