United States v. Saldana-Rivera , 914 F.3d 721 ( 2019 )

United States Court of Appeals
For the First Circuit
No. 17-1262
UNITED STATES OF AMERICA,
Appellee,
v.
JOEL SALDAÑA-RIVERA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, Jr., U.S. District Judge]
Before
Torruella, Thompson, and Kayatta,
Circuit Judges.
Jessica E. Earl, Assistant Federal Public Defender, with whom
Eric Alexander Vos, Federal Public Defender, Vivianne M. Marrero,
Assistant Federal Public Defender, Supervisor, Appeals Section,
and Franco L. Pérez-Redondo, Research and Writing Specialist, were
on brief, for appellant.
Francisco A. Besosa-Martínez, Assistant United States
Attorney, with whom Rosa Emilia Rodríguez-Vélez, United States
Attorney, and Mariana E. Bauzá-Almonte, Assistant United States
Attorney, Chief, Appellate Division, were on brief, for appellee.
February 1, 2019
KAYATTA, Circuit Judge. In March 2017, a jury convicted
Joel Saldaña-Rivera ("Saldaña") under 18 U.S.C. § 2422(b) of
attempted coercion and enticement of a minor to engage in sexual
activity for which Saldaña could be charged with sexual assault
under the laws of Puerto Rico. Saldaña appeals his conviction,
arguing that he could not have been charged with sexual assault
under Puerto Rico law because the person he tried to entice was an
adult federal agent posing as a minor. Saldaña also challenges
the jury instructions regarding the government's burden of proof.
For the following reasons, we affirm Saldaña's conviction.
I.
In February 2016, Saldaña, an adult using the moniker
"Irresistible," engaged in an online conversation with an
undercover Department of Homeland Security ("DHS") agent. The
agent, using the moniker "JessiRiv," told Saldaña he was an eleven-
year-old girl. The conversation began in an online chatroom before
moving to Kik Messenger, a messaging application for mobile devices
that provides some degree of anonymity to users.
During the conversation, Saldaña sent photographs of
himself to "JessiRiv" and asked her to send photographs back.
Saldaña also asked "JessiRiv" where her father was and what she
was wearing. During the course of their conversation, Saldaña
agreed to meet "JessiRiv" in person with the understanding that
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they would go to her parents' house, have sex, and watch
pornography.
When Saldaña arrived at the location where he thought he
would be meeting an eleven-year-old "JessiRiv," he instead met the
DHS agent and other law enforcement officials. After being
Mirandized and arrested, Saldaña told the officials that he
believed he had been communicating with an eleven-year-old girl
and that he had gone to the meeting location with the intent to
have sex with her.
Saldaña was indicted with one count of attempted sexual
coercion and enticement of a minor, in violation of 18 U.S.C.
§ 2422(b). He initially pleaded guilty before a magistrate judge,
but he withdrew his guilty plea before the district court accepted
the magistrate judge's report and recommendation. After he moved
unsuccessfully to dismiss the indictment, the case went to trial
"solely," in Saldaña's words, "to preserve the legal ruling for
appellate review."
At trial, the undercover DHS agent, another DHS agent,
and a Puerto Rico Police Department officer testified. The
government also presented screenshots of the conversations between
Saldaña and "JessiRiv." As Saldaña acknowledges, "the evidence
and testimony of the witnesses went largely uncontested." At the
end of the government's case, Saldaña moved under Rule 29 for a
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judgment of acquittal, which the district court denied. See Fed.
R. Crim. P. 29.
The jury found Saldaña guilty of violating
section 2422(b). The district court sentenced Saldaña to 120
months' imprisonment, the statutory minimum, to be followed by
fifteen years of supervised release. Saldaña now appeals.
II.
A.
The federal coercion-and-enticement-of-a-minor statute,
section 2422(b), provides:
Whoever, using the mail or any facility or means of
interstate or foreign commerce, . . . knowingly
persuades, induces, entices, or coerces any individual
who has not attained the age of 18 years, to engage in
. . . any sexual activity for which any person can be
charged with a criminal offense, or attempts to do so,
shall be fined under this title and imprisoned not less
than 10 years or for life.
18 U.S.C. § 2422(b).
A conviction under section 2422(b) for attempting to
entice a minor to engage in sexual activity plainly requires that
the attempted sexual activity be activity "for which any person
can be charged with a [crime]." Id. And chargeable sexual
activity includes crimes defined by state law. United States v.
Dwinells, 508 F.3d 63, 72 (1st Cir. 2007). In this case, the
government asserted that the sexual activity that Saldaña sought
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could have been charged as a crime under Article 130 of the Puerto
Rico Penal Code, which states:
[A]ny person who purposely, knowingly, or recklessly
carries out . . . an oral/genital act or vaginal act or
anal sexual penetration, whether genital, digital, or
instrumental . . . if the victim at the time of the
offense had not reached 16 years of age [shall be
punished in accordance with the remainder of the Code].
See P.R. Laws Ann. tit. 33, § 5191(a).1
Saldaña counters that, given the actual facts, he could
not have been charged under Article 130 because Article 130 only
criminalizes sex with an actual minor, and Puerto Rico law (he
says) does not criminalize an attempt to commit a crime where
success is factually impossible. The government concedes the
former point and disputes the latter. Neither party, though,
refers us to any Puerto Rican case law on the latter point. And
it is not clear why Puerto Rico's attempt statute, which appears
to prohibit factual impossibility as a defense, would not apply to
Article 130.2 Regardless, for purposes of this appeal, we will
assume without deciding that Saldaña could not have been charged
1 The statute is drafted in Spanish. Both parties agree on
this English translation, which mirrors the instruction the
district court gave to the jury.
2 Puerto Rico law defines attempt as existing "when the person
acts with the purpose of producing the crime or with knowledge
that the crime would be produced, and the person performs
unequivocal actions directed to the consummation of a crime that
it is not consummated due to circumstances not of its own will."
P.R. Laws Ann. tit. 33, § 5048. We rely on a certified English
translation that the government submitted to the district court
and was included in the appendix on appeal.
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with any crime under Article 130 because he was not communicating
with a minor.
This assumption nevertheless does not provide the
exculpation Saldaña seeks. Nothing in the language of
section 2422(b) requires the government to show that Saldaña
himself could have been charged under Article 130. Rather,
criminal liability arises under section 2422(b) if a defendant
"attempts" "to engage in any sexual activity for which any person
can be charged." We therefore look to Commonwealth law not to see
if Saldaña could have been charged under that law, but rather to
see if any adult who engages in the sexual activity in which
Saldaña attempted to engage could be charged. Answering this
question requires that we pick the proper perspective for defining
the "sexual activity" in which Saldaña sought to engage. Do we
assay the facts objectively, as they actually existed? If so,
then one could say that, in fact, Saldaña was seeking to have sex
with an adult Homeland Security agent. Or do we define the facts
subjectively, from Saldaña's perspective? If so, then clearly he
was attempting to have sex with a child, an activity plainly
prohibited by Puerto Rico law. Two reasons point to the subjective
perspective.
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First, "attempt" crimes under federal law3 train our
attention on the defendant's "intention to commit the substantive
offense." United States v. Berk, 652 F.3d 132, 140 (1st Cir. 2011)
(citing United States v. Burgos, 254 F.3d 8, 12 (1st Cir. 2001)).
Second, while conviction for an attempted offense under
federal law also requires evidence that the defendant in fact took
a "substantial step towards" the commission of the offenses (here,
for example, going to the assigned meeting), id., we have rejected
factual impossibility as a defense to an attempt crime, albeit in
the context of a different substantive offense, see United States
v. Dixon, 449 F.3d 194, 201-202 (1st Cir. 2006) (holding that
factual impossibility is not a defense against liability for
attempted use of the mails to deliver a communication containing
a threat to injure the addressee); United States v. Mehanna, 735
F.3d 32, 53 (1st Cir. 2013). We see no reason not to take the
same position in connection with this particular attempt crime.
And our sister circuits have so far, without exception, taken just
such a position in refusing to read section 2422(b) as requiring
the government to prove that the attempt could in fact have
resulted in unlawful sexual activity with a minor. See United
States v. Tykarsky, 446 F.3d 458, 465-69 (3d Cir. 2006) (so holding
3 There is no general federal "attempt" crime, but federal
law criminalizes the attempt of many specific crimes, including
section 2422(b). See, e.g., 21 U.S.C. § 846 (drugs); 18 U.S.C.
§ 1113 (murder/manslaughter); 18 U.S.C. § 1349 (fraud).
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and collecting cases); see also United States v. Jockisch, 857
F.3d 1122, 1129 (11th Cir.), cert. denied, 138 S. Ct. 284 (2017);
United States v. Hart, 635 F.3d 850, 855 (6th Cir. 2011); United
States v. Mannava, 565 F.3d 412, 416 (7th Cir. 2009); United States
v. Gagliardi, 506 F.3d 140, 145-147 (2d Cir. 2007); United States
v. Helder, 452 F.3d 751, 753-56 (8th Cir. 2006); United States v.
Sims, 428 F.3d 945, 959-60 (10th Cir. 2005); United States v. Meek,
366 F.3d 705, 717-720 (9th Cir. 2004); United States v. Farner,
251 F.3d 510, 513 (5th Cir. 2001).4
Saldaña points out that in several instances federal
courts have upheld convictions under section 2422(b) by pointing
out that the applicable state law (unlike, we assume, the
Commonwealth's law) criminalized not just the act of having sex
with a minor, but also the attempt to do so. See, e.g., Mannava,
565 F.3d at 416; United States v. Kaye, 243 Fed. Appx. 763, 766
(4th Cir. 2007). Saldaña would have us read these cases as
implying that the result would have been different in those cases
had the applicable state law not itself criminalized attempts. We
4As some of our sister courts have acknowledged, holding
otherwise would prevent law enforcement from using sting
operations and decoys to police the criminal coercion and
persuasion of minors for sex. See, e.g., Gagliardi, 506 F.3d at
146-47; Tykarsky, 446 F.3d at 468; Meek, 366 F.3d at 719. These
common practices have led to convictions that we have upheld. See,
e.g., United States v. Hinkel, 837 F.3d 111, 115-16 (1st Cir.
2016), cert. denied, 137 S. Ct. 1106 (2017); United States v.
Dwinells, 508 F.3d 63, 65-67 (1st Cir. 2007).
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disagree. The courts in those cases chose to rest on obviously
sufficient grounds for affirmance without suggesting that other
grounds were also not available. And this is not an issue upon
which a court would likely rule only by implication bereft of any
analysis and against the unanimous weight of authority. Saldaña
also cites United States v. Tello, 600 F.3d 1161 (9th Cir. 2010),
but in that case the court actually confirmed (though without
relevant discussion) a conviction under section 2422(b) for a
similar, factually impossible attempt.
Having read the statutory text and surveyed the case
law, including the comprehensive analysis set forth in Tykarsky,
we see no reason to chart a minority path. The sexual activity
attempted by Saldaña was sex with an eleven-year-old girl; and sex
with an eleven-year-old girl is sexual activity for which he could
have been charged with a crime under Puerto Rico law. The district
court therefore did not err in denying Saldaña's Rule 29 motion
for a judgment of acquittal.
III.
Saldaña challenges the jury instructions on two grounds.
His first argument -- that the district court erred by failing to
instruct the jury that an actual minor was required to convict
under section 2422(b) -- fails for the reasons discussed above.
Saldaña's second argument arises out of the fact that
section 2422(b) requires that the sexual activity the defendant
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sought to bring about be "sexual activity for which any person can
be charged with a criminal offense." One might literally read
that language as including suspicious but nevertheless lawful
conduct that might furnish probable cause for an indictment. See
Mannava, 565 F.3d at 416 ("Indeed, read literally,
[section 2422(b)] would make it a federal offense to engage in
conduct that created only probable cause to think that one had
committed a criminal offense, since probable cause is all that is
required to charge someone with an offense."). For example, there
might be probable cause to indict under Article 130, but
insufficient evidence to convict, a defendant who plausibly claims
that his sexually explicit, coercive messages to a minor were the
result of intimidation or violence sufficient to negate the
requisite criminal intent. See P.R. Laws Ann. tit. 33, § 5045(listing exclusions from criminal liability). Not surprisingly,
the Seventh Circuit has eschewed this arguably literal reading of
section 2422(b). See Mannava, 565 F.3d at 416 ("That would be a
good example of an interpretation that, though literally correct
-- though dictated by 'plain meaning' -- was absurd, and therefore
erroneous.").
In this case, the district court pretty much tracked the
statutory language literally when instructing the jurors on the
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government's burden.5 That normally quite prudent approach created
a risk with this particular statute that jurors might construe the
language as requiring only that the sexual activity be chargeable
rather than criminally unlawful. The accompanying instructions
routinely given in federal criminal trials can increase this risk.
Such instructions often warn jurors not to place weight on the
fact that the government indicted the defendant for the federal
offense being tried. The court will explain (as in this very case)
that there only need be "probable cause," a "very low standard of
proof," to justify "a charge." So one can see how jurors might
piece together the wrong conclusion that the facts concerning the
nature of the attempted sexual activity need only provide probable
cause to support a charge under Article 130. All in all, this is
one of those unusual instances in which a paraphrase of the statute
-- as requiring that the sexual activity be a crime -- would have
been far preferable. See, e.g., Nancy Torresen, 2018 Revisions to
Pattern Criminal Jury Instructions for the District Courts of the
First Circuit (2018), http://www.med.uscourts.gov/pdf/crpjilinks.pdf
5 The district court instructed:
For the government to prove Mr. Saldaña guilty of this
crime and for you to find that the government proved
this case beyond a reasonable doubt the United States
must prove . . . that if a sexual activity had occurred
Mr. Saldaña could have been charged with a criminal
offense under the laws of the United States and Puerto
Rico.
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(tracking the statute but then instructing that jurors must find
beyond a reasonable doubt "that the sexual activity was a criminal
offense"); Pattern Criminal Jury Instructions of the Seventh
Circuit 630 (2012 ed.), http://www.ca7.uscourts.gov/pattern-jury-
instructions/7th_criminal_jury_instr.doc (instructing that, "if
the sexual activity had occurred," the defendant "would have
committed the criminal offense"); see also United States v. Lundy,
676 F.3d 444, 450-51 (5th Cir. 2012) (affirming the instruction
that the government must prove that the defendant "attempted to
persuade, induce or entice a minor to engage in some form of
unlawful sexual activity" (emphasis added)).
Saldaña, though, did not object to the district court's
instruction, likely because his lawyer did not construe the
instruction in the arguably literal -- but incorrect -- manner we
acknowledge could be possible. So we review this whole issue only
for plain error, which requires among other things that there be
clear error that "affected [Saldaña's] substantial rights."
United States v. Vicente, 909 F.3d 20, 23 (1st Cir. 2018) (quoting
United States v. Duarte, 246 F.3d 56, 60 (1st Cir. 2001)). In
other words, he need "'show a reasonable probability that, but for
the error,' the outcome of the proceeding would have been
different." Molina-Martinez v. United States, 136 S. Ct. 1338,
1343 (2016) (quoting United States v. Dominguez Benitez, 542 U.S.
74, 76 (2004)). Saldaña cannot make this showing because the
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evidence of his guilt was overwhelming. He did not even contest
that he sought sex with an eleven-year-old. And no juror could
reasonably construe such activity as anything other than unlawful
under Article 130.
IV.
For the foregoing reasons, we affirm Saldaña's
conviction under 18 U.S.C. § 2422(b).
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