United States v. Jones

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 22 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 23-3045 D.C. No. Plaintiff - Appellee, 3:09-cr-01250-W-2 v. MEMORANDUM* PATRICK JONES,

Defendant - Appellant.

Appeal from the United States District Court for the Southern District of California Thomas J. Whelan, District Judge, Presiding

Submitted November 19, 2024** Pasadena, California

Before: RAWLINSON, CHRISTEN, and JOHNSTONE, Circuit Judges.

Patrick Jones (Jones), who was convicted of sexual exploitation of a child in

violation of 18 U.S.C. § 2251(a), (e), appeals the district court’s denial of his

petition for a writ of error coram nobis. “We have jurisdiction under 28 U.S.C. §

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 1291,” and, reviewing de novo, we affirm the district court’s denial of Jones’

petition. United States v. Kroytor, 977 F.3d 957, 961 (9th Cir. 2020) (citation

omitted).

“Coram nobis is an extraordinary remedy available only under

circumstances compelling such action to achieve justice.” Id. (citation and internal

quotation marks omitted). “To qualify for this extraordinary remedy, the petitioner

must establish four requirements: (1) the unavailability of a more usual remedy;

(2) valid reasons for the delay in challenging the conviction; (3) adverse

consequences from the conviction sufficient to satisfy Article III’s case-and-

controversy requirement; and (4) an error of the most fundamental character.” Id.

(citation, alteration, and internal quotation marks omitted).

Jones asserts that he is entitled to coram nobis relief because United States v.

United States District Court, 858 F.2d 534 (9th Cir. 1988) (Kantor II),1 addressing

the mens rea requirements for a conviction under 18 U.S.C. § 2251(a), is clearly

irreconcilable with the Supreme Court’s recent decision in Counterman v.

Colorado, 600 U.S. 66 (2023). “Generally, a panel opinion is binding on

subsequent panels unless and until overruled by an en banc decision of this

circuit.” United States v. Eckford, 77 F.4th 1228, 1233 (9th Cir. 2023) (citation

1 We previously relied on Kantor II in affirming Jones’ conviction under 18 U.S.C. § 2251(a). See United States v. Jones, 459 F. App’x 616, 617 (9th Cir. 2011), cert. denied, 566 U.S. 950 (2012).

2 23-3045 omitted). However, “en banc review is not required to overturn a case where

intervening Supreme Court authority is clearly irreconcilable with our prior circuit

authority.” Id. (citation and internal quotation marks omitted). “The clearly

irreconcilable requirement is a high standard that demands more than mere tension

between the intervening higher authority and prior circuit precedent.” Id. (citation,

alteration, and internal quotation marks omitted). “If we can apply our precedent

consistently with that of the higher authority, we must do so.” Id. (citation and

alteration omitted).

Jones is not entitled to coram nobis relief because Kantor II is not clearly

irreconcilable with Counterman. In Kantor II, we held that that there was “little

doubt that knowledge of the minor’s age is not necessary for conviction under [18

U.S.C. §] 2251(a),” although a defendant could pursue “a reasonable mistake of

age defense.” 858 F.2d at 538, 542 (citation omitted). In Counterman, the

defendant was charged with making threats in violation of a state statute. See 600

U.S. at 70-71. The Supreme Court considered “whether the First Amendment still

requires proof that the defendant had some subjective understanding of the

threatening nature of his statements.” Id. at 69. The Supreme Court held that “the

State must prove in true-threats cases that the defendant had some understanding of

his statements’ threatening character,” and that “a recklessness standard” was a

sufficient mens rea for threat offenses. Id. at 73. The Supreme Court did not hold

3 23-3045 that the mens rea requirement for true-threat convictions must be applied to other

criminal offenses, such as sexual exploitation of a child. See id. at 76-77, 82 n.6.

“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.

Jayavarman, 871 F.3d 1050, 1058 (9th Cir. 2017) (citation, alteration, and internal

quotation marks omitted). “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. (citations omitted). The Supreme Court

has applied this principle in distinguishing the mens rea requirement for

convictions under 18 U.S.C. § 2251(a). See United States v. X-Citement Video,

Inc., 513 U.S. 64, 76 n.5 (1994) (citing to Kantor II and observing that “producers

[of explicit materials] may be convicted under [18 U.S.C.] § 2251(a) without proof

they had knowledge of age”).

In light of the Supreme Court’s acknowledgment that 18 U.S.C. § 2251(a)

lacks a mens rea requirement with respect to the victim’s age, Counterman’s

holding concerning the mens rea requirement for true-threat offenses is not clearly

irreconcilable with our precedent. See Eckford, 77 F.4th at 1233. The district

court, therefore, committed no error when denying Jones’ petition for writ of error

coram nobis because Jones failed to demonstrate any error, let alone “an error of

4 23-3045 the most fundamental character.” Kroytor, 977 F.3d at 961 (citation and alteration

omitted).2

AFFIRMED.

2 Because Jones does not demonstrate “an error of the most fundamental character,” Kroytor, 977 F.3d at 961 (citation and alteration omitted), we do not address the government’s contentions that Jones could have filed a motion under 28 U.S.C. § 2255 in lieu of a petition for writ of error coram nobis, or that any instructional error during Jones’ trial was harmless.

5 23-3045