USA v. Jason Jayavarman

Filing

FILED OPINION (SUSAN P. GRABER, RICHARD R. CLIFTON and MILAN D. SMITH, JR.) AFFIRMED IN PART; VACATED IN PART; REMANDED. Judge: RRC Authoring, FILED AND ENTERED JUDGMENT. [10593888]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

No. 16-30082

v.

D.C. No.
3:13-cr-00097-SLG

JASON JAYAVARMAN,
Defendant-Appellant.

OPINION

Appeal from the United States District Court
for the District of Alaska
Sharon L. Gleason, District Judge, Presiding
Argued and Submitted August 16, 2017
Anchorage, Alaska
Filed September 26, 2017
Before: Susan P. Graber, Richard R. Clifton,
and Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Clifton

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UNITED STATES V. JAYAVARMAN
SUMMARY*

Criminal Law
The panel affirmed a conviction for attempt to produce
and transport into the United States a visual depiction of a
minor engaged in sexually explicit conduct in violation of
18 U.S.C. § 2251(e) (Count 1B), vacated a conviction for
attempt to aid and abet travel with intent to engage in illicit
sexual conduct in violation of 18 U.S.C. § 2243(b) (Count
2B), vacated the sentence as to both counts, and remanded for
resentencing.
The panel accepted the government’s concession that the
conviction as to Count 2B must be vacated because § 2423
does not cover attempted aiding and abetting.
The panel held that a defendant may be convicted of an
attempt to produce and transport a visual depiction of a minor
engaged in sexually explicit conduct when he believes that
the victim is a minor, regardless of the victim’s actual age.
The panel rejected the defendant’s contentions (1) that the
Constitution’s Foreign Commerce Clause does not authorize
Congress to prohibit transportation of a sexually explicit
visual depiction pursuant to 18 U.S.C. § 2251(c) if the
depiction does not depict an actual minor; and (2) that
prohibiting an attempt to make a sexually explicit video with
a performer who the producer mistakenly believes to be a

*

This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.

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minor would chill lawful speech in violation of the First
Amendment.
The panel rejected the defendant’s contention that the
jury instruction as to Count 1B constituted a constructive
amendment of the indictment.
Rejecting the defendant’s sufficiency-of-the-evidence
challenge, the panel held that a rational jury could have found
that the government proved beyond a reasonable doubt that
the defendant believed the victim was a minor at the time he
made and transported the visual depictions.
Rejecting the defendant’s challenge to the district court’s
grant of the government’s motion in limine to admit audio
recordings of the defendant’s statements, the panel concluded
that the district court did review the transcripts, and that even
if the district court had not read every word, the error would
have been harmless because the exhibits were clearly
admissible under Fed. R. Evid. 403.
Rejecting the defendant’s contention that the district court
erred under the Court Interpreters Act, the panel held that the
district court did not clearly err in determining that the
defendant was sufficiently proficient in English that he did
not require an interpreter.
In addition to vacating the defendant’s conviction as to
Count 2B, the panel vacated his sentence as to Count 1B and
remanded for resentencing as to both counts because his
sentence as to Count 1B was likely affected by his conviction
as to Count 2B.

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UNITED STATES V. JAYAVARMAN
COUNSEL

A. Cristina Weidner-Tafs (argued) and Phillip Paul Weidner
(argued), Weidner & Associates APC, Anchorage, Alaska,
for Defendant-Appellant.
Ross Goldman (argued), Attorney; Sung-Hee Suh, Deputy
Assistant Attorney General; Leslie R. Caldwell, Assistant
Attorney General; Criminal Division, Appellate Section,
United States Department of Justice, Washington, D.C.; Ravi
Sinha, Assistant United States Attorney, United States
Attorney’s Office, Portland, Oregon; Audrey J. Renschen,
Assistant United States Attorney; Karen L. Loeffler, United
States Attorney; United States Attorney’s Office, Anchorage,
Alaska; for Plaintiff-Appellee.

OPINION
CLIFTON, Circuit Judge:
It is a crime to produce outside the United States a visual
depiction of a minor engaged in sexually explicit conduct and
to then transport that visual depiction into the United States.
18 U.S.C. § 2251(c). It is also a crime to attempt to produce
and transport into the United States a visual depiction of a
minor engaged in sexually explicit conduct. 18 U.S.C.
§ 2251(e).
In this case, we consider what happens when a defendant
believes that the victim appearing in a depiction is a minor
but the victim turns out to be an adult. That defendant cannot
be convicted of the completed version of the crime, but can
he be convicted of attempt? We answer that question in the

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affirmative: a defendant attempts to produce and transport a
visual depiction of a minor engaged in sexually explicit
conduct when he believes that the victim is a minor,
regardless of the victim’s actual age.
This conclusion undermines a number of the grounds on
which the defendant in this case challenges his conviction for
attempted production and transportation of a visual depiction
of a minor engaged in sexually explicit conduct. We reject
the other grounds on which he challenges that conviction, and
we affirm that conviction. As the government concedes we
must, we vacate his conviction for attempting to aid and abet
an undercover FBI agent’s travel with intent to engage in
illicit sexual conduct because the statute does not proscribe an
attempt to aid and abet such travel. We vacate his sentences
on both counts and remand for resentencing.
I. Background
Between 2010 and 2012, Defendant-Appellant Jason
Jayavarman, who is a dual citizen of the United States and
Cambodia, traveled repeatedly from his residence in
Anchorage to Cambodia. While in Cambodia, Jayavarman
had sexual relations with a female, referred to as “Ann” or
“Ana.” He made video recordings of the sexual relations and
transported the recordings back to his residence in
Anchorage.
It was disputed whether the victim was actually a minor
and whether Jayavarman believed she was a minor at the time
he made and transported the recordings. At trial, the jury
heard audio recordings of Jayavarman stating that the victim
was fourteen years old at the time he began having sexual
relations with her and that he began making the video

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recordings of their sexual relations either at that time or the
next year. Documents of questionable provenance that
purported to be the victim’s birth certificate and national ID
card, as well as an attestation, were also introduced into
evidence. The documents asserted that the victim was born
on a date that would have meant she was an adult at the time
the recordings were made.
Jayavarman was tried in federal court for his conduct, and
the jury was asked to consider two related subcounts. Count
1A asked the jury to determine whether Jayavarman had
produced a visual depiction of a minor engaged in sexually
explicit conduct while outside the United States and then
transported the depiction into the United States in violation of
18 U.S.C. § 2251(c). Count 1B asked the jury to determine
whether Jayavarman had attempted to perform the conduct
described in Count 1A in violation of 18 U.S.C. § 2251(e),
which criminalizes attempted violations of any of § 2251’s
subsections. The jury did not return a verdict on Count 1A,
apparently not reaching a conclusion on the issue of whether
the victim was actually a minor. The jury found Jayavarman
guilty on Count 1B.
Jayavarman was tried for other alleged misconduct at the
same time he was tried for the alleged violations of 18 U.S.C.
§ 2251 described above. Specifically, it was alleged that
Jayavarman engaged in a number of telephone and in-person
conversations in 2013 with an undercover FBI agent who
pretended to be interested in traveling to Cambodia to have
sexual relations with minors. Jayavarman made arrangements
to travel to Cambodia and expressed an intent to meet the
agent in Cambodia. Jayavarman was arrested before he left
on the trip. It was disputed whether Jayavarman intended to
have illicit sexual relations when he arrived in Cambodia and

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how he intended to assist the FBI agent. The jury was asked
to consider two related subcounts. Count 2A asked the jury
whether Jayavarman had, while a United States citizen,
attempted to travel to a foreign country with the intent to
engage in illicit sexual conduct in violation of 18 U.S.C.
§§ 2423(b) and (e). Count 2B asked the jury whether
Jayavarman had attempted to aid and abet another person in
performing the conduct described in Count 2A. The jury did
not return a verdict on Count 2A and found Jayavarman
guilty on Count 2B. As was true with Counts 1A and 1B,
most of the evidence in support of the conviction consisted of
recordings of Jayavarman’s conversations with law
enforcement officers.
After filing several post-trial motions, Jayavarman timely
appealed his convictions on a number of grounds. In its
answering brief on appeal, the government conceded that the
conviction as to Count 2B must be vacated because the statute
does not cover attempted aiding and abetting, the theory of
the crime on which Jayavarman was convicted.1 We accept

1

The government concedes in reliance on our decision in United
States v. Kuok, 671 F.3d 931, 941–42 (9th Cir. 2012), in which we vacated
a conviction for attempting to cause the commission of a federal crime
where the substantive statute did not contain a causation provision and the
general causation statute did not contain an attempt provision. We
explained that “there is no general federal ‘attempt’ statute. A defendant
therefore can only be found guilty of an attempt to commit a federal
offense if the statute defining the offense also expressly proscribes an
attempt.” Id. at 941 (some internal quotation marks and alteration
notations omitted).
The jury convicted Jayavarman under Count 2B of attempting to aid
and abet the undercover FBI agent’s travel with intent to engage in illicit
sexual conduct in violation of 18 U.S.C. § 2423(b). Section 2423(b)
covers the substantive offense of traveling with intent to engage in illicit

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the concession and vacate Jayavarman’s conviction and
sentence as to Count 2B.
II. Discussion
Jayavarman challenges his conviction on a variety of
theories, most of which relate to his contention that a jury
must find that the victim was actually a minor, as opposed to
finding that the defendant believed the victim was a minor, in
order to convict a defendant of an attempted violation of
18 U.S.C. § 2251(c). He makes this argument as a matter of
statutory construction, and he further contends that his
conviction on the basis of his belief that the victim was a
minor violated the Foreign Commerce Clause and the First
Amendment and also constituted a constructive amendment
of the indictment. Relatedly, he claims that there was
insufficient evidence to prove that he believed the victim was
a minor. Jayavarman also argues that the district court did
not adequately review exhibits before admitting them over his
challenges made pursuant to Federal Rule of Evidence 403.
Finally, he contends that the district court erred in concluding
that he did not need an interpreter, an issue that he did not
raise until the trial was over. We are not persuaded by any of
these challenges.

sexual conduct. Section 2423(e) prohibits attempting to violate § 2423(b),
and 18 U.S.C. § 2(a) is a general provision prohibiting aiding and abetting
the commission of a federal crime. The substantive statute does not
contain an aiding and abetting provision, and the general aiding and
abetting statute does not contain an attempt provision. The government
reasons that, under Kuok, a defendant could be convicted of aiding and
abetting an attempt to violate § 2423(b), but he cannot be convicted of
attempting to aid and abet a violation of § 2423(b). The government notes
that it disagrees with Kuok and states that it reserves the right to seek
review of Kuok’s holding in the future.

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A. Statutory Construction
Jayavarman argues that, as a matter of statutory
construction, the jury had to find beyond a reasonable doubt
that his victim was actually a minor in order to convict him of
attempted production and transportation of a visual depiction
of a minor engaged in sexually explicit conduct in violation
of 18 U.S.C. §§ 2251(c) and (e). On this basis, he challenges
the district court’s jury instruction regarding the victim age
element of the crime charged under Count 1B. He also
claims that there was insufficient evidence for the jury to find
that the victim was actually a minor and that he is therefore
entitled to a judgment of acquittal. We conclude that a person
may be convicted for attempting to commit the crime charged
in Count 1B if he believed that the victim was a minor, even
if the victim was not in fact a minor. On this attempt theory
of the crime, the prosecution did not have to prove that the
victim was actually a minor, and the district court correctly
instructed the jury accordingly.
18 U.S.C. § 2251(c) provides:
(1) Any person who, in a circumstance
described in paragraph (2), employs, uses,
persuades, induces, entices, or coerces any
minor to engage in, or who has a minor assist
any other person to engage in, any sexually
explicit conduct outside of the United States,
its territories or possessions, for the purpose
of producing any visual depiction of such
conduct, shall be punished as provided under
subsection (e).

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UNITED STATES V. JAYAVARMAN
(2) The circumstance referred to in paragraph
(1) is that—
(A) the person intends such visual
depiction to be transported to the United
States, its territories or possessions, by
any means, including by using any means
or facility of interstate or foreign
commerce or mail; or
(B) the person transports such visual
depiction to the United States, its
territories or possessions, by any means,
including by using any means or facility
of interstate or foreign commerce or mail.

18 U.S.C. § 2251(e) specifies punishments for “[a]ny
individual who violates, or attempts or conspires to violate,”
§ 2251.
With regard to Count 1B, the district court instructed the
jury:
In order for the defendant to be found guilty
of Count One under this second theory, the
government must prove . . . beyond a
reasonable doubt [that] the defendant intended
to employ, use, persuade, induce, entice, or
coerce a minor to take part in sexually explicit
conduct outside of the United States for the
purpose of producing a visual depiction of
such conduct, and transport such visual
depiction to the United States by any means,
including by using any means or facility of

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interstate or foreign commerce . . . . [I]n
order to convict the defendant of attempting to
violate 18 U.S.C. § 2251(c) under this second
theory, you do not need to find that
“Ann/Ana” was under the age of eighteen
years. Rather, the government must only
prove that the defendant subjectively believed
that “Ann/Ana” was under the age of eighteen
years at the time. It is not a defense to this
attempted crime that no minor was actually
involved.
Jayavarman contends that this instruction was incorrect
because, he says, even for an attempted violation of
§ 2251(c), the district court should have required the jury to
find that the victim was actually a minor.
The parties agree that a defendant can properly be
convicted of a completed violation of § 2251(c), as
distinguished from an attempted violation of that statute,
without a finding by the jury that the defendant actually knew
or should have known that the victim was a minor. That is,
they agree that a defendant can be guilty of the completed
version of § 2251(c) even if he did not act with mens rea or
a guilty state of mind (whether purposefully, knowingly,
recklessly, or negligently) as to the victim’s age. The text of
the statute does not provide a state of mind requirement, and
we have previously concluded that there is no state of mind
requirement as to age in § 2251(a), a closely analogous
provision.2 United States v. U.S. Dist. Court (“Kantor”),

2

We acknowledge, however, that § 2251(c) was added many years
after § 2251(a). Prosecutorial Remedies and Other Tools to End the
Exploitation of Children Today Act of 2003, Pub. L. No. 108-21, 117 Stat.

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858 F.2d 534, 538 (9th Cir. 1988). Typically we apply a
“presumption in favor of a scienter requirement . . . to each of
the statutory elements that criminalize otherwise innocent
conduct,” “even where the statute by its terms does not
contain” a scienter requirement. United States v. X-Citement
Video, Inc., 513 U.S. 64, 70–72 (1994). That presumption
has not historically applied, however, to the element of a
victim’s age in a sex crime when the defendant personally
confronts the victim. Id. at 72 n.2. Therefore, at least when
the defendant personally confronts the victim, as happened in
Jayavarman’s case, there is no requirement that the defendant
be aware that the victim was actually a minor for the
completed crime under § 2251(c). The age of the victim is a
strict liability element, meaning that there is no guilty state of
mind or mens rea requirement. A defendant may invoke a
reasonable mistake of age defense, see Kantor, 858 F.2d at
541, but there is no burden on the government to prove the
defendant was actually aware that the victim was a minor.
The parties disagree, though, as to whether an attempted
violation of § 2251(c) requires that the victim actually be a
minor. When Jayavarman argued in a post-trial motion that
proof of the victim’s actual minority was required, the district
court rejected his contention on the basis of our decision in
United States v. Meek, 366 F.3d 705 (9th Cir. 2004). Meek
dealt with a child prostitution statute, 18 U.S.C. § 2422(b),
which included a state of mind requirement. Because that
statute covered someone who “knowingly persuades, induces,
entices, or coerces any individual who has not attained the
age of 18 years, to engage in prostitution or any sexual
activity for which any person can be charged with a criminal
650. Therefore, the legislative history arguments that we cited in
interpreting § 2251(a) are not applicable to interpreting § 2251(c).

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offense, or attempts to do so,” it required the jury to conclude
that the defendant knew the victim was a minor in order to
support a conviction for the completed version of the crime.
The defendant in Meek was charged with attempted violation
of the statute based on his correspondence with someone who
was not a minor, in particular an undercover adult police
officer. We held that “[t]he fact that Meek was mistaken in
his belief that he was corresponding with a minor does not
mitigate or absolve his criminal culpability; the simple fact of
Meek’s belief is sufficient as to this element of a § 2422(b)
violation.” Id. at 720. The government contends that the
same reasoning applies to Jayavarman’s case. We agree.
The differences between the statute at issue in Meek and
§ 2251(c) do not justify departing from our reasoning in
Meek. Section 2251(c) targets producers of sexually explicit
visual depictions of minors. The Supreme Court has
explained that Congress has subjected producers of child
pornography to criminal liability regardless of their state of
mind as to the age of their victims because “producers are
more conveniently able to ascertain the age of performers”
than are individuals who, for example, come into contact with
depictions after the depictions have been produced. XCitement Video, 513 U.S. at 76 n.5; see also Ashcroft v. Free
Speech Coal., 535 U.S. 234, 255 (2002) (“Where the
defendant is not the producer of the work, he may have no
way of establishing the identity, or even the existence, of the
actors.”). In other words, for the completed versions of the
crimes, Congress has intentionally elected to hold violators of
§ 2251(c) to a higher standard than violators of statutes like
the one at issue in Meek, which require knowledge that the
victim is a minor.

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Jayavarman would have us reverse those relative burdens
in the context of attempted violations of these statutes. That
is, he would have us hold that belief of the victim’s minority
is sufficient for an attempt to violate the statute at issue in
Meek but not for an attempt to violate § 2251(c). There is no
principled reason to accept such a distinction, and we decline
to do so. Just as in Meek, “[i]t would be contrary to the
purpose of the statute to distinguish the defendant who
attempts to induce an individual who turns out to be a minor
from the defendant who, through dumb luck, mistakes an
adult for a minor. To hold otherwise would bestow a windfall
to one defendant when both are equally culpable.” 366 F.3d
at 718; see also United States v. Williams, 553 U.S. 285, 300
(2008) (“[I]mpossibility of completing the crime because the
facts were not as the defendant believed is not a defense” to
attempt.); United States v. Johnson, 376 F.3d 689, 693–94
(7th Cir. 2004) (concluding that belief of a performer’s
minority is sufficient to convict for an attempted violation of
18 U.S.C. § 2251(a)).
We therefore hold that a defendant may be convicted of
an attempt to violate § 2251(c) if he believes that the victim
is a minor, even if the victim turns out to be an adult.3 The
district court did not err in instructing the jury accordingly,
and Jayavarman is not entitled to a judgment of acquittal on
these grounds.
In a similar vein, Jayavarman contends that the district
court should have given an instruction for a reasonable

3

This case does not present, and we do not decide, the issue of
whether a defendant may be convicted of an attempt to violate § 2251(c)
if he believes that the victim is an adult but the victim turns out to be a
minor.

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mistake of age defense. That defense is meant to protect a
defendant who, after sufficiently diligent investigation,
formed a reasonable belief that he was engaged in lawful
activity with an adult but was mistaken and was actually
engaged in unlawful activity with a minor. Kantor, 858 F.2d
at 540–41. Under the attempt theory for Count 1B, however,
Jayavarman was found guilty of the opposite, based on a
finding that he believed the victim to be a minor. The
reasonable mistake of age defense did not apply to him.
B. Foreign Commerce Clause
Jayavarman cites the Foreign Commerce Clause of the
Constitution as another ground for his challenge to the district
court’s conclusion that an attempt to violate § 2251(c)
requires only a belief that the victim is a minor. He asserts
that the Foreign Commerce Clause does not authorize
Congress to prohibit transportation of a sexually explicit
visual depiction pursuant to § 2251(c) if the depiction does
not depict an actual minor. We reject this challenge.
The Foreign Commerce Clause grants Congress the
power “[t]o regulate Commerce with foreign Nations.” U.S.
Const. art. I, § 8, cl. 3. Statutes adopted under the authority
granted by the Foreign Commerce Clause must regulate
conduct that has a sufficient “nexus with foreign commerce.”
United States v. Clark, 435 F.3d 1100, 1114 (9th Cir. 2006).
When a defendant transports a visual depiction into the
United States from a foreign country, the presence or absence
of an actual minor in the visual depiction does not impact the
strength of the conduct’s nexus with foreign commerce.
Regardless of what the depiction depicts, it is still being
transported. The theory of the crime articulated in the jury

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instruction did not run afoul of the Foreign Commerce
Clause.
C. First Amendment
Jayavarman also contends that prohibiting an attempt to
make a sexually explicit video with a performer who the
producer mistakenly believes to be a minor would chill lawful
speech in violation of the First Amendment. Specifically,
Jayavarman argues that the government’s theory would chill
both speech by adults who appear young and who wish to
perform in sexually explicit videos as well as speech by
persons who wish to produce such videos with performers
who seem to be adults but who might turn out to be minors.
We reject this argument.
“There is no First Amendment exception from the general
principle of criminal law that a person attempting to commit
a crime need not be exonerated because he has a mistaken
view of the facts.” Williams, 553 U.S. at 304. The Supreme
Court has explained that inchoate crimes relating to
pornography that a defendant believes to depict a minor are
not protected by the First Amendment just because it turns
out that the pornography actually depicts an adult. Id. at 300.
It is true that non-obscene sexually explicit material
depicting only adults is protected speech, even if it may
appear that the material depicts minors. Free Speech Coal.,
535 U.S. at 244–56. Such speech might be chilled when there
is no guilty state of mind requirement as to the age element of
a child pornography statute, which is why we have read such
statutes to implicitly include reasonable mistake of age
defenses. Kantor, 858 F.2d at 541–42. But “[t]he potential
for unconstitutional chilling of legitimate speech disappears

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[when a statute] requires the prosecution to prove that a
defendant actually knows or believes that the [victim] is a
minor.” Meek, 366 F.3d at 721. That is what was required
here: the jury found beyond a reasonable doubt “that the
defendant subjectively believed that ‘Ann/Ana’ was under the
age of eighteen years at the time.” Jayavarman’s conviction
on these grounds did not violate the First Amendment.
D. Constructive Amendment
Jayavarman argues that the jury instruction as to Count
1B constituted a constructive amendment of the indictment.
This challenge also fails.
“An amendment of the indictment occurs when the
charging terms of the indictment are altered, either literally or
in effect, by the prosecutor or a court after the grand jury has
last passed upon them.” United States v. Ward, 747 F.3d
1184, 1189 (9th Cir. 2014) (emphasis omitted). Count 1 of
the superseding indictment charged that Jayavarman:
did, and did attempt to, employ, use, persuade,
induce, entice, and coerce a minor child to
engage in any sexually explicit conduct
outside of the United States for the purpose of
producing a visual depiction of such conduct
and thereafter transported such visual
depiction to the United States by any means,
including by using any means or facility of
interstate or foreign commerce.
Jayavarman contends that the jury instruction constructively
amended the indictment in a number of ways.

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Most of Jayavarman’s arguments stem from his
contention that, although the indictment charged him with
attempting to violate § 2251(c)(2)(B), the jury instruction
instead related to conduct covered by § 2251(c)(2)(A). These
two subparagraphs are the two alternative means by which
the statute asserts federal jurisdiction. Section 2251(c)(2)(A)
applies when a defendant “intends such visual depiction to be
transported to the United States,” whereas § 2251(c)(2)(B)
applies when a defendant “transports such visual depiction to
the United States.” In the attempt context, the two
subparagraphs cover overlapping conduct: it is possible for a
person to intend that a depiction be transported (by any
person) and to also intend to transport that depiction
(personally). Thus, Jayavarman’s arguments that the jury
instruction described conduct covered by subparagraph (A)
are red herrings. That conduct was covered by subparagraph
(A) did not mean that it was not also covered by
subparagraph (B). Jayavarman was convicted of attempting
to violate subparagraph (B), the subparagraph under which he
was indicted, because the jury found that he intended to
transport a depiction and he believed that the depiction
depicted a minor engaging in sexually explicit conduct.
Two of Jayavarman’s constructive amendment arguments
have slightly more substance, but they too fail. First, he
correctly points out that the indictment alleged he
“transported” a depiction, whereas the jury instruction asked
the jury whether he “intended to . . . transport” a depiction.
While these terms cover some of the same conduct, they do
not mean the same thing. A hypothetical defendant could
have been convicted under the jury instruction (for attempted
transport) even if he did not perform the conduct described in
the indictment (actual transport). But Jayavarman did not
object to the jury instruction, so it is reviewed for plain error.

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Ward, 747 F.3d at 1188. As the district court explained,
“there was no dispute at trial that a visual depiction of Ana
had been transported into the United States—the evidence
was overwhelming and uncontroverted in that regard.” Thus
Jayavarman was not prejudiced by the discrepancy. See
United States v. Hartz, 458 F.3d 1011, 1022–23 (9th Cir.
2006).
Jayavarman also argues that there was a constructive
amendment of the indictment because, under one reading of
the jury instruction, a jury could have convicted if it
determined that the defendant initially made a sexually
explicit video involving a person he then thought to be a
minor, subsequently learned that the person depicted was in
fact an adult, and only then formed the intention to transport
the depiction to the United States. The reading of the
instruction that Jayavarman suggests strikes us as unnatural,
especially because the instruction’s requirement “that the
defendant subjectively believed that ‘Ann/Ana’ was under the
age of eighteen years at the time” would seem to apply
equally to “the time” when the depictions were made as to
“the time” when they were transported. At any rate, the
conversations that established Jayavarman’s belief as to the
victim’s age occurred after he had already transported the
depictions to the United States. Those conversations
demonstrated that, at the time of the conversations, he still
believed she had been a minor at the time the depictions were
made. Accordingly, there was no evidence that would have
supported a finding that Jayavarman decided to transport the
depictions only after learning that the victim was an adult.
He therefore was not prejudiced by any imprecision in the
instruction.

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E. Sufficiency of the Evidence
Jayavarman contends that there was insufficient evidence
to prove that he believed the victim was a minor at the time
he made and transported the videos. “Evidence is sufficient
to support the conviction if, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime
beyond a reasonable doubt.” United States v. Sheldon,
755 F.3d 1047, 1051 (9th Cir. 2014) (internal quotation marks
omitted). We conclude that a rational jury could have found
that the evidence the government adduced proved beyond a
reasonable doubt that Jayavarman believed the victim was a
minor.
The evidence supporting the government’s contentions
regarding Jayavarman’s beliefs as to the victim’s age came
from audio recordings that were played in court. The jury
heard recordings of both a telephone call and an in-person
conversation between Jayavarman and an undercover FBI
agent, both of which occurred before Jayavarman knew he
was under suspicion. In the recordings, Jayavarman affirmed
that he had made video recordings of himself having sexual
relations with a fourteen-year-old girl beginning in 2010.
Jayavarman also described to the agent a strategy for hiding
from customs officers memory cards containing video
recordings. When law enforcement officers subsequently
searched Jayavarman’s residence, they found a number of
memory cards containing videos depicting Jayavarman
engaged in sexual contact with the victim. The videos were
recorded between 2010 and 2012.
After his arrest, Jayavarman made additional statements
about the victim’s age. The jury heard recordings of a

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conversation between Jayavarman and an Anchorage Police
Department officer and a conversation between Jayavarman
and another FBI agent. In those recordings, Jayavarman
stated that the victim was fourteen years old when he met her
and first had sex with her in 2009. He also affirmed that he
possessed a video depicting himself and the victim engaged
in sexual relations from when the victim was fourteen years
old. Furthermore, the government presented evidence that,
after his arrest, Jayavarman used dubious means to obtain
unreliable documents in an attempt to demonstrate that the
victim was an adult at the time the videos were made, thus
suggesting that Jayavarman was aware of his guilt. See
United States v. Renzi, 769 F.3d 731, 758 (9th Cir. 2014)
(considering evidence of “consciousness of guilt” in
evaluating a sufficiency of the evidence challenge).
Jayavarman argues that his claimed belief that the victim
was eighteen at the time he made his first sexually explicit
video depiction of her was supported by the “fact” that she
was born in 1992 and was therefore eighteen in 2010. The
evidence suggesting that the victim was actually an adult,
however, was not so compelling that a rational jury would be
required to reach that conclusion. Moreover, the jury could
have concluded that Jayavarman thought that the victim was
underage even if, in fact, she was not. We need not
determine why the jury did not credit the evidence offered by
Jayavarman. It is enough for us to conclude that the findings
essential to support the verdict could have been made by a
rational jury based on all the evidence, and that conclusion is
an easy one for us to reach here.
Jayavarman cites a number of cases in which the evidence
of the defendant’s belief regarding the intended victim’s age
was stronger than it was in this case. But the issue on appeal

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is not whether the evidence presented at trial constituted the
strongest possible evidence of guilt. Rather, it is whether a
reasonable jury could have made the factual findings needed
to support a guilty verdict. Renzi, 769 F.3d at 758. The
government adduced sufficient evidence to permit a
reasonable jury to conclude beyond a reasonable doubt that
Jayavarman believed the victim was a minor at the time he
made and transported the visual depictions.
F. Federal Rule of Evidence 403
Next, Jayavarman challenges the district court’s grant of
the government’s motion in limine to admit audio recordings
of Jayavarman’s statements that he had sex with the victim in
2009 when she was thirteen or fourteen years old, before he
began making the recordings that were the subjects of the
prosecution. In the district court, Jayavarman challenged the
admission of this evidence under Federal Rules of Evidence
402, 403, and 404. On appeal, Jayavarman concentrates on
Rule 403, contending narrowly that the district court erred by
not reading every word of the transcripts of the recordings
that the government sought to admit before approving their
admission and also arguing generally that the statements
admitted were only marginally relevant and were unduly
prejudicial.
Rule 403 states: “The court may exclude relevant
evidence if its probative value is substantially outweighed by
a danger of one or more of the following: unfair prejudice,
confusing the issues, misleading the jury, undue delay,
wasting time, or needlessly presenting cumulative evidence.”
Typically a district court’s admission of evidence, including
its Rule 403 balancing, is reviewed for abuse of discretion.

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United States v. Hardrick, 766 F.3d 1051, 1055 (9th Cir.
2014).
In United States v. Curtin, 489 F.3d 935, 957 (9th Cir.
2007) (en banc), however, we held that, in the context of
reviewing “abhorrent [exhibits], . . . a district court making a
Rule 403 decision must know precisely what is in the
[exhibits] in order for its weighing discretion to be properly
exercised and entitled to deference on appeal.” The district
court in that case had not read certain pornographic stories
possessed by the defendant in their entirety before admitting
them, and we concluded that, had the district court read the
stories, it would have identified a particularly disgusting
passage and “required that it be edited out of the exhibit as
both irrelevant and dangerously prejudicial.” Id. We further
stated that “[o]ne cannot evaluate in a Rule 403 context what
one has not seen or read. Here, given the depraved and
patently prejudicial nature of the irrelevant evidence . . . that
the court overlooked, we are unable to conclude—as the
government would have us do—that this error was harmless.”
Id. at 958. The requirement to “read every word” of an
exhibit as part of the Rule 403 balancing was subsequently
expanded to all Rule 403 inquires into exhibits, not just
exhibits involving particularly inflammatory content as was
at issue in Curtin. United States v. McElmurry, 776 F.3d
1061, 1070 (9th Cir. 2015).
Curtin and our subsequent decisions leave unclear how
confident the court of appeals must be that the district court
did not read every word of an exhibit before we will conclude
that the district court erred in its Rule 403 analysis. In Curtin
as well as the two published decisions holding that a district
court erred pursuant to Curtin, the government conceded that
the district court had not reviewed the evidence completely,

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so it was not necessary to consider how to evaluate cases
closer to the margin. McElmurry, 776 F.3d at 1070; United
States v. Waters, 627 F.3d 345, 356 n.4 (9th Cir. 2010);
Curtin, 489 F.3d at 956.
In Jayavarman’s case, the district court did not explicitly
state that it had reviewed the relevant transcripts. A district
court, however, need not necessarily declare that it has “read
every word” of an exhibit as if Curtin’s command were a
magical incantation. While it is not clear exactly which
exhibits the government provided to the district court, the
district court did have in its possession transcripts of
Jayavarman’s conversations that seem likely to have included
the disputed exhibits. Additionally, the district court was
aware of the requirement to read every word of disputed
evidence as part of its Rule 403 analysis. Citing Curtin, the
district court specifically stated that it did read every word of
other exhibits that were subjects of the motion in limine, and
it discussed the Curtin requirement with counsel on the
record on the same day that it ruled on the exhibits that are
the subjects of this dispute. Cf. McElmurry, 776 F.3d at 1069
(concluding the district court was unaware of its obligations
because, “unfortunately, counsel did not cite or otherwise
alert the district court to Curtin”). Because the district court
was aware of its obligation to review the transcripts, and
because it appears that the district court was given the
transcripts to review, we conclude that the district court did
review the transcripts and that there was no error.
Even if the district court had not reviewed every word of
the transcripts, the error would have been harmless because
the exhibits were clearly admissible under Rule 403. Cf.
Waters, 627 F.3d at 354–56 (concluding that exhibits of
which district court did not read every word would not have

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been admitted if they had been reviewed more thoroughly);
Curtin, 489 F.3d at 958 (same). The evidence was critical for
demonstrating Jayavarman’s belief about the victim’s age
because, if he thought the victim was thirteen or fourteen
years old in 2009, then he would also have thought she was
a minor in 2010 to 2012 when he made the visual depictions
that were the subjects of the prosecution. Accordingly, the
probative value of the evidence was very high. That value
was not substantially outweighed by any risk of unfair
prejudice that might have arisen from the evidence, especially
in the context of other evidence adduced at trial. There was
no error under Rule 403.
G. Need for an Interpreter
Jayavarman, whose first language is Khmer, contends that
the district court erred under the Court Interpreters Act,
28 U.S.C. § 1827, by not providing him with an interpreter.
Jayavarman did not provide any indication that he was having
difficulty participating in the proceedings until after the trial
was over. We conclude that the district court did not clearly
err in determining that Jayavarman was sufficiently proficient
in English that he did not require an interpreter.
The Court Interpreters Act requires courts to:
utilize the services of . . . an . . . interpreter, in
judicial proceedings instituted by the United
States, if the presiding judicial officer
determines . . . that [a] party . . . speaks only
or primarily a language other than the English
language . . . so as to inhibit such party’s
comprehension of the proceedings or

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communication with counsel or the presiding
judicial officer.

28 U.S.C. § 1827(d)(1). “When a court becomes aware of a
criminal defendant’s potential difficulties in understanding or
speaking the English language, it has a mandatory duty to
make a determination on the record whether an interpreter is
required, and if so, to appoint a certified individual.” United
States v. Murguia-Rodriguez, 815 F.3d 566, 570 (9th Cir.
2016). When a defendant challenges a district court’s factual
finding that he does not need an interpreter, the decision is
reviewed for “clear error.” Id.; Gonzalez v. United States,
33 F.3d 1047, 1050 (9th Cir. 1994).
Jayavarman contends that he was discouraged from
testifying in violation of the Fifth Amendment because, when
he engaged in a colloquy with the district court regarding his
right to testify, he misinterpreted a statement that the district
court made and, as a result, incorrectly believed that the court
told him his testimony would not make a difference. He
argues that an interpreter would have helped avert that
misunderstanding. He also contends that, because he did not
have an interpreter, he did not fully understand his attorney,
he could not fully assist in his defense, he did not understand
witnesses’ testimony, and he was dissuaded from testifying
because he thought the jury would not understand him.
As an initial matter, it is noteworthy that Jayavarman did
not raise his alleged language issues at all until after the trial
was over. The district court stated that it had no indication
that Jayavarman was having language difficulties prior to or
during the trial. As we have previously explained, “[t]o allow
a defendant to remain silent throughout the trial and then . . .
assert a claim of inadequate translation would be an open

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invitation to abuse.” United States v. Si, 333 F.3d 1041, 1044
(9th Cir. 2003) (order) (omission in original). Jayavarman’s
failure to raise his concerns promptly to the district court
counsels against granting relief here.
With regard to Jayavarman’s right to testify, it appears
unlikely that he was influenced by any misunderstanding of
the colloquy because, as the district court noted, he
unequivocally stated, “I choose not to testify,” immediately
before the district court made the statement that he claims to
have misunderstood. Furthermore, he did not suggest that he
was having trouble understanding the district court when it
spoke to him about his right to testify.4
With regard to his more general allegations about the
consequences of the claimed language barrier, the district
court provided a number of reasons to support its conclusion
that the record clearly established that “Mr. Jayavarman does
not primarily speak a language other than the English
language, and even if he did, his English language skills are
not so deficient as to inhibit his comprehension of the
proceedings.”
Specifically, the court found that
Jayavarman’s recorded conversations that were played during
trial revealed that he was good at understanding and speaking
English. The court found that its assessment was supported
by the fact that Jayavarman had moved to the United States
when he was nineteen years old and had lived here for the

4

Jayavarman’s assertion that his counsel advised him not to testify
because the jury would have trouble understanding him and his assertion
that his counsel did not discuss with him the possibility of having an
interpreter would have to be raised as part of a Sixth Amendment
ineffective assistance of counsel claim. See Strickland v. Washington,
466 U.S. 668 (1984).

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following twenty-seven years, that he had long operated a
youth hostel in Anchorage that required communication with
customers in English, and that he had communicated
extensively in English with one of his friends. The district
court’s finding that Jayavarman spoke and understood
English well enough that he did not require an interpreter in
order to sufficiently comprehend the proceedings was well
supported and was not clearly erroneous.
H. Remand for Resentencing
In addition to vacating Jayavarman’s conviction and
sentence as to Count 2B, we also vacate his sentence as to
Count 1B and remand for resentencing because Jayavarman’s
sentence as to Count 1B was likely affected by his conviction
as to Count 2B.
The district court sentenced Jayavarman to concurrent
terms of 216 months for each of the two counts for which he
was convicted (followed by a lifetime term of supervised
release) and fined him $50,000 ($25,000 on each count).
“[W]hen a district court imposes multiple sentences on a
defendant, the degree to which each offense contributes to the
total sentence is usually affected by the other offenses of
conviction. Thus, remand of all sentences is often
warranted,” even when only one conviction is vacated.
United States v. Evans-Martinez, 611 F.3d 635, 645 (9th Cir.
2010) (citation and internal quotation marks omitted); see
also United States v. Rodriguez, 790 F.3d 951, 954 (9th Cir.
2015) (“Because the district court . . . premised the sentence
for the [conviction of violating one statute], in part, on the
fact that [the defendant] had also been convicted of violating
[another statute, the conviction for which was reversed], we

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also remand for resentencing on the [conviction that was
affirmed].”).
Though the district court formally imposed a separate
sentence for each of Jayavarman’s two counts of conviction,
it appears that it viewed the total length of imprisonment as
a package for both convictions. At sentencing, Jayavarman
argued that he should not be given the same sentence for each
count. When the district court solicited the probation
officer’s view, the probation officer said: “Well Your Honor,
I mean, I look at the cases, you know, in their totality, and
typically, I don’t separate out each count and do it that way.”
The district court then stated: “I did consider both of the
offenses together in imposing the sentence. . . . I did do the
sentencing rather holistically in reaching that figure, and I
will maintain that as concurrent on the 216.” The district
court also said: “I was viewing the two crimes jointly as the
basis for the Court’s finding.” Accordingly, we vacate both
of Jayavarman’s sentences even though we vacate only one
of his convictions.5

5

Jayavarman’s argument based on the Double Jeopardy Clause that
he cannot be retried on Counts 1A or 2A is without merit. See U.S. Const.
amend. V. The jury hung on Counts 1A and 2A and did not acquit
Jayavarman of anything. Thus, retrying Counts 1A and 2A would not
involve “relitigating any issue that was necessarily decided by a jury’s
acquittal in a prior trial.” Yeager v. United States, 557 U.S. 110, 119
(2009). Additionally, the district court did not rule on Jayavarman’s
motion for a judgment of acquittal as to Count 2A because there was no
conviction on that count. The government stated at oral argument that, if
we affirmed the conviction on Count 1B, nothing with regard to Count 2A
would matter, implying that the government did not intend to retry
Jayavarman on Count 2A. We leave it to the district court to address
Jayavarman’s motion for a judgment of acquittal as to Count 2A in the
first instance should the government elect to proceed on that count.

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III.

UNITED STATES V. JAYAVARMAN
Conclusion

We affirm Jayavarman’s conviction as to Count 1B for
attempt to produce and transport a sexually explicit visual
depiction of a minor. We vacate Jayavarman’s conviction as
to Count 2B for attempt to aid and abet travel with intent to
engage in illicit sexual conduct. We vacate his sentence as to
both counts and remand for resentencing.
AFFIRMED IN PART; VACATED IN PART;
REMANDED.