United States v. Justin Nekeferoff ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 3 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-30015
Plaintiff-Appellee, D.C. No.
3:15-cr-00071-TMB-1
v.
JUSTIN RAYMOND NEKEFEROFF, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the District of Alaska
Timothy M. Burgess, Chief District Judge, Presiding
Argued and Submitted September 25, 2020
Anchorage, Alaska
Before: CHRISTEN, WATFORD, and BADE, Circuit Judges.
Justin Nekeferoff appeals his convictions and sentence for attempted
enticement of a child, in violation of 18 U.S.C. § 2422(b), and possession of child
pornography, in violation of 18 U.S.C. § 2252(a)(4)(B) and (b)(2).1 This case
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
1
In his opening brief, Nekeferoff challenged only his conviction and
sentence for violating § 2422(b), attempted enticement of a child. In his
supplemental brief, however, he asserted a Faretta claim that necessarily
implicates both his convictions.
arises out of Nekeferoff’s communications through Facebook Messenger, text
message, and phone calls with “Jennifer,” an undercover agent posing as the
mother of eight-year-old “Ava.”2 We reverse and remand.
1. First, Nekeferoff argues that the district court violated his Sixth
Amendment right to self-representation by denying his request to discharge his
attorney, Natasha Norris, and represent himself. See Faretta v. California, 422
U.S. 806, 835–36 (1975). At a pretrial status-of-counsel hearing, Nekeferoff stated
that he “would like either a different attorney or just to represent [himself].” After
responding that it would not appoint Nekeferoff a different attorney, the district
court asked Nekeferoff a series of questions highlighting his limited educational
background, inexperience with court proceedings, lack of legal training, and
ignorance of the Federal Rules of Criminal Procedure, the Federal Rules of
Evidence, and local court rules. The district court then concluded: “Well, based on
what you’ve told me here today, I think you are not in a position to represent
yourself. So I’m going to continue to have Ms. Norris represent you, because
frankly, I think, you know, at this point, it’s in your best interests.”
“[A] timely request to proceed pro se—made unequivocally, knowingly and
intelligently—must be granted so long as it is not made for purposes of delay and
2
The parties are familiar with the factual and procedural background of this
matter. Therefore, we recite only those facts necessary for this disposition.
2
the defendant is competent.” United States v. Farias, 618 F.3d 1049, 1052 (9th
Cir. 2010). The district court did not find that Nekeferoff’s request was equivocal,
involuntary, or made for the purpose of delay, or that Nekeferoff was
incompetent.3 The district court emphasized its lack of confidence in Nekeferoff’s
legal abilities, but the voluntariness and competence inquiries turn on a defendant’s
mental competence, not legal competence, and denying a request for self-
representation based on a defendant’s lack of legal competence is error. See
Godinez v. Moran, 509 U.S. 389, 400 (1993) (“[A] criminal defendant’s ability to
represent himself has no bearing upon his competence to choose self-
representation.”); Faretta, 422 U.S. at 836 (explaining that a defendant’s
“technical legal knowledge, as such, was not relevant to an assessment of his
knowing exercise of the right to defend himself”).
By quizzing Nekeferoff on his legal acumen and then stating it would deny
his request because he was “not in a position to represent [himself],” and that it
was “in [his] best interests” to keep his attorney, the district court indicated that it
was denying Nekeferoff’s request based on his lack of legal competence. This was
error. United States v. Arlt, 41 F.3d 516, 518 (9th Cir. 1994).
3
The government argues that Nekeferoff’s request did not satisfy all these
factors, but the district court did not make any findings or base its decision on
these factors, and we will not engage in such fact-intensive inquiries for the first
time on appeal. See, e.g., United States v. Carbajal, 956 F.2d 924, 931 (9th Cir.
1992).
3
The government argues that we should nevertheless affirm because the
district court advised Nekeferoff that he was free to renew his request “down the
road.” But a defendant has no duty to “renew his request for self-representation,”
id. at 524, and Nekeferoff’s failure to make another request does not obviate the
error, notwithstanding the district court’s invitation to do so. “The district court’s
improper denial of [Nekeferoff’s] request to proceed pro se is structural error and
therefore requires reversal.” Farias, 618 F.3d at 1055. Accordingly, we reverse
Nekeferoff’s convictions and sentences.
2. Next, Nekeferoff argues that there was insufficient evidence to
convict him of enticing a child in violation of 18 U.S.C. § 2422(b). Although we
reverse Nekeferoff’s conviction based on the Faretta error, we consider his
sufficiency-of-the-evidence challenge “in order to determine whether there should
be an acquittal or retrial upon remand.” United States v. Gergen, 172 F.3d 719,
724 (9th Cir. 1999). To the extent Nekeferoff disputes the scope of the conduct
covered by the criminal statute, we review de novo. United States v. Deeb, 175
F.3d 1163, 1167 (9th Cir. 1999). We review his challenge to the sufficiency of the
evidence by asking “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.
Nevils, 598 F.3d 1158, 1163–64 (9th Cir. 2010) (en banc) (quoting Jackson v.
4
Virginia, 443 U.S. 307, 319 (1979)).
We hold that the government presented sufficient evidence to support
Nekeferoff’s conviction. Despite Nekeferoff’s suggestion that communications
through an adult intermediary are insufficient to trigger criminal liability, he
conceded that communicating with an adult intermediary to groom a child for
molestation can constitute an attempted violation of § 2422(b) when the defendant
“intends to persuade the minor by having the adult assist him in grooming” her.
This is consistent with the plain language of the statute. 18 U.S.C. § 2422(b).
Here, the evidence certainly permitted a jury to infer that Nekeferoff attempted to
groom Ava by directing Jennifer to prepare Ava to engage in sexual acts with
Nekeferoff.
In particular, the evidence showed that Nekeferoff urged Jennifer to “[t]ry
[to] make [Ava] orgasm,” to “[m]ake her cum,” to perform oral sex on her, and to
touch her genitals. Moreover, the jury could reasonably infer that Nekeferoff
directed Jennifer to perform these acts to groom Ava for his own sexual advances.
When Jennifer told Nekeferoff that Ava had let Jennifer “lick” her, Nekeferoff
responded, “Awesome! So I can lick her?” On another occasion, he responded,
“Wow.. so will she be used to licking when I get her?” Nekeferoff argues that his
actual motivation was not to persuade Ava, but his alternative interpretation of the
evidence misses the point that a rational jury could reasonably have drawn these
5
inferences. Nevils, 598 F.3d at 1164.
3. Nekeferoff also argues that the district court improperly admitted
evidence that he previously molested his adoptive sister when she was between
four and six years old, and that he had sex with his girlfriend’s fifteen-year-old
daughter. We review the district court’s admission of this evidence for abuse of
discretion. United States v. Hanson, 936 F.3d 876, 881 (9th Cir. 2019). The
district court did not abuse its discretion in admitting evidence that Nekeferoff had
previously molested his adoptive sister, given the similarities between the victims’
ages and other circumstances of the incidents, and the relevance of this evidence to
whether Nekeferoff intended to groom Ava through Jennifer. See United States v.
Thornhill, 940 F.3d 1114, 1117–23 (9th Cir. 2019) (affirming admission of prior
conviction of sexual abuse of a minor in a child pornography trial).
The district court did, however, abuse its discretion by admitting testimony
that Nekeferoff previously had sex with his girlfriend’s fifteen-year-old daughter.
Given the significant differences between that incident and Nekeferoff’s present
charged conduct—particularly the victims’ ages (fifteen versus eight) and that the
fifteen-year-old, unlike Ava, initiated the alleged encounter with Nekeferoff—the
limited probative value of this testimony “is substantially outweighed by a danger
of . . . unfair prejudice.” Fed. R. Evid. 403. Nevertheless, the exclusion of this
evidence would not have impacted the sufficiency of the evidence discussed above
6
to support a conviction, and because we reverse for structural error, we need not
address whether this evidentiary error was harmless in the context of the previous
trial. Because there was sufficient evidence to support a conviction, we remand for
a retrial.
4. Nekeferoff also argues that the district court erroneously instructed
the jury that it could find him guilty of violating 18 U.S.C. § 2422(b) without
finding a link between Nekeferoff’s use of a means of interstate commerce and his
attempt to persuade, induce, entice, or coerce a minor. Because Nekeferoff did not
object to the instructions at trial, we review for plain error. United States v.
Sanders, 421 F.3d 1044, 1050 (9th Cir. 2005).
Nekeferoff argues that the relevant instructions did not require the jury to
find that he had “employ[ed] . . . interstate means for the essential function of
communicating with the adult intermediary for the purpose of persuading,
inducing, enticing, or coercing the minor,” United States v. Hite, 769 F.3d 1154,
1165 (D.C. Cir. 2014) (emphasis added), as he argues the statute requires.4 In Hite,
4
Specifically, Instruction 18, which set out the elements of a § 2422(b)
violation, required the jury to find only that Nekeferoff “intended to persuade,
induce, entice, or coerce” Ava and that he “used a means and facility of interstate
commerce” in his attempted enticement—not that he used the interstate means to
persuade (or for the purpose of persuading) her. Instructions 21 and 22, in turn,
could be read as allowing the jury to convict based on a finding that Nekeferoff
used a means of interstate commerce simply to arrange a meeting and that he
intended to persuade Ava in person at that meeting.
7
the court suggested that 18 U.S.C. § 2422(b) requires a connection between the
interstate means and the defendant’s purpose of persuading a minor, see id., and
our own model jury instructions also support this requirement, see Ninth Circuit
Jury Instructions Committee, Manual of Model Criminal Jury Instructions 8.192A
(Dec. 2019) (“First, . . . the defendant [used] [attempted to use] . . . [a means or
facility of [interstate] . . . commerce, . . . to knowingly [persuade] [induce] [entice]
[coerce] an individual to engage in . . . [any sexual activity for which someone
could be charged with an offense] . . . .” (brackets in original)). However, this
court has never addressed the nexus issue. See United States v. Goetzke, 494 F.3d
1231, 1234–35 (9th Cir. 2007) (discussing the elements of a § 2422(b) violation);
United States v. Meek, 366 F.3d 705, 718 (9th Cir. 2004) (same). Given the lack of
controlling authority on the matter and sparse persuasive authority, any
instructional error in this case was not plain. See United States v. De La Fuente,
353 F.3d 766, 769 (9th Cir. 2003).
5. Finally, Nekeferoff challenges his sentence, arguing that the district
court relied on a clearly erroneous finding that he had “continuously” abused his
adoptive sister for ten years, that his sentence was substantively unreasonable, and
that the district court improperly included nonstandard conditions of supervised
release in the written judgment that it failed to announce when orally imposing the
sentence. Because we reverse Nekeferoff’s convictions and sentence, we do not
8
reach these arguments.
REVERSED AND REMANDED.
9