FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN
DISTRICT OF OKLAHOMA (D.C. No. 5:15-CR-00126-C)
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
BRISCOE, EBEL, and MURPHY, Circuit Judges.
MURPHY, Circuit Judge.
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). The superseding indictment asserted only
one basis by which the government would seek to prove
mens rea as to the child victim'sage-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.
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.
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). The original
indictment charged three bases to satisfy this element: (1)
knowledge, (2) reckless disregard, and (3) a reasonable
opportunity to observe the victim.
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.
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