United States v. Jason Jayavarman

871 F.3d 1050, 2017 WL 4247402, 2017 U.S. App. LEXIS 18581
CourtCourt of Appeals for the Ninth Circuit
DecidedSeptember 26, 2017
Docket16-30082
StatusPublished
Cited by14 cases

This text of 871 F.3d 1050 (United States v. Jason Jayavarman) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Jason Jayavarman, 871 F.3d 1050, 2017 WL 4247402, 2017 U.S. App. LEXIS 18581 (9th Cir. 2017).

Opinion

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 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 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 Jaya-varman 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 IB 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 IB.

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 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 IB, 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 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.

A. Statutory Construction

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Cite This Page — Counsel Stack

Bluebook (online)
871 F.3d 1050, 2017 WL 4247402, 2017 U.S. App. LEXIS 18581, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-jason-jayavarman-ca9-2017.