United States v. Kearns , 73 M.J. 177 ( 2014 )

UNITED STATES, Appellee
v.
Christopher R. KEARNS, Specialist
U.S. Army, Appellant
No. 13-0565
Crim. App. No. 20110348
United States Court of Appeals for the Armed Forces
Argued January 14, 2014
Decided March 21, 2014
OHLSON, J., delivered the opinion of the Court, in which BAKER,
C.J., and ERDMANN, STUCKY, and RYAN, JJ., joined.
Counsel
For Appellant: Captain Ian M. Guy (argued); Colonel Kevin
Boyle, Lieutenant Colonel Peter Kageleiry Jr., and Major Vincent
T. Shuler (on brief); Major Jacob D. Bashore and Captain A.
Jason Nef.
For Appellee: Captain Samuel Gabremariam (argued); Colonel John
P. Carrell, Lieutenant Colonel James L. Varley, and Major
Catherine L. Brantley (on brief); Captain Jessica J. Morales.
Military Judge: David H. Robertson
This opinion is subject to revision before final publication.
United States v. Kearns, No. 13-0565/AR
Judge OHLSON delivered the opinion of the Court.
We granted review in this case to determine whether the
evidence adduced at trial was legally sufficient to prove that,
under the provisions of 18 U.S.C. § 2423(a) (2006), Appellant
had the requisite intent to engage in criminal sexual activity
with a minor when Appellant facilitated that minor’s travel in
interstate commerce. We hold that the evidence of Appellant’s
intent was legally sufficient, and thus we affirm his conviction
under Specification 1 of Charge III.
During the relevant time period, Appellant was a twenty-
two-year-old soldier stationed at Fort Bliss, Texas. In both
November and December of 2009, while Appellant was home on leave
in Pennsylvania, he had sexual intercourse with K.O. K.O. was
fifteen years old at the time and Appellant knew she was a
minor. When Appellant returned to Fort Bliss, Appellant and
K.O. stayed in contact via text messages and phone calls.
At some point in their relationship, K.O. falsely told
Appellant that she had been sexually assaulted by a family
member. Thereafter, in January 2010, Appellant paid a female
friend to transport K.O. from Pennsylvania to Texas. However,
before the friend and K.O. (along with another minor female)
reached the Fort Bliss area, they were stopped by Texas law
enforcement for a traffic violation. The police determined that
K.O. and the other young female were minors and possible
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United States v. Kearns, No. 13-0565/AR
runaways. Pursuant to the ensuing investigation, Appellant was
charged at his court-martial with making a false official
statement, aggravated sexual assault of a child, wrongful
transportation of a minor through interstate commerce,
disorderly conduct, and adultery, in violation of Articles 107,
120, and 134, Uniform Code of Military Justice (UCMJ), 10 U.S.C.
§§ 907, 920, 934 (2006).
At trial, Appellant argued that his purpose in facilitating
K.O.’s travel across state lines was to remove her from a
sexually abusive environment. However, contrary to his pleas, a
panel of officers sitting as a general court-martial convicted
Appellant of all charges and specifications except the adultery
specification. The panel sentenced Appellant to confinement for
four years, reduction to the grade of E-1, forfeiture of all pay
and allowances, and a bad-conduct discharge. The convening
authority approved the sentence as adjudged.
Upon review, the United States Army Court of Criminal
Appeals set aside the disorderly conduct conviction, but it
affirmed the remaining charges and specifications as well as the
sentence. United States v. Kearns, 72 M.J. 586, 589 (A. Ct.
Crim. App. 2013). On Appellant’s petition we granted review.
Central to our analysis of this case is a determination of
the meaning of 18 U.S.C. § 2423(a) which prohibits a person from
knowingly transporting a minor in interstate commerce “with
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intent” to engage in criminal sexual activity. Appellant urges
this Court to hold that the phrase “with intent” required the
Government to prove that Appellant’s “dominant,” “predominant,”
“significant,” or “efficient and compelling” reason for
transporting K.O. across states lines was to have sex with her,
and to further hold that the Government failed to meet this
burden at trial. We decline to do so. Rather, we hold that as
long as illegal sexual activity is a purpose for transporting a
minor across state lines, and is not merely incidental to the
travel, the intent element of 18 U.S.C. § 2423(a) is met. We
further hold that the Government met its burden in proving the
necessary intent in this case, and that the mens rea of intent
coincided with the actus reus of crossing state lines.
Therefore, for the reasons set forth below, we affirm
Appellant’s conviction.
BACKGROUND
Appellant and K.O. grew up in the same small town in
Pennsylvania and had known each other for many years. In fact,
Appellant’s brother was married to K.O.’s sister, and K.O. lived
with the couple. During the time period relevant to this case,
Appellant was twenty-two years old and K.O. was a fifteen-year-
old minor.
In late 2009, while Appellant was home on leave at
Thanksgiving, he and K.O. started spending a lot of time
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together. Ultimately, Appellant had sexual intercourse with
K.O. Before Appellant returned to his duty station at Fort
Bliss, Texas, he bought K.O. a phone so that they could stay in
contact.
Over the next several weeks, Appellant and K.O. talked by
telephone every day. During one conversation, K.O. told
Appellant that Appellant’s brother had sexually assaulted her in
the past.1 Appellant discussed this situation with K.O. for
several hours, but at no time did he urge her to report the
sexual assaults to a school official, to call the police, or to
move out of the house.2
In December 2009, Appellant again was home on leave, but he
took no steps to help K.O. remove herself from the allegedly
abusive situation at home. However, Appellant did have sexual
intercourse with K.O. again. In one instance he climbed up a
ladder-type porch railing to K.O.’s second-story bedroom window
1
K.O. later admitted that the allegations of sexual abuse were
false. She said that she lied because she wanted an excuse to
run away to Texas and continue her relationship with Appellant.
2
The precise timing of this conversation is not apparent in the
record. The Appellant said in a sworn statement that K.O. made
these false allegations of sexual abuse in December 2009.
However, trial testimony from a friend of Appellant’s suggests
that the allegations did not become publicly known until January
2010 (although this witness did not address when Appellant first
became aware of the allegations). Further, trial testimony from
K.O. does not state clearly when she first made the allegations.
Ultimately, the outcome of this case is not dependent on the
exact timing of this particular conversation.
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at approximately three o’clock in the morning, and in another
instance he had sex with K.O. in a car.
When his leave was over, Appellant returned to Fort Bliss.
He continued to speak to K.O. every day, and the two regularly
ended their calls with “I love you.” Further, K.O. sent a text
message to Appellant with a photo of her naked breast.
Appellant did not tell K.O. that the photo was inappropriate,
nor did he ask her to stop sending him this type of material.
At some point during this time period, Appellant spoke to
his brother and asked him if K.O.’s sexual assault allegations
were true. Appellant’s brother assured him that they were not.
Nevertheless, K.O. began telling Appellant that she was
considering running away from home or committing suicide.
In January 2010, Appellant talked to a female friend about
K.O.’s situation. Although this woman was married to another
soldier, she had an ongoing sexual relationship with Appellant
and was a local stripper. This woman agreed to bring K.O. to
Texas and have K.O. stay with her. Appellant eventually paid
her more than $700 for this service.
At the end of January 2010, as Appellant’s friend drove
home from a family trip to New York, she picked up K.O. and
another female minor in Pennsylvania. When Appellant’s friend
reached Texas, she was pulled over by local police for a traffic
violation. The police determined that K.O. and the other female
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minor were possible runaways and launched an investigation that
resulted in the instant charges.3
As this case unfolded, Appellant admitted that he had
engaged in sexual intercourse with K.O., but averred that he was
drunk each time and that K.O. initiated the sexual encounters.
Appellant also stated that his purpose in paying to have K.O.
brought to Texas was to protect her from future sexual abuse by
his brother, and that prior to K.O.’s departure from
Pennsylvania the two of them had agreed that they would no
longer engage in sexual activity until K.O. reached eighteen
years of age.
DISCUSSION
Appellant argues that the evidence against him was not
legally sufficient to sustain his conviction.4 We review such
challenges to the legal sufficiency of the evidence de novo.
3
At issue in this case is Specification 1 of Charge III, in
which Appellant was charged under clause 3 of Article 134, UCMJ,
with violating 18 U.S.C. § 2423(a), which prohibits the
transportation of minors in interstate commerce with intent to
engage in criminal sexual activity.
4
We granted review of the following issue:
Whether the evidence was legally sufficient to prove that
Appellant had the intent to engage in criminal sexual
conduct with KO, a minor, when he facilitated KO’s travel
in interstate commerce and was found guilty in
Specification 1 of Charge III of violating 18 U.S.C.
section 2423(a).
United States v. Kearns, 73 M.J. __ (C.A.A.F. 2013) (order
granting review).
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United States v. Bennitt, 72 M.J. 266, 268 (C.A.A.F. 2013).
“The standard for determining the legal sufficiency of evidence
supporting a guilty verdict is ‘whether, 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.
Mack, 65 M.J. 108, 114 (C.A.A.F. 2007) (quoting Jackson v.
Virginia, 443 U.S. 307, 318-19 (1979)).
We begin our review by noting that Appellant was charged
under clause 3 of Article 134, UCMJ, with violating 18 U.S.C.
§ 2423(a), which states in pertinent part:
A person who knowingly transports an individual who
has not attained the age of 18 years in interstate or
foreign commerce . . . with intent that the individual
engage in prostitution, or in any sexual activity for
which any person can be charged with a criminal
offense, shall be fined under this title and
imprisoned not less than 10 years or for life.
18 U.S.C. § 2423(a).5
Although Appellant did not have sex with K.O. after she was
5
The criminal sexual activity in this case consisted of intended
violations of Article 120, UCMJ, specifically aggravated sexual
assault of a child and aggravated sexual contact with a child.
Article 120(d), (g), UCMJ, 10 U.S.C. § 920(d), (g) (2006)
(amended by National Defense Authorization Act for Fiscal Year
2006, Pub. L. 109-163, 119 Stat. 3136, 3257 (2006)) (the
punitive articles under which Appellant was charged have been
replaced or superseded by Article 120b, UCMJ, 10 U.S.C. § 920b
(2012)). Texas statutes also criminalize the act of sexual
contact or sexual intercourse with a person between the ages of
fourteen and seventeen by someone more than three years older.
Tex. Penal Code Ann. §§ 21.11, 22.011 (West 2014).
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transported across state lines, there is no requirement under
this statute that the intended unlawful sexual activity actually
occurred. United States v. Vargas-Cordon, 733 F.3d 366, 375–76
(2d Cir. 2013) (quoting United States v. Broxmeyer, 616 F.3d
120, 129 n.8 (2d Cir. 2010)). Rather, all that is required is
“that the mens rea of intent coincide[d] with the actus reus of
crossing state lines.” Broxmeyer, 616 F.3d at 129.
In regard to this mens rea element, Appellant argues that
the evidence adduced at trial failed to demonstrate that he
possessed the level of intent required to sustain a conviction
under the provisions of 18 U.S.C. § 2423(a). Specifically,
Appellant asserts that the Government was required to prove that
his “dominant,” “predominant,” “significant,” or “efficient and
compelling” reason for transporting K.O. across state lines was
to engage in criminal sexual activity, but the Government failed
to do so.
In furtherance of his argument, Appellant states that the
Government placed undue emphasis on the significance of his
prior sexual history with K.O. He first claims that K.O.
initiated each sexual contact with Appellant while he was drunk,
and he then alleges that, prior to her departure from
Pennsylvania, K.O. and Appellant had agreed that they would no
longer engage in sexual activity until K.O. turned eighteen.
Appellant also points to the fact that he permitted another
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minor female, who was K.O.’s friend and who also claimed she had
been suffering from abuse at home, to accompany K.O. on the trip
from Pennsylvania to Texas. Appellant argues this fact
demonstrates that his dominant motive in this enterprise was
simply to assure both girls’ safety.
In examining the merits of Appellant’s argument, we must
first focus on the proper meaning of the phrase “with intent” as
it is used in § 2423(a). This is a question of first impression
for this Court. However, it is axiomatic that “[i]n determining
the scope of a statute, we look first to its language.” United
States v. Turkette, 452 U.S. 576, 580 (1981). Where the
language of the statute is clear and “Congress has directly
spoken to the precise question at issue,” we must “give effect
to the unambiguously expressed intent of Congress.” Chevron
U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837,
842-43 (1984). As further stated by the Supreme Court, “It is
well established that ‘when the statute’s language is plain, the
sole function of the courts -- at least where the disposition
required by the text is not absurd -- is to enforce it according
to its terms.’” Lamie v. United States Tr., 540 U.S. 526, 534
(2004) (quoting Hartford Underwriters Ins. Co. v. Union Planters
Bank, N.A., 530 U.S. 1, 6 (2000)) (internal quotation marks and
citations omitted). There is no rule of statutory construction
that allows for a court to append additional language as it sees
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fit. Fides, A.G., v. Comm’r, 137 F.2d 731, 734–35 (4th Cir.
1943) (“[C]ourts should be extremely cautious not to add words
to a statute that are not found in the statute.”).
Despite these rules of construction, various federal courts
have added their own requirements to the statutory language of
§ 2423(a). For example, both the United States Courts of
Appeals for the Second Circuit and the Ninth Circuit require the
prosecution to show that illegal sexual activity was one of the
“dominant purposes” of the transportation of the minor. Vargas-
Cordon, 733 F.3d at 375–76; United States v. Kinslow, 860 F.2d
963, 967–68 (9th Cir. 1988). The United States Courts of
Appeals for the Fifth Circuit and the Tenth Circuit require
instead that the illegal sexual activity be “one of the
efficient and compelling purposes of the travel.” United States
v. Hitt, 473 F.3d 146, 152 (5th Cir. 2006) (citation and
internal quotation marks omitted); United States v. Meacham, 115
F.3d 1488, 1495 (10th Cir. 1997). The United States Court of
Appeals for the Third Circuit, in United States v. Hayward,
allowed yet another formulation. 359 F.3d 631, 638 (3d Cir.
2004). The Hayward court ruled that it was not error for the
trial court to use a jury instruction with the language “a
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significant or motivating purpose of the travel.” Id. (internal
quotation marks omitted).6
We do not adopt any of these approaches. First and
foremost, “dominant,” “efficient and compelling,” “significant,”
and “motivating” are not terms found in the text of § 2423(a).
And second, other circuits have not added the same or similar
modifiers to the statutory language when they have examined this
issue. Rather, these appellate courts have held that the
illegal sexual conduct referred to in § 2423(a) must simply be
“one of the purposes” for the interstate transportation. See
United States v. Goodwin, 719 F.3d 857, 862 (8th Cir. 2013);
United States v. Tavares, 705 F.3d 4, 17 (1st Cir. 2013); United
States v. Hoschouer, 224 F. App’x 923, 926 (11th Cir. 2007);
6
These approaches to § 2423 are likely based on language from
the Supreme Court’s decision in Mortensen v. United States, 322
U.S. 369 (1944). In that case the defendant was charged under
the original Mann Act (enacted in 1910), which prohibited the
transportation of women across state lines “for the purpose of”
illegal sexual activity. Act of June 25, 1910, § 2, 36 Stat.
825 (1910) (amended 1986). In Mortensen, the Supreme Court said
that the “for the purpose of” provision meant the illegal sexual
activity must be the “dominant motive” of the interstate
movement. 322 U.S. at 374. Then, in 1986, Congress not only
created § 2423(a), which is at issue in the instant case, but
also recodified the Mann Act at § 2421. Importantly, Congress
also replaced the “for the purpose of” language in § 2421 with
the phrase “with intent that,” thereby making the standard of
intent identical in both sections. 18 U.S.C. §§ 2421, 2423(a)
(2012). However, the bottom line is that the “dominant motive”
standard enunciated in Mortensen was based on different
statutory language than that in issue in this case. Therefore,
we do not rely on the “dominant motive” standard enunciated in
Mortensen in reaching our decision.
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United States v. Cole, 262 F.3d 704, 709 (8th Cir. 2001); United
States v. Bennett, 364 F.2d 77, 78–79 & n.4 (4th Cir. 1966).7 We
agree with this approach.
Simply stated, § 2423(a) is clear on its face, and thus we
decline to graft additional modifiers onto it. Accordingly, we
hold that the proper reading of § 2423(a) is that as long as the
illegal sexual activity is a purpose of the transportation
across state lines, and not merely incidental to the travel, the
intent element of § 2423(a) is met. Thus, contrary to
Appellant’s argument, § 2423(a) does not require any showing of
“sole purpose,” “dominant motive,” or a “significant,” or
“efficient and compelling” reason.
As a result, as long as the above-mentioned mens rea of
intent coincided with the actus reus of crossing state lines,
there has been a violation of the statute. Broxmeyer, 616 F.3d
at 129. In this case there was sufficient evidence to establish
both. This is particularly true in light of the fact that, when
reviewing for legal sufficiency, “this Court is bound to draw
every reasonable inference from the evidence of record in favor
of the prosecution,” United States v. Blocker, 32 M.J. 281, 284
(C.M.A. 1991), and the Government was free to prove Appellant’s
intent by circumstantial evidence. Brooks v. United States, 309
7
See also United States v. McGuire, 627 F.3d 622, 624–25 (7th
Cir. 2010) (raising questions about the logic of the “dominant
purpose” test).
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F.2d 580, 583 (10th Cir. 1962) (“The conduct of the parties
within a reasonable time before and after the trip are
circumstances which a jury may consider in determining such
intent, motive or purpose.” (citing Dunn v. United States, 190
F.2d 496 (10th Cir. 1951))).
The record in this case shows: that Appellant had sexual
intercourse with K.O. on at least two occasions in the two
months prior to the point when he orchestrated her
transportation across state lines; that Appellant went so far as
to climb in the second-story window of K.O.’s bedroom in order
to have sex with her; that shortly before the trip K.O. sent
Appellant a photo of her naked breast and Appellant did not
object to this action; that Appellant paid a stripper with whom
he had a sexual relationship a substantial sum of money to
transport K.O. to Texas; and that Appellant planned to have K.O.
live near him. These are all facts that the panel could have
considered and relied upon in reaching its decision that
Appellant transported K.O. across state lines “with intent” to
engage in illegal sexual activity with her.
Accordingly, we hold that there was sufficient evidence for
the panel to conclude beyond a reasonable doubt that Appellant
facilitated the transportation of a minor across state lines
with intent that she engage in criminal sexual activity in
violation of 18 U.S.C. § 2423(a).
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DECISION
The decision of the United States Army Court of Criminal
Appeals is affirmed.
15