United States v. Duong, et al

Filing

[10444073] Reversed and Remanded. Terminated on the merits after oral hearing. Written, signed, published. Judges Briscoe, Ebel and Murphy (authoring). Mandate to issue. [16-6078]

FILED
Appellate Case: 16-6078

Document: 01019765053

United States Court of Appeals
Date Filed: 02/14/2017 Circuit 1
Tenth Page:

February 14, 2017
PUBLISH

Elisabeth A. Shumaker
Clerk of Court

UNITED STATES COURT OF APPEALS
TENTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v.

No. 16-6078

TRUNG N. DUONG; WILLIAM M.
BAKER; CURTIS A. ANTHONY,
Defendants - Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. No. 5:15-CR-00126-C)

K. McKenzie Anderson, Assistant United States Attorney (Mark A. Yancey,
Acting United States Attorney, with her on the briefs), Oklahoma City,
Oklahoma, for Plaintiff-Appellant.
Michael L. Brooks, The Brooks Law Firm (John W. Coyle, III, Coyle Law Firm,
R. Scott Adams and Robert W. Gray, Adams & Associates, P.C., Oklahoma City,
Oklahoma, Richard E. Stout, Stout & Stout, Edmond, Oklahoma, and Laura K.
Deskin, Laura K. Deskin, PLLC, Oklahoma City, Oklahoma, with him on the
brief), Oklahoma City, Oklahoma, for Defendants-Appellees.

Before BRISCOE, EBEL, and MURPHY, Circuit Judges.

MURPHY, Circuit Judge.

Appellate Case: 16-6078

I.

Document: 01019765053

Date Filed: 02/14/2017

Page: 2

Introduction
Defendants were charged in a two-count superseding indictment with child

sex trafficking and conspiracy to engage in child sex trafficking. See 18 U.S.C.
§§ 1591, 1594 (2008). 1 The superseding indictment asserted only one basis by
which the government would seek to prove mens rea as to the child victim’s 2
age—that Defendants had a reasonable opportunity to observe the child before
engaging in a commercial sex transaction. Defendants moved to dismiss the
indictment, arguing it failed to allege the mens rea element of child sex
trafficking. The district court agreed and dismissed the indictment.
The government appeals, arguing it can meet its burden of proving the mens
rea with regard to Defendants’ awareness of the child victim’s age by showing
only that Defendants had “a reasonable opportunity to observe” the victim. See
18 U.S.C. § 1591(c). This court agrees and, exercising jurisdiction pursuant to 18
U.S.C. § 3731, reverses the judgment of the district court. 3
1

Unless otherwise indicated, all citations to 18 U.S.C. § 1591 are to the
version of the statute which took effect on December 23, 2008. See William
Wilberforce Trafficking Victims Protection Reauthorization Act of 2008, Pub. L.
No. 110-457, tit. II, § 222(b)(5), 122 Stat. 5044, 5069-70 (Dec 23, 2008).
2

The superseding indictment identified two child victims, R.W. and M.M.

3

Appellees filed a supplemental appendix containing, inter alia, a portion
of the trial transcript in a related case, including images of the child victim. The
unopposed motion to seal this supplemental appendix was conditionally granted.
The government then moved to strike the supplemental appendix. This appeal can
be resolved by taking judicial notice of all filings of the parties and rulings of the
(continued...)
-2-

Appellate Case: 16-6078

II.

Document: 01019765053

Date Filed: 02/14/2017

Page: 3

Background
In 2015, Defendants-Appellees, Trung N. Duong, William M. Baker, and

Curtis A. Anthony, were charged by a federal grand jury with child sex
trafficking and conspiracy to engage in child sex trafficking, in violation of 18
U.S.C. §§ 1591(a)(1), (a)(2), (b)(2), (c), and 1594. The only element of the
charged crime relevant to this appeal is Defendants’ mens rea with respect to the
victim’s status as a minor. See United States v. Brinson, 772 F.3d 1314, 1325
(10th Cir. 2014) (setting out the elements of child sex trafficking). 4 The original
indictment charged three bases to satisfy this element: (1) knowledge, (2) reckless
disregard, and (3) a reasonable opportunity to observe the victim.

3

(...continued)
district court in United States v. Ehrens, No. 15-CR-200-C (W.D. Okla.). See
United States v. Smalls, 605 F.3d 765, 768 n.2 (10th Cir. 2010). Accordingly, the
government’s motion to strike the supplemental appendix is granted. The motion
to permanently seal the supplement appendix is denied as moot but the
supplemental appendix shall remain sealed pursuant to this court’s order dated
August 18, 2016. The Clerk of the Court shall destroy the supplemental appendix
and all copies in its possession when the time for filing a petition for writ of
certiorari has expired. Should there be a petition for writ of certiorari, the
supplemental appendix shall be disposed of as provided in a further order of this
court.
4

The Brinson court addressed whether the evidence presented at trial was
sufficient to support each of the elements of child sex trafficking. See United
States v. Brinson, 772 F.3d 1314, 1325-26 (10th Cir. 2014). Because the evidence
was sufficient to show the defendant knew or recklessly disregarded the fact the
victim was a minor, Brinson did not consider the question presented in this
appeal. See id. at 1326 (noting the minor’s high school registration form was
found in the defendant’s vehicle and it indicated she was fourteen years old).
-3-

Appellate Case: 16-6078

Document: 01019765053

Date Filed: 02/14/2017

Page: 4

In December 2015, the government prosecuted a related case against a
fourth defendant, Russell D. Ehrens. United States v. Ehrens, No. 15-CR-200-C
(W.D. Okla.). Ehrens was charged with child sex trafficking. The indictment
alleged he engaged in a commercial sex act with the child victim “knowing and in
reckless disregard of the fact that [the victim] had not attained the age of eighteen
years and having had a reasonable opportunity to observe [the victim].” In the
Ehrens matter, the government sought a jury instruction permitting the jury to
find that Ehrens had the required mens rea with respect to the victim’s age solely
on the basis that he had a reasonable opportunity to observe the victim. The
district court refused to give the instruction.
In response to the district court’s ruling on the proposed jury instruction in
the Ehrens matter, the government sought a superseding indictment in the instant
prosecution. As to the mens rea requirement with respect to Defendants’
awareness of the child victim’s age, the superseding indictment charged only that
Defendants had a reasonable opportunity to observe the victim. The government
also filed a motion in limine, asserting it intended to prove Defendants’ mens rea
by “elicit[ing] testimony and evidence that each Defendant had a reasonable
opportunity to observe the child that he obtained, not that he had knowledge of
that child’s age or was in reckless disregard of her age.” Accordingly, the
government sought to preclude Defendants from asserting a mistake-of-age
defense or arguing lack of knowledge of the victim’s underage status. The
-4-

Appellate Case: 16-6078

Document: 01019765053

Date Filed: 02/14/2017

Page: 5

district court denied the motion, ruling the government was required to produce
some evidence “regarding Defendants’ knowledge or reckless disregard regarding
the victim’s age.” The court also dismissed the superseding indictment,
concluding it failed to allege each element of the crime charged. In this appeal,
the government challenges the district court’s ruling dismissing the superseding
indictment.
III.

Discussion
A.

The Substantive Crime

This court reviews the dismissal of an indictment for abuse of discretion.
United States v. Todd, 446 F.3d 1062, 1067 (10th Cir. 2006). Here, however, the
government is asking this court to resolve the purely legal question of whether 18
U.S.C. § 1591(c) allows a child sex-trafficking conviction when the government
proves the defendant had a reasonable opportunity to observe the victim, but does
not also show the defendant knew or recklessly disregarded the underage status of
the victim. Although this is a question of law reviewed de novo, “[a]n error of
law is per se an abuse of discretion.” United States v. Lopez-Avila, 665 F.3d
1216, 1219 (10th Cir. 2011); see also Todd, 446 F.3d at 1067 (“We review the
sufficiency of an indictment de novo . . . .”).
“Any exercise in statutory interpretation must begin with an examination of
the plain language at issue.” Tuckel v. Grover, 660 F.3d 1249, 1252 (10th Cir.
2011). During that examination, we must keep in mind that “[t]he plainness or
-5-

Appellate Case: 16-6078

Document: 01019765053

Date Filed: 02/14/2017

Page: 6

ambiguity of statutory language is determined by reference to the language itself,
the specific context in which that language is used, and the broader context of the
statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341 (1997). Having
considered all these factors, this court joins the Second and Fifth Circuits in
concluding § 1591(c) is not ambiguous and provides an additional method by
which the government can satisfy the mens rea element with respect to the age of
a victim of child sex trafficking. 5 Accord United States v. Copeland, 820 F.3d
809, 813 (5th Cir. 2016); United States v. Robinson, 702 F.3d 22, 31 (2d Cir.
2012).

At the time the alleged criminal acts occurred, § 1591(a) provided that:

5

Defendants argue the Eleventh Circuit has adopted their interpretation of
18 U.S.C. § 1591(c). In United States v. Mozie, 752 F.3d 1271, 1282 (11th Cir.
2014), the Eleventh Circuit addressed the defendant’s argument that § 1591(c)
was unconstitutional on its face because it lowered the government’s “burden of
proof below the beyond-a-reasonable-doubt standard by allowing conviction
based on a showing that the defendant only recklessly disregarded the victim’s
age.” The court rejected this argument, stating it conflated mens rea with burden
of proof. Id. at 1282. The court also held that the “Due Process Clause does not
prevent Congress from criminalizing conduct that is done with reckless disregard
instead of actual knowledge,” stating that if the government proved “the
defendant had a reasonable opportunity to observe the victim, it need prove only
that he recklessly disregarded the fact that she was under the age of eighteen, not
that the defendant knew she was.” Id. The court repeated this standard when it
addressed the defendant’s challenge to the sufficiency of the evidence but did not
apply it, concluding instead that the evidence was sufficient to show the
defendant knew the ages of the victims. Id. at 1286. Because the Mozie court
neither engaged in an analysis of the statutory language nor applied the standard
it stated, that opinion is not persuasive on the issue of whether a defendant’s
reasonable opportunity to observe the child victim satisfies the mens rea element
as to the victim’s age.
-6-

Appellate Case: 16-6078

Document: 01019765053

Date Filed: 02/14/2017

Page: 7

Whoever knowingly—
(1) in or affecting interstate or foreign commerce, . . . recruits,
entices, harbors, transports, provides, obtains, or maintains by any
means a person; . . . knowing, or in reckless disregard of the fact . . .
that the person has not attained the age of 18 years and will be
caused to engage in a commercial sex act, shall be punished as
provided in subsection (b).
18 U.S.C. § 1591(a). The parties differ over the interpretation of § 1591(c)
which, on the relevant date, provided that:

In a prosecution under subsection (a)(1) in which the defendant had a
reasonable opportunity to observe the person so recruited, enticed,
harbored, transported, provided, obtained or maintained, the
Government need not prove that the defendant knew that the person
had not attained the age of 18 years.
Id. § 1591(c). Our analysis begins and ends with the statutory language.
18 U.S.C. § 1591 was promulgated in 2000 as part of the Trafficking
Victims Protection Act of 2000 (the “TVPA”), Pub. L. No. 106-386, div. A,
§ 112(a)(2), 114 Stat. 1464, 1487-88 (Oct. 28, 2000). A stated purpose of the
TVPA was to “combat trafficking in persons, especially into the sex trade,
slavery, and involuntary servitude.” 114 Stat. at 1464. In conformity with that
purpose, § 1591 was added to Title 18 of the United States Code to provide
federal criminal penalties for individuals who force or coerce a person to engage
in a commercial sex act or who cause a minor to engage in a commercial sex act.
114 Stat. at 1487 (codified at 18 U.S.C. § 1591(a), (b) (2000)). With respect to
criminal activity involving a minor, as originally enacted the statute required the

-7-

Appellate Case: 16-6078

Document: 01019765053

Date Filed: 02/14/2017

Page: 8

government to prove the defendant knew the child victim was a minor. 114 Stat.
at 1487 (codified at 18 U.S.C. § 1591(a) (2000)). If the government met that
burden, the penalty provisions were harsh: imprisonment up to life if the child
victim was less than fourteen years old and imprisonment up to twenty years if
the child victim was between fourteen and eighteen. 114 Stat. at 1487 (codified
at 18 U.S.C. § 1591(b) (2000)).
The mens rea provision in the original version of § 1591(a) was amended
by the William Wilberforce Trafficking Victims Protection Reauthorization Act
of 2008 (the “TVPRA”), Pub. L. No. 110-457, tit. II, § 222(b)(5), 122 Stat. 5044,
5069 (Dec. 23, 2008). Under the amended statute, a second method by which the
government could prove the relevant mens rea was added to the statute.
Specifically, the amended statute permitted the government to prove a defendant
acted in “reckless disregard of the fact” that the child victim was a minor. 122
Stat. at 5069 (codified at 18 U.S.C. § 1591(a)). This lessening of the
government’s burden of proof was wholly consistent with the objective of the
TVPRA to “enhance measures to combat trafficking in persons.” 122 Stat. at
5044.
The specific provision at issue here, § 1591(c), was also added to the
statutory scheme pursuant to the TVPRA. It appears in Title II § 222, a section of
the TVPRA containing multiple statutory amendments under the heading,
“Enhancing penalties for trafficking offenses.” 122 Stat. at 5067. Section
-8-

Appellate Case: 16-6078

Document: 01019765053

Date Filed: 02/14/2017

Page: 9

1591(c) is worded in terms of what the government “need not prove” when the
“defendant had a reasonable opportunity to observe the person so recruited,
enticed, harbored, transported, provided, obtained or maintained.” 122 Stat. at
5069 (codified at 18 U.S.C. § 1591(c)). When this “need not prove” language is
considered against the TVPRA’s stated objective of enhancing measures to
combat human trafficking, the only reasonable reading of § 1591(c) is that
Congress intended to further lessen the government’s burden in situations where
the defendant observed the victim of child sex trafficking.
We next consider § 1591(c) in context. See Holloway v. United States, 526
U.S. 1, 6 (1999) (“In interpreting the statute at issue, we consider not only the
bare meaning of the critical word or phrase but also its placement and purpose in
the statutory scheme.” (quotation omitted)). Reasonably read, § 1591(c), which
expressly states the government “need not prove” knowledge when a defendant
had a reasonable opportunity to observe the child victim, relieves the government
of a burden imposed on it by another provision. That other provision is
§ 1591(a), which permits the government to meet its burden of proving the
relevant mens rea element in one of two ways: (1) the defendant knew the child
victim was a minor, or (2) the defendant recklessly disregarded the fact the child
victim was a minor. 18 U.S.C. § 1591(a). As discussed, this provision was
amended by the TVPRA and decreased the prosecution’s burden of proving mens
rea by permitting it to show reckless disregard in lieu of knowledge. Reading the
-9-

Appellate Case: 16-6078

Document: 01019765053

Date Filed: 02/14/2017

Page: 10

two provisions together to give effect to both, indicates that § 1591 must be
interpreted to give the prosecution three methods by which it can prove the
relevant mens rea. The government can prove knowledge, the most difficult
burden to meet and, prior to the enactment of the TVPRA, the only method
available to the prosecution. With the changes made to § 1591(a) by the TVPRA,
the government can also prove the defendant acted in reckless disregard of the
child victim’s age. Finally, § 1591(c), by its plain language, permits the
government to meet its burden of proving knowledge by showing the defendant
had a reasonable opportunity to view the child victim.
Defendants argue this interpretation of § 1591(c) effectively relieves the
government of the burden to prove either knowledge or reckless disregard when a
defendant had a reasonable opportunity to observe the child victim,
notwithstanding the fact that § 1591(c) references only knowledge. They assert
this result fails to give effect to all provisions of the statute because the
amendment to § 1591(a) by the TVPRA—which added the reckless disregard
standard—becomes irrelevant. Defendants argue the only way to give effect to all
the statutory language is to read § 1591(c) as permitting the government to meet
the lesser burden of proving reckless disregard only in situations where the
defendant had a reasonable opportunity to observe the child victim.
Defendants’ assertion is true, in part. Once the government has shown a
defendant had a reasonable opportunity to observe the child victim, it has
-10-

Appellate Case: 16-6078

Document: 01019765053

Date Filed: 02/14/2017

Page: 11

satisfied its burden under the knowledge standard and there is no need for it to
also prove the defendant recklessly disregarded the fact the victim was a minor.
Thus, Defendants are correct that the government’s burden of proving the relevant
mens rea is fully met in situations where the defendant had a reasonable
opportunity to observe the child victim and the reckless disregard standard has no
application in that situation. Contrary to Defendants’ assertion, however, our
interpretation does not make the reckless disregard standard superfluous. In
situations where a defendant did not have a reasonable opportunity to observe the
child victim and the government does not have direct evidence of knowledge, the
reckless disregard standard provides the government with an avenue to prove the
relevant mens rea. Thus, our interpretation of § 1591(c) does not write the
reckless disregard standard out of the statute.
Defendants also advocate for their interpretation of § 1591(c) on the basis
that it is consistent with the purposes of the TVPRA because it relieves the
government of its burden of proving knowledge, permitting it to prove the lesser
standard of reckless disregard. But § 1591(a) accomplishes that same objective
without § 1591(c). As amended by the TVPRA, § 1591(a) now permits the
government to meet its burden in one of two ways—by proving either (1)
knowledge or (2) reckless disregard. The government is no longer limited to
proof of actual knowledge. Under the interpretation we adopt, both § 1591(a) and
(c) are given effect: (1) § 1591(a) lowers the government’s burden from one of
-11-

Appellate Case: 16-6078

Document: 01019765053

Date Filed: 02/14/2017

Page: 12

proving knowledge to one of proving knowledge or reckless disregard and (2) §
1591(c) further lowers the governments burden in situations where the defendant
had a reasonable opportunity to observe the child victim. Section 1591(c)
specifically states that the government should be relieved of a burden when a
defendant had a reasonable opportunity to observe the victim. Defendants’
interpretation would restrict the government’s ability to show mens rea under the
reckless disregard standard and, thus, is at odds with the plain language of
§ 1591(c), specifically, and the stated purpose of the TVPRA, generally.
Having examined the plain language of § 1591(c) in the context of the
statute as a whole, this court concludes that any burden on the part of the
prosecution to prove mens rea with respect to the age of the victim of child sex
trafficking is satisfied when the defendant had a reasonable opportunity to view
the victim. This interpretation satisfies the stated purpose of the TVPRA—to
bolster the government’s ability to regulate human trafficking—by lessening the
government’s burden in child sex trafficking cases. It also gives effect to all
provisions of § 1591. As so construed, at the time Defendants were indicted the
government’s burden of showing mens rea with respect to the age of the child
victim could be satisfied in one of three ways: (1) Defendants knew she was a
minor, or (2) Defendants recklessly disregarded the fact she was a minor, or (3)
Defendants had a reasonable opportunity to observe her. Accordingly, the

-12-

Appellate Case: 16-6078

Document: 01019765053

Date Filed: 02/14/2017

Page: 13

superseding indictment which only charged reasonable opportunity to observe the
victim was sufficient and the district court erred by dismissing it.
B.

The Conspiracy Charge

Defendants argue our interpretation of § 1591(c) does not resolve whether
the district court erred by dismissing the conspiracy counts. Relying on a case
from the Seventh Circuit, they assert they could not have agreed to commit the
crime of child sex trafficking without knowing the victim was a minor at the time
they entered into any agreement to violate 18 U.S.C. § 1591. See United States v.
Salgado, 519 F.3d 411, 415 (7th Cir. 2008) (holding “[t]he crime of conspiracy is
committed, or not, before the substantive crime begins”). This argument
confuses the conduct charged in the superseding indictment with Defendants’
defense to that charged conduct.
Defendants were charged with conspiring with a woman known to them as
“Carmen” to “knowingly recruit, entice, obtain, and maintain, by any means, a
person or persons, having had a reasonable opportunity to observe such person or
persons, and knowing and in reckless disregard of the fact that such person or
persons would be caused to engage in a commercial sex act. The person or
persons so recruited, enticed, obtained, and maintained had not attained the age
of 18 years . . . .” By alleging Defendants had a reasonable opportunity to
observe the victim, the superseding indictment specifically charges that
Defendants had knowledge the victim was a minor for purposes of the conspiracy
-13-

Appellate Case: 16-6078

Document: 01019765053

Date Filed: 02/14/2017

Page: 14

counts. See supra § III.A. Accordingly, the indictment charges the mens rea
element of the crime of conspiring to engage in child sex trafficking and the
district court erred by dismissing it.
IV.

Conclusion
The judgment of the district court is reversed and the matter remanded for

further proceedings not inconsistent with this opinion.

-14-