United States v. Kenneth Wescott

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 16, 2019
• Docket: 17-10157
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAY 16 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-10157

Plaintiff/Appellee, D.C. No. 2:14-cr-00085-APG- CWH v.

KENNETH WESCOTT, MEMORANDUM*

Defendant/Appellant.

Appeal from the United States District Court for the District of Nevada Andrew P. Gordon, District Judge, Presiding

Submitted May 14, 2019** San Francisco, California

Before: WALLACE and IKUTA, Circuit Judges, and MOLLOY,*** District Judge.

Kenneth Wescott was convicted by a jury of one count of coercion and

enticement in violation of 18 U.S.C. § 2422(b). Wescott appeals from his

* 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). *** The Honorable Donald W. Molloy, United States District Judge for the District of Montana, sitting by designation. 1 judgment of conviction, arguing that the district court erred by (1) denying his

motion to dismiss the superseding indictment, (2) excluding the testimony of his

proffered expert who testified that he was not sexually attracted to children, and

(3) imposing a lifetime term of supervised release. We have jurisdiction pursuant

to 28 U.S.C. § 1291. We review the adequacy of an indictment de novo. United

States v. Renteria, 557 F.3d 1003, 1006 (9th Cir. 2009). We review the district

court’s evidentiary ruling and the imposition of supervised release for abuse of

discretion. United States v. Gonzales, 307 F.3d 906, 909 (9th Cir. 2002); United

States v. Apodaca, 641 F.3d 1077, 1079 (9th Cir. 2011). We affirm.

1. Wescott challenges the sufficiency of the superseding indictment. A

proper indictment is a “plain, concise, and definite written statement of the

essential facts constituting the offense charged.” Fed. R. Crim. P. 7(c)(1). It “is

sufficient if it, first, contains the elements of the offense charged and fairly informs

a defendant of the charge against which he must defend, and, second, enables him

to plead an acquittal or conviction in bar of future prosecutions for the same

offense.” Hamling v. United States, 418 U.S. 87, 117 (1974). It does not need to

“specify the theories or evidence upon which the government will rely to prove

those facts,” but must provide sufficient facts to notify the defendant of the crime

of which he has been accused. United States v. Cochrane, 985 F.2d 1027, 1031

(9th Cir. 1993) (citing United States v. Jenkins, 884 F.2d 433, 438-39 (9th Cir.

2 1989)). The insertion of the Nevada statutes in the superseding indictment

remedied the previously deficient indictment by alleging the sexual activity for

which any person could have been charged under federal, state, or local law. See

United States v. Shill, 740 F.3d 1347, 1350 (9th Cir. 2014) (containing nearly

identical references to Oregon sexual conduct statutes); see also United States v.

Tello, 600 F.3d 1161, 1165 (9th Cir. 2010) (also addressing sufficiency of

§ 2422(b) indictment).

2. Wescott argues the district court abused its discretion when it excluded

expert testimony that “Wescott does not have a sexual attraction to children,”

which he offered to rebut intent under the § 2422(b). The government argues that

Wescott waived his challenge by not preserving it at trial and that the exclusion

was proper. Regardless of whether Wescott preserved his challenge to the district

court’s pretrial ruling, the testimony was properly excluded because the relevant

intent under § 2422(b) is “the intended effect of the communication rather than the

defendant’s intent to commit the underlying sexual activity” and at the time of the

ruling, the government had not argued that Wescott had an intent to engage in

sexual conduct with the minor. United States v. Hofus, 598 F.3d 1171, 1178 (9th

Cir. 2010); see also United States v. Goetzke, 494 F.3d 1231, 1236 (9th Cir. 2007).

And, even if Wescott presented a fantasy defense—which he did not—Federal

Rule of Evidence 704(b) bars the testimony at issue. Hofus, 598 F.3d at 1180

3 (explaining that such evidence is “simply another way of saying [the defendant]

did not really intend to entice or persuade the young girls, which is precisely the

question for the jury”).

3. Finally, Wescott argues that the district court failed to explain the specific

reasons behind the imposition of a lifetime term of supervised release and that such

a sentence is substantively unreasonable. In reviewing a sentence, we “first

consider whether the district court committed significant procedural error, then we

consider the substantive reasonableness of the sentence.” United States v. Carty,

520 F.3d 984, 993 (9th Cir. 2008) (en banc). Substantive reasonableness is based

on the totality of the circumstances. Id. at 993.

The district court began the sentencing hearing by notifying Wescott of the

sentences authorized under § 2422(b), including the possibility of a lifetime of

supervised release. The court considered the § 3553(a) factors and stated, “the

supervised release conditions recommended by [probation] seem to be

appropriately tailored to deter you from doing it again.” The district court

explained that it had considered the Guidelines, the record, the presentence report,

and read Wescott’s proposed expert report. The court also gave both sides the

opportunity for further argument at the sentencing hearing, which Wescott

declined. These considerations demonstrate that the trial court adequately justified

its sentencing decision. “[N]o lengthy explanation is necessary if the record makes

4 it clear that the sentencing judge considered the evidence and arguments.”

Apodaca, 641 F.3d at 1081 (quoting United States v. Daniels, 541 F.3d 915, 922

(9th Cir. 2008)).

AFFIRMED.