United States v. Juan Price ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-50556
Plaintiff-Appellee,
D.C. No.
v. 2:15-cr-00061-
GHK-1
JUAN PABLO PRICE,
Defendant-Appellant. ORDER AND
AMENDED
OPINION
Appeal from the United States District Court
for the Central District of California
George H. King, District Judge, Presiding
Argued and Submitted November 6, 2017
Submission Vacated May 18, 2018
Resubmitted April 12, 2019
Pasadena, California
Filed April 12, 2019
Amended November 27, 2020
2 UNITED STATES V. PRICE
Before: Ronald Lee Gilman, * Kim McLane Wardlaw,
and Jacqueline H. Nguyen, ** Circuit Judges.
Order;
Opinion by Judge Wardlaw;
Concurrence by Judge Gilman;
Concurrence in Order by Judge Wardlaw;
Dissent from Order by Judge Collins
SUMMARY ***
Criminal Law
The panel denied a petition for panel rehearing, denied
on behalf of the court a petition for rehearing en banc, and
filed an Amended Opinion and Concurrence, in a case in
which the panel affirmed a conviction for knowingly
engaging in sexual contact with another person without that
other person’s permission on an international flight, in
violation of 18 U.S.C. § 2244(b).
*
The Honorable Ronald Lee Gilman, United States Circuit Judge
for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
**
This case was submitted to a panel that included Judge Stephen
R. Reinhardt. Following Judge Reinhardt’s death, Judge Nguyen was
drawn by lot to replace him. Ninth Circuit General Order 3.2.h. Judge
Nguyen has read the briefs, reviewed the record, and listened to oral
argument.
***
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
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In the Amended Opinion, the panel rejected the
defendant’s argument that the district court erred in giving
the Ninth Circuit Model Instruction on the elements of
§ 2244(b), which does not require that the government prove
beyond a reasonable doubt that the defendant subjectively
knew that his victim did not consent to his conduct. The
panel rejected the defendant’s claim of instructional error
because unwanted sexual contact of the type the defendant
engaged in—touching first, and asserting later that he
“thought” the victim consented—is precisely what § 2244(b)
criminalizes. The panel explained that the Supreme Court’s
recent decision in Rehaif v. United States, 139 S. Ct. 2191
(2019), does not alter its conclusion.
The panel held that the police had probable cause to
arrest the defendant, that he was properly Mirandized, and
that the district court acted within its discretion in refusing
to read back to the jury portions of the victim’s testimony.
Concurring that the conviction should be affirmed, Sixth
Circuit Judge Gilman disagreed with the majority’s holding
that “knowingly” in § 2244(b) does not extend to the phrase
“without that other person’s permission.” He wrote that
despite the district court’s error in refusing to instruct the
jury that such knowledge was necessary to convict, the error
was harmless because no reasonable juror could have
concluded that the defendant subjectively believed he had
permission to touch a sleeping stranger’s breast.
Judge Wardlaw, joined by Judge Nguyen, concurred in
the denial of rehearing en banc. She wrote that in his dissent
from the denial of rehearing en banc, Judge Collins wishes
to rewrite § 2244(b)—and the Ninth Circuit Model
Instruction—by inserting a subjective-knowledge
requirement that is at odds with the very purposes of the
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Sexual Abuse Act of 1986, creating a shield for sexual
predators that Congress did not intend.
Judge Collins—joined by Judges Ikuta and VanDyke as
to Parts I and II, and by Judge Bumatay as to Part II(B)(1)—
dissented from the denial of rehearing en banc. He wrote
that the panel majority (1) erroneously holds that there was
no missing element at all by reading the word “knowingly”
out of § 2244(b), ignoring the plain language of the statute
and disregarding applicable canons of construction; and
(2) wrongly concludes that, in any event, the omission of the
scienter element was harmless error.
COUNSEL
Jonathan D. Libby (argued), Deputy Federal Public
Defender; Hilary L. Potashner, Federal Public Defender;
Office of the Federal Public Defender, Los Angeles,
California; for Defendant-Appellant.
Christopher C. Kendall (argued) and Julia L. Reese,
Assistant United States Attorneys; L. Ashley Aull, Chief,
Criminal Division; Nicola T. Hanna, United States Attorney;
United States Attorney’s Office, Los Angeles, California;
for Plaintiff-Appellee.
UNITED STATES V. PRICE 5
ORDER
The opinion and concurrence filed on April 12, 2019,
and reported at 921 F.3d 777, is amended by the Amended
Opinion and Concurrence filed in their place concurrently
with this order.
With the Amended Opinion, Judges Wardlaw and
Nguyen have voted to deny the petition for panel rehearing
and rehearing en banc. Judge Gilman has voted to grant the
petition for panel rehearing and recommends granting the
petition for rehearing en banc.
The full court was advised of the petition for rehearing
en banc. A judge requested a vote on whether to rehear the
matter en banc. The matter failed to receive a majority of the
votes of the nonrecused active judges in favor of en banc
consideration. Fed. R. App. P. 35.
Accordingly, the petition for rehearing and the petition
for rehearing en banc are DENIED. A concurrence in the
denial by Judge Wardlaw and a dissent from the denial by
Judge Collins are filed concurrently with this order. No
further petitions for rehearing or rehearing en banc will be
entertained.
OPINION
WARDLAW, Circuit Judge:
It is a federal crime under 18 U.S.C. § 2244(b), enacted
as part of the Sexual Abuse Act of 1986, to knowingly
engage in sexual contact with another person without that
other person’s permission on an international flight. During
an overnight flight from Tokyo, Japan to Los Angeles,
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California, Juan Pablo Price, a forty-six-year-old man,
moved from his assigned seat to an open seat adjacent to that
of a sleeping twenty-one-year-old female Japanese student,
where he fondled her breast and slipped his hand into her
underwear, touching her vagina. The jury convicted Price
under 18 U.S.C. § 2244(b), finding that the government
proved beyond a reasonable doubt that Price knowingly had
sexual contact with the victim and that the sexual contact
was without the victim’s permission. Price appeals his
conviction, arguing that the district court erred in giving the
Ninth Circuit Model Instruction on the elements of
§ 2244(b), which does not require that the government prove
beyond a reasonable doubt that the defendant subjectively
knew that his victim did not consent to his conduct.
We reject Price’s reading of the statute as contrary to its
text, the structure of the statutory scheme and its very
purpose in penalizing those who sexually prey upon victims
on the seas or in the air within federal jurisdiction.
Congress’s purpose in enacting the Sexual Abuse Act of
1986 was to criminalize sexual contact by focusing on the
defendant’s conduct. If the government were required to
prove that the defendant subjectively knew he lacked
consent, as Price urges here, every accused sexual predator
could defend his admitted sexual contact in the face of no
objective sign of permission by asserting a supposed
subjective belief that the victim was “enjoying herself,” a
result directly contrary to the purpose of the 1986 Act. Even
Price recognized, following his arrest, that “it sure is going
to be my job not to touch a woman” whom he doesn’t know
and hasn’t talked to. As the arresting officer responded to
Price, “in your forty something years, you should’ve already
known that[].”
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Because unwanted sexual contact of the type Price
engaged in—touching first, and asserting later that he
“thought” the victim consented—is precisely what § 2244(b)
criminalizes, we reject Price’s claim of instructional error.
We also conclude that the police had probable cause to arrest
Price, that he was properly Mirandized, and that the district
court acted within its discretion in refusing to read back to
the jury portions of the victim’s testimony. We therefore
affirm Price’s conviction and sentence.
I.
The objective facts are fairly undisputed. Price, then
forty-six, was a passenger on the overnight flight from
Tokyo, Japan to Los Angeles, California. A.M., a twenty-
one-year-old college student, and her friend, Maki Fujita,
were traveling on the same flight. After take-off, Price asked
A.M. if he could move from his assigned seat to the
unoccupied seat next to her, a seat where the video monitor
was not working, explaining that his original seat had limited
legroom. A.M. said “okay.” Price attempted to engage A.M.
in conversation, but A.M. could not speak English very well,
and he eventually realized that she was not completely
understanding what he was saying. A flight attendant,
Hidemori Ejima, noticed that Price had changed his seat, and
asked him why. When Price responded that he wanted more
legroom, Ejima offered Price another seat with a working
video monitor and three times more legroom. Price declined
the offer—something Ejima had not seen before in his
twenty-five years as a flight attendant. After food service,
Ejima handed Fujita a note warning Fujita and A.M. to
“watch out” for the person sitting next to them. A.M.
interpreted the warning to mean that Price might try to steal
her wallet or other belongings. She moved her purse and
wallet deeper into her bag and fell asleep.
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A.M. woke up to Price touching the right side of her
body, including her arm, hip, and leg. Thinking that Price
was trying to steal the cell phone in her pocket, she moved
the phone to inside the seat pocket and went back to sleep.
When A.M. awoke again, Price was touching her breast.
A.M. began panicking, but did not want to bother the people
around her. She tried to avoid Price’s touch by pulling the
blankets up to her shoulder and crossing her arms in front of
her. Undeterred, Price placed his blanket over both of them,
covering his arms, and continued to touch her breast, first
over her shirt and then under it. Price then moved his hand
into A.M.’s jeans and underwear and touched her vagina.
In a state of shock, panic, and fear, and looking for the
words to tell Price to stop, A.M. twisted her body toward
Fujita on her left, away from Price. Price hauled her back
around with “strong force” and tried to pull her jeans down.
At this point, Fujita woke up, and, seeing her awake, Price
retreated to his seat. When Fujita asked A.M. if she was
okay, A.M. responded that she was not and asked what she
should do. Fujita told her to tell the flight attendant. A.M.
did not have the English words to explain what happened,
although she was able to ask for “help.”
Price’s perception of the encounter differed from the
others on the plane. He testified that while his hand was on
the armrest, he felt A.M.’s hand touch his. Thinking that this
could be an invitation, Price began to rub her hand. Price
stated that they started holding and rubbing each other’s
hands. As he began moving his hands across A.M.’s body
and to her breast area, he thought she was “enjoying herself”
because she was arching her body, he could feel her
heartbeat, her breathing was intense, and she was opening
and closing her eyes. It was only when Price tried to move
her face toward him and A.M. would not budge that Price
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thought something was wrong. At that point, Price noticed
that Fujita was awake, and A.M. then got up. According to
both A.M.’s and Price’s accounts, no words were exchanged
during this encounter. Price agrees A.M. did not verbally
consent to his touching her.
While A.M. got up to tell the flight attendant what
happened, Price wrote a note that he never ended up giving
to A.M., which said, “If a man touches you and you don’t
want him to always feel free to say No.” The purser or lead
chief flight attendant, Yosri Zidan, then obtained written
statements from both Price and A.M. Price’s story was that
he changed seats because he wanted more legroom; he then
fell asleep and awoke to find A.M. stroking his hand.
While still in flight, the pilot sent a message to American
Airlines employees at Los Angeles International Airport
(LAX) that read, “WE NEED LAX POLICE TO MEET
AIRPLANE [/] WE HAVE A MOLESTER/FONDLER ON
BOARD.” The LAX Police Department (LAXPD) then
contacted the Transportation Security Administration
(TSA), who in turn contacted the Federal Bureau of
Investigation (FBI). Special Agent David Gates (S.A.
Gates) of the FBI instructed the sergeant at LAX to first
investigate the incident to determine if he needed to respond.
On February 18, 2015, after a federal grand jury indicted
Price for abusive sexual contact under 18 U.S.C. § 2244(b),
Price was formally arrested. Price filed a pre-trial motion to
suppress evidence found in his bag and cell phone, and his
statements to the LAXPD officers and to S.A. Gates, arguing
that he was arrested without probable cause upon the flight’s
arrival at LAX and that he was questioned without being
given Miranda warnings. The government and Price
disputed the 18 U.S.C. § 2244(b) jury instruction, based on
the statute’s use of the word “knowingly.” The district court
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ultimately selected the Ninth Circuit’s Model Criminal Jury
Instruction for § 2244(b) and the additional instruction
proposed by Price that “permission” under § 2244(b) can be
express or implied, “that is[,] inferred from words or
actions.” The district court denied Price’s request to instruct
the jury that, in addition, the government must prove that
Price “knew the sexual contact was without A.M.’s
permission.” The district court reasoned “that it is
appropriate not to read into the statute that which it does not
say it requires.”
Price timely appeals.
II.
18 U.S.C. § 2244(b) provides:
Whoever, in the special maritime and
territorial jurisdiction of the United States . . .
knowingly engages in sexual contact with
another person without that other person’s
permission shall be fined under this title,
imprisoned not more than two years, or both.
“Sexual contact” is defined as “the intentional touching,
either directly or through the clothing, of the genitalia, anus,
groin, breast, inner thigh, or buttocks of any person with an
intent to abuse, humiliate, harass, degrade, or arouse or
gratify the sexual desire of any person.” 18 U.S.C.
§ 2246(3). The Ninth Circuit’s model instruction provides:
The defendant is charged in [Count _______
of] the indictment with abusive sexual
contact in violation of Section 2244(b) of
Title 18 of the United States Code. In order
for the defendant to be found guilty of that
UNITED STATES V. PRICE 11
charge, the government must prove each of
the following elements beyond a reasonable
doubt: First, the defendant knowingly had
sexual contact with [name of victim]; Second,
the sexual contact was without [name of
victim]’s permission; and Third, the offense
was committed at [specify place of federal
jurisdiction]. In this case, “sexual contact”
means [specify statutory definition].
Manual of Model Criminal Jury Instructions § 8.180 (2010)
(Ninth Cir. Jury Instructions Comm., amended 2015). The
model instruction does not ask the jury to find that the
defendant subjectively knew that he lacked the victim’s
permission. Price argues that the model instruction was
given in error.
Whether “a jury instruction misstates elements of a
statutory crime” is an issue we review de novo. United
States v. Knapp, 120 F.3d 928, 930 (9th Cir. 1997). We have
not yet addressed whether the term “knowingly” in
§ 2244(b) applies to the phrase “without that other person’s
permission.” As a matter of statutory interpretation, we
generally consider the statute’s language, purpose, history,
and past decisions and controlling law to determine whether
the district court properly instructed the jury. See Taylor v.
United States, 495 U.S. 575, 581 (1990); United States v. Lo,
447 F.3d 1212, 1229 (9th Cir. 2006).
A.
Our analysis begins with the text of the statute. “In
determining what mental state is required to prove a
violation of the statute, we look to its words and the intent of
Congress.” United States v. Johal, 428 F.3d 823, 826 (9th
Cir. 2005). We keep in mind the “background rules of the
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common law in which the requirement of some mens rea for
a crime is firmly embedded.” Staples v. United States,
511 U.S. 600, 605 (1994) (citation omitted).
We begin with the statutory text and interpret “statutory
terms in accordance with their ordinary meaning, unless the
statute clearly expresses an intention to the contrary.” I.R.
ex rel. E.N. v. L.A. Unified Sch. Dist., 805 F.3d 1164, 1167
(9th Cir. 2015) (citation omitted). Examining the text of
§ 2244(b), we conclude that its most natural grammatical
meaning is that the government must prove that the
defendant knew he engaged in sexual contact, not that it
prove that the defendant subjectively knew he lacked
consent. The term “knowingly” modifies only the verb
phrase “engages in sexual contact with another person” and
does not modify the adverbial prepositional phrase “without
that other person’s permission.”
In United States v. X-Citement Video, Inc., the Supreme
Court examined the Protection of Children Against Sexual
Exploitation Act of 1977, which punishes, inter alia, any
person who “knowingly transports or ships in interstate or
foreign commerce” or who “knowingly receives, or
distributes . . . , or knowingly reproduces” from such
commerce “any visual depiction, if—(A) the producing of
such visual depiction involves the use of a minor engaging
in sexually explicit conduct.” 513 U.S. 64, 68 (1994)
(quoting 18 U.S.C. § 2252(a) (1988 ed. & Supp. V 1993)).
The “critical determination” the Court had to make was
whether the term “knowingly,” in the phrases “knowingly
transports or ships” and “knowingly receives, or distributes”
modifies not only those verbs but also the phrase “the use of
a minor.” Id. The Court recognized that “[t]he most natural
grammatical reading . . . suggests that the term ‘knowingly’
modifies only the surrounding verbs: transports, ships,
UNITED STATES V. PRICE 13
receives, distributes, or reproduces.” Id. at 68. Nevertheless
the Court was “reluctan[t] to simply follow the most
grammatical reading of the statute,” because the results of
that reading were “positively absurd” and would “sweep
within the ambit of the statute actors who had no idea that
they were even dealing with sexually explicit material.” Id.
at 69–70.
We followed suit in construing the most natural
grammatical reading of a statute in United States v.
Backman, 817 F.3d 662 (9th Cir. 2016). There we construed
an analogous mens rea requirement in a criminal sex
trafficking statute, the Trafficking Victims Protection Act of
2000. That statute required proof that the defendant
“knowingly—(1) in or affecting interstate or foreign
commerce, or within the special maritime and territorial
jurisdiction of the United States, recruits, entices, harbors,
transports, provides, obtains, or maintains by any means a
person.” Id. at 666–67 (quoting 18 U.S.C. § 1591(a)). We
rejected the defendant’s argument that the government must
prove, in addition to proving knowing recruitment, that he
knew his acts affected interstate or foreign commerce,
concluding “it is most natural to read the adverb ‘knowingly’
in [18 U.S.C.] § 1591(a) to modify the verbs that follow:
‘recruits, entices, harbors, transports, provides, obtains, or
maintains.’ The phrase ‘in or affecting interstate or foreign
commerce’ describes the nature or extent of those actions
but, grammatically, does not tie to ‘knowingly.’” Id. at 667.
Similarly, here, the phrase “without that other person’s
permission” describes the nature or extent of the prohibited
action “engag[ing] in sexual contact” but, grammatically,
does not tie to the term “knowingly.” 18 U.S.C. § 2244(b).
Price attempts to distinguish Backman on the ground that the
phrase “in or affecting interstate or foreign commerce” is
14 UNITED STATES V. PRICE
jurisdictional, but that was only a secondary rationale for our
Backman holding, which we found persuasive in a Seventh
Circuit opinion, United States v. Sawyer, 733 F.3d 228 (7th
Cir. 2013). The principal rationale in Backman was our view
of the statute’s most natural grammatical reading, which
demonstrates the statute’s ordinary meaning.
Our reading of § 2244(b) is consistent with our precedent
for interpreting mens rea requirements in criminal statutes.
“When interpreting federal criminal statutes that are silent
on the required mental state, we read into the statute only
that mens rea which is necessary to separate wrongful
conduct from otherwise innocent conduct.” Elonis v. United
States, 135 S. Ct. 2001, 2010 (2015) (internal quotation
marks and citation omitted). Thus, although courts must be
careful not to interpret crimes too broadly, “[i]n some cases,
a general requirement that a defendant act knowingly is itself
an adequate safeguard.” Id.
Here, the other elements of § 2244(b) provide that
adequate safeguard. First, the statute already provides for a
mens rea requirement that the defendant engage in sexual
contact knowingly, rendering unnecessary a second mens rea
requirement. See Lo, 447 F.3d at 1230 (finding that a
conviction under 21 U.S.C. § 841(c)(2) did not require
knowledge that the substance was a listed chemical, because
the mens rea requirement that the defendant knowingly
possessed or distributed the chemical was sufficient to
ensure that “apparently innocent conduct is not
criminalized”). Second, the government must also prove
beyond a reasonable doubt that the sexual contact was
without the victim’s permission, which is sufficient to render
it wrongful. See, e.g., United States v. Gavin, 959 F.2d 788,
791–92 (9th Cir. 1992). As the district court properly
recognized in instructing the jury on “permission,” although
UNITED STATES V. PRICE 15
it is an objective concept, it includes both explicit and
implicit permission, and may be proven by circumstantial
evidence. Thus, hewing close to the natural grammatical
reading of “knowingly” here does not portend “absurd”
results that would sweep up innocent actors not intended to
be covered by the statute. Cf. X-Citement Video, 513 U.S.
at 69.
Flores-Figueroa v. United States, 556 U.S. 646 (2009),
is inapposite. In Flores-Figueroa, the Supreme Court
considered a federal aggravated identity theft statute that
provided for an increased criminal penalty of an additional
two years of imprisonment for certain offenses if the
offender “knowingly transfers, possesses, or uses, without
lawful authority, a means of identification of another
person.” 18 U.S.C. § 1028A(a)(1). The Court concluded
that the term “knowingly” modified the entire sentence such
that the government needed to show that the defendant knew
that the “means of identification” belonged to “another
person.” Flores-Figueroa, 556 U.S. at 657; see also id.
at 650 (“It makes little sense to read the provision’s language
as heavily penalizing a person who ‘transfers, possesses, or
uses, without lawful authority’ a something, but does not
know, at the very least, that the ‘something’ (perhaps inside
a box) is a ‘means of identification.’ Would we apply a
statute that makes it unlawful ‘knowingly to possess drugs’
to a person who steals a passenger’s bag without knowing
that the bag has drugs inside?”).
Price argues that Flores-Figueroa requires us to adopt
his interpretation of § 2244(b) because “courts ordinarily
read a phrase in a criminal statute that introduces the
elements of a crime with the word ‘knowingly’ as applying
that word to each element.” Id. at 652. But Price
erroneously takes the Flores-Figueroa holding out of the
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context of the aggravated identity theft statute. As the Court
reasoned, Flores-Figueroa’s directives were specific to
particular grammatical contexts that “[i]n ordinary English,
where a transitive verb has an object, listeners in most
contexts assume that an adverb (such as knowingly) that
modifies the transitive verb tells the listener how the subject
performed the entire action, including the object as set forth
in the sentence.” Id. at 650. This grammatical structure does
not appear in § 2244(b), where the phrase in question—
“without that other person’s permission”—is not the object
of the sentence but an adverbial prepositional phrase.
Second, and most importantly, in Flores-Figueroa, the
mens rea requirement was necessary to “separate wrongful
conduct from otherwise innocent conduct.” Elonis, 135 S.
Ct. at 2010 (internal quotation marks and citation omitted).
By contrast, “[h]ere, there is no potential for the penalization
of innocent conduct nor do we face constitutional avoidance
concerns.” United States v. Jefferson, 791 F.3d 1013, 1016–
18 (9th Cir. 2015) (finding it unnecessary to extend the
“knowingly or intentionally” mens rea to the type and
quantity of drugs at issue, where the requirement that the
government prove the other elements of the case was
“sufficient to ensure the statute penalizes only culpable
conduct”). We have explicitly rejected the notion that the
Court’s reading of “knowingly” in Flores-Figueroa compels
the same reading in every criminal statute that uses the word
“knowingly.” See id. at 1017–18 (“Because [21 U.S.C.]
§ 960’s statutory text and structure are not parallel to that of
§ 1028A(a)(1), the ordinary grammatical interpretive rules
articulated in Flores-Figueroa do not apply here.”); United
States v. Stone, 706 F.3d 1145, 1147 (9th Cir. 2013) (“[T]he
Court in Flores-Figueroa did not announce an ‘inflexible
rule of construction.’ Rather, statutory interpretation
remains a contextual matter.” (citations omitted)); United
UNITED STATES V. PRICE 17
States v. Castagana, 604 F.3d 1160, 1166 (9th Cir. 2010)
(rejecting the argument that the court “treat ‘with intent’ the
same way the Supreme Court treated ‘knowingly’ in Flores-
Figueroa” because “the language of the statute in Flores-
Figueroa is not parallel to that of [18 U.S.C.] § 1038(a)(1)”).
Indeed, the Flores-Figueroa Court itself cautioned that “the
inquiry into a sentence’s meaning is a contextual one.”
556 U.S. at 652.
The Supreme Court’s recent decision in Rehaif v. United
States, 139 S. Ct. 2191 (2019), does not alter our conclusion.
There, the Supreme Court held that 18 U.S.C. § 924(a)(2),
which applies to one who “knowingly violates” 18 U.S.C.
§ 922(g), applied “knowingly” to each element of § 922(g)
save the jurisdictional element. Rehaif, 139 S. Ct. at 2195.
Rehaif did not change the governing principles of statutory
interpretation set out in prior cases. See id. at 2195–97. And
Rehaif examined a different statute with different text,
structure, and legislative history, addressing different
conduct. In § 924(a)(2), “‘knowingly’ . . . modifies the verb
‘violates’ and its direct object, which in this case is
§ 922(g).” Id. at 2195. This complete phrase is “notably not
a case where the modifier ‘knowingly’ introduces a long
statutory phrase, such that questions may reasonably arise
about how far into the statute the modifier extends.” Id. at
2196. Section 2244(b) raises those questions, because while
“knowingly” modifies the verb “engages in” and the object,
“sexual contact,” the sentence contains additional
prepositional phrases including “without that other person’s
permission.”
The Supreme Court in Rehaif found “no convincing
reason to depart from” the “longstanding presumption . . .
that Congress intends to require a defendant to possess a
culpable mental state regarding ‘each of the statutory
18 UNITED STATES V. PRICE
elements that criminalize otherwise innocent conduct.’”
139 S. Ct. at 2195 (quoting X-Citement Video, 513 U.S.
at 72). By contrast, the proposed “innocent conduct” at issue
here, id., is sexual contact with the intimate parts of another
person’s body. Such action necessarily implicates the
person of another, unlike the possession of a firearm at issue
in Rehaif. See id. at 2197. The normal default between two
people for such intimate sexual activity, without any
communication or prior understanding, is not to touch. The
person who does so anyway is not engaged in “entirely
innocent” conduct. Id. Under § 2244(b), the government
must prove that the victim did not consent beyond a
reasonable doubt. If there is objective evidence, either direct
or circumstantial, that creates reasonable doubt about
whether the victim did not consent, either explicitly or
implicitly, the government has not proven its case. This
proof is sufficient to separate wrongful conduct—
inappropriate and unwanted sexual touching—from
innocent conduct, in contrast to the “knowing” requirement
in § 922(g). To hold otherwise would be to suggest the
statute protects even patently unreasonable beliefs of
invitation, which finds no support in the statutory text or
history.
As the X-Citement Video Court advised, however, this
does not necessarily end our analysis “because of the
respective presumptions that some form of scienter is to be
implied in a criminal statute even if not expressed.” 513 U.S.
at 69. We therefore next examine the structure, Marks v.
Crunch San Diego, LLC, 904 F.3d 1041, 1051 (9th Cir.
2018), and legislative history of the statute, to determine if
we, like the X-Citement Video Court, should be reluctant to
“simply follow the most grammatical reading of the statute,”
513 U.S. at 70.
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As the X-Citement Video Court advised, however, this
does not necessarily end our analysis “because of the
respective presumptions that some form of scienter is to be
implied in a criminal statute even if not expressed.” 513 U.S.
at 69. We therefore next examine the structure, Marks v.
Crunch San Diego, LLC, 904 F.3d 1041, 1051 (9th Cir.
2018), and legislative history of the statute, to determine if
we, like the X-Citement Video Court, should be reluctant to
“simply follow the most grammatical reading of the statute,”
513 U.S. at 70.
B.
Section 2244(b) is part of a statutory scheme
criminalizing abusive sexual contact. First, subsection (a)
criminalizes conduct that, “had the sexual contact been a
sexual act,” would be “punished [elsewhere] by this
chapter.” 18 U.S.C. § 2244(a). Second, subsection (b)
criminalizes sexual contact “[i]n other circumstances.” Id.
§ 2244(b). Finally, subsection (c) enhances the sentence
“[i]f the sexual contact that violates this section (other than
subsection (a)(5)) is with an individual who has not attained
the age of 12 years.” Id. § 2244(c).
Subsections 2244(a) and 2244(b) work in parallel ways,
and we must read the two subsections together. See United
States v. Lewis, 67 F.3d 225, 228–29 (9th Cir. 1995)
(“Particular phrases must be construed in light of the overall
purpose and structure of the whole statutory scheme.”).
Both § 2244(a) and (b) require that the defendant
“knowingly” have “sexual contact” and set forth one
additional element of the offense. In § 2244(a), the
additional element the government must prove is that the
sexual contact would be punishable by certain other statutes
20 UNITED STATES V. PRICE
if the sexual contact had instead been a sexual act; 1 in
§ 2244(b), the additional element is the victim’s lack of
permission. The government is not required to prove that the
defendant knew that the second element of § 2244(a) was
met—in other words, the government need not prove that the
defendant knew that the sexual contact he engaged in would
have been punished by another law if the contact had risen
to the level of a sexual act. We have not read § 2244(a)(3)
to tie the word “knowingly” to the second element. Courts
have instead read the second element as subject to objective
proof. United States v. Granbois, 376 F.3d 993, 995 (9th
Cir. 2004) (delineating the elements for conviction under
§ 2244(a)(3), which does not include a mens rea requirement
for the second element); see also United States v. Jennings,
496 F.3d 344, 352 (4th Cir. 2007) (concluding that to
determine a violation of § 2244(a)(3), “under the
1
18 U.S.C. § 2246(2) defines the term “sexual act” as
(A) contact between the penis and the vulva or the
penis and the anus, and for purposes of this
subparagraph contact involving the penis occurs upon
penetration, however slight;
(B) contact between the mouth and the penis, the
mouth and the vulva, or the mouth and the anus;
(C) the penetration, however slight, of the anal or
genital opening of another by a hand or finger or by
any object, with an intent to abuse, humiliate, harass,
degrade, or arouse or gratify the sexual desire of any
person; or
(D) the intentional touching, not through the clothing,
of the genitalia of another person who has not attained
the age of 16 years with an intent to abuse, humiliate,
harass, degrade, or arouse or gratify the sexual desire
of any person.
UNITED STATES V. PRICE 21
straightforward language of the statute, we are to read
§ 2243(a) and determine whether [the defendant] had
committed that offense, substituting for ‘sexual act’ the term
‘sexual contact’”). To read “knowingly” to apply to the
second element in § 2244(a) would both be grammatically
unnatural and produce absurd results. Because a conviction
under § 2244(a) does not require that the government prove
the defendant’s knowledge of the additional element, we
should read § 2244(b) in the same manner.
Price argues that reading the statute along with its
neighboring provisions, 18 U.S.C. § 2241(c) and § 2243(a),
requires the opposite interpretation. Section 2244(b) follows
the same general sentence structure as the other two
subsections—although the other two subsections address
sexual acts with minors, a more serious crime than sexual
contact. According to Price, because § 2241(d) and
§ 2243(d) expressly provide that “the Government need not
prove that the defendant knew” the age of the minor, the
absence of such a provision in § 2244(b) indicates that
Congress intended that the government must prove that the
defendant knew that sexual contact was without permission.
We disagree.
Sections 2241 (aggravated sexual abuse) and 2243
(sexual abuse of a minor or ward) impose severe penalties,
with maximum sentences of life imprisonment and fifteen
years, respectively. By contrast, § 2244(b) was first passed
as a “petty offense” punishable by no more than six months’
imprisonment. Sexual Abuse Act of 1986, Pub. L. No. 99-
646, § 87, 100 Stat. 3592, 3622 (1986); H.R. Rep. 99-594,
at 19 nn. 75–76. It stayed that way for two decades before
being increased without comment in 2006, see Violence
Against Women and Department of Justice Reauthorization
Act of 2005, Pub. L. No. 109-162, § 1177(b)(2), 119 Stat.
22 UNITED STATES V. PRICE
2960, 3125 (2006), and now prescribes a maximum sentence
of no more than two years. 2 We generally expect that
criminal laws subject to potentially more severe penalties
would require more stringent mens rea requirements. See
Staples, 511 U.S. at 618 (“[A] severe penalty is a further
factor tending to suggest that Congress did not intend to
eliminate a mens rea requirement.”); cf. United States v.
Gomez-Leon, 545 F.3d 777, 793 (9th Cir. 2008)
(“Commensurate with lesser punishment is a lesser mens rea
requirement . . . .” (citation omitted)). Thus, Congress’s
decision to expressly eliminate the mens rea requirements in
§ 2241 and § 2243 is not instructive of the proper
interpretation of § 2244(b). Sections 2241 and 2243, with
their harsh sentencing maximums, require the explicit
statement that “the Government need not prove that the
defendant knew” the age of the minor victim in order to
overcome the strong presumption “that Congress did not
intend to eliminate a mens rea requirement.” Staples,
511 U.S. at 618. Section 2244(b) does not give rise to the
same strong presumption because its violation bears a
dramatically less severe consequence. Moreover, § 2243(c)
provides that mistake about age can be a defense, making
§ 2243(d) necessary to clarify that knowledge of age is not
an element. Therefore, Congress’s decision not to explicitly
eliminate the knowledge requirement in § 2244(b) is of no
import. It would have been redundant to do so because it
was already clear from the language of the statute itself,
together with its relatively light penal consequence, that the
2
The district court sentenced Price to probation for three years.
UNITED STATES V. PRICE 23
government need not prove knowledge as to the second
element. 3
Furthermore, Price’s logic would produce absurd results
in interpreting § 2244 as a whole. Subsection 2244(c)
provides that, “If the sexual contact that violates this section
(other than subsection (a)(5)) is with an individual who has
not attained the age of 12 years, the maximum term of
imprisonment that may be imposed for the offense shall be
twice that otherwise provided in this section.” That the only
mens rea requirement in § 2244(a) and (b) is the defendant’s
knowing engagement in sexual contact is only bolstered by
§ 2244(c)’s omission of any explicit provision that the
defendant need not know the person was under the age of
twelve. Price’s argument would read into subsection (c) a
requirement that the government prove that the defendant
knew that the child was under twelve to sustain a conviction
under § 2244(c). Congress could not have intended to
impose that extra mens rea requirement on sexual contact
with a child under § 2244(c), with less severe penalties,
when it chose not to impose that requirement on sexual abuse
of a child under § 2241(c) and § 2243(a), with penalties as
severe as life in prison.
3
Price points to an Eighth Circuit opinion that relied on this
comparison with § 2241(c) and § 2243(a) to hold that 18 U.S.C.
§ 2242(2), which addresses sexual abuse of an incapacitated person,
requires that the defendant knew the victim was incapacitated or unable
to grant consent. United States v. Bruguier, 735 F.3d 754, 761 (8th Cir.
2013) (en banc). We are not persuaded by Price’s argument because
§ 2242(2) also has a severe maximum penalty of life imprisonment,
unlike § 2244(b), and the Eighth Circuit did not cite § 2244(b) at all.
Thus, we do not think the Eighth Circuit’s interpretation of § 2242(2)
affects our analysis of § 2244(b) here.
24 UNITED STATES V. PRICE
C.
“Although we need not rely on legislative history
because the statute is unambiguous, the legislative history of
the statute and common sense support” our conclusion.
Castagana, 604 F.3d at 1164. Congress’s stated purpose in
enacting the Sexual Abuse Act of 1986 was to “modernize[]
and reform[] Federal rape provisions by . . . defining the
offenses so that the focus of a trial is upon the conduct of the
defendant” and “expanding the offenses to reach all forms of
sexual abuse of another,” among other changes. H.R. Rep.
No. 99-594, at 10–11 (1986). The House Report also
communicated Congress’s expectation that the law would
“simplify law enforcement” activities. Id. at 21. It would be
inconsistent with these goals to hold that Congress intended
to require proof that the defendant subjectively knew the
victim did not consent.
In enacting the 1986 Act, Congress was concerned with
whether lack of consent needed to be an element at all, and
it consistently described this element in objective terms.
See, e.g., id. at 13 (“Where the Committee believes it
appropriate to the offense to require the prosecution to show
that the conduct was engaged in without the victim’s
permission, such a requirement has explicitly been set
forth.”). Congress would not have singled out § 2244(b) for
an onerous burden of proof without comment given that its
goal was to facilitate prosecutions. See id. at 12 (explaining
that the 1986 Act was “drafted broadly to cover the widest
possible variety of sexual abuse”); cf. Lo, 447 F.3d at 1231
(9th Cir. 2006) (“[I]t seems very unlikely that Congress
would have chosen to make prosecution more difficult by
requiring proof that the defendant knew that the chemical
was a listed chemical, while at the same time seeking to
expand the scope of prosecution for the possession and
UNITED STATES V. PRICE 25
distribution of precursor chemicals by increasing the number
of chemicals that could provide the basis for prosecution.”). 4
III.
Price also argues that all of his statements and the
evidence seized from him when he was escorted from the
plane and handcuffed by LAXPD Officers Christopher
Faytol and Ngan Lee, and at least one U.S. Customs and
Border Protection officer, should be suppressed. He
contends that the officers lacked probable cause to arrest him
at the arrival gate. The district court concluded that because
the officers did not arrest Price at that time, there was no
need to demonstrate probable cause. While we disagree with
the district court as to whether an arrest occurred, we
conclude that the officers had probable cause to arrest Price
as he disembarked from the plane. Therefore, the district
court did not err by denying Price’s suppression motion.
We review de novo the denial of a motion to suppress,
although we review underlying factual findings for clear
error. United States v. Fernandez-Castillo, 324 F.3d 1114,
1117 (9th Cir. 2003). “The determination of probable cause
to arrest a suspect is a mixed question of law and fact
reviewed de novo.” United States v. Nava, 363 F.3d 942,
944 (9th Cir. 2004) (citation omitted).
4
We agree with Judge Gilman’s conclusion that even if the statute
required the government to prove that Price subjectively knew the sexual
contact was without permission, any error in the jury instruction was
harmless. See United States v. Pierre, 254 F.3d 872, 877 (9th Cir. 2001).
Given the totality of the circumstances, it was clear beyond a reasonable
doubt that Price subjectively knew that he did not have permission to
have sexual contact with A.M.
26 UNITED STATES V. PRICE
In the context of an international border, an arrest occurs
when “a reasonable person would believe that he is being
subjected to more than the temporary detention occasioned
by border crossing formalities.” United States v. Bravo,
295 F.3d 1002, 1009 (9th Cir. 2002) (internal quotation
marks and citation omitted). We ask, considering the totality
of the circumstances, “whether a reasonable innocent person
in such circumstances would conclude that after brief
questioning he or she would not be free to leave.” Id.
(internal quotation marks and citation omitted).
“[H]andcuffing is a substantial factor in determining
whether an individual has been arrested”—although it
“alone is not determinative.” Id. at 1010; see also United
States v. Guzman-Padilla, 573 F.3d 865, 884 (9th Cir. 2009)
(“[O]fficers with a particularized basis to believe that a
situation may pose safety risks may handcuff or point a gun
at an individual without converting an investigative
detention into an arrest.”).
Price was escorted by three armed law enforcement
officers off the plane at a remote gate, while the rest of the
passengers remained seated. Officer Faytol performed a pat-
down search and Officer Lee handcuffed him. This was not
a routine border airport screening and search process, as the
district court found. Although the officers cited safety
justifications for handcuffing Price, including the fear that
Price might become aggressive as other passengers
deplaned, the officers kept Price in handcuffs until the FBI
interviewed him—from the time Price deplaned at
approximately 9:08 AM, until after S.A. Gates arrived at
around 11:30 AM. This was not a “temporary detention
occasioned by border crossing formalities”; this was an
arrest. Bravo, 295 F.3d at 1009 (citation omitted).
UNITED STATES V. PRICE 27
We nevertheless conclude that the officers had probable
cause to believe Price had committed a crime when they
arrested him. Police may arrest a suspect if “under the
totality of circumstances known to the arresting officers, a
prudent person would have concluded that there was a fair
probability that the defendant had committed a crime.”
Beier v. City of Lewiston, 354 F.3d 1058, 1065 (9th Cir.
2004) (internal alteration marks and citation omitted). We
must “consider the nature and trustworthiness of the
evidence of criminal conduct available to the police.” Id. at
1064. The police need not know, however, precisely what
offense has been committed. See United States v. Chatman,
573 F.2d 565, 567 (9th Cir. 1977) (per curiam) (finding
probable cause where officers believed only that the
defendant was “clandestinely engaging in illegal business of
some kind”).
Here, the officers had “reasonably trustworthy
information” to arrest Price as he deplaned. Beier, 354 F.3d
at 1064. They knew that a female passenger had reported
that Price had perpetrated a sexual offense. The pilot had
sent an advance message asking LAXPD to meet the
airplane, stating “WE HAVE A MOLESTER/FONDLER
ON BOARD.” The actions of the flight crew demonstrated
that they viewed the allegations as credible as they sought
law enforcement assistance.
We reject Price’s argument that the officers lacked
probable cause because the information available to the
officers was not trustworthy. We acknowledge the minor
differences in the officers’ recollections of the event at the
suppression hearing—Faytol recalled that the incident was a
“290,” the code for sexual battery, while Lee recalled that
the incident was a “311,” the code for indecent exposure.
However, these differences did not render the information
28 UNITED STATES V. PRICE
untrustworthy. Price also points to S.A. Gates’s testimony
that mid-flight reports can be unreliable because they
involve a series of messengers. Although we disagree that
mid-flight reports are categorically so untrustworthy that
they can never establish probable cause, we need not address
these concerns here because before arresting Price, the
officers spoke directly with the purser, lead flight attendant
Zidan, who reported that a female passenger had complained
about a male passenger touching her and gave details about
where both individuals were sitting on the plane. Based on
purser Zidan’s report, “a prudent person would have
concluded that there was a fair probability that the defendant
had committed a crime.” Id. at 1065 (internal alteration
marks and citation omitted).
IV.
Price also moved to suppress the statements he made to
S.A. Gates when he was interviewed, contending that he did
not adequately understand his rights when he waived them.
He points to the transcript of the interview where he
expressed confusion as to whether he was being arrested.
We agree with the district court, however, that though Price
may have been confused about whether he was under arrest,
there was no doubt that his Miranda waiver was knowing,
intelligent, and voluntary, and that his statements were
voluntarily made. “We review a district court’s ruling on a
Miranda waiver under two standards: Whether the waiver
was knowing and intelligent is a question of fact that we
review for clear error. Whether the waiver was voluntary is
a mixed question of fact and law, which we review de novo.”
United States v. Rodriguez-Preciado, 399 F.3d 1118, 1127
(9th Cir.) (citation omitted), amended by 416 F.3d 939 (9th
Cir. 2005). “We review de novo the voluntariness of a
confession and the factual findings supporting the
UNITED STATES V. PRICE 29
determination for clear error.” United States v. Heller,
551 F.3d 1108, 1112 (9th Cir. 2009) (citation omitted).
Before S.A. Gates interviewed Price, he removed the
handcuffs. S.A. Gates then explained to Price his Miranda
rights, describing it as “just like you see on T.V.” Price first
sought clarification that he was not arrested, which S.A.
Gates confirmed, and S.A. Gates then recited the Miranda
rights, as Price read along and responded “Mm-hmm” at
various points. At the end, Price asked once again whether
or not he was under arrest, noting that in movies, when you
hear Miranda rights, “you know that somebody is being
arrested.” S.A. Gates again assured Price that he was not
under arrest. Price signed the “Advice of Rights” form. At
the end of the interview, S.A. Gates cited Price with simple
assault and allowed him to leave.
“To admit an inculpatory statement made by a defendant
during custodial interrogation, the defendant’s waiver of
Miranda rights must be voluntary, knowing, and
intelligent.” United States v. Shi, 525 F.3d 709, 727 (9th Cir.
2008) (internal quotation marks and citation omitted). In
determining the knowing and intelligent nature of the
waiver, we consider the totality of the circumstances,
including
(i) the defendant’s mental capacity;
(ii) whether the defendant signed a written
waiver; (iii) whether the defendant was
advised in his native tongue or had a
translator; (iv) whether the defendant
appeared to understand his rights;
(v) whether the defendant’s rights were
individually and repeatedly explained to him;
and (vi) whether the defendant had prior
experience with the criminal justice system.
30 UNITED STATES V. PRICE
United States v. Crews, 502 F.3d 1130, 1140 (9th Cir. 2007)
(citation omitted).
Price disputes only the fourth factor—whether he
understood his rights. Price argues that his questions to S.A.
Gates showed that he did not understand that he could
exercise his Miranda rights. However, Price’s questions
were all directed towards clarifying whether or not he was
actually under arrest. As the district court found, Price “was
not confused as to the nature and extent of his rights” but
rather “was confused about why (‘the reason’) he was being
read his rights given that SA Gates had told him only
moments earlier that he was not under arrest.”
We must also find that both Price’s waiver and the
statements themselves were voluntary. A Miranda “waiver
is voluntary if, under the totality of the circumstances, the
confession was the product of a free and deliberate choice
rather than coercion or improper inducement.” United States
v. Doe, 155 F.3d 1070, 1074 (9th Cir. 1998) (en banc)
(citation omitted). We find the confession voluntary unless,
“considering the totality of the circumstances, the
government obtained the statement by physical or
psychological coercion or by improper inducement so that
the suspect’s will was overborne.” Heller, 551 F.3d at 1112
(citation omitted).
We agree with the district court that both Price’s waiver
and his statements were voluntary. Price mischaracterizes
the record of the interview. S.A. Gates never threatened
Price with his power to detain him unless he answered S.A.
Gates’s questions. It is evident from the record that S.A.
Gates stated in a jocular manner that he could find a reason
to arrest Price if Price wanted—a joke that elicited Price’s
laughter—and S.A. Gates explained that it was his
expectation that Price would “walk out of here” that day.
UNITED STATES V. PRICE 31
The interview does not reveal any sign of coercion: Price
was not in handcuffs or otherwise physically restrained, and
the FBI agents asked Price if he was doing okay and if he
needed water or to use the bathroom.
V.
The district court did not abuse its discretion by
declining to read back A.M.’s testimony when requested by
the jury. We review denials of a jury’s request to read back
a witness’s testimony for abuse of discretion and have noted
“the district court’s great latitude to address requests for
readbacks.” United States v. Medina Casteneda, 511 F.3d
1246, 1249 (9th Cir. 2008). “In general, rereading is
disfavored because of the emphasis it places on specific
testimony and the delay it causes in the trial.” United States
v. Nolan, 700 F.2d 479, 486 (9th Cir. 1983) (citation
omitted). During deliberations, the jury asked for a
transcript of Price’s FBI interview and of A.M.’s testimony.
We reject Price’s argument that because the district court
acquiesced to the jury’s request by replaying the recording
of Price’s FBI interview, the simultaneous decision not to
read back A.M.’s testimony was improper.
Here, the district court gave two appropriate reasons for
denying the readback. First, it cited the logistical difficulties
in preparing a readback, and second, it expressed concern
that reading back A.M.’s testimony without also reading
back Price’s testimony would lead to an unfair focus on one
part of the trial over others. We have determined that the
district court’s rationale is appropriate as a basis for
declining a readback of testimony. See, e.g., Medina
Casteneda, 511 F.3d at 1249 (finding no abuse of discretion
in the district court’s denial of the jury’s request for a
readback because of the concern that the jury would focus
32 UNITED STATES V. PRICE
on “one particular piece of evidence at the expense of other
evidence”).
VI.
In enacting the Sexual Abuse Act of 1986, of which
18 U.S.C. § 2244(b) is a part, Congress sought to expand
criminal culpability for sexual acts and contacts and
facilitate prosecution of those crimes. Thus it placed the
burden on the actor who knowingly engages in sexual
contact with another person to first obtain that person’s
consent, objectively given. The government need not prove
that the defendant subjectively knew he lacked consent, as
Price asserted here. It need only prove that the victim did
not consent as an objective matter. Because Price’s
remaining contentions also lack merit, we AFFIRM his
conviction and sentence.
GILMAN, Circuit Judge, concurring:
I concur in the lead opinion’s conclusion that Juan Pablo
Price’s conviction should be affirmed. But I respectfully
disagree with its holding that the term “knowingly” in
18 U.S.C. § 2244(b) modifies only the phrase “engages in
sexual contact with another person” and does not extend to
the phrase “without that other person’s permission.” That
holding is contrary to the plain text of the provision and its
place in the overall statutory scheme.
In order to obtain a conviction under 18 U.S.C.
§ 2244(b), I believe that the government has the burden of
proving that Price subjectively knew that he was acting
without A.M.’s permission. The statute, in other words, does
not criminalize otherwise innocent sexual contact based on
UNITED STATES V. PRICE 33
a factCthe lack of permissionCunknown to the defendant.
That the defendant knew he lacked permission may be
proved by circumstantial evidence but, nevertheless, the
defendant’s subjective knowledge is an issue to be resolved
by the jury.
Accordingly, the district court erred in refusing to
instruct the jury that such knowledge was necessary to
convict Price under 18 U.S.C. § 2244(b). Despite the court’s
faulty instructions, however, the error was harmless beyond
a reasonable doubt because no reasonable juror could have
concluded that Price subjectively believed that he had
permission to touch a sleeping stranger’s breast. I therefore
concur in the ultimate judgment reached by the lead opinion.
Introductory Note
Prior to his death in March 2018, Judge Stephen
Reinhardt was a member of this panel and prepared a draft
opinion holding that the “knowingly” mens rea requirement
contained in 18 U.S.C. § 2244(b) should be applied to each
element of the offense, including that the sexual contact be
without the other person’s permission. Unabashedly, much
of this concurrence can be attributed to the portions of Judge
Reinhardt’s draft opinion with which I fully agree.
I.
This case requires us to interpret the following statute:
Whoever, in the special maritime and
territorial jurisdiction of the United States,
. . . knowingly engages in sexual contact with
another person without that other person’s
permission shall be fined under this title,
imprisoned not more than two years, or both.
34 UNITED STATES V. PRICE
18 U.S.C. § 2244(b) (emphases added). For the following
reasons, I disagree with the lead opinion’s conclusion that a
conviction under § 2244(b) does not require the government
to prove that the defendant knew that he lacked permission
to engage in sexual contact with the other person.
A.
In Flores-Figueroa v. United States, 556 U.S. 646
(2009), the Supreme Court interpreted a statute that provided
for increased criminal penalties for certain offenses if the
offender “knowingly transfers, possesses, or uses, without
lawful authority, a means of identification of another
person.” Id. at 648. The Court held that, “[i]n ordinary
English, where a transitive verb has an object, listeners in
most contexts assume that an adverb (such as knowingly)
that modifies the transitive verb tells the listener how the
subject performed the entire action, including the object as
set forth in the sentence.” Id. at 650 (emphasis added).
Moreover, “courts ordinarily read a phrase in a criminal
statute that introduces the elements of a crime with the word
‘knowingly’ as applying that word to each element.” Id.
at 652; see also id. at 660 (Alito, J., concurring) (“I think it
is fair to begin with a general presumption that the specified
mens rea applies to all the elements of an offense . . . .”).
The statute that we are asked to interpret, just like the
one in Flores-Figueroa, lists all of the elements of the
offense in a single phrase that begins with the word
“knowingly.” Flores-Figueroa therefore requires us to
presume that the word “knowingly” dictates how the
defendant must have “performed the entire action”Cthat is,
that he knew that he was engaging in sexual contact and that
he knew he was doing so without the other person’s
permission. See id. at 650 (majority opinion). Sexual
UNITED STATES V. PRICE 35
contact with permission and sexual contact without
permission are legally worlds apart.
This key principle from Flores-Figueroa has been
recently reiterated by the Supreme Court in Rehaif v. United
States, 139 S. Ct. 2191 (2019). In Rehaif, the Court reviewed
prosecutions under 18 U.S.C. § 922(g) and § 924(a)(2). It
held that the government must prove both that a defendant
“knew he possessed a firearm and that he knew he belonged
to the relevant category of persons barred from possessing a
firearm.” Id. at 2200. I believe that the lead opinion misses
Rehaif’s central point that, in determining congressional
intent, courts “start from a longstanding presumption,
traceable to the common law, that Congress intends to
require a defendant to possess a culpable mental state
regarding ‘each of the statutory elements that criminalize
otherwise innocent conduct.’” Id. at 2195 (quoting United
States v. X-Citement Video, Inc., 513 U.S. 64, 72 (1994)).
That presumption is directly applicable to this case.
The Eighth Circuit reached a similar conclusion in
interpreting a related statute in United States v. Bruguier,
735 F.3d 754 (8th Cir. 2013) (en banc). That statute,
18 U.S.C. § 2242(2), applies to anyone who, in certain
extended federal jurisdictions, “knowingly—. . . engages in
a sexual act with another person if that other person is—
(A) incapable of appraising the nature of the conduct; or
(B) physically incapable of declining participation in, or
communicating willingness to engage in, that sexual act.”
Pursuant to Flores-Figueroa, the Eighth Circuit held that
“there is a presumption that ‘knowingly’ in section 2242(2)
applies to the circumstances following the conjunction ‘if.’”
Id. at 758.
The case for applying the Flores-Figueroa presumption,
as reiterated in Rehaif, to § 2244(b) is even stronger than it
36 UNITED STATES V. PRICE
is for applying that presumption to § 2242(2). In Bruguier,
the dissent identified three aspects of the text of § 2242(2)
that, it argued, counseled against applying the Flores-
Figueroa presumption: (1) “[t]he requirement of
‘knowingly’ is . . . set apart by two sets of interruptive
punctuation” from the element at issue, (2) the relevant
elements in § 2242(2) are contained in a “conditional ‘if’
clause,” and (3) the relevant elements in § 2242(2) are
contained in “separate subsections describing the victim’s
condition.” Bruguier, 735 F.3d at 775–77 (Murphy, J.,
concurring in part and dissenting in part). None of those
facts are true of § 2244(b). If the Flores-Figueroa
presumption applies to § 2242(2), then it certainly applies to
the much simpler and more straightforward phrase defining
the offense in § 2244(b).
The lead opinion disagrees, contending that Flores-
Figueroa is inapposite for two reasons. First, the lead
opinion argues that Flores-Figueroa does not apply to
§ 2244(b) because “the phrase in question—‘without that
other person’s permission’—is not the object of the sentence
but an adverbial prepositional phrase.” Lead Op. 16. Even
assuming that the lead opinion’s grammatical analysis is
correct, the conclusion reached does not logically follow.
Flores-Figueroa did not turn on whether the element
modified the verb or the object, nor did it transform us into
“a panel of grammarians.” Flora v. United States, 362 U.S.
145, 150 (1960). Rather, it recognized a broadly applicable
principle—i.e., that “knowingly” typically tells us how the
defendant “performed the entire action.” Flores-Figueroa,
556 U.S. at 650. The lead opinion attempts to distinguish
Rehaif from the present case based on the differing
grammatical structures of the relevant statutes. See Lead
Op. 17. Nowhere, however, does it explain why the hyper-
UNITED STATES V. PRICE 37
technical grammatical distinctions are significant enough to
justify departing from the ordinary presumption that scienter
should apply to every element of the offense in question.
Second, the lead opinion argues that, “in Flores-
Figueroa, the mens rea requirement was necessary to
‘separate wrongful conduct from otherwise innocent
conduct,’” whereas § 2244(b) without a mens rea
requirement for its lack of permission element would not
penalize innocent conduct. Lead Op. 16. The lead opinion
also makes a similar argument with respect to Rehaif. Lead
Op. 17–18. But the lead opinion fails to explain why
§ 2244(b) would not in fact penalize innocent conduct if the
government need not prove that the defendant subjectively
knew that he lacked permission to engage in sexual contact
with the other person.
The inclusion of some mens rea requirement is not
necessarily enough to ensure that “a broad range of
apparently innocent conduct” is not swept into a criminal
prohibition. Liparota v. United States, 471 U.S. 419, 426
(1985). If a mens rea requirement is interpreted to require
knowledge of only innocent facts, then a person could be
convicted despite genuinely believing that his acts were
entirely proper. Staples v. United States, 511 U.S. 600, 612,
618–19 (1994).
Knowingly engaging in sexual contact is, of course, not
illegal. Innocent people do it all the time. The element in
§ 2244(b) requiring that the sexual contact be “without [the]
other person’s permission” is the actual linchpin of the
offense. Therefore, if § 2244(b) requires a guilty mind, then
the mens rea requirement must apply to the lack-of-
permission element. The requirement that the defendant
knew that he was engaging in sexual contact per se does
nothing to separate innocent from criminal behavior.
38 UNITED STATES V. PRICE
Nor does the requirement that the government prove that
the sexual contact was objectively without the other person’s
permission obviate the need for a second mens rea
requirement. See Lead Op. 14–15. Again, the element
requiring that the sexual contact be “without [the] other
person’s permission” is what makes the sexual contact
illegal under the statute. This means that “the presumption
in favor of a scienter requirement should apply” to the
permission element of § 2244(b) because that is the element
“criminaliz[ing] otherwise innocent conduct.” See United
States v. X-Citement Video, Inc., 513 U.S. 64, 72–73 (1994)
(holding that because “the age of the performers is the
crucial element separating legal innocence from wrongful
conduct” under a child-pornography statute, the statute
requires that the defendant have knowledge of the
performer’s age).
I acknowledge that the lead opinion cites cases in which
this court has held that Flores-Figueroa’s reading of
“knowingly” does not compel the same reading in every
criminal statute that uses the word “knowingly.” Lead Op.
15–16. Although the lead opinion is correct in stating that
“the inquiry into a sentence’s meaning is a contextual one,”
Flores-Figueroa, 556 U.S. at 652, the cases it cites are
distinguishable from the present case.
In United States v. Jefferson, 791 F.3d 1013, 1016–18
(9th Cir. 2015), for example, this court determined that
Flores-Figueroa did not apply because the text of the statute
before it, 21 U.S.C. § 960(a), was not parallel to the statute
at issue in Flores-Figueroa. The Jefferson court held that
the “knowingly” mens rea requirement did not apply to an
element that was contained in a different sentence—indeed,
in an entirely separate subsection. Id. at 1015; see also
United States v. Stone, 706 F.3d 1145, 1147 (9th Cir. 2013)
UNITED STATES V. PRICE 39
(holding that 18 U.S.C. § 924(a)(2)’s mens rea requirement
for possessing ammunition did not apply to 18 U.S.C.
§ 922(g)’s requirement that the ammunition travel in
interstate commerce); United States v. Castagana, 604 F.3d
1160, 1166 (9th Cir. 2010) (declining to apply Flores-
Figueroa to 18 U.S.C. § 1038(a)(1), but addressing a
specific mens rea requirement that formed its own self-
contained phrase). Accordingly, the cases cited by the lead
opinion do not concern statutes that resemble the statute
here, where the word “knowingly” is at the beginning of a
phrase defining all the elements of the offense.
The lead opinion also cites United States v. Backman,
817 F.3d 662 (9th Cir. 2016), which dealt with a sex-
trafficking statute requiring proof that the “[d]efendant
‘knowingly—(1) in or affecting interstate or foreign
commerce, or within the special maritime and territorial
jurisdiction of the United States, recruits, entices, harbors,
transports, provides, obtains, or maintains by any means a
person.’” Id. at 666–67 (quoting 18 U.S.C. § 1591(a)). This
court held that the government need not prove, in addition to
proving knowing recruitment, that the defendant knew that
his acts affected interstate or foreign commerce. It reasoned
that “[t]he phrase ‘in or affecting interstate or foreign
commerce’ describes the nature or extent of those actions
but, grammatically, does not tie to ‘knowingly.’” Id. at 667.
Backman, however, is no more persuasive on the issue
before us than is Jefferson, Stone, or Castagna. The
Backman court addressed a jurisdictional element, an
element that turns what would otherwise be a state crime into
a federal crime because of its nexus to some aspect of federal
jurisdiction. Id. That decision rested in large part on “[t]he
longstanding presumption . . . that the jurisdictional element
of a criminal statute has no mens rea,” and thus has no
40 UNITED STATES V. PRICE
relevance to our analysis in this case of a substantive, rather
than jurisdictional, element. Id. The structure of the
sentence at issue in Backman is also markedly different from
the one before us. That statute’s jurisdictional element (“in
or affecting interstate or foreign commerce”) comes between
“knowingly” and the verbs that they both modify, and the
element is set off from both by a dash and a comma. Section
2244(b)’s structure is very different: even if “without that
other person’s permission” were read to modify “engages,”
it follows the verb and is not set off in any way.
In sum, I find the lead opinion unpersuasive in arguing
that the most natural grammatical reading of § 2244(b) does
not require the government to prove that the defendant
subjectively knew that he lacked permission to engage in
sexual contact. The text, in tandem with Supreme Court
precedent, strongly suggests otherwise.
B.
In addition to its text, § 2244(b)’s statutory scheme
strongly indicates that the “knowingly” mens rea
requirement applies to the lack-of-permission element of the
crime. Section 2244 was adopted as part of the Sexual
Abuse Act of 1986, Pub. L. No. 99-646, § 87(b), 100 Stat.
3592, 3620B23. Several other provisions were also adopted
as part of this same Act, including § 2242 (the statute at issue
in Bruguier), § 2241, and § 2243. Each of these sections
addresses forms of sexual assault within certain extended
federal jurisdictions.
Most important to our analysis in this case are § 2241(c)
and § 2243(a), which deal with sexual acts that are criminal
due to the other person’s age. Section 2241(c) applies to
anyone who, in certain extended federal jurisdictions,
“knowingly engages in a sexual act with another person who
UNITED STATES V. PRICE 41
has not attained the age of 12 years,” while § 2243(a) applies
to anyone who, in certain extended federal jurisdictions,
“knowingly engages in a sexual act with another person
who—(1) has attained the age of 12 years but has not
attained the age of 16 years; and (2) is at least four years
younger than the person so engaging.”
As the Eighth Circuit explained in exhaustive detail
when comparing § 2242(2) to § 2241(c) and § 2243(a), the
structure of the three provisions is very similar: each bars
knowingly engaging in a sexual act when certain
circumstances are also present. Section 2244(b), the statute
in question here, follows the same structure as the other three
sections, although it addresses sexual contact rather than
sexual acts. See United States v. Bruguier, 735 F.3d 754,
759 (8th Cir. 2013) (en banc) (charting the parallel structure
of §§ 2241(c), 2242(2), and 2243(a)). Section 2244(a)(1)–
(5) provides for criminal penalties for “knowingly
engag[ing] in or caus[ing] sexual contact with or by another
person” when doing so would violate various provisions of
§§ 2241–43 “had the sexual contact been a sexual act,”
further confirming the close relationship between § 2244 and
the other three sections. “The interrelationship and close
proximity of these provisions of the statute presents a classic
case for application of the normal rule of statutory
construction that identical words used in different parts of
the same act are intended to have the same meaning.”
Comm’r v. Lundy, 516 U.S. 235, 250 (1996) (internal
quotation marks omitted).
Sections 2241 and 2243, the two sections addressing
sexual contact with minors, include provisions that expressly
limit their mens rea requirements. Section 2241(d) provides
that “the Government need not prove that the defendant
knew that the other person engaging in the sexual act had not
42 UNITED STATES V. PRICE
attained the age of 12 years,” while § 2243(d) states that “the
Government need not prove that the defendant knewC(1) the
age of the other person engaging in the sexual act; or (2) that
the requisite age difference existed between the persons so
engaging.” Neither § 2242(2) nor § 2244(b) contains an
analogous provision relieving the government of its burden
to prove that the defendant knew of the circumstances that
make the sexual contact a crimeCin § 2242(2), the other
person’s incapacity; in § 2244(b), the lack of permission.
Commenting on the lack of any provision analogous to
§ 2241(d) and § 2243(d) in § 2242(2), the Eighth Circuit
invoked the “general rule of statutory construction that
‘[w]here Congress includes particular language in one
section of a statute but omits it in another section of the same
Act, it is generally presumed that Congress acts intentionally
and purposely in the disparate inclusion or exclusion.’”
Bruguier, 735 F.3d at 759–60 (quoting Rodriguez v. United
States, 480 U.S. 522, 525 (1987)). Thus, the court explained,
“reading section 2242(2) in the broader context of the Act,
and applying Rodriguez’s presumption that ‘disparate
inclusion or exclusion’ of statutory language is intentional,
. . . reinforces the conclusion that ‘knowingly’ in
section 2242(2) applies to the victim-incapacity element of
the offense.” Id. at 760. The court went on to say:
Moreover, interpreting the knowledge
requirement in section 2242(2) to extend only
to knowledge of the sexual act would raise
interpretive concerns with sections 2241 and
2243. . . . If section 2242(2)’s knowledge
requirement were construed to apply only to
knowledge of the sexual act, then this same
construction logically should apply to the
knowledge requirement in sections 2241(c)
UNITED STATES V. PRICE 43
and 2243(a). Doing so, however, would
render superfluous sections 2241(d) and
2243(d), both of which explicitly narrow the
respective statutes’ knowledge requirements.
This would run afoul of “the cardinal
principle of statutory construction that it is
our duty to give effect, if possible, to every
clause and word of a statute.”
Id. (quoting Bennett v. Spear, 520 U.S. 154, 173 (1997)).
I agree with the Eighth Circuit’s analysis, which applies
equally to § 2244(b). The overall structure of these
interrelated statutes reflects Congress’s understanding that,
unless expressly limited, the “knowingly” mens rea
requirements would apply to all the elements of the offense
and not to only the sexual act itself, or else Congress would
not have included limits on the mens rea requirement in
§ 2241(d) and § 2243(d). This understanding is apparent not
only from the text, but is also expressly stated in the
legislative history. In explaining why § 2241(d) was
included in the statute, for example, the House Report states
that “[a]bsent this provision, the government would have had
to prove that the defendant knew that a victim was less than
12 years old, since the state of mind required for the
conduct—knowing—is also required for the circumstance of
the victim’s age.” H.R. Rep. No. 99-594, at 15 n.59 (1986).
“It is inconceivable that Congress meant to create a strict
liability crime by omission in one section of a statute when
Congress affirmatively created strict liability crimes by
inclusion in [two other] sections of the same statute.”
Bruguier, 735 F.3d at 766–67 (Riley, C.J., concurring)
(emphases in original); see also H.R. Rep. No. 99-594,
at 15–18 (discussing and justifying the inclusion of the
44 UNITED STATES V. PRICE
strict-liability age elements); id. at 19 (discussing § 2244(b)
with no reference to any strict-liability element). Taken
together, therefore, the Flores-Figueroa presumption and
the statutory context clearly establish that the government
must prove that the defendant knew that the sexual contact
was without the other person’s permission in order to obtain
a conviction under 18 U.S.C. § 2244(b).
The lead opinion’s only response to the comparison
among § 2244(b), § 2241(c), and § 2243(a) is that § 2241
and § 2243 impose more severe penalties than § 2244 and,
therefore, § 2241 and § 2243 require an explicit statement
that the government need not prove that the defendant knew
the age of the victim in order to overcome the strong
presumption of such a mens rea requirement.
Section 2244(b), the lead opinion argues, does not give rise
to the same strong presumption because of its less severe
penalties. Lead Op. 21–23. The lead opinion also
distinguished the Eighth Circuit’s decision in Bruguier on
those grounds because § 2242(2), the statute at issue in
Bruguier, “has a severe maximum penalty of life
imprisonment, unlike § 2244(b).” Lead Op. 23 n.3.
Finally, the lead opinion suggests that the presumption
that “some indication of congressional intent, express or
implied, is required to dispense with mens rea as an element
of a crime,” Staples v. United States, 511 U.S. 600, 606
(1994), applies only when the penalty is severe. Staples,
however, did not hold that the presumption applies only to
crimes with high penalties. See id. at 617–18. If that were
the rule, then courts would have to determine what
constitutes a “high penalty” versus a “low penalty” in all
these types of cases.
I find dubious the lead opinion’s contention that
Congress would have intended to dispense with the
UNITED STATES V. PRICE 45
“knowingly” mens rea requirement in § 2244(b)’s
permission element simply because that statute originally
carried a maximum prison sentence of six months (now two
years). See Lead Op. 21–23. Surely most of us, if we were
charged with a criminal offense, would consider a sentence
of six months—let alone two years—to be a very significant
penalty. This is especially true for an offense such as
§ 2244(b) where, according to the lead opinion, there is no
mens rea required for the element of the offense that turns
otherwise legal conduct into a crime.
In addition, as the Supreme Court made clear in Rehaif
v. United States, 139 S. Ct. 2191 (2019), the cases where the
Court has previously “declined to apply the presumption in
favor of scienter” typically involve “statutory provisions that
form part of a ‘regulatory’ or ‘public welfare’ program and
carry only minor penalties.” Id. at 2197 (emphasis added).
Like the firearms provisions at issue in Rehaif, § 2244(b) is
“not part of a regulatory or public welfare program,” id., and
the lead opinion does not argue that it is. This fact, too, helps
explain why any “exception to the presumption in favor of
scienter does not apply” in this case. Id.
The lead opinion also attempts to use the difference in
penalties to suggest that requiring the government to prove
that a defendant knew that he lacked permission to engage
in sexual contact under § 2244(b) would produce an absurd
result. Lead Op. 23. It notes that § 2244(c), which provides
that “[i]f the sexual contact that violates this section . . . is
with an individual who has not attained the age of 12 years,
the maximum term of imprisonment that may be imposed for
the offense shall be twice that otherwise provided in this
section,” does not contain any explicit provision disposing
of a mens rea requirement regarding the victim’s age. The
lead opinion therefore argues that, under my reading of the
46 UNITED STATES V. PRICE
statute, the government must prove that the defendant knew
that the child was under 12 years old in order to obtain a
§ 2244(c) conviction. Because § 2244(c) has less severe
penalties than § 2241(c) and § 2243(a), and because the
latter two statutes explicitly eliminate a mens rea
requirement regarding the victim’s age, the lead opinion
argues that Congress could not have intended to impose the
extra mens rea requirement on defendants charged with
violations of the less serious penalties under § 2244(c). Lead
Op. 23.
But the less severe penalties of § 2244(c) are explainable
regardless of its mens rea requirement. This is because
§ 2244 criminalizes certain sexual contact, whereas § 2241
and § 2243 criminalize certain sexual acts. “Sexual contact”
means “the intentional touching, either directly or through
the clothing, of the genitalia, anus, groin, breast, inner thigh,
or buttocks of any person.” 18 U.S.C. § 2246(3). A “sexual
act,” in contrast, is significantly more intrusive,
encompassing:
(A) contact between the penis and the vulva
or the penis and the anus, and for
purposes of this subparagraph contact
involving the penis occurs upon
penetration, however slight;
(B) contact between the mouth and the penis,
the mouth and the vulva, or the mouth and
the anus;
(C) the penetration, however slight, of the
anal or genital opening of another by a
hand or finger or by any object, with an
intent to abuse, humiliate, harass,
UNITED STATES V. PRICE 47
degrade, or arouse or gratify the sexual
desire of any person; or
(D) the intentional touching, not through the
clothing, of the genitalia of another
person who has not attained the age of
16 years with an intent to abuse,
humiliate, harass, degrade, or arouse or
gratify the sexual desire of any person.
Id. § 2246(2). The difference in penalties between
§ 2244(c), § 2241(c), and § 2243(a) is therefore warranted,
and requiring the government to prove the defendant’s
knowledge of the victim’s age for a conviction under
§ 2244(c) but not under the other two statutes would not
produce an absurd result.
Finally, the lead opinion compares § 2244(a) and
§ 2244(b) in an attempt to demonstrate that the statutory
scheme supports its conclusion. Both § 2244(a) and
§ 2244(b) require that the defendant “knowingly” have
“sexual contact” plus one additional element. In § 2244(a),
the additional element that the government must prove is that
the sexual contact would be punishable by another
delineated statute if the sexual contact had instead been a
sexual act; in § 2244(b)—the statute under which Price was
convicted—the additional element is a lack of permission.
The lead opinion argues that because the government is not
required to prove that the defendant knew that the second
element of § 2244(a)—that the sexual contact he engaged in
would have been punished by another law if the contact was
a sexual act—was met, the government is also not required
to prove that the defendant knew that the second element of
§ 2244(b)—a lack of permission—was met. Lead Op. 19–
21.
48 UNITED STATES V. PRICE
But that argument overlooks the longstanding distinction
between knowledge of the underlying criminal law and
knowledge of the facts that constitute the offense. Courts
almost never interpret criminal statutes to require knowledge
of applicable criminal law. See, e.g., Cheek v. United States,
498 U.S. 192, 199 (1991) (“The general rule that ignorance
of the law or a mistake of law is no defense to criminal
prosecution is deeply rooted in the American legal system.”).
On the other hand, as highlighted several times throughout
this concurring opinion, courts presumptively do interpret
criminal statutes to require knowledge of the facts that
constitute the offense. See, e.g., Staples v. United States,
511 U.S. 600, 618–19 (1994) (“[W]here . . . dispensing with
mens rea would require the defendant to have knowledge
only of traditionally lawful conduct, . . . the usual
presumption that a defendant must know the facts that make
his conduct illegal should apply.”). I therefore find the lead
opinion’s comparison of § 2244(a) and § 2244(b)
unpersuasive, and conclude that the statutory scheme at hand
requires that the “knowingly” mens rea requirement of
§ 2244(b) be applied to the lack-of-permission element of
the crime.
C.
In further support of its argument, the lead opinion
highlights two statements from the House Report on the
Sexual Abuse Act of 1986 bill. First, the lead opinion says
that Congress expected that the Act would “‘simplify law
enforcement’ activities.” Lead Op. 24 (quoting H.R. Rep.
No. 99-594, at 21 (1986)). But that statement has been taken
out of context. The House Report does not indicate that
Congress sought to achieve the goal of “simplifying law
enforcement activities” by eliminating mens rea
requirements from certain subsections of the statute.
UNITED STATES V. PRICE 49
Instead, the Report says that the Act “may simplify law
enforcement activities” by “provid[ing] much more specific
definitions of federal sexual abuse offenses . . . [and]
mak[ing] conforming amendments to a number of other
statutes that currently refer to rape.” H.R. Rep. No. 99-594,
at 21. The Report says nothing about the mens rea issue in
question here.
The second statement from the House Report that the
lead opinion relies on provides that “[w]here the Committee
believes it appropriate to the offense to require the
prosecution to show that the conduct was engaged in without
the victim’s permission, such a requirement has explicitly
been set forth.” Lead Op. 24 (quoting H.R. Rep. No. 99-594,
at 13). But that statement says nothing about the defendant’s
knowledge “that the conduct was engaged in without the
victim’s permission.” See H.R. Rep. No. 99-594, at 13. And
only two paragraphs later, the Report explains that proposed
§ 2243(d) “sets forth a proof requirement concerning the
defendant’s state of mind [because t]he Committee does not
. . . believe a corroboration requirement is justified and has,
therefore, intentionally not imposed such a requirement.” Id.
at 14. The Report, in contrast, says nothing about “a proof
requirement concerning the defendant’s state of mind” for
§ 2244(b). In fact, nothing in the hearings or reports on the
Act suggests that any of the participants in its passage had
any intention of making 18 U.S.C. § 2244(b) a strict-liability
offense.
Other parts of the legislative history actively undermine
the lead opinion’s interpretation of the statute. The House
Report, for example, explains that “[the Sexual Abuse Act
of 1986 was] drafted employing the format, conventions and
techniques used in drafting the Criminal Code Revision Act
of 1980.” Id. at 13 (citing H.R. Rep. No. 96-1396 (1980)).
50 UNITED STATES V. PRICE
One such convention was that, “[t]he state of mind required
for conduct will apply to circumstances and results unless
otherwise specified. This rule makes it unnecessary to
distinguish among the components of an offense (conduct,
circumstances and results) in order to determine the
applicable state of mind.” H.R. Rep. No. 96-1396, at 34.
The lead opinion’s argument that “knowingly” applies only
to the element of sexual contact, but not to the element of
lack of permission, is contrary to this understanding that
mens rea would apply equally to every element of the
offense.
Rather than confronting the stark difference between the
provisions adopted as part of the same Act, the lead opinion
instead attributes a broad intention to Congress’s goal of
modernizing sexual assault laws “by focusing on the
defendant’s conduct” rather than the victim’s state of mind.
Lead Op. 6. But the goal of focusing on the defendant’s
conduct rather than the victim’s state of mind does not
support the lead opinion’s position. Price asks us to hold that
the government must prove that he knew he was engaging in
sexual contact without A.M.’s permission. Reading the
statute to include that requirement advances the goal that the
government attributes to Congress: it focuses on the
defendant’s conduct rather than the victim’s state of mind.
Requiring the government to prove something about Price’s
state of mind at the time of his offensive conduct does
nothing to implicate the victim’s state of mind.
As a final thought on this issue, I address the lead
opinion’s contention that “[i]f the government were required
to prove that the defendant subjectively knew he lacked
consent, as Price urges here, every accused sexual predator
could defend his admitted sexual contact in the face of no
objective sign of permission by asserting a supposed
UNITED STATES V. PRICE 51
subjective belief that the victim was ‘enjoying herself.’”
Lead Op. 6. The government made a similar statement at
oral argument, contending that a knowledge requirement
would allow defendants to avoid conviction under this
statute simply by “get[ting] up on the stand and say[ing],
‘Oh, I didn’t know.’” But the defendant’s subjective
knowledge is and always has been an extremely common
requirement in criminal statutes, one that the government is
almost always required to prove. It typically does this by
circumstantial evidence and by asking the jury to reject what
the government views as self-serving and incredible claims
of innocence. The criminal system has hardly ground to a
halt as a result.
In sum, under the interpretive rule recognized in Flores-
Figueroa, the plain text of 18 U.S.C. § 2244(b) applies the
“knowingly” requirement to each element of the offense,
including that the sexual contact be without the other
person’s permission. That interpretation is not rebutted by
any special context; in fact, the context of the Sexual Abuse
Act of 1986 strongly reaffirms the conclusion that
“knowingly” applies to every element. I would therefore
hold that the “knowingly” requirement applies to the element
of the sexual contact being without the other person’s
permission. Section 2244(b)’s language and the context
provided by the other related provisions compel this result.
The legislative history and the weighty presumption against
strict-liability offenses further support my conclusion.
II.
Despite my disagreement with the lead opinion’s
analysis of 18 U.S.C. § 2244(b), I join its ultimate
conclusion for a totally different reason—that the district
court’s error in relieving the government of its need to prove
that Price subjectively knew he lacked A.M.’s permission to
52 UNITED STATES V. PRICE
engage in sexual contact with her was harmless. “An error
in criminal jury instructions requires reversal unless there is
no reasonable possibility that the error materially affected
the verdict or, in other words, that the error was harmless
beyond a reasonable doubt.” United States v. Pierre,
254 F.3d 872, 877 (9th Cir. 2001) (internal quotation marks
and brackets omitted). In the district court’s instructions to
the jury, it defined “permission” as “[t]he act of permitting,
a license or liberty to do something, or authorization,”
explaining that permission can be express or implied, and
explaining that implied permission “means permission that
is inferred from words or actions.”
Price conceded that A.M. never gave him explicit
permission to touch her breasts or vagina. The only
remaining question is whether there is any reasonable
possibility that the jury could have found that Price
subjectively believed he had A.M.’s implicit permission to
engage in sexual contact with her. In light of the strong
circumstantial evidence showing that Price had to have
known that A.M. had not consented to his advances, the
answer is no.
By convicting Price, the jury determined that he in fact
lacked both explicit and implicit permission to touch A.M.’s
breasts and vagina. The jury therefore believed A.M.’s story
of what occurred on the flight over Price’s story. And
according to that story, A.M. was asleep when Price began
running his hand up and down her side and her leg. A
sleeping person clearly gives no implicit permission to be
touched. A.M. then moved her cell phone, thinking that
Price might have been trying to steal it, and fell back asleep.
She woke up once again when he began touching her breast.
In response, A.M. put a blanket over her shoulder and
crossed her arms in front of her.
UNITED STATES V. PRICE 53
These actions, if anything, negate any implicit
permission to be touched. Yet Price continued to touch
A.M.’s breast and then moved his hand down to her legs,
first over her jeans and finally inside of them, touching her
vagina. In a state of shock, panic, and fear, and in a final
effort to ward off Price, she turned her body away from him
and towards her friend Fujita. Despite A.M.’s negative
reaction to Price’s advances, she testified that he “tried to
move my body towards” him “[w]ith strong force” and tried
to pull her jeans down. A.M., moreover, never spoke to
Price while he was touching her nor even looked at him
during their encounter. Under all of these circumstances, no
reasonable juror could have found that Price subjectively
believed that he had permission to touch A.M., especially
once A.M. physically turned her back to him and towards
her friend.
Price’s statements after the incident further support a
finding that he knew he lacked permission to touch A.M. He
said that he “knew . . . it was wrong” to be “engaging like
this with somebody who is totally a stranger” without first
having had a “proper conversation.” Price also agreed with
Special Agent Gates, the FBI agent who interviewed Price,
that, at his age, he should have known that it was his “job not
to touch” A.M. without her permission. And finally, when
the customs officers searched Price’s bags, they found a note
that read: “If a man touches you and you don’t want him to
always feel free to say no.” Price said that he wrote the note
to A.M. after she got up and left her seat, indicating that he
knew A.M. had not given him permission to touch her.
I would therefore hold that the error in the district court’s
jury instructions was harmless because “it is clear beyond a
reasonable doubt that a rational jury would have found the
defendant guilty absent the error.” See United States v.
54 UNITED STATES V. PRICE
Anchrum, 590 F.3d 795, 801 (9th Cir. 2009) (internal
quotation marks omitted). The government’s evidence,
which the jury had to believe in order to find Price guilty,
overwhelmingly demonstrated that Price knew that he
lacked permission to engage in sexual contact with A.M. See
United States v. Cherer, 513 F.3d 1150, 1155 (9th Cir. 2008)
(holding that an erroneous jury instruction regarding mens
rea was harmless when “the government’s evidence
overwhelmingly show[ed] that [the defendant] believed [the
victim] was fourteen years old”).
For all of the foregoing reasons, I concur with the lead
opinion’s conclusion that Price’s conviction should be
affirmed.
WARDLAW, Circuit Judge, with whom NGUYEN, Circuit
Judge, joins, concurring in the denial of rehearing en banc:
Contrary to Judge Collins’s suggestion, this is not a case
in which “bad facts make bad law.” This is a case that
upholds a model jury instruction that has been routinely
given by district courts in our circuit for decades. 1 It is ironic
that Judge Collins accuses our opinion of redrafting the
statute when in fact he is the one who wishes to rewrite
18 U.S.C. § 2244(b)—and the Ninth Circuit’s model
instruction—by inserting an additional “knowingly.” Judge
1
The only other circuit to have promulgated a model instruction for
18 U.S.C. § 2244(b), the Seventh Circuit, also does not require the
government to prove beyond a reasonable doubt both that the defendant
“knowingly engaged in sexual contact” and that he subjectively knew the
victim did not consent. Pattern Criminal Jury Instructions of the Seventh
Circuit at 626 (2019); Pattern Criminal Jury Instructions of the Seventh
Circuit at 300 (1998).
UNITED STATES V. PRICE 55
Collins’s judicially created statute would require that the
government prove beyond a reasonable doubt that not only
did the defendant knowingly engage in sexual contact, but
that he subjectively knew that he lacked permission to do
so—an almost impossible burden in this context. The
dissent rigidly applies general presumptions of statutory
construction without regard to the grammatical structure of
the specific statute, its place in the statutory scheme, or the
Congressional purpose behind its enactment. The dissent’s
proposed subjective knowledge mens rea requirement is at
odds with the very purposes of the Sexual Abuse Act of 1986
and would create a shield for sexual predators that Congress
did not intend to create. And these policy views are
Congress’s, not our own, enacted into this provision of the
Violence Against Women Act. Even worse, the dissent
would reverse a conviction for sexual assault that is
supported by overwhelming evidence, including admissions
by the defendant.
As a majority of active judges recognized, this case is not
one worthy of en banc review.
I.
Interpreting 18 U.S.C. § 2244(b) to require proof of a
defendant’s subjective knowledge that the victim did not
consent is fundamentally inconsistent with Congress’s
purpose in enacting the Sexual Abuse Act of 1986, which
includes § 2244(b). The Sexual Abuse Act was passed to
modernize the federal criminal law of sexual assault and
rape. See H.R. Rep. No. 99-594, at 6 (1986). Among other
things, the Act “defin[ed] the offenses so that the focus of a
trial is upon the conduct of the defendant, instead of upon
the conduct or state of mind of the victim, . . . expand[ed] the
offenses to reach all forms of sexual abuse of another,” and
“abandon[ed] the doctrines of resistance and spousal
56 UNITED STATES V. PRICE
immunity.” Id. at 10–11. In other words, the Sexual Abuse
Act expanded the scope of federal criminal law covering
rape and sexual assault while eliminating antiquated barriers
that burdened victims and the prosecution of such crimes.
Congress did not intend to cabin the Act’s provisions to a
narrow category of offenders or allow regressive beliefs
about consent to serve as a defense to prosecution.
The law, and the jury instruction, strike the right balance.
The instruction given by the district court, Ninth Circuit
Model Criminal Jury Instruction § 8.180, sensibly does not
require explicit verbal permission or an affirmative, “Yes,”
for each step of a sexual encounter. Rather, the jury was
instructed that permission could be either express or implied.
Express permission is “clearly and unmistakably granted by
actions or words, oral or written.” Implied permission, by
contrast, need not be clear or unmistakable, but “is inferred
from words or actions.” The instruction, as it exists,
provides a defense for misunderstandings about consent,
when those misunderstandings can be reasonably and
objectively inferred from words or actions. The statute and
instruction simply require that the misunderstanding have
some reasonable, objective basis; the misunderstanding
cannot exist only in the mind of the defendant.
The alternative reading urged by the dissent discards any
connection to the objective reality of any given situation. In
so doing, this reading resurrects barriers to prosecution that
the Sexual Abuse Act was intended to remove. 2
Counterintuitively, under the dissent’s subjective reading,
2
Contrary to the dissent’s assertions, we do not reject the plain
language of the statute, rather we simply disagree with the dissent’s
creation of an alternative § 2244(b) that would subvert the plain language
and Congressional intent. Dissent at 74–75.
UNITED STATES V. PRICE 57
still too-common regressive beliefs about sexual interaction
would become defenses. The simple acts of being friendly
and having a brief conversation with another person—as was
the case here between A.M. and Price—are instead
transformed into free passes to grope another without
consequence based on an objectively unreasonable claim of
misunderstanding. Common beliefs such as, “She was
asking for it,” or “I expected him to say no if he didn’t want
to go any further,” would insulate defendants from liability
even when there is no reasonable basis to believe consent
was given. A misogynist who believed that all women must
always want him, no matter their verbal protestations or
body language, could apparently never commit this crime.
The plain language of the statute does not demand such
a narrow result. The Act “abandon[ed] the doctrine[] of
resistance” that previously required a victim of rape to
physically resist to demonstrate her non-consent. H.R. Rep.
No. 99-594, at 11. Yet, under the dissent’s interpretation,
even the undisputed fact of resistance is insufficient for
culpability under § 2244(b). The prosecution would be
required to further show, beyond a reasonable doubt, that the
defendant subjectively knew that the resistance meant
rejection, rather than “token” resistance or an attempt at
“playing hard to get.” No longer would objective resistance
or explicit rejection be enough; instead, a victim would be
required to resist to the extent necessary to make an
unreasonable offender subjectively understand that consent
was lacking. But a victim has no way of knowing, and
should not be required to meet, the subjective expectations
of a sexual predator.
In the same vein, the Sexual Abuse Act eliminated the
exemption for marital rape. H.R. Rep. No. 99-594, at 11.
Yet under the dissent’s surprising reasoning, this exemption
58 UNITED STATES V. PRICE
is in fact preserved in the law: so long as a spouse has the
subjective belief that marriage constitutes continuous
consent to sexual contact, that spouse could commit no crime
under § 2244(b).
These outcomes turn the statute on its head and provide
inexplicable defenses for those who are in the best position
to ascertain the consent of the victim. See United States v.
X-Citement Video, Inc., 513 U.S. 64, 76 n.5 (1994). It
“makes sense to impose the risk of error” on the person
sexually touching another. Id. In purporting to expand the
scope of sexual assault offenses, Congress could not
possibly have intended to require a victim to convey her
rejection beyond any objectively reasonable standard to
meet an idiosyncratic defendant’s more demanding
subjective expectations. The text of the statute does not
require this backward result. 3
II.
The dissent argues that because the definition of “sexual
contact” in 18 U.S.C. § 2246(3) includes the term
“intentional,” we must read § 2246(3) as introducing an
additional mens rea requirement into § 2244(b), creating
surplusage between “knowingly” and “engages in
intentional touching.” Rather than seeing this drafting
oversight for what it is, the dissent then relies on that
supposed surplusage, together with the cannon against
surplusage, to conclude that “knowingly” must instead
3
Contrary to the dissent’s view and even setting aside its misleading
characterization—we never describe the plain language of the statute as
a “‘drafting oversight’ in need of a judicial fix” —we are not creating a
“new version of § 2244(b).” Dissent at 74–75. Rather, we are simply
interpreting and “apply[ing] the statute as it is written.” Burrage v.
United States, 571 U.S. 204, 218 (2014).
UNITED STATES V. PRICE 59
modify only the second element of the offense, “without that
other person’s permission.” See 18 U.S.C. § 2244(b).
Applying the dissent’s reasoning to the surrounding
subsections of § 2244 demonstrate its illogic: doing so does
not eliminate surplusage at all, but instead it only recreates
that surplusage in the other parallel subsections. Moreover,
the canon against surplusage is “not an absolute rule” but
rather “assists only where a competing interpretation gives
effect to every clause and word of a statute.” Marx v. Gen.
Revenue Corp., 568 U.S. 371, 385 (2013) (quoting Microsoft
Corp. v. i4i Ltd. P’ship, 564 U.S. 91, 106 (2011)). The canon
has little to say where, as here, “no interpretation . . . gives
effect to every word,” id., and even less so when applying
the canon also results in a reading fundamentally contrary to
the statutory purpose. 4
We do not read statutes “in a vacuum, but with reference
to the statutory context, ‘structure, history, and purpose.’”
Abramski v. United States, 573 U.S. 169, 179 (2014)
(quoting Maracich v. Spears, 570 U.S. 48, 76 (2013)). The
provisions of § 2244 were enacted together, so it makes
sense not to narrowly focus on “a single sentence or member
of a sentence,” but instead to “look to the provisions of the
whole law.” Dole v. United Steelworkers of Am., 494 U.S.
26, 35 (1990) (quoting Massachusetts v. Morash, 490 U.S.
107, 115 (1989)).
4
Had Congress clearly intended “knowingly” to modify “without
that other person’s permission,” it could have easily drafted the statute
in any number of ways to accomplish that purpose, such as “engages in
sexual contact with another person knowing he lacks that other person’s
permission,” “engages in sexual contact with another person with
knowledge that he lacks the other person’s permission,” or even
“knowingly engages in non-consensual sexual contact with another
person,” but Congress did not do so.
60 UNITED STATES V. PRICE
The abusive sexual contact statute, 18 U.S.C. § 2244,
criminalizes sexual contact in three ways, and each
subsection has two elements: a defendant “knowingly”
engaged in “sexual contact,” 5 plus an additional element.
Subsection 2244(a) provides punishment for one who
“knowingly engages in or causes sexual contact with or by
another person, if so to do would violate” one of a set of
cross-referenced subsections prohibiting certain more
serious offenses defined as “sexual acts.” 6 18 U.S.C.
§ 2244(a). Subsection (b), at issue here, criminalizes
“knowingly engag[ing] in sexual contact with another
person without that other person’s permission.” Id.
§ 2244(b). Finally, subsection (c) doubles the maximum
term of imprisonment for § 2244 offenses if the sexual
contact “is with an individual who has not attained the age
of 12 years.” Id. § 2244(c). Using the dissent’s reasoning
creates mischief with this straightforward statutory structure.
It is no wonder that at this point in its analysis the dissent
castigates discussion of the issues as “irrelevant” and prefers
the reader ignore the problems created by its interpretation.
Dissent at 89.
Start with § 2244(a). The sensible reading of § 2244(a)
is that Congress meant to replace the term “sexual act” where
it appears in the statutes cross-referenced by § 2244(a) with
the less serious act of “sexual contact,” thus criminalizing
conduct, such as sexual abuse of a minor or by force,
5
The term “sexual contact” is defined as “intentional” touching, i.e.
groping. 18 U.S.C. § 2246(3).
6
The graver crimes described as “sexual act[s]”, are defined in
18 U.S.C. § 2246(2) as the groping of a minor under 16, penetration, or
contact between genitalia and the mouth. The cross-referenced
subsections include aggravated sexual abuse, id. § 2241, sexual abuse,
id. § 2242, and sexual abuse of a minor, id. § 2243.
UNITED STATES V. PRICE 61
18 U.S.C. §§ 2241, 2243, that involved mere “sexual
contact” not rising to the level of a sexual act. 7 Following
the dissent’s reasoning simply recreates the surplusage the
dissent sees in § 2244(b) in these cross-referenced sections
with differing degrees of serious conduct. 8 For example,
§ 2244(a)(5) cross-references 18 U.S.C. § 2241(c),
aggravated sexual abuse with children. Where § 2241(c)
prohibits “sexual acts” with children, § 2244(a)(5) prohibits
“sexual contact” with children. Using the definition of
sexual contact as “intentional touching” from § 2246(3) in
18 U.S.C. § 2241(c), as the dissent would have us do, creates
a statute that punishes one who “knowingly engages in
7
“[S]exual act” is defined in four subparts (A) through (D), only one
of which includes an “intentional touching” definition and two which do
not include “intent” in any form. 18 U.S.C. § 2246(2)(A)–(D). It is
curious to suggest that those differing definitions trigger different
statutory modes of analysis, and possibly differing mens rea
requirements altogether, based on which type of sexual touching
occurred.
8
The dissent’s citation to Hammond v. Gordon County, 316 F. Supp.
2d 1262, 1289 (N.D. Ga. 2002), in response is perplexing. Dissent at 92–
92. There is no mention of 18 U.S.C. § 2244 whatsoever in that case,
and the dissent merely hypothesizes that its interpretation of § 2244(a) is
correct because it could apply to the facts of that case. Id. More telling
is what the dissent left out, i.e. that in fact no court has ever held that the
“added words in § 2244(a) . . . apply to separate people.” Id. Even if
§ 2244(a) could be so construed, the dissent’s hypothesis fails to explain
why Congress drafted “knowingly” to modify both “engages in” and
“causes” when it could have simply written “engages in or knowingly
causes.” And for “knowingly” to have “work to do in § 2244(a)” in
scenarios where a prison guard causes inmates to have sexual contact
with one another, Dissent at 91, the prison guard’s guilt would hinge on
the inmate’s “intent to abuse, humiliate, harass, degrade, or arouse or
gratify the sexual desire of any person.” 18 U.S.C. § 2246(3). Congress
could not have intended such an absurd result.
62 UNITED STATES V. PRICE
[intentional touching] with another person who has not
attained the age of 12 years.”
Applying the dissent’s view of the canon against
surplusage, “knowingly” cannot modify “intentional
touching” because “knowingly” would be surplusage of
“intentional,” just as in § 2244(b). Under the dissent’s
reasoning, “knowingly” must therefore modify the further
element “who has not attained the age of 12 years.” But this
reading cannot be correct, because in a prosecution under
§ 2241(c), Congress has expressly provided that “the
Government need not prove that the defendant knew that the
other person engaging in the sexual act had not attained the
age of 12 years.” 18 U.S.C. § 2241(d) (emphasis added).
Therefore, consistent with express congressional intent, we
must read “knowingly” to modify only “engages in
[intentional touching]” in §§ 2244(a)(5) and 2241(a). Yet
this is the exact same reading that, according to the dissent,
creates surplusage: “knowingly engages in intentional
touching.”
The same pattern repeats with § 2244(a)(3). That section
prohibits sexual abuse of a minor under § 2243(a) when the
abuse is by “sexual contact” rather than the more serious
“sexual act.” Substituting “sexual contact” in the statute
makes the statute punish one who “knowingly engages in
[sexual contact] with another person who” is a minor.
18 U.S.C. §§ 2243(a), 2244(a)(3). Reading into the
subsection “intentional touching” for sexual contact, as the
dissent would, thus creates a statute that applies to one who
“knowingly engages in [intentional touching]” of a minor.
The dissent’s reasoning would logically then read
“knowingly” to apply to the age of the victim to avoid the
dissent’s newly created surplusage between “knowingly”
and “intentional.” See 18 U.S.C. § 2243(a)(1)–(2). But this,
UNITED STATES V. PRICE 63
too, cannot be correct: Congress again expressly provided
that the government need not prove knowledge of the age of
the minor victim. Id. § 2243(d). We are left with a statute
that contains the surplusage of one who “knowingly engages
in intentional touching.”
This attempt to “avoid surplusage” also interferes with
the straightforward application of § 2244(c), which doubles
the penalties for § 2244(a) and (b) by adding the element
“with an individual who has not attained the age of 12 years”
after “another person.” 18 U.S.C. § 2244(c). Applying the
dissent’s logic, the mens rea of “knowingly” would apply to
the age element of § 2244(c). 9 Yet Congress has expressly
exempted a knowingly mens rea from similar but far more
serious crimes involving children: aggravated sexual abuse
of a minor, 18 U.S.C. § 2241(c), (d), and sexual abuse of a
minor, 18 U.S.C. § 2243(a), (d). The idea that Congress
intended to eliminate the mens rea requirement of
“knowingly” for the victim’s age in the most serious of
offenses but require it for the less serious crimes set forth in
§ 2244(c) is absurd. See United States v. Taylor, 239 F.3d
994, 997 (9th Cir. 2001) (explaining that, for 18 U.S.C.
§ 2423(a), “knowingly” in the phrase “knowingly transports
9
That § 2244(c) is set off in a different subsection does not render
it irrelevant. Subsection 2244(c) does not articulate a stand-alone crime,
but one that applies to “sexual contact that violates this section.” Every
other reference to sexual contact in § 2244 contains a “knowingly” mens
rea as to at least one element, and § 2244 doubles the maximum sentence
for those offenses. This age element thus becomes an additional element
of those other offenses. See Apprendi v. New Jersey, 530 U.S. 466, 490
(2000) (holding that facts that enhance a defendant’s maximum sentence
are elements that must be submitted to the jury). If, as the dissent argues,
the canon against surplusage suggests that “knowingly” does not apply
to “sexual contact” but instead to other elements of the offense, that
reasoning suggests that it applies to this age element as well given its
incorporation of the remainder of § 2244.
64 UNITED STATES V. PRICE
an individual who has not attained the age of 18 years in
interstate or foreign commerce” does not apply to additional
elements beyond “transports an individual”).
The dissent’s proposed path to avoid surplusage does not
avoid surplusage at all, but simply recreates it in different
elements of the prohibited offenses. This is not the purpose
of the canon, Marx, 568 U.S. at 385, and there is no reason
to selectively read some parts of the statute to avoid
surplusage to remedy what surely must have been an
oversight in drafting the parallel provisions. The result is
also grammatically awkward, at best. As a matter of
ordinary grammar, “knowingly” should most obviously
modify the words Congress placed it immediately next to,
“engages in sexual contact.” But the dissent insists that
“knowingly” instead jumps over those words to modify the
second element of the offense described in disconnected
words. Had Congress intended “knowingly” to modify only
“without that other person’s permission,” it could have
easily drafted the statute to say so: “engages in sexual
contact with another person knowing he does not have that
person’s consent.” That it did not draft the offense in this
manner is additional evidence that Congress did not draft
§ 2244 with the precise language of § 2246 in mind.
Applying the canon against surplusage in the manner the
dissent suggests places “knowingly” in § 2244(b) where
Congress did not, as the district court recognized, and creates
surplusage that the canon cannot eliminate because of
express Congressional dictate in §§ 2241(d) and 2243(d). It
is far more logical, and straightforward, to read each
subsection of § 2244 to require that a person “knowingly”
engage in “sexual contact,” plus an additional element, as
expressly written by Congress, not created by the dissent’s
awkward reading of the statute.
UNITED STATES V. PRICE 65
III.
As to the implications of Rehaif v. United States, 139 S.
Ct. 2191 (2019), and the principles it applies, three points
warrant discussion. First, Rehaif did not resolve a circuit
split or change governing law; it simply reiterated the
presumption of scienter, citing the explanation of that
presumption in Flores-Figueroa v. United States, 556 U.S.
646 (2009), and X-Citement Video, among other cases.
139 S. Ct. at 2195–96. Rehaif explained its analysis as
grounded on “presumption[s]” that “normally” apply; it did
not transform those presumptions into ironclad rules, never
to be broken. 139 S. Ct. at 2196; see also Flores-Figueroa,
556 U.S. at 652.
Of course, Rehaif “changed” something in that it
overturned our prior cases interpreting the mens rea
requirements of § 922(g). But Rehaif did so by looking to
the straightforward grammatical structure of 18 U.S.C.
§§ 922(g) and 924(a)(2), not by altering principles of
statutory construction. We had never conducted the
straightforward textual analysis of § 922(g) that the Court
did in Rehaif. In United States v. Miller, we rejected the idea
that “knowledge” applies to the status element of § 922(g)
with summary reasoning, relying on the history of previous
versions of the firearms prohibitions. 105 F.3d 552, 555 (9th
Cir. 1997). We reaffirmed that holding in United States v.
Stone because our prior reasoning was not “irreconcilable”
with Flores-Figueroa. 706 F.3d 1145, 1146–47 (9th Cir.
2013). And in both cases, we focused primarily on the
interstate commerce element rather than the status element.
Second, Rehaif did not change the canon that “[courts]
normally read the statutory term ‘“knowingly” as applying
to all the subsequently listed elements of the crime’” from a
presumption to an inflexible rule. Rehaif, 139 S. Ct. at 2196
66 UNITED STATES V. PRICE
(quoting Flores-Figueroa, 556 U.S. at 650). “[T]he inquiry
into a sentence’s meaning is a contextual one.” Flores-
Figueroa, 556 U.S. at 652; see Rehaif, 139 S. Ct. at 2195–
96 (analyzing sentence structure). The dissent
mischaracterizes both the presumption’s origins and its
applications by portraying it as an ironclad rule subject only
to narrow exceptions. Multiple reasons counsel against its
strict application here.
Section 2244(b) was first enacted as a petty offense
punishable by only six months’ imprisonment. Sexual
Abuse Act of 1986, Pub. L. No. 99-646, § 87, 100 Stat. 3592,
3622; H.R. Rep. 99-594 at 19 nn. 75–76. The maximum
penalty was increased without comment twenty years later—
but only from six months to two years. Violence Against
Women and Department of Justice Reauthorization Act of
2005, Pub. L. No. 109-162, § 1177(b)(2), 119 Stat. 2960,
3125 (2006). Such petty offenses do not trigger the same
presumption of scienter. See Rehaif, 139 S. Ct. at 2197;
Staples v. United States, 511 U.S. 600, 606–07 (1994). Even
the revised punishment is still only one-fifth of the
“potentially harsh penalty” with which the Supreme Court
has previously expressed concern. Staples, 511 U.S. at 616;
see also Rehaif, 139 S. Ct. at 2197 (citing X-Citement Video,
513 U.S. at 72). And people do in fact “harbor settled
expectations” that touching the genitalia of another person is
“subject to stringent public regulation,” further weighing
against the presumption. 10 X-Citement Video, 513 U.S.
10
Of course, this presumption was established “at least with regard
to crimes having their origin in the common law.” United States v. U.S.
Gypsum Co., 438 U.S. 422, 437 (1978). But at common law, rape and
sexual abuse had no scienter requirement; the intentional act was enough.
See 2 W. LaFave, Substantive Criminal Law § 17.2(b) (3d ed. 2017)
(noting that “most American courts have omitted mens rea altogether”
for rape and that “there exists no issue in the prosecution of the crime of
UNITED STATES V. PRICE 67
at 71. Section 2244(b) has been on the books since 1986,
and our circuit has consistently promulgated a jury
instruction requiring an objective inquiry into permission.
See, e.g., Ninth Circuit Model Criminal Jury Instruction
§ 8.149 (2000); Ninth Circuit Model Criminal Jury
Instruction § 8.38B (1995); see also Pattern Criminal Jury
Instructions of the Seventh Circuit at 626 (2019); Pattern
Criminal Jury Instructions of the Seventh Circuit at 300
(1998). There is no indication that by modestly increasing
the maximum possible punishment without comment after
twenty years, Congress silently intended to redefine a key
element of the crime.
The text of § 2244(b) also creates uncertainty as to how
far “knowingly” extends as an adverb preceding the verb.
Rehaif, 139 S. Ct. at 2196. In the statute, the phrase “without
that other person’s permission” is an adverbial prepositional
phrase that follows “knowingly engages in sexual contact
with another person.” Our circuit has consistently and
repeatedly interpreted sentences containing similar
prepositional phrases as not clearly modified by adverbs that
precede the verb. See United States v. Backman, 817 F.3d
662, 667 (9th Cir. 2016) (“[I]t is most natural to read the
adverb ‘knowingly’ . . . to modify the verbs that follow,”
while the additional prepositional phrase “describes the
nature or extent of those actions but, grammatically, does not
tie to ‘knowingly.’”); 11 United States v. Castagana,
rape regarding defendant’s perception of the requisite attendant
circumstances (e.g., whether or not the [alleged victim] had given
consent)”).
11
The dissent appears to dismiss Backman as contrary to Rehaif,
Dissent at 97, but Backman in fact points to both the language of the
statute and “[t]he longstanding presumption . . . that the jurisdictional
68 UNITED STATES V. PRICE
604 F.3d 1160, 1163 (9th Cir. 2010) (explaining that “with
intent” did not apply to an additional prepositional phrase
based on the language of the statute and its legislative
history); United States v. Lo, 447 F.3d 1212, 1229 (9th Cir.
2006) (explaining the ambiguity as to whether “knowingly”
applied to both “possesses or distributes” and “listed
chemical” or only the former); Taylor, 239 F.3d at 997
(explaining “knowingly” in the phrase “knowingly
transports an individual who has not attained the age of 18
years in interstate or foreign commerce” does not apply to
the additional elements beyond “transports an individual”);
United States v. Flores-Garcia, 198 F.3d 1119, 1121 (9th
Cir. 2000) (“[I]t is unclear to what elements beyond ‘aids or
assists,’ if any, the defendant’s mental state extends.”).
The Supreme Court made exactly this point in Liparota
v. United States, 471 U.S. 419 (1985). Examining a sentence
structure similar to § 2244(b), the Supreme Court explained
that “the words themselves provide little guidance” because
“[e]ither interpretation would accord with ordinary usage.”
Id. at 424. And while the Supreme Court ultimately found a
heightened mens rea appropriate in that case, it did not do so
because the grammar of the statute required it. Rather, a
heightened mens rea was appropriate because there was no
“indication of contrary purpose in the language or legislative
history of the statute,” and to hold otherwise “would be to
criminalize a broad range of apparently innocent conduct.”
Id. at 425–26. Here there is ample reason—from the
legislative history, the nature of sexual assault crimes, the
statute’s text, and common sense—to conclude that
§ 2244(b) does not impose a heightened mens rea
requirement on the permission element. See, e.g., United
element of a criminal statute has no mens rea” in reaching its holding.
Backman, 817 F.3d at 667.
UNITED STATES V. PRICE 69
States v. Crowder, 656 F.3d 870, 875 (9th Cir. 2011) (Ikuta,
J.) (holding that the scienter element in 18 U.S.C.
§ 2250(a)(3) of “knowingly” applies only to “fails to register
or update a registration” in “fails to register or update a
registration as required by the Sex Offender Registration and
Notification Act (‘SORNA’),” and does not require the
government to prove that the defendant knew about the
registration requirement based on the nature of the crimes,
the statute’s text, and common sense). 12
Third, as to innocent conduct, Part I explained how the
subjective knowledge requirement would protect a great deal
of conduct that is decidedly not innocent. Groping in the
wake of affirmative rejection with the objectively
unreasonable belief that “no means yes” is not “innocent”
conduct. Nor is unreasonably interpreting polite
conversation as an invitation for sexual activity. This type
of unreasonable but intentional sexual contact is a far cry
from the innocent conduct Rehaif discussed, such as
blamelessly stumbling over another person by mistake.
139 S. Ct. at 2197 (quoting O. Holmes, The Common Law 3
(1881)). Indeed, “requiring the government to prove
knowledge of the [defendant’s subjective beliefs] would
likely make it more difficult for the government to prosecute
. . . sex offenders who knowingly [initiate sexual contact
with objectively unreasonable beliefs], and thus potentially
undermine Congress’s goal of [expanding the scope of
12
We wholly agree with the dissent that Crowder relied on “the
more natural reading of the statutory text” by declining to read
“knowingly” into a subsequent adverbial phrase. Dissent at 98 n.8. We
do the same here, which is why a majority of active judges appropriately
did not vote to rehear this case en banc. Further, by failing to point to
any legislative history in support of its idiosyncratic interpretation, the
dissent fails to reconcile Crowder’s view about Congressional intent
with its own approach here. 656 F.3d at 876.
70 UNITED STATES V. PRICE
federal criminal law covering rape while eliminating
antiquated barriers to such prosecutions].” Crowder,
656 F.3d at 876. In Crowder, as here, “no indicium of
Congressional intent weighs against the more natural
reading of the statute.” Id.
Applying “knowingly” to § 2244(b)’s additional element
of “without that other person’s permission” is also
unnecessary to “separate wrongful from innocent acts.”
Rehaif, 139 S. Ct. at 2197; see Liparota, 471 U.S. at 426–27.
Crucially, the intentional touching at issue is not of any kind
upon another person, but of “the genitalia, anus, groin,
breast, inner thigh, or buttocks of any person with an intent
to abuse, humiliate, harass, degrade, or arouse or gratify the
sexual desire of any person.” 18 U.S.C. § 2246(3). It may
be perfectly innocent for a person to possess a firearm with
no additional context, a legal act that does not implicates any
other person’s interests. Rehaif, 139 S. Ct. at 2197 (citing
Staples, 511 U.S. at 611). But it would not be innocent for
a person to walk up to another and, with no additional
context, touch the intimate parts of that person’s body with
sexual intent. Unlike possession of a firearm, “one would
hardly be surprised to learn that [sexual battery] is not an
innocent act.” Staples, 511 U.S. at 610 (quoting United
States v. Freed, 401 U.S. 601, 609 (1971)).
The addition of the element of lack of consent beyond a
reasonable doubt makes the act more wrongful. But an
action is not “innocent” simply because it could have been
even more wrongful than it was. See United States v.
Jefferson, 791 F.3d 1013, 1018 (9th Cir. 2015) (finding “no
potential for the penalization of innocent conduct” where
“the government must prove that the defendant knew he was
importing some amount of a controlled substance”); Flores-
Garcia, 198 F.3d at 1121–22 (explaining it is enough that
UNITED STATES V. PRICE 71
“the defendant recognizes he is doing something culpable”);
cf. X-Citement Video, 513 U.S. at 72 n.3 (“Criminal intent
serves to separate those who understand the wrongful nature
of their act from those who do not, but does not require
knowledge of the precise consequences that may flow from
that act once aware that the act is wrongful.”).
Unlike the possession of a firearm, sexual contact with
another person implicates the deeply personal interests of
that other person. Even Price admitted at trial that he was
“not innocent of doing something socially improper.” The
statutory text, history, and purpose all weigh against the
presumption of scienter here.
IV.
The dissent’s analysis of the opinions’ harmless error
holding is also flawed. Judge Gilman’s concurrence does
not improperly weigh Price’s credibility and nowhere makes
such a claim. The dissent’s discussion of Neder v. United
States, 527 U.S. 1 (1999), is thus not a criticism of any
holding in the opinion but of one invented by the dissent.
Judge Gilman’s concurrence concludes that the jury
necessarily rejected Price’s story in finding him guilty
beyond a reasonable doubt. The record undeniably supports
this conclusion. In Instruction No. 13, the jury was told that
permission “can be express or implied.” “Express
permission means permission that is clearly and
unmistakably granted by actions or words, oral or written.
Implied permission means permission that is inferred from
words or actions.” The jury nonetheless convicted Price,
finding that permission could not have been inferred from
A.M.’s actions beyond a reasonable doubt.
This finding makes clear that the jury rejected Price’s
story. Price testified to an escalating chain of events resting
72 UNITED STATES V. PRICE
on implicit consent for his actions. Price testified: “I was
rubbing her hand, and she started rubbing my hand back with
her fingers, with her thumb. And then I rubbed some more
around her hand, went around her hand, and then we . . . held
hands as we rubbed each other’s hand.” He was not
“mistaken” because “it was clear to [him] that she was
rubbing [his] hand” for three or five minutes. Price next
testified that he started “rubbing her arm and massage [sic]
her arm for a while, for a few minutes.” Price continued:
“And then I – I felt that – I saw that she – I noticed that – the
way she moved her body.” His lawyer then asked him:
“When you say she moved her body when you touched her
arm . . . try to describe it as best you can.” He described the
movements up her arm, to her torso, to her breasts, as “very
softly, very gently, very gradually,” because “[t]hat’s how I
see she liked it.”
Price later noted that his conduct was “not a normal thing
to do in a public place for sure,” and agreed that it was “a
really big deal” that “you’d really want some certainty
about.” In two notes he wrote following the incident, he
further revealed that he subjectively knew he did not have
permission. While still in flight, he wrote a note to A.M.: “If
a man touches you and you don’t want him to always feel
free to say no.” He wrote this note after A.M. left her seat,
but before the flight crew approached him about A.M.’s
complaint, indicating he knew he had not been given
permission. And Price lied in a handwritten statement he
gave to the flight purser, omitting his intentional groping of
A.M.’s breast and vagina. Finally, Price told the FBI he
knew “it was wrong” to engage with A.M. without a “proper
conversation,” and that it was his “job not to touch her”
without permission.
UNITED STATES V. PRICE 73
The entire theory of Price’s defense was that A.M. gave
implicit permission through her physical responses. He later
admitted he knew he had not received such permission. In
convicting Price, the jury found that implicit permission had
not been given and rejected his story to the contrary. His
subjective belief was premised on his own version of events;
without his version of events, there is no evidence to support
his assertion on appeal that he subjectively believed he had
consent.
V.
The majority opinion upholds a model instruction that
has routinely been given in this Circuit for decades. It gives
effect to § 2244(b)’s purpose and follows the rules of
statutory interpretation and the canons of construction that
guide our analysis. The majority opinion simply rejects that,
in light of the text, surrounding statutory provisions, and
purpose, this particular provision must be read to protect
one-sided, subjective beliefs about a sexual encounter.
Section 2244(b) does not require more, and a majority of
active judges appropriately did not vote to rehear this case
en banc.
COLLINS, Circuit Judge, with whom IKUTA and
VANDYKE, Circuit Judges, join as to Parts I and II, and
with whom BUMATAY, Circuit Judge, joins as to Part
II(B)(1), dissenting from the denial of rehearing en banc:
This case calls to mind the adage that “bad facts make
bad law.” The trial record makes clear, in my view, that
Defendant Juan Price violated 18 U.S.C. § 2244(b) by
repeatedly groping a young woman on an international flight
without her consent. In the words of the statute, he
74 UNITED STATES V. PRICE
“knowingly engage[d] in sexual contact with another person
without that other person’s permission.” 18 U.S.C.
§ 2244(b). The problem is that the jury instructions left out
one of the required elements of the offense, namely, that
Price knew that he lacked the victim’s permission to engage
in sexual contact. In nonetheless affirming the conviction,
the panel majority rests on two alternative grounds, both of
which involve serious legal error. I respectfully dissent from
our failure to take this case en banc.
First, the panel majority erroneously holds that there was
no missing element at all, because § 2244(b) does not require
the Government to prove that the defendant knew that the
sexual contact was without permission. According to the
majority, the word “knowingly” applies only to the
immediately following seven words (“engages in sexual
contact with another person”) and not to the remainder of the
phrase (“without that other person’s permission”). In his
separate opinion, Judge Gilman persuasively explains why
the majority’s statutory analysis is incorrect, but if anything,
he understates the case against the majority’s wholly
unwarranted elimination of a scienter element from a
criminal statute. The majority’s reading cannot possibly be
correct, because it limits the application of “knowingly” to a
phrase (“engages in sexual contact with another person”)
that already imposes a higher scienter requirement than
“knowingly.” See 18 U.S.C. § 2246(3) (defining “sexual
contact” to mean a specified form of “intentional touching”
done “with an intent to abuse, humiliate, harass, degrade, or
arouse or gratify the sexual desire of any other person”). By
thus reading the word “knowingly” out of § 2244(b), the
panel majority’s flawed construction ignores the plain
language of the statute and disregards no fewer than three
applicable canons of construction—including two that were
recently and unambiguously reaffirmed by the Supreme
UNITED STATES V. PRICE 75
Court in Rehaif v. United States, 139 S. Ct. 2191 (2019).
Tellingly, the panel majority in their concurrence in the
denial of rehearing (“Denial Concur.”) characterizes the
plain language of § 2244(b) as a “drafting oversight” in need
of a judicial fix. Denial Concur. at 58. 1
As a review of the concurrence in denial of rehearing
makes quite clear, the panel majority’s rewriting of
§ 2244(b) is heavily influenced by the majority’s strongly
held policy views about what the Government should and
should not be expected to prove in criminalizing the offense
conduct at issue here. According to that concurrence, the
textualist reading of § 2244(b) that Judge Gilman and I adopt
“would create a shield for sexual predators” and allow “still
too-common regressive beliefs about sexual interaction” to
“become defenses.” Denial Concur. at 55, 56. Although I
suspect that these concerns are overstated (given that they
presume that real juries would actually accept the sort of
implausible defenses that the majority posits), I do not
necessarily disagree with the majority that, from a policy
point of view, the new version of § 2244(b) that my
colleagues have drafted is better than the one Congress
passed. But under our constitutional system, Congress
writes the laws, not us, and we therefore are not free to
disregard the plain language of those laws or the settled rules
of statutory interpretation simply because we dislike the
outcome. That is doubly true when, as here, we are
1
The majority audaciously asserts that the plain-language
construction adopted by Judge Gilman and me is actually the one that
would “rewrite” § 2244(b) “by inserting an additional ‘knowingly.’” See
Denial Concur. at 54. But we have done no such thing. Instead, we
simply have construed the reach of the word “knowingly” that is in the
statute in accordance with the plain language of the provision and the
controlling canons of construction as articulated by the Supreme Court.
The panel majority does neither.
76 UNITED STATES V. PRICE
interpreting criminal statutes, and it remains true even when,
as in this case, the defendant is charged with committing vile
and despicable acts.
Second, the panel wrongly concludes that, in any event,
the omission of the scienter element was harmless error. See
Majority Opinion (“Opin.”) at 25 n.4 (agreeing with Judge
Gilman’s panel concurrence on this point). But under the
applicable standards for evaluating whether the failure to
instruct the jury on an essential element of a criminal offense
is harmless, courts must ask whether there is sufficient
evidence in the record to have supported a defense verdict
on the element in question. See Neder v. United States,
527 U.S. 1, 19 (1999). Like any other sufficiency inquiry,
that analysis requires the court to credit the defendant’s
testimony concerning the missing element, no matter how
incredible we judges may find it (and I, too, find Price’s
testimony to be incredible here). In suggesting that “no
reasonable juror could have found that Price subjectively
believed that he had permission to touch” the victim, see
Concurring Opinion of Judge Gilman (“Gilman Concur.”)
at 53—i.e., that no reasonable jury could have believed
Price’s testimony on this point—the panel departs from
Neder and effectively directs a verdict against a criminal
defendant, and does so under standards that are more
permissive than those we are allowed to apply in civil cases.
The result is a novel and serious intrusion on the Sixth
Amendment right to a jury trial.
On this record, I have little doubt that Price is guilty of
abusive sexual contact in violation of § 2244(b). But under
well-settled law, we cannot affirm a criminal conviction, no
matter how serious the underlying conduct, if the conviction
is based on a crime that Congress did not write and on
findings of guilt no jury ever made. Put simply, we are not
UNITED STATES V. PRICE 77
permitted to “[c]ut a great road through the law to get after
the Devil.” Robert Bolt, A Man for All Seasons, Act 1
(1960). I respectfully dissent from our refusal to rehear this
case en banc.
I
Because the underlying factual context is important to
understanding the issues (particularly the harmless error
issue), I set them forth in some detail.
A
1
On September 21, 2014, A.M., a twenty-one-year-old
Japanese student, flew overnight from Tokyo to Los Angeles
aboard American Airlines Flight 170. A.M. was
accompanied by her friend, Maki Fujita. The two were on
their way to visit Los Angeles and Las Vegas. Juan Pablo
Price, then forty-six, was also a passenger on the flight.
Price was en route to the United States from Vietnam, where
he had just spent six months teaching English. Neither A.M.
nor Fujita had met Price prior to the flight.
A.M. was assigned to sit in seat 26G, an economy aisle
seat in the middle segment of her three-segment row. There
were five seats in the middle segment of A.M.’s row: facing
the front of the plane, the section was bookended by seat 26C
on the left aisle and seat 26G on the right aisle. Fujita’s
assigned seat was 26F, directly to A.M.’s left. The two seats
to Fujita’s left, 26E and 26D, were unoccupied. Another
passenger sat in seat 26C on the left aisle.
At some point during the approximately ten-hour flight,
A.M.’s video monitor stopped functioning. Wanting to
78 UNITED STATES V. PRICE
watch a movie, A.M. caught the attention of Hidemori
Ejima, a nearby flight attendant. Ejima tried to restart the
video monitor but was unsuccessful. As a result, and with
Ejima’s permission, A.M. and Fujita each moved one seat
inward, towards the middle of their section, such that they
each had a working monitor. A.M. was then seated in seat
26F and Fujita in 26E, leaving seat 26G unoccupied. Before
changing her seat, A.M. had noticed Price staring at her from
his window seat in 25J, which was positioned one row in
front of A.M., diagonally across the aisle to her right.
Despite thinking that Price was “creepy” and “looking at
[her] too much,” A.M. did not pay him much attention.
Sometime thereafter, Price got up to use the bathroom.
The nearest bathroom was located near row 27, one row past
A.M. and Fujita, such that Price had to pass them to reach it.
On his way to the bathroom, Price noticed that seat 26G was
unoccupied, and as he was later returning to his seat, he
asked A.M. if he could sit in 26G. A.M. thought there was
“nothing [she could] do about” Price sitting next to her, so
she said “okay.” She removed her handbag from the seat
and Price collected his things from 25J and sat down in 26G.
About this time, Ejima noticed that Price had helped
himself to seat 26G. Ejima approached Price and informed
him that the video monitor for that seat was inoperable, but
Price indicated that he wished to remain there. Price testified
at trial that there was a small electric box below his originally
assigned seat that constricted his leg room. The box was
“several inches in diameter,” and, being a “tall person,” Price
claimed that he would be more comfortable in a seat with
more leg room. Ejima then offered Price seat 20D, a
bulkhead seat that was a few rows closer to the front of the
airplane, which had a working video monitor and three times
as much legroom as 26G. Price declined. According to
UNITED STATES V. PRICE 79
Price, his refusal was partly due to his frequent need to use
the bathroom, which stemmed from a medical condition.
Seat 20D was located just seven rows from the bathroom,
which Ejima estimated to be only about five meters away.
Still, Price opted to remain in 26G.
Ejima was surprised that Price had turned down the
opportunity to change seats from 26G to 20D because, in his
twenty-five years as a flight attendant, Ejima had “never”
seen a passenger turn down a seat with greater legroom.
Puzzled, Ejima handed a note to Fujita, instructing them to
alert Ejima if Price made them uncomfortable.
2
A.M. testified at trial that she and Price exchanged
pleasantries after he sat down, but that Price eventually
realized that she did not understand what he was saying in
English. During their short conversation, Price asked A.M.
about her drink, and she tried to explain to him that she was
not drinking “regular wine.” (It was a mixture of red wine
and Coca-Cola.) A.M. was not sure that Price understood,
but he proceeded to order more red wine, which he poured
in A.M.’s cup. A.M. did not really want to drink the wine
Price had given her, but since she did not want to waste it
either, she went ahead and drank it. A.M. estimated that her
brief exchange with Price lasted five minutes.
Shortly thereafter, Fujita informed A.M. that Ejima had
warned them to “watch out [for] the person sitting next to”
them. A.M. interpreted this as having something to do with
safeguarding her valuables. She then went to sleep with her
blanket covering her lap and the armrest between her and
Price in the down position.
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A.M. woke up to Price “touching” the “right side of [her]
body, [her] arm and [her] right side” including her “right leg
and right hip” and rear pants pocket. At that point, A.M.
thought that Price was attempting to steal her iPhone, so she
moved it into the seat pocket on the back of the seat in front
of her and went back to sleep. A.M. was awakened yet again
by Price—this time because he was fondling her breast. In
that moment, A.M. reports that she “could not understand at
all” what was going on and that she “didn’t know what was
happening” to her. She recalls being “so shocked” by Price’s
unsolicited sexual advance that she went into “a state of
panic.”
A.M. testified that she did not tell Price to stop because
she “could not think straight” and, due to her panic, “could
not remember” how to say “stop” in English. Instead, she
responded by pulling up the blanket to her shoulders and
crossing her arms to block his hands. A.M. next remembers
that Price spread his blanket across the two of them to
conceal his hands, and that he put his hand under her shirt
and inside her jeans. Price then “put his hand under [her]
underwear and [] started to touch [her] vagina.” At this point
A.M. was “completely in panic” and “could not calm down.”
She twisted her body toward Fujita on her left, away from
Price. With “strong force,” Price then attempted to yank her
back towards him and pull down her jeans. At this point,
Fujita woke up and became aware of the situation.
Concerned, she asked if A.M. was alright. A.M. responded
that she was “not okay.” Seeing Fujita awake, Price settled
back into his seat. A.M., pretending to go to the bathroom,
went to the rear of the plane and found a female flight
attendant whom she asked for help.
A.M. testified that at no point did she invite or consent—
either expressly or impliedly—to being touched in any way
UNITED STATES V. PRICE 81
by Price. In fact, A.M. says she felt physically overpowered
by Price, and that the encounter left her feeling “soiled,”
“dirty,” and “embarrassed.”
3
Price testified at the trial. As the panel majority notes,
the “objective facts” were “fairly undisputed,” see Opin.
at 7, but Price’s testimony nonetheless differed from A.M.’s
in several respects. Price stated that A.M. was “smiling”
when he took his seat in 26G and that she offered him some
of her beverage (though this claim is disputed by A.M.).
Price claimed that they joked about the poor in-flight service
and talked briefly about where they were from. He testified
that he thought that A.M. might be interested in having a
“good time” with him. Price readily admitted that his
conversation with A.M. was limited by the language
barrier—A.M., fluent only in Japanese, had informed Price
of her limited ability to speak English. Nonetheless, Price
said that they finished her glass of wine together and that he
subsequently ordered more wine for them to share. After
sharing a second glass of wine with A.M., Price recalls
falling asleep.
According to Price, he awoke to A.M. touching his hand
under his blanket, which he interpreted as an “invitation to
something.” At trial, Price remembered the encounter this
way:
I first felt her hand touching mine. So I
thought she was initiating something. And
that’s why I decided to find out if it was an
accident or [if] she was trying to initiate
something. . . .
....
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I started [touching her] first with my pinky
very subtly, very gently. I started rubbing her
hand, the top of her hand. And then I went
around her hand, and then she started rubbing
me back with her thumb. . . .
....
After that we—we rubbed each other’s hand,
and we held hands. I started massaging her
arm with my other hand. And so I was
massaging her arm. At that point I was
looking at her. I saw that she was—she was
looking straight to the video screen.
And so I—there was no doubt in my mind
that she—she was liking it. She was rubbing
my hand with her finger. I was rubbing her
arm, and I moved up to her—the top part of
her arm. And that’s when I started feeling the
side of her breast. That’s how I—it was all
slowly, gently, gradually. . . .
....
[A]fter touching her breast, I went down with
my arm to her torso, and I put my arm around
her torso. And then that’s—and then she
put—she lifted her left arm and put it on top
of my arm in a very gentle manner, like
embracing my arm.
Price claimed that he then moved his hand down A.M.’s
torso and eventually touched her vagina from the outside of
her pants. He then reached inside her pants and put his hand
UNITED STATES V. PRICE 83
on her pubic area, though he stated that he could not unzip
her pants because they were very “tight.” Price surmised
that A.M. was “enjoying herself” based on her body
language—he testified that she was “arching her body,”
breathing intensely, and opening and closing her eyes.
Price recalls that, after he unsuccessfully tried to unzip
her pants, A.M. got up and went to the bathroom. He
testified that:
[A.M.] came back and she sat down, and I put
my arm on her arm again and started rubbing
her hand again. And then at one point I
thought I’d take a step farther and have a
more direct—more of a—I wanted to
embrace her, and I wanted to have an open—
you know, I didn’t want to—I didn’t want to
be a secret anymore basically.
So I—so that’s when I tried to embrace her
and I tried to kiss her. And then that’s when
she turned away.
Price said that he felt “awkward” and “upset” when A.M.
rebuffed his kiss. But at that point, he noticed that Fujita had
woken up and that A.M. had turned her body away from him
and toward Fujita. After A.M. whispered with Fujita, she
got up and moved to the empty seat on the other side of
Fujita. Price decided to write A.M. a note, which read: “If a
man touches you and you don’t want him to, always feel free
to say no.” After finishing the note, Price saw that A.M. was
talking with Fujita and another passenger, and so, rather than
give the note to A.M., he just placed it in his bag.
Price testified that he believed that A.M. was a
consenting participant during the entire encounter.
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4
When she arrived at the rear of the plane, A.M. had
trouble describing the encounter to the female flight
attendant due to her limited English. However, Ejima, fluent
in Japanese, was able to speak with her. In Japanese, A.M.
explained to Ejima that, while she was asleep, Price began
touching her from her “breasts . . . down to [her] pants” and
that “he put his hand inside her pants.”
Yosri Zidan, the flight’s purser, having been informed of
an “issue between two passengers,” joined A.M. in the rear
of the plane. A.M. described the incident to Zidan in
Japanese while another crew member interpreted. Zidan
then had A.M. write a statement, which she wrote in
Japanese. Ejima ultimately moved A.M. and Fujita to seats
33C and 33D, towards the rear of the plane.
Zidan had Price brought to the back of the plane and then
asked him to provide his version of the incident. After
interviewing Price, Zidan asked him to provide a written
statement. In that statement, which was written on the back
of a piece of paper from a nearby catering cart, Price
described the encounter as consensual. Zidan then told Price
that he was free to move about the aircraft so long as he did
not go near A.M. and Fujita.
When the flight arrived at LAX, law enforcement
officers were standing by. Among those who arrived at the
scene was Customs and Border Protection Officer Kevin
Humes, who performed a routine inspection of Price’s bags.
During that search, Humes found the note Price had written
to A.M. stating that, “[i]f a man touches you and you don’t
want him to, always feel free to say no.”
UNITED STATES V. PRICE 85
Price was then interviewed by FBI Special Agent David
Gates and another officer. Prior to the interview, Gates
verbally advised Price of his Miranda rights and had Price
sign a Miranda waiver. During the interview, Price again
claimed that A.M. had initiated the encounter by touching
his hand. However, Price admitted “that he knew it was
wrong to be engaging like this with a stranger without having
a proper conversation.” Price also said he touched A.M.
because it “felt good.”
B
Price was indicted for unlawful sexual contact in
violation of 18 U.S.C. § 2244(b). At trial, Price requested a
jury instruction stating that the government must prove that
he knew that A.M. had not consented to sexual contact. The
district court rejected Price’s request, and instead instructed
the jury consistent with the Ninth Circuit model jury
instruction, which provided that the modifier “knowingly”
in 18 U.S.C. § 2244(b) applies only to the clause “engages
in sexual contact with another person.” See Manual of
Model Criminal Jury Instructions § 8.180 (2010) (Ninth Cir.
Jury Instructions Comm., amended 2019). Price appealed
his conviction, and the panel affirmed. The panel divided 2–
1 on the issue of whether the district court properly denied
Price’s requested instruction, but all three judges concluded
that any error was harmless beyond a reasonable doubt.
II
The statute under which Price was convicted imposes
criminal penalties on anyone who, within specified areas of
federal jurisdiction (which include the LAX-bound
international flight at issue here), “knowingly engages in
sexual contact with another person without that other
person’s permission.” 18 U.S.C. § 2244(b) (emphasis
86 UNITED STATES V. PRICE
added). 2 The panel majority holds that the term
“knowingly” only applies to a portion of this single 13-word
phrase, and not to the entirety of the phrase. Opin. at 10–25.
Specifically, the majority concludes that the “most natural
grammatical reading” of the phrase is that the “term
‘knowingly’ modifies only the verb phrase ‘engages in
sexual contact with another person’ and does not modify the
adverbial prepositional phrase ‘without that other person’s
permission.’” Id. at 12. According to the majority, this
supposedly “natural grammatical reading” is so
overwhelmingly linguistically preferable that it liberates the
panel majority from having to apply any of the relevant
interpretive canons established by the Supreme Court and
invoked by Judge Gilman in his separate opinion. For
multiple reasons, the panel majority’s reading of the statute
is untenable.
2
Section 2244(b), which is contained in chapter 109A of title 18 of
the U.S. Code, states that it applies within the “special maritime and
territorial jurisdiction of the United States.” See 18 U.S.C. § 2244(b). A
different statute further provides that any act that would violate “chapter
109A of title 18” if committed within “the special maritime and
territorial jurisdiction of the United States” is also an offense if
committed by an individual “on an aircraft in the special aircraft
jurisdiction of the United States.” 49 U.S.C. § 46506. Because the
“special aircraft jurisdiction of the United States” includes an “aircraft
outside the United States” that “has its next scheduled destination . . . in
the United States, if the aircraft next lands in the United States,” see id.
§ 46501(2)(D)(i), section 2244(b)’s proscriptions applied on the flight in
question.
UNITED STATES V. PRICE 87
A
1
As an initial matter, the panel majority’s construction of
§ 2244(b) cannot be correct, because it would render the
word “knowingly” wholly surplusage.
According to the panel, the only role that “knowingly”
plays in § 2244(b) is to modify the phrase “engages in sexual
contact with another person,” presumably to distinguish
between those who engage in such contact wittingly and
those who do so unwittingly. The problem with this reading
is that it overlooks the express statutory definition of the
term “sexual contact,” which already contains a more
demanding scienter requirement that applies to the
underlying act of intimate contact. See 18 U.S.C. § 2246
(providing definitions for “this chapter,” i.e., chapter 109A
of Title 18, which includes § 2244). As defined in § 2246,
“the term ‘sexual contact’ means the intentional touching,
either directly or through the clothing, of the genitalia, anus,
groin, breast, inner thigh, or buttocks of any person with an
intent to abuse, humiliate, harass, degrade, or arouse or
gratify the sexual desire of any person.” 18 U.S.C. § 2246(3)
(emphasis added). Reading § 2244(b) together with this
accompanying definition of “sexual contact,” a person thus
only “knowingly engages in sexual contact with another
person” by “knowingly engaging in the intentional touching”
of specified intimate body parts with a specific “intent to
abuse, humiliate,” etc. 18 U.S.C. §§ 2244(b), 2246(3)
(emphasis added). Because one cannot unknowingly engage
in intentional touching—much less do so with the specific
“intent” required by the statute—the majority’s reading of
§ 2244(b) renders the word “knowingly” wholly
superfluous, if not nonsensical. Why would Congress add a
lesser scienter requirement (“knowingly”) for the sole
88 UNITED STATES V. PRICE
purpose of modifying a phrase that already requires
“intentional” conduct performed with a particular specific
intent?
By applying the word “knowingly” only to the portion of
§ 2244(b) that is expressly defined as “intentional touching,”
see Opin. at 12, the majority’s reading of “knowingly” thus
wrongly renders that word “nonsensical and superfluous,”
thereby violating “one of the most basic interpretive
canons,” namely, “that a statute should be construed so that
effect is given to all its provisions, so that no part will be
inoperative or superfluous, void or insignificant.” Corley v.
United States, 556 U.S. 303, 314 (2009) (simplified). The
only non-superfluous role that the word “knowingly” can
have in § 2244(b) is to modify the entire phrase “knowingly
engages in sexual contact with another person without that
other person’s permission”—including the final adverbial
prepositional phrase. On this basis alone, the only viable
reading of § 2244(b) is that it requires the Government to
prove that the defendant “knowingly” acted “without that
other person’s permission.” See Jones v. United States,
529 U.S. 848, 857 (2000) (“Judges should hesitate to treat
statutory terms in any setting as surplusage, and resistance
should be heightened when the words describe an element of
a criminal offense.” (simplified)).
2
In their concurrence in the denial of rehearing en banc,
the panel majority defends its choice to read “knowingly”
out of the statute by claiming that a similar and consistent
application of the canon against surplusage to the other
subsections of § 2244 would produce absurd results. Denial
Concur. at 58–64. That claim is both irrelevant and wrong.
UNITED STATES V. PRICE 89
a
As an initial matter, the logic of the panel majority’s
syllogism simply does not follow. Even if the panel majority
were correct in contending that application of the canon
against surplusage to the differently worded provisions in
§ 2244(a) and § 2244(c) would lead to absurd results—and
it is not correct—all that would establish is that those
provisions should perhaps be construed as containing
surplusage (on the theory that, as to those provisions, the
canon against surplusage must yield to the competing canon
against absurd results). But the panel majority never argues
that application of the canon against surplusage to § 2244(b)
would yield absurd results, and it is clear that applying that
canon to § 2244(b) would not do so. Accordingly, the panel
majority’s detour through § 2244(a) and § 2244(c)—two
provisions that have nothing whatsoever to do with this
case—is entirely beside the point.
b
For the reader who nonetheless is interested in the
majority’s lengthy—and completely irrelevant—excursus
on § 2244(a) and § 2244(c), it is worth explaining why the
premise of the panel majority’s faulty syllogism is also
wrong: applying the canon against surplusage to those two
subsections would not produce absurd results.
(i)
Section 2244(a) punishes a person who, within federal
jurisdiction, “knowingly engages in or causes sexual contact
with or by another person, if to do so would violate” a series
of cross-referenced subsections (each of which prohibits
certain “sexual acts”), “had the sexual contact been a sexual
act.” 18 U.S.C. § 2244(a)(1)–(5) (emphasis added). Section
90 UNITED STATES V. PRICE
2244(a) thus specifies that all of the cross-referenced
circumstances in which a “sexual act” is criminal also apply
to “sexual contact” if the additional element in § 2244(a) is
shown—i.e., that the person “knowingly engages in or
causes sexual contact with or by another person.” The panel
majority focuses on § 2244(a)’s cross-reference to 18 U.S.C.
§ 2241(c), which (inter alia) makes it a crime to “knowingly
engage[] in a sexual act with another person who has not
attained the age of 12 years.” By cross-referencing this
provision, § 2244(a) would thus be violated if (inter alia)
(1) the defendant “knowingly engages in . . . sexual contact
with . . . another person,” 18 U.S.C. § 2244(a); and (2) he or
she “knowingly engages in [that sexual contact] with
another person who has not attained the age of 12 years,”
18 U.S.C. § 2241(c) (replacing “sexual act” with “sexual
contact” as per 18 U.S.C. § 2244(a)(5)) (emphasis added).
According to the panel majority, in light of the definition of
sexual contact as requiring intentional touching, applying
the canon against surplusage to § 2244(a)’s incorporation of
§ 2241(c) would lead to the conclusion that “knowingly” in
the above-italicized phrase must extend to “with another
person who has not attained the age of 12 years.” See Denial
Concur. at 60–62. That, however, would run contrary to the
express statutory provision, in 18 U.S.C. § 2241(d), that
“[i]n a prosecution under subsection (c) of this section, the
Government need not prove that the defendant knew that the
other person engaging in the sexual act had not attained the
age of 12 years.” See Denial Concur. at 62.
This argument is difficult to fathom. When § 2244(a)
states that the conduct must be such that it “would violate
. . . subsection (c) of section 2241 of this title had the sexual
contact been a sexual act,” 18 U.S.C. § 2244(a)(5) (emphasis
added), it necessarily carries over all provisions that define
what constitutes a “violat[ion]” of § 2241(c)—including
UNITED STATES V. PRICE 91
§ 2241(d). Therefore, to the extent that § 2244(a)’s
incorporation of § 2241(c) would otherwise have required
proof of knowledge that the victim was under age 12,
§ 2241(d) carries over as well and negates that inference.
Applying the ordinary rules of statutory construction to
§ 2244(a)’s incorporation of § 2241(c) thus does not lead to
any conflict with congressional intent or to an absurd result.
The panel majority further insists, however, that (even
setting aside any such issues arising from § 2244(a)’s cross-
referencing of other provisions) applying the § 2246(3)
definition of “sexual contact” to § 2244(a) leads to the
further problem that the word “knowingly” in § 2244(a)
itself would be rendered surplusage. According to the panel
majority, because the “sexual contact” must be intentional
(under § 2246(3)), the word “knowingly” in the key phrase
“knowingly engages in or causes sexual contact with or by
another person,” 18 U.S.C. § 2244(a), has no work to do and
is surplusage. 3 Again, it is difficult to fathom what the panel
majority thinks it has proved by making this argument. At
best, it would establish that there may be surplusage in
§ 2244(a) that cannot be avoided. But the canon against
surplusage is not an ironclad rule: it merely “requir[es] a
court to give effect to each word ‘if possible’” and may in
some cases be “‘countered . . . by some maxim pointing in a
different direction.’” Chickasaw Nation v. United States,
3
I agree with the panel majority that “knowingly” in this phrase
cannot be construed to apply to the subsequent language in § 2244(a)
that cross-references the various other provisions of Chapter 109A of
Title 28 of the U.S. Code. That language is set off by precisely the sort
of interruptive punctuation and phrasing that is missing in § 2244(b)—
that language is contained in a separate clause beginning with “if” that
is set off by a comma and then followed by an em dash and five lengthy
separate subsections. See United States v. X-Citement Video, Inc.,
513 U.S. 64, 68 (1994).
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534 U.S. 84, 94 (2001) (emphasis in original) (citations
omitted).
In any event, the panel majority is wrong in concluding
that “knowingly” has no work to do in § 2244(a). The panel
majority overlooks the fact that, because § 2244(a) (unlike
§ 2244(b)) also applies to a defendant who “causes sexual
contact with or by another person,” § 2244(a) can also be
applied to a defendant who is different from the person who
actually performs the sexual contact. Cf., e.g., Hammond v.
Gordon County, 316 F. Supp. 2d 1262, 1289 (N.D. Ga.
2002) (reviewing evidence that prison guards instructed
inmates to engage in sex with each other). The added words
in § 2244(a) thus would encompass situations in which the
two scienter requirements—“knowingly” (in § 2244(a)
itself) and “intentional” (from the definition of “sexual
contact” in § 2246(3))—are not redundant because they
apply to separate people. 4
In short, the panel majority fails in its effort to show that
ordinary principles of statutory interpretation, as applied to
§ 2244(a), would produce any absurdity or surplusage. The
panel majority’s discussion of this irrelevant statute—which
4
I am myself perplexed that the panel majority finds my citation of
Hammond “perplexing.” See Denial Concur. at 61 n.8. To defeat a
contention that a word in a statute is surplusage, it suffices to show that
there are conceivably some fact patterns in which the word would play a
role. Here, Hammond illustrates one sort of fact pattern that, as I explain
in the text, disproves the majority’s charge of surplusage with respect to
§ 2244(a). Because surplusage arguments are based on the text of the
statute and the categories of conduct that the words of the statute
proscribe, it is irrelevant whether there has yet been a case that has
actually applied § 2244(a) in this manner. And I emphatically disagree
with the panel majority’s suggestion that it would be “absurd” to extend
§ 2244(a) to reach the sort of conduct described in Hammond.
UNITED STATES V. PRICE 93
is not the statute at issue in this case—is thus ultimately a
distraction.
(ii)
The panel majority is even more wide of the mark in
suggesting that applying the canon against surplusage would
“interfere[] with the straightforward application of
§ 2244(c).” See Denial Concur. at 63. Section 2244(c)
doubles the maximum term of imprisonment “[i]f the sexual
contact that violates this section (other than subsection
(a)(5)) is with an individual who has not attained the age of
12 years.” 18 U.S.C. § 2244(c). According to the panel
majority, “[a]pplying the dissent’s logic, the mens rea of
‘knowingly’ would apply to the age element of § 2244(c).”
Denial Concur. at 63. This strawman argument is
incomprehensible, because the word “knowingly” does not
even appear in § 2244(c). The text of § 2244(c) merely
requires (1) “sexual contact that violates this section”; and
(2) that such sexual contact “is with an individual who has
not attained the age of 12 years.” 18 U.S.C. § 2244(c)
(emphasis added). There is no requirement that the
defendant know that the individual was under age 12.
Applying ordinary rules of statutory construction to
§ 2244(c) thus produces no problem with either surplusage
or absurdity.
* * *
In sum, the panel majority’s lengthy digression
concerning the text of § 2244(a) and § 2244(c)—neither of
which is at issue in this case—is ultimately nothing more
than a red herring.
94 UNITED STATES V. PRICE
B
The panel majority’s construction of § 2244(b) fails for
the additional reason that it flagrantly violates the Supreme
Court’s clear—and recently reiterated—instructions about
how to read scienter terms in criminal statutes. Specifically,
the panel majority contravenes two distinct canons of
construction about how to read the scope of a statute’s
express knowledge requirement.
1
The first canon is that, “‘[a]s a matter of ordinary English
grammar,’ [courts] normally read the statutory term
‘“knowingly” as applying to all the subsequently listed
elements of the crime.’” Rehaif v. United States, 139 S. Ct.
2191, 2196 (2019) (quoting Flores-Figueroa v. United
States, 556 U.S. 646, 650 (2009)). Under this “normal[]”
rule, the modifier “knowingly” in § 2244(b) therefore
applies to the entirety of the phrase “engages in sexual
contact with another person without that other person’s
permission.” 5 18 U.S.C. § 2244(b). The panel majority
simply defies Rehaif on this point, insisting that the panel
majority’s own understanding of “ordinary grammar,”
Denial Concur. at 64, is better than the “ordinary English
5
The panel majority briefly suggests that, because this presumption
does not apply to petty offenses, it should not be applied to § 2244(b),
which used to be a petty offense. See Denial Concur. at 66. This
anachronistic argument fails because, after § 2244(b) was amended in
2006 to increase the statutory maximum to two years, the statute no
longer defines a petty offense, and Rehaif’s ordinary grammatical
presumption fully applies to the current, amended statute (which is the
version at issue here).
UNITED STATES V. PRICE 95
grammar” applied by the Supreme Court, 139 S. Ct. at
2196. 6
The panel majority nonetheless insists that this case falls
within an exception to this rule, see Opin. at 17, but that is
wrong. The Supreme Court has acknowledged two such
exceptions: (1) where the word “knowingly” is followed by
a “long statutory phrase, such that questions may reasonably
arise about how far into the statute the modifier extends,”
Rehaif, 139 S. Ct. at 2196, and (2) where some of the
elements that follow “knowingly” are “set forth in
independent clauses separated by interruptive punctuation,”
United States v. X-Citement Video, Inc., 513 U.S. 64, 68
(1994). The second exception is obviously inapplicable,
because the phrase “without that other person’s permission”
is not set off by any interruptive punctuation, not even a
comma. The majority contends that the first exception is
applicable, because the statutory phrase at issue is long
enough to contain two “prepositional phrases including
‘without that other person’s permission.’” Opin. at 12. But
the mere twelve words which follow “knowingly” in
§ 2244(b) can hardly be considered a long statutory phrase
comparable to, for example, the more than three dozen
words that followed “knowingly” in the shorter of the two
provisions at issue in X-Citement Video. 513 U.S. at 68
(quoting 18 U.S.C. § 2252(a)(1), (2) (1988 ed. and Supp.
V)). Indeed, the beginning of the phrase at issue—“without
that other person’s permission”—occurs only eight words
after the word “knowingly.” In contrast to the sorts of “long
6
Indeed, the panel majority turns Rehaif on its head by declaring
that Congress should have shown that it “clearly intended” to require
knowledge of lack of permission by adding another use of “knowing”
(or some other such term) immediately before the lack-of-permission
phrase. See Denial Concur. at 59 n.4.
96 UNITED STATES V. PRICE
statutory phrase[s]” to which Rehaif adverted, the relevant
language in § 2244(b) is simply too short to raise any serious
question “about how far into the statute the modifier
extends.” 139 S. Ct. at 2196.
The panel majority also suggests that there should be a
new exception to this canon for “adverbial prepositional
phrase[s].” Opin. at 12, 16. According to the majority,
Flores-Figueroa did not apply the term “knowingly” to such
an “adverbial prepositional phrase,” but only to the entirety
of a noun phrase that was the “object” of the verb that
“knowingly” modified. Opin. at 15–16. While Flores-
Figueroa emphasized that “knowingly” ordinarily applies to
the object of the transitive verb that “knowingly” modifies,
see 556 U.S. at 650–51, neither it nor Rehaif stated that
“knowingly” only applies to subsequent noun phrases, and
not to adverbial prepositional phrases. On the contrary,
Rehaif makes no distinction between subsequent parts of
speech when it broadly states that “knowingly” ordinarily
applies “‘to all the subsequently listed elements of the
crime.’” 139 S. Ct. at 2196 (emphasis added) (citation
omitted); see also Flores-Figueroa, 556 U.S. at 650–51
(providing examples in which “knowingly” would extend to
prepositional phrases following the verb). Nor is there any
reason in law, linguistics, or logic why adverbial
prepositional phrases should be carved out of this canon of
construction. Cf. Liparota v. United States, 471 U.S. 419,
420, 424–34 (1985) (applying “knowingly” to the adverbial
prepositional phrase “in any manner not authorized”).
Moreover, the panel majority cites nothing to support its
idiosyncratic view that, as a matter of grammar,
“knowingly” should not be read to modify a subsequent
adverbial prepositional phrase. The panel majority now
claims that “[o]ur circuit has consistently and repeatedly
UNITED STATES V. PRICE 97
interpreted sentences containing similar prepositional
phrases as not clearly modified by adverbs that precede the
verb.” Denial Concur. at 67 (emphasis in original). But
several of the cited cases did not involve adverbial
prepositional phrases at all. See United States v. Lo,
447 F.3d 1212, 1229 (9th Cir. 2006) (question was whether
“knowingly” modifies “listed chemical” in “knowingly or
intentionally—possesses or distributes a listed chemical”);
United States v. Taylor, 239 F.3d 994, 997 (9th Cir. 2001)
(question was whether “knowingly” modifies “who has not
attained the age of 18 years” in “knowingly transports an
individual who has not attained the age of 18 years”).
Further, United States v. Chang Ru Meng Backman,
817 F.3d 662, 667 (9th Cir. 2016), involved the
jurisdictional interstate commerce element, which Rehaif
confirms is “not subject to the presumption in favor of
scienter,” 139 S. Ct. at 2196 (emphasis added). 7 And in
United States v. Flores-Garcia, 198 F.3d 1119, 1121 (9th
Cir. 2000), the prepositional phrase at issue (“under section
1182(a)(2) (insofar as an alien inadmissible under such
section has been convicted of an aggravated felony)”)
modified an adjective (“inadmissible”) that was alone
sufficient to establish the wrongfulness of aiding and
abetting such an alien; nothing comparable exists in the
simple grammatical structure of § 2244(b). Finally, United
States v. Castagana, 604 F.3d 1160 (9th Cir. 2010), did not
involve the word “knowingly” at all. The question in that
case was whether the words “with intent” in the phrase “with
intent to convey false or misleading information” in
18 U.S.C. § 1038(a)(1) also modified the ensuing clause that
described the further “circumstances” that had to be shown
7
The majority is therefore wrong in contending that I have
“dismiss[ed] Backman as contrary to Rehaif.” See Denial Concur. at 67
n.11.
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concerning “such information.” Id. at 1162–63. We
answered that question in the negative, noting that the latter
clause used wording that “clearly indicated that Congress
intended to apply an objective standard” to that clause. Id.
at 1163. Nothing comparable exists in § 2244(b). 8
2
The majority violates a further canon of construction that
was expressly reaffirmed in Rehaif. As Rehaif explained, a
court addressing how the word “knowingly” applies in a
criminal statute must “start from [the] longstanding
presumption, traceable to the common law, that Congress
intends to require a defendant to possess a culpable mental
state regarding each of the statutory elements that
criminalize otherwise innocent conduct.” 139 S. Ct. at 2195
(emphasis added) (citation and internal quotation marks
omitted). The application of this presumption here is
straightforward, and it requires applying the knowledge
requirement to § 2244(b)’s without-permission element.
8
The panel majority’s reasoning is even more strained when it tries
to analogize this case to United States v. Crowder, 656 F.3d 870 (9th Cir.
2011). Contrary to what the panel majority suggests, see Denial Concur.
at 69 n.12, Crowder did not rely on anything resembling the majority’s
peculiar grammatical rule about adverbial prepositional phrases.
Instead, Crowder concluded that its reading of the provision at issue
there was the “more natural reading” of the statutory text; that its reading
was consistent with the rule that “the use of the term ‘knowingly’ in a
criminal statute generally does not require the government to prove
‘knowledge of the law’”; and that the underlying conduct (failure to
register) was “more closely analogous” to the sort of “public welfare
offense” that “does not require the government to prove a mental
element.” Id. at 874–76 (citation omitted). Not one of these three
features is present here.
UNITED STATES V. PRICE 99
The panel majority agrees that what “separate[s]
wrongful conduct . . . from innocent conduct” in § 2244(b)
is that “the victim did not consent, either explicitly or
implicitly,” Opin. at 17–18—i.e., that the defendant acted
“without that other person’s permission.” Because that is
the “statutory element[]” which criminalizes what would
“otherwise [be] innocent conduct,” the “longstanding
presumption” reaffirmed in Rehaif mandates that the
Government show that the defendant “possess[ed] a culpable
mental state regarding” that element. 139 S. Ct. at 2195.
Under Rehaif, § 2244(b)’s “knowingly” requirement
therefore extends to the wrongful-conduct-defining element
that the defendant acted “without that other person’s
permission.”
The panel majority provides two reasons for reaching a
contrary view, but neither is persuasive. First, the majority
holds that this presumption only applies when a scienter
requirement itself is necessary to separate wrongful from
innocent conduct. Opin. at 17–18; see also id. at 16
(likewise distinguishing Flores-Figueroa on the ground that
there, “the mens rea requirement was necessary to ‘separate
wrongful conduct from otherwise innocent conduct’”
(emphasis added) (citation omitted)). According to the panel
majority, because § 2244(b)’s objective without-permission
element is alone sufficient to separate between wrongful and
innocent conduct, there is no reason to read the statute’s
scienter requirement as applying to that element. Opin.
at 17–18. This reasoning reflects a clear misreading of
Rehaif and would largely gut the canon of construction that
it reaffirms. Under the panel majority’s flawed reasoning,
the very fact that triggers application of that presumption—
i.e., the fact that the without-permission element is the
“statutory element[] that criminalize[s] otherwise innocent
conduct”—somehow becomes the reason not to apply the
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presumption. But Rehaif reaffirms that, whenever an
element (such as this one) forms the critical dividing line
between otherwise innocent conduct and wrongful conduct,
it is the “longstanding presumption . . . that Congress intends
to require a defendant to possess a culpable mental state
regarding” that element. 9 139 S. Ct. at 2195.
The panel majority’s argument on this score confuses
two distinct points that the Court made in Rehaif. In addition
to reaffirming this “longstanding presumption” about how to
read statutory language, Rehaif makes a separate but related
point that goes “[b]eyond the text.” 139 S. Ct. at 2196
(emphasis added). Rehaif explains that, even in the face of a
textual analysis that points away from scienter, it may be
necessary to read a scienter requirement into a statute in
order to “separat[e] wrongful from innocent acts.” Id. at
2196–97. In those cases, the scienter requirement itself
supplies the dividing line. See id. At most, the panel
majority’s argument on this score might establish that this
separate aspect of Rehaif is inapplicable here. That is, if the
analysis of the statutory text of § 2244(b) did not point
towards scienter, then it would not be necessary to
nonetheless read a scienter requirement into that statute. But
this argument does nothing to address the completely
9
The panel majority continues to insist that the mere act of “sexual
contact” is wrongful, see Denial Concur. at 69–71, but that is obviously
incorrect, as Judge Gilman noted in dissenting on this point, see Gilman
Concur. at 37. Moreover, the panel majority continues to describe the
underlying touching criminalized by the statute as “groping” and “sexual
battery,” see Denial Concur. at 60 n.5, 69–71, but without realizing that
the only thing that makes a sexual contact an act of “groping” or “sexual
battery” is the lack of permission. Because that is inarguably the
dividing line between a wrongful sexual contact and an innocent sexual
contact, then under Rehaif, the word “knowingly” must be construed to
extend to that element.
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separate textual point that the Rehaif Court makes in an
earlier and different section of its opinion, which is that a
statutory scienter requirement presumptively applies to
those critical elements in the statute that distinguish
wrongful from otherwise innocent conduct. Because the
panel majority concedes that the without-permission
requirement is such a dividing line, see Opin. at 17–18, the
presumption set forth in Rehaif dictates that, as a textual
matter, § 2244(b)’s “knowingly” requirement presumptively
extends to that element.
Second, and finally, the panel majority states that
“Rehaif did not change the governing principles of statutory
interpretation set out in prior cases,” which have consistently
emphasized the specific grammatical context of each statute.
Opin. at 17. Because Rehaif “examined a different statute
with different text, structure, and legislative history,
addressing different conduct,” the majority concludes, its
broad language is not applicable here. Id.; see also id. at 15–
16 (likewise criticizing Price for taking the comparably
broad presumption in Flores-Figueroa “out of the context of
the aggravated identity theft statute”). This argument fails,
because the majority’s assumption that Rehaif changed
nothing about Ninth Circuit case law is wrong.
In particular, the majority overlooks the fact that Rehaif
overruled our prior case authority holding that the
“knowingly” requirement applicable to the unlawful-
alien/felon-in-possession statute did not apply to the status
element. See United States v. Miller, 105 F.3d 552, 555 (9th
Cir. 1997) (agreeing with other circuits that the knowledge
requirement “applies only to the possession element of
§ 922(g)(1), not to the interstate nexus or to felon status”).
After Flores-Figueroa, we continued to adhere to Miller,
notwithstanding Flores-Figueroa’s broad language about
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how to read “knowingly” in a criminal statute. Relying upon
Justice Alito’s concurrence in Flores-Figueroa, we held that
the Court in that case did not intend to “announce an
‘inflexible rule of construction.’” United States v. Stone,
706 F.3d 1145, 1147 (9th Cir. 2013) (quoting Flores-
Figueroa, 556 U.S. at 661 (Alito, J., concurring in part and
concurring in the judgment)). Instead, we emphasized that
“statutory interpretation remains a contextual matter.” Id.
That was followed by the overruling of Miller and Stone in
Rehaif, which instead reaffirmed the broadly stated canons
that we had wrongly evaded in Stone by confining them to
the specific facts of the Court’s prior cases. 139 S. Ct. at
2195–97. And Justice Alito, on whose Flores-Figueroa
concurrence we had relied in seeking to limit the Court’s
decision in that case, instead dissented in Rehaif, decrying
the broad presumptions applied by the Court. Id. at 2211–
12 (Alito, J., dissenting). Having failed to learn the lesson
from Stone’s overruling in Rehaif, the panel majority
commits the very same error by wrongly attempting to
narrowly confine the canons set forth in Flores-Figueroa
and Rehaif as being “specific to particular grammatical
contexts.” Opin. at 16.
* * *
For all of these reasons, and for the additional reasons set
forth in Judge Gilman’s persuasive separate opinion, the
panel clearly erred—and disregarded controlling Supreme
Court authority—in concluding that the term “knowingly” in
§ 2244(b) does not apply to the phrase “without that other
person’s permission.” We should have reheard this case en
banc.
UNITED STATES V. PRICE 103
III
I also disagree with the panel’s conclusion that the
omission of this statutory element from the jury instructions
in this case was harmless error. Opin. at 25 n.4 (adopting
the harmless error analysis in Judge Gilman’s separate
opinion); Gilman Concur. at 51–54. In my view, the panel’s
harmless error analysis impermissibly crosses a line when it
weighs credibility in assessing whether a reasonable juror
could have found in Price’s favor on the missing scienter
element. The panel’s novel approach to harmless error
cannot be reconciled with the constitutional right to a jury
trial on all elements of an offense.
A
In Neder v. United States, 527 U.S. 1 (1999), a sharply
divided Supreme Court rejected the view that the complete
deprivation of a jury finding concerning an essential element
of a criminal offense can never be harmless. Id. at 8–15; see
also id. at 30 (Scalia, J., joined by Souter and Ginsburg, JJ.,
dissenting) (“I believe that depriving a criminal defendant of
the right to have the jury determine his guilt of the crime
charged—which necessarily means his commission of every
element of the crime charged—can never be harmless.”
(emphasis in original)); id. at 27 (Stevens, J., concurring in
part and concurring in the judgment) (“My views on this
central issue are thus close to those expressed by Justice
Scalia.”). We are, of course, bound by that holding, but we
are equally bound to stay within the “narrow” parameters
that Neder establishes for conducting such a harmless error
analysis. Id. at 17 n.2. The panel fails to do so and thereby
“‘become[s] in effect a second jury to determine whether the
defendant is guilty.’” Id. at 19 (quoting Roger Traynor, The
Riddle of Harmless Error 21 (1970)).
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Under the harmless error standards established in Neder,
the “court, in typical appellate-court fashion, asks whether
the record contains evidence that could rationally lead to a
contrary finding with respect to the omitted element.”
527 U.S. at 19 (emphasis added). This inquiry is the familiar
one of assessing evidentiary sufficiency. Thus, “for
example, where the defendant contested the omitted element
and raised evidence sufficient to support a contrary finding,”
then “the court cannot conclude beyond a reasonable doubt
that the jury verdict would have been the same absent the
error,” and the court “should not find the error harmless.”
Id. (emphasis added). By contrast, “where a defendant did
not, and apparently could not, bring forth facts contesting the
omitted element, answering the question whether the jury
verdict would have been the same absent the error does not
fundamentally undermine the purposes of the jury trial
guarantee.” Id. Adherence to this sufficiency standard
concerning a missing element, the Court explained, ensures
that an appellate court does not “‘become in effect a second
jury to determine whether the defendant is guilty.’” Id.
(citation omitted). Any more permissive standard, however,
would fail to “safeguard[] the jury guarantee.” Id.
Under the familiar sufficiency standards that Neder
references, credibility determinations are exclusively for the
jury—not the courts—to make. Thus, for example, it is well
settled that, when a court must evaluate whether the
government has presented sufficient evidence to raise a
triable issue as to each element of an offense, “the
assessment of the credibility of witnesses is generally
beyond the scope of review.” Schlup v. Delo, 513 U.S. 298,
330 (1995); accord United States v. Nevils, 598 F.3d 1158,
1170 (9th Cir. 2010). In perhaps the only analogous context
in which a court considers whether a criminal defendant has
presented sufficient evidence—namely, whether a defendant
UNITED STATES V. PRICE 105
has presented enough evidence to warrant an instruction on
an affirmative defense—it is likewise settled that the “weight
and credibility of the conflicting testimony are issues [for]
the jury, not the court,” to resolve. United States v. Becerra,
992 F.2d 960, 964 (9th Cir. 1993); see also United States v.
Bailey, 444 U.S. 394, 414–15 (1980) (in court’s assessment
of whether testimony “meet[s] a minimum standard as to
each element of the defense,” it remains for the jury, “and
not for appellate courts, to say that a particular witness spoke
the truth or fabricated a cock-and-bull story”). And, of
course, in the civil context, it is equally well-settled that, in
assessing sufficiency, the “evidence of the non-movant is to
be believed, and all justifiable inferences are to be drawn in
his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986); see also id. (“Credibility determinations, the
weighing of the evidence, and the drawing of legitimate
inferences from the facts are jury functions, not those of a
judge, whether he is ruling on a motion for summary
judgment or for a directed verdict.”).
It follows from these principles that, in assessing
whether there is sufficient evidence to support a finding in
the defendant’s favor on the missing element, the starting
premise must be that the defendant’s evidence is to be
believed, and all inferences must be drawn in his or her
favor. But precisely because the jury is the sole arbiter of
credibility, it likewise follows that the harmless error
analysis under Neder cannot ignore any factual findings that
the court knows the jury did make. Cf. Sullivan v. Louisiana,
508 U.S. 275, 279 (1993) (harmless error review cannot
ignore “the basis on which the jury actually rested its
verdict” (emphasis in original) (simplified)). In the context
of this case—in which we know that the jury found, beyond
a reasonable doubt, that Price lacked objective permission—
the relevant sufficiency question under Neder is whether, on
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this record, a reasonable jury could both (1) find beyond a
reasonable doubt that Price lacked objective permission; and
(2) possess a reasonable doubt as to whether Price
subjectively believed that he had permission.
B
The panel’s harmless error analysis is legally flawed
under these standards. In reviewing the evidence, Judge
Gilman concludes that, by convicting Price, the jury
necessarily “believed A.M.’s story of what occurred on the
flight over Price’s story.” Gilman Concur. at 52; see also
Denial Concur. at 71–73 (same). He then proceeds to
construe the record in the light most favorable to the
Government, and concludes that, under A.M.’s version of
events, “no reasonable juror could have found that Price
subjectively believed” that he had permission. Gilman
Concur. at 53. The problem with this approach is that, on
the record of this trial, the jury could easily have found that
Price lacked objective permission even if it believed his
version of events. Thus, the fact that the jury convicted
under the (deficient) instructions given in this case does not
necessarily mean that the jury disbelieved any, much less all,
of Price’s testimony.
As the Government told the jury during closing
arguments, the jury needed only to “find that [Price is] guilty
of touching one of these [intimate] places at any point
without her permission” in order to find him guilty. Here,
the jury could easily have convicted Price based on his first
touching of A.M. (on her breast) even if they believed Price’s
version of that first touch. That is, even if the jury believed
Price’s testimony that he subjectively thought he had consent
to touch A.M.’s breast based on her alleged rubbing of his
hand and his massaging her arm, the jury could easily
conclude that such innocent gestures did not provide
UNITED STATES V. PRICE 107
objective evidence of consent to justify grabbing her breast.
As the Government correctly noted in its closing arguments,
A.M.’s actions up to that point as described by Price
objectively did not justify a sexual contact: “Ask yourself, is
touching someone’s hand, does that give permission to be
groped?” Because the jury could readily have convicted
Price without ever having to have reached a unanimous
decision as to whether Price was lying, we cannot say that
the jury necessarily “believed A.M.’s story of what occurred
on the flight over Price’s story.” Gilman Concur. at 52.
What is more, the Government emphasized no less than
four times in its closing arguments that the jury did not have
to find that Price subjectively believed he had permission,
but only that he objectively lacked A.M.’s permission.
Underscoring the distinction, the Government highlighted
Price’s affirmative answer to the FBI agent’s question, “Is it
possible that you totally misjudged the situation?”
Given that we have no relevant jury determination of
credibility to fall back on, there is no basis upon which to
conclude that Price’s denials of subjective knowledge were
insufficient, if believed by the jury, to raise a triable issue as
to the missing scienter element. It follows that this court has
no warrant, in assessing evidentiary sufficiency, to depart
from the settled rule that the defense testimony on the
missing element must be believed. This bright-line
requirement, which is essential to “safeguarding the jury
guarantee,” Neder, 527 U.S. at 19, applies even when—as
here—the defendant’s testimony relevant to the missing
element strikes us as patently incredible. The panel
majority’s implicit embrace of appellate weighing of a
criminal defendant’s credibility is unsupported by precedent
and is anathema to the fundamental right to trial by jury in
criminal cases—a right that the Framers considered so
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important that they put in the Constitution twice. See U.S.
Const. art. III, § 2, cl. 3; id. amend. VI.
* * *
I share the panel’s disgust at Price’s behavior, but that
cannot justify either stripping a scienter element out of a
criminal statute or dispensing with a jury trial on all
contested elements. The panel majority’s revised statute
may well be better than the one Congress wrote, and if I were
in Congress, perhaps I would vote to make it law. But
“[b]ecause federal courts interpret, rather than author, the
federal criminal code, we are not at liberty to rewrite it.”
United States v. Oakland Cannabis Buyers’ Cooperative,
532 U.S. 483, 494 n.7 (2001). And while the outcome of a
retrial in this case may seem to us foreordained, the
Constitution does not permit us “to substitute the belief of
appellate judges in the guilt of an accused, however
justifiably engendered by the dead record, for ascertainment
of guilt by a jury under appropriate judicial guidance,
however cumbersome that process may be.” Bollenbach v.
United States, 326 U.S. 607, 615 (1946).
I respectfully dissent from the denial of rehearing en
banc.