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United States v. Duong

United States Court of Appeals, Tenth Circuit

February 14, 2017

UNITED STATES OF AMERICA, Plaintiff - Appellant,
v.
TRUNG N. DUONG; WILLIAM M. BAKER; CURTIS A. ANTHONY, Defendants-Appellees.

         APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA (D.C. No. 5:15-CR-00126-C)

          K. McKenzie Anderson, Assistant United States Attorney (Mark A. Yancey, Acting United States Attorney, with her on the briefs), Oklahoma City, Oklahoma, for Plaintiff-Appellant.

          Michael L. Brooks, The Brooks Law Firm (John W. Coyle, III, Coyle Law Firm, R. Scott Adams and Robert W. Gray, Adams & Associates, P.C., Oklahoma City, Oklahoma, Richard E. Stout, Stout & Stout, Edmond, Oklahoma, and Laura K. Deskin, Laura K. Deskin, PLLC, Oklahoma City, Oklahoma, with him on the brief), Oklahoma City, Oklahoma, for Defendants-Appellees.

          Before BRISCOE, EBEL, and MURPHY, Circuit Judges.

          MURPHY, Circuit Judge.

         I. Introduction

         Defendants were charged in a two-count superseding indictment with child sex trafficking and conspiracy to engage in child sex trafficking. See 18 U.S.C. §§ 1591, 1594 (2008).[1] The superseding indictment asserted only one basis by which the government would seek to prove mens rea as to the child victim's[2]age-that Defendants had a reasonable opportunity to observe the child before engaging in a commercial sex transaction. Defendants moved to dismiss the indictment, arguing it failed to allege the mens rea element of child sex trafficking. The district court agreed and dismissed the indictment.

         The government appeals, arguing it can meet its burden of proving the mens rea with regard to Defendants' awareness of the child victim's age by showing only that Defendants had "a reasonable opportunity to observe" the victim. See 18 U.S.C. § 1591(c). This court agrees and, exercising jurisdiction pursuant to 18 U.S.C. § 3731, reverses the judgment of the district court.[3]

         II. Background

         In 2015, Defendants-Appellees, Trung N. Duong, William M. Baker, and Curtis A. Anthony, were charged by a federal grand jury with child sex trafficking and conspiracy to engage in child sex trafficking, in violation of 18 U.S.C. §§ 1591(a)(1), (a)(2), (b)(2), (c), and 1594. The only element of the charged crime relevant to this appeal is Defendants' mens rea with respect to the victim's status as a minor. See United States v. Brinson, 772 F.3d 1314, 1325 (10th Cir. 2014) (setting out the elements of child sex trafficking).[4] The original indictment charged three bases to satisfy this element: (1) knowledge, (2) reckless disregard, and (3) a reasonable opportunity to observe the victim.

         In December 2015, the government prosecuted a related case against a fourth defendant, Russell D. Ehrens. United States v. Ehrens, No. 15-CR-200-C (W.D. Okla.). Ehrens was charged with child sex trafficking. The indictment alleged he engaged in a commercial sex act with the child victim "knowing and in reckless disregard of the fact that [the victim] had not attained the age of eighteen years and having had a reasonable opportunity to observe [the victim]." In the Ehrens matter, the government sought a jury instruction permitting the jury to find that Ehrens had the required mens rea with respect to the victim's age solely on the basis that he had a reasonable opportunity to observe the victim. The district court refused to give the instruction.

         In response to the district court's ruling on the proposed jury instruction in the Ehrens matter, the government sought a superseding indictment in the instant prosecution. As to the mens rea requirement with respect to Defendants' awareness of the child victim's age, the superseding indictment charged only that Defendants had a reasonable opportunity to observe the victim. The government also filed a motion in limine, asserting it intended to prove Defendants' mens rea by "elicit[ing] testimony and evidence that each Defendant had a reasonable opportunity to observe the child that he obtained, not that he had knowledge of that child's age or was in reckless disregard of her age." Accordingly, the government sought to preclude Defendants from asserting a mistake-of-age defense or arguing lack of knowledge of the victim's underage status. The district court denied the motion, ruling the government was required to produce some evidence "regarding Defendants' knowledge or reckless disregard regarding the victim's age." The court also dismissed the superseding indictment, concluding it failed to allege each element of the crime charged. In this appeal, the government challenges the district court's ruling dismissing the superseding indictment.

         III. Discussion

         A. The ...


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