Petition for Writ of Certiorari — Roberto Llerenas, Jr., Petitioner v. United States

IN THE

Supreme Court of the United States

ane

ROBERTO L, LLERENAS, JR.,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

On Petition for Writ of Certiorari

to the Ninth Circuit Court of Appeals

PETITION FOR WRIT OF CERTIORARI

MATTHEW CAMPBELL

Federal Defenders of

Eastern Washington and Idaho

10 North Post, Suite 700

Spokane, Washington 99201

Matt _Campbell@fd.org

(509) 624-7606

QUESTIONS PRESENTED

1. Whether 18 U.S.C. § 1591 is unconstitutionally vague.

TABLE OF CONTENTS

QUESTIONS PRESENTED. 0... eee eee eens 1

1. Whether18 U.S.C. § 1591 is unconstitutionally vague... 6.6.0... eee 1

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT. ................00.05. 1

OPINIONS AND ORDERS BELOW... 2.0.0.0. oc ee ee ene 1

STATEMENT OF JURISDICTION. «2... ce teens 2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED........ 2

18 U.S. Code 1591- Sex trafficking of children or by force, fraud, or coercion. 2

STATEMENT OF THE CASE, 2.0.0.0. occ cette ees 3

REASONS FOR GRANTING THE WRIT... 0... ce eens 5

I. Title 18, U.S. Code § 1591 is unconstitutionally vague..............0.. 5

A. The “reasonable opportunity to observe” language is unconstitutionally

B70 a 5

B. The definition of “coercion” is unconstitutionally vague........... 10

Il. The Circuit Courts are interpreting 18 U.S.C. § 1591 differently. ...... 14

CONCLUSION. 2.0.0. oc eee eet eee tens 17

il

Table of Authorities

Federal Cases Page(s)

Accord United States v. United States Gypsum Co., 438 U.S. 422 (1978) veces 9

Bowie v. Columbia, 378 US. 347 (1964) ee ceccnsesssesssenessscssseessessseseaneseesssesensseneesenenens 15

Cf Village of Hoffman Estates v. Fipside, Hoffman Estates, Inc. 455 U.S. 489 (1982) ...... 6,8

Coates v. Cincinnati, 402 US. 611 (1971) cect esesessserererserseneeneneseeseeerersneeenenes 16

Connally v. Gen. Constr. Co.. 269 U.S. 385 (1926) scecseeeeseessetsseseseesereerseneseeseens 13,14,16

Elonis v. United States, 135 S.Ct. 2001, 2011 (1964) icc cesecseeeeneesessseenereensenenens 15

Giaccio v. State of Pennsylvania, 382 U.S. 399 (1966) eccentrics 15-16

Grayned v. City of Rockford, 408 U.S. 104 (1972) ciccccccseeeeseseeeseserestesesneseeseeneneessnereenees 16

Harris v. Forklift Systems, Ince.g. 510 U.S. 17 (1993) cecccsseeceseeseeeeesesessseeseeeseneeeeneens 13

Johnson v. United States, 135 S. Ct. 2551 (2015) cceccccesesessesssecseneeseeneeneseeneeceenensensneaseneeneeens 6

Kolender v. Lawson, 461 U.S. 352 (1983) vccccscsccsescsesesssessesesssesseresenecenessseeseneeeeneens 12,15

Morissette v. United States, 342. U.S. 246, 263 (1952) iccccccccceesceesscsessessesesessseseseesssees 9

Swmith v. Goguen, 415 U.S. 566 (1974) vecececsseesteeseeseseesssssessesenenesenenensensseesensneneensseerenees 16

United States v. Bass, 404 U.S. 336 (1971) vicccccccesessssssessesescssseseecstsssssrecsessseesserseseees 16

United States v. Evans, 333 U.S. 483, 495 (1948) oo ccesssscessererseeecesessnesesssesenseeres 16

United States v. Granderson, 511 U.S. 39 (1994) cicccceecssesseseseseersnsseneesssseetsreeesreseeeeenes 7

United States v. Kozminskt, 487 U.S. 931 (1988) cecccseccesesseseessresecenenersseseseessreens 11,12,13

United States v. Mozie, 752. F.3d 1271 (11th Cir, May 22, 2014) weeeesececeeneeeeeneees 14

United States v. Robinson, 702 F.3d 22 (2d Cir, 2012) oecccccescensereneesesseeeeneneeees 6,14

United States v. Washam, 312 F.3d 926 (8th Cit. 2002) we eccsseeeeseeeeneneseneneneenes 13

United States v. Willams, 553 U.S. 285 (2008) oc eccsececnessseeesescsecsssecsssssceeseseserseseees 8

United States v. X-Citement Video, 513 US. 64, 70 1994) vo eceseeneeesesee eens 9

United States v. Wilhams, 553 U.S. 285 (2008) occ ceseeeneresesseecenesscenesersssteeessseresenees 8

18 U.S.C. § 1591 i eeeeessesesnescsseesssseesssssesssessseneassnenessseseeessecsnenessseaessacsueseseansaes passim

18 U.S.C. § 3231 eceececeetsseesessessesesesssssessssessescsssssssesssseseeasssssssesnsesesssssesesnssnesssenssnesesssees 1,4

18 U.S.C. § 3742 ccc seteesneseeenenesesesssnssesssessesssneseeesssseenensssseeesssnsieisssssenersaneesieseenseeseess 1,4

22 US.C.§ 7101 ccc cecseseecsesessesesesesessesssrsessseanesessssssansssscsiesssseceensssseeesesiessseanesesseanens 11

28 U.S.C. § 1254

28 US.C. § 1291

28 US.C. § 1294

iv

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE NINTH CIRCUIT

Petitioner, Roberto L. Llerenas, Jr., respectfully prays that a writ of certiorari

issue to review the published decision of the United States Court of Appeals for the

Ninth Circuit, entered on July 20, 2018. (App. 1-6).

OPINIONS AND ORDERS BELOW

On September 9, 2015, the grand jury returned a second superseding

indictment charging four counts of Sex Trafficking of Children pursuant to 18 U.S.C.

§ 1591(a)(1), )M)&(2).

Trial commenced on June 20, 2016. The jury returned a verdict of guilty on all

counts. A sentencing hearing was held on September 2, 2016. The District Court

sentenced Mr. Llerenas to 360 months each on Counts 1-4, to run concurrently,

followed by a life term of supervised release.

A timely notice of appeal was filed on September 15, 2016. The district court

had original jurisdiction pursuant to 18 U.S.C. § 3231. This court has jurisdiction over

appeals from final judgments under 28 U.S.C. § 1291, 28 U.S.C. § 1294(1), and 18

U.S.C. § 3742 (unlawful sentence). The judgment and sentence was a final decision

subject to appeal under 28 U.S.C. § 1291.

STATEMENT OF JURISDICTION

The Court of Appeals affirmed the District Court’s denial of Mr. Llerenas’s

appeal. The Court of Appeals had jurisdiction pursuant to 28 U.S.C. § 1291. The

jurisdiction of this Court is invoked pursuant 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

18 U.S. Code § 1591 - Sex trafficking of children or by force, fraud, or coercion

(a) Whoever knowingly—

(1) in or affecting interstate or foreign commerce, or within the special

matitime and territorial jurisdiction of the United States, recruits, entices,

harbors, transports, provides, obtains, advertises, maintains, patronizes,

or solicits by any means a person; or

(2) benefits, financially or by receiving anything of value, from

participation in a venture which has engaged in an act described in

violation of paragraph (1), knowing, or, except where the act constituting

the violation of paragraph (1) is advertising, in reckless disregard of the

fact, that means of force, threats of force, fraud, coercion described in

subsection (e)(2), or any combination of such means will be used to

cause the person to engage in a commercial sex act, or that the person

has not attained the age of 18 years and will be caused to engage in a

commercial sex act, shall be punished as provided in subsection (b).

(b) The punishment for an offense under subsection (a) is—

(1) if the offense was effected by means of force, threats of force,

fraud, or coercion described in subsection (e)(2), or by any combination

of such means, or if the person recruited, enticed, harbored, transported,

provided, obtained, advertised, patronized, or solicited had not attained

the age of 14 years at the time of such offense, by a fine under this title

and imprisonment for any term of years not less than 15 or for life; or

(2) if the offense was not so effected, and the person recruited, enticed,

harbored, transported, provided, obtained, advertised, patronized, or

solicited had attained the age of 14 years but had not attained the age of

18 years at the time of such offense, by a fine under this title and

imprisonment for not less than 10 years or for life.

(c) Ina prosecution under subsection (a)(1) in which the defendant had a

reasonable opportunity to observe the person so recruited, enticed, harbored,

transported, provided, obtained, maintained, patronized, or solicited, the

Government need not prove that the defendant knew, or recklessly disregarded

the fact, that the person had not attained the age of 18 years.

(d) Whoever obsttucts, attempts to obstruct, or in any way interferes with or

prevents the enforcement of this section, shall be fined under this title,

imprisoned for a term not to exceed 20 years, or both.

(e) In this section:

(1) The term “abuse or threatened abuse of law or legal process” means

the use ot threatened use of a law or legal process, whether

administrative, civil, or criminal, in any manner or for any purpose for

which the law was not designed, in order to exert pressure on another

person to cause that person to take some action or refrain from taking

some action.

(2) ‘The term “coercion” means—

(A) threats of serious harm to or physical restraint against any

person;

(B) any scheme, plan, or pattern intended to cause a person to

believe that failure to perform an act would result in serious harm

to or physical restraint against any person; or

(C) the abuse or threatened abuse of law or the legal process.

(3) The term “commercial sex act” means any sex act, on account of

which anything of value is given to or received by any person.

(4) ‘The term “serious harm” means any harm, whether physical or

nonphysical, including psychological, financial, or reputational harm, that

is sufficiently serious, under all the surrounding circumstances, to

compel a reasonable person of the same background and in the same

citcumstances to perform or to continue performing commercial sexual

activity in order to avoid incurring that harm.

(5) The term “venture” means any group of two or more individuals

associated in fact, whether or not a legal entity.

STATEMENT OF THE CASE

On December 9, 2014, Mr. Llerenas was charged by indictment with two

counts of Sex Trafficking of Children pursuant to 18 U.S.C. § 1591(a)(1), )(D)&(2).

On June 9, 2015, the grand jury returned a superseding indictment with the same two

3

offenses, but containing additional language regarding the use of force and/or fraud.

On September 9, 2015, the grand jury returned a second superseding indictment

charging four counts of Sex Trafficking of Children pursuant to 18 U.S.C. §

1591 (a)(1), (b)H&2).

On September 15, 2015, Mr. Llerenas filed a motion to dismiss the case on the

grounds that 18 U.S.C. § 1591 is unconstitutionally vague. The government

responded on September 21, 2015. At the conclusion of a February 29, 2016 hearing,

the District Court denied Mr. Llerenas’s motion to dismiss on the ground that 18

U.S.C. § 1591 is unconstitutionally vague.

Trial commenced on June 20, 2016. The jury returned a verdict of guilty on all

counts. A sentencing hearing was held on September 2, 2016. The District Court

sentenced Mr. Llerenas to 360 months each on Counts 1-4, to run concurrently,

followed by a life term of supervised release.

A timely notice of appeal was filed on September 15, 2016. The district court

had original jurisdiction pursuant to 18 U.S.C. § 3231. This court has jurisdiction over

appeals from final judgments under 28 U.S.C. § 1291, 28 U.S.C. § 1294(1), and 18

US.C. § 3742 (unlawful sentence). The judgment and sentence was a final decision

subject to appeal under 28 U.S.C. § 1291,

REASONS FOR GRANTING THE WRIT

I. Title 18, U.S. Code § 1591 is unconstitutionally vague

Title 18, U.S. Code § 1591, the statute of conviction in this case, is

unconstitutionally vague. It fails to define the prohibited conduct with sufficient

definiteness and fails to establish minimal guidelines to govern law enforcement. First,

under the statute it is incredibly difficult to determine whether the reasonableopportunity-to-observe standard has been met, but it is also unclear what a

“reasonable opportunity to observe” actually is. The statute does not define the term

of give any explanation, despite doing so for other terms. Cf. 18 U.S.C. § 1591)

(setting forth various definitions). Second, the term “coercion” is subject to

significantly different interpretations which render it vague and uncertain.

A. The “reasonable opportunity to observe” language is

unconstitutionally vague

Title 18, U.S. Code § 1591(c) provides that where “the defendant had a

reasonable opportunity to observe the person [] recruited, enticed, harbored,

transported, provided, obtained, or maintained, the Government need not prove that

the defendant knew that the person had not attained the age of 18 years.” 18 U.S.C. §

1591(c) (2013). In other words, where the defendant “had a reasonable opportunity to

obsetve” the alleged victim, the statute appears to alleviate wholly the requirement

that the Government prove that a defendant knew or recklessly disregarded the fact

of the alleged victim’s age. See United States v. Robinson, 702 F.3d 22, 32 (2d Cir. 2012)

(concluding that the provision provides “the government with three distinct

options—prove beyond a reasonable doubt that: (1) the defendant had knowledge of

the victim’s underage status; (2) that the defendant recklessly disregarded that fact; or

(3) that the defendant had a teasonable opportunity to observe the victim”).

The Fifth Amendment provides that “[n]o person shall ... be deprived of life,

liberty, or property, without due process of law.” U.S. CONST. V amend. The

Supreme Court has held repeatedly that “the Government violates this guarantee by

taking away someone’s life, liberty, or property under a criminal law so vague that it

fails to give ordinary people fair notice of the conduct it punishes, or so standardless

that it invites arbitrary enforcement.” Johnson v. United States, 135 S. Ct. 2551, 2556

(2015). “The prohibition of vagueness in criminal statutes is a well-recognized

requirement, consonant alike with ordinary notions of fair play and the settled rules of

law, and a statute that flouts it violates the first essential of due process.” Id. at 2557.

The risk of impermissible vagueness is heightened when a statute lacks a mens rea

requirement. Cf Village of Hoffman Estates v. Piipside, Hoffman Estates, Inc., 455 U.S. 489,

499 (1982) (“[A] scienter requirement may mitigate a law’s vagueness, especially with

respect to the adequacy of notice to the complainant that his conduct is proscribed.”).

Here, 18 U.S.C. § 1591 is unconstitutionally vague because it fails to define the

prohibited conduct with sufficient definiteness and fails to establish minimal

guidelines to govern law enforcement. First, under the statute it is incredibly difficult

6

to determine whether the reasonable-opportunity-to-observe standard has been met,

but it is also unclear what a “reasonable opportunity to observe” actually is. The

statute does not define the term or give any explanation, despite doing so for other

terms. Cf. 18 U.S.C. § 1591 (e) (setting forth various definitions).

“There must be ascertainable standards of guilt. ... The vagueness may be from

uncertainty in regard to persons within the scope of the act, or in regard to the

applicable tests to ascertain guilt.” Wenters v. People of State of New York, 333 U.S. 507,

515-16 (1948) (citations omitted). Where there is an ambiguity in a criminal statute, a

coutt must “apply the rule of lenity and resolve the ambiguity in [defendant’s] favor.”

United States v. Granderson, 511 U.S. 39 (1994).

Second, while the phrase “reasonable opportunity to observe” apparently

imposes criminal liability based on a person’s purported ability to determine the

alleged victim’s age based on her appearance, the statute provides no guidance as to

whether the focus is properly the reasonableness of the opportunity or the

reasonableness of the conclusions drawn from the observation of the alleged victim.

For example, the defendant may have an opportunity to observe the alleged victim at

length, but his observations may reasonably lead him to believe that the victim is at

least eighteen years of age. Third, the statute is impermissibly vague as to how long a

“reasonable” opportunity is; what types of interactions are deemed “reasonable”

opportunities; or what types of observations are required to satisfy this element (e.g.,

observations of physical appearance, conduct, speech or writing, or interactions in

particular social contexts).

The risk of impermissible vagueness is heightened when a statute such as

section 1591(c) lacks a mens rea. W/L of Hoffman Estates v. Fhipside, Hoffman Estates, Inc.,

455 U.S. 489, 499 (1982) (scienter requirement may mitigate a law’s vagueness,

especially with respect to the adequacy of notice that prohibited his conduct is

proscribed). “What renders a statute vague, however, is not the possibility that it will

sometimes be difficult to determine whether the incriminating fact it establishes has

been proved; but rather the indeterminacy of what that fact is.” Unzted States v.

Williams, 553 U.S. 285, 306 (2008).

Section 1591(a) is entirely unclear what a “reasonable opportunity to observe”

is. The statute does not define the phrase, nor does it provide any explanation of what

it is. Pursuant to 1591(c), a defendant’s criminal liability is based on their ability to

determine the age of the victim based upon the victim’s appearance. However 1951 (c)

does not inform us as to whether the focus is the reasonableness of the opportunity

ot the reasonableness of the conclusion drawn from observations. More significantly,

1591(c) is ambiguous and vague because it fails to give any indication whether the

“reasonable opportunity to observe” is a strict liability standard or a part of the

teckless disregard scienter. A defendant may have a reasonable opportunity to observe

the victim but that does not make him criminally lable if based on those observations

he concludes the victim was over the age of 18. Furthermore, section 1591(c) is vague

8

on how long a “reasonable opportunity to observe” is and the nature and type of

observations that are required (i.e. visual inspection, clothing, speech, social

interaction, etc.).

Professor LaFave explains, “[t]he greater the possible punishment, the more

likely some fault is required; and, conversely, the lighter the possible punishment, the

mote likely the legislature meant to impose criminal liability.” Wayne LeFave,

Substantive Criminal Law 384 (2d ed. 2003). This principle is especially salient

because § 1591 carries a maximum sentence of life in prison. Accord United States v.

United States Gypsum Co., 438 U.S. 422, 438 (1978) (“Far more than the simple

omission of the appropriate phrase from the statutory definition is necessary to justify

dispensing with an intent requirement.”),

In Morissette v. United States, the Court explained, “[t]he purpose and obvious

effect of doing away with the requirement of a guilty intent is to ease the prosecution's

path to conviction.” 342 U.S. 246, 263 (1952). But even the Robinson court cited the

Congressional Record where Judiciary Committee Chairman John Conyers and

Representative Howard Berman made floor statements indicating that the revised

subsection (c) was meant to preserve the rule from United States v. X-Citement Video,

that the defendant “be required to ascertain that victim's age.” 513 U.S. 64, 70, n.2

(1994). Robinson, at 24 0.11 (quoting 154 Cong. Rec. H24602 (daily ed. Dec. 10,

2008).

B. The definition of “coercion” is unconstitutionally vague

Section 1591(e)(2)(A) and (B) defines “coercion” as either “threats of serious

harm” or “any scheme, plan, or pattern intended to cause a person to believe that

failure to perform an act would result in serious harm” to any person. Section

1591(e)(4) defines “serious harm” as

any harm, whether physical or nonphysical, including psychological, financial,

ot reputational harm, that is sufficiently serious, under all the surrounding

circumstances, to compel a reasonable person of the same *47 background and

in the same circumstances to perform or to continue performing commercial

sexual activity in order to avoid incurring that harm.

The statute defines “coercion” as either actual threats of “serious harm,” or as

a “pattern” of conduct that would cause a person to “to believe that failure to

perform an act would result in “serious harm,” which includes “psychological harm.”

18 U.S.C. § 1591 (e)(2)(B), (4). The statute may reasonably be interpreted in one of two

ways. It may be interpreted as requiring either a pattern of violence which effectively

communicates similar violence if acts are not performed, even in the absence of overt

threats. An alternative interpretation could include a pattern of non-violent conduct

that only communicates that affection or approval may be withdrawn if acts are not

performed. The first interpretation would be consistent with the normal meaning of

the term “coercion,” whereas the second interpretation would not. The first

interpretation would also narrow the scope of the statute to conduct widely

recognized as illegal, whereas the second would not. The structure and history of the

10

TVPA indicate that “coercion” should be given a meaning that comports with using

ot threatening physical or legal force to “cause” a person to engage in a commercial

sex act, and not simply allowing a conviction on the threat of granting or withdrawing

personal affection.

Title 22, United States Code, Section 7101(b) sets forth a number of

considerations that underlie the Trafficking Victims Protection Act of 2000. One of

those considerations was that:

Involuntary servitude statutes are intended to reach cases in which persons are

held in a condition of servitude through nonviolent coercion. In United States v.

Kozminski, 487 U.S. 931 (1988), the Supreme Court found that section 1584 of

title 18, should be narrowly interpreted, absent a definition of involuntary

servitude by Congtess. As a result, that section was interpreted to criminalize

only servitude that is brought about through use or threatened use of physical

ot legal coercion, and to exclude other conduct that can have the same purpose

and effect.

22 U.S.C. § 7101(b) (13). This may appear, at first blush, to confirm that Congress

sought to “overturn” the holding in Kogwnski by including psychological harm in

Section 1591’s definition of “serious harm.” However, the reason the Court limited its

interpretation of “coercion” in Kogminski puts this interpretation in question.

Kozminski involved a prosecution of defendants for keeping two men, who

were mentally disabled, on their farm and required them to work without pay for

many yeats. The men were subjected to both physical and verbal abuse for failing to

do their work and also threatened with institutionalization. The defendants failed to

provide the men with adequate food, housing, clothing, or medical care. Finally, a

11

herdsman hired by the defendants became concerned about the welfare of the men

and reported them to county officials. The government argued in Kozminski that the

two men wete “ ‘psychological hostages’ whom the Kozminskis had ‘brainwash[ed]’

into serving them.” 487 US., at 936. Although the Court affirmed the convictions

based on the physical and legal coercion exercised by the defendants, the Court

separately considered the argument that it should “adopt a broad construction of

‘involuntaty setvitude,’ which would prohibit the compulsion of services by any

means that, from the victim's point of view, either leaves the victim with no tolerable

alternative but to serve the defendant or deprives the victim of the power of choice.”

Id., at 949. The Coutt rejected this construction as such a definition would “include

compulsion through psychological coercion as well as almost any other type of speech

or conduct intentionally employed to persuade a reluctant petson to work.” Id.

The Coutt rejected such a broad interpretation because it “would appear to

criminalize a broad range of day-to-day activity” and “would depend entirely upon the

victim's state of mind.” Id. Such a variable standard “would provide almost no

objective indication of the conduct or condition they prohibit, and thus would fail to

provide fair notice to ordinary people who are required to conform their conduct to

the law.” Id., at 949-950. These considerations form the standard by which a court

determines when a law is void for vagueness. See Kolender, 361 U.S. 352. Although

Congress can overturn the Supreme Court's interpretation of a statute, it cannot

render the Fifth Amendment due process clause a nullity.

12

“The Fifth Amendment guarantees every citizen the right to due process.

Stemming from this guarantee is the concept that vague statutes are void.” United

States v. Washam, 312 F.3d 926, 929 (8th Cir. 2002) (ating Connally v. Gen. Constr. Co.,

269 U.S, 385, 391 (1926)). Hence, the reference to Kozminski in Section 7101 could

refer to an interpretation of the statute which conforms to traditional notions of

“coercion” as more than any psychological harm, but rather psychological harm that

can result from threats of violence or legal action, not only against the victim, but also

against others in the victim's presence or against others whom the victim cares about.

This limiting interpretation would satisfy the statute’s efforts at targeting

behavior that may be deemed “nonviolent” (such as providing a victim with addictive

drugs) and yet have the “same purpose and effect” as direct violence (the physical

harm that comes from withdrawal symptoms when drugs are withheld). ‘This type of

non-violent coercion involves indirect threats of physical and psychological harm that

extends beyond simple name-calling that may make the recipient feel bad. Having

someone “feel bad” is usually a way of getting them to not work for you, rather than

the reverse. See e.g. Harris v. Forkhift Systems, Inc, 510 U.S. 17 (1993) anterpreting scope

of “hostile work environment” under Title VII of the Civil Rights Act of 1964, 78

Stat. 253).

13

II. The Circuit Courts are interpreting 18 U.S.C. §1591 differently

Proof that section 1591(c) is vague and ambiguous is provided by contrasting

interpretations of how it is applied in Unzted States v. Mozie, 752 F.3d 1271 (11th Cir.

May 22, 2014) and United States v. Robinson, 702 F.3d 22 (2d Cir. 2012). In Mozie, the

Eleventh Circuit stated:

The government must prove beyond a reasonable doubt all elements of the §

1591 crime, including the mens rea. If the government proves by that

standard that the defendant had a reasonable opportunity to observe the

victim, it need prove only that he recklessly disregarded the fact that she was

under the age of eighteen, not that the defendant knew she was.

Mozie, 752 F.3d at 1282. Thus the Eleventh Circuit held that section 1591(c) applied

to the reckless disregard scienter requirement of 1591 (a).

By contrast, the Second Circuit in Robinson held that, “the plain reading of §

1591(c), and the only interpretation that preserves any meaning, is that the provision

creates strict liability where the defendant had a reasonable opportunity to observe the

victim.” Robinson, 702 F.3d at 32. Thus, the Second Circuit found that 1591(c) created

strict liability, “thus making the defendant’s awareness of the victim’s age irrelevant.”

Id. at 34.

These different interpretations demonstrate the vague nature of the statute. A

statute is impermissibly vague where “the application of the law depends not upon a

word of fixed meaning in itself, or one made definite by statutory or judicial

definition, or by the context or other legitimate aid to its construction, but upon the

probably varying impressions of juries.” Connally v. General Constr. Co., 269 U.S. 385,

14

395 (1926). Where a statute fails to provide the requisite guidelines to ensure

consistent enforcement “policemen, prosecutors, and juries [may be permitted] to

pursue their personal predilections” resulting in arbitrary enforcement of the statute.

Kolender v. Lawson, 461 U.S. 352, 357-58 (1983). Moreover, where the “uncertainty as

to the statute's meaning is itself not revealed until [a] court’s decision,” the due

process “violation is that much greater.” Bowe v. Columbia, 378 U.S. 347, 352 (1964).

Here the phrase “reasonable opportunity to observe” provides “inadequate

guidance to the triers of fact.” Id. at 353. Congress failed to specify for whom the

opportunity to observe had to be reasonable. Is it a reasonable opportunity to observe

given the unique facts and circumstances of the defendant? Is it a reasonable

opportunity to observe by the hypothetical reasonable person? Ot is it a reasonable

opportunity to observe from the perspective of each individual juror?

As the Court recently noted “we have long been reluctant to infer that a

negligence standard was intended in criminal statutes.” E/onis v. United States, 135 8. Ct.

2001, 2011 (2015) (internal quotations omitted). Absent a clear indication from

Congress “what [the defendant] thinks does matter.” Jd. G@nternal quotations omitted).

In § 1591(c), Congress appears to be attempting some version of a negligence mens rea.

The bottom line, however, is that Congress failed to define through whose

perspective “a reasonable opportunity to observe” is to be defined and that

impermissibly “leaves judges and jurors free to decide, without any legally fixed

standards, what is prohibited and what is not in each particular case.” Graco v. State of

15

Pennsylvania, 382. U.S. 399, 402-03 (1966); see, e.g, Grayned v. City of Rockford, 408 U.S.

104, 108-09 (1972) (“A vague law impermissibly delegates basic policy matters to...

judges, and juries for resolution on an ad hoc and subjective basis, with the attendant

dangers of arbitrary and discriminatory application.”).

The “vice of the statute here lies in the impossibility of ascertaining, by any

reasonable test, that the legislature meant one thing rather than another.” Connally, 269

USS. at 394. “Legislatures may not so abdicate their responsibilities for setting the

standards of the criminal law.” 5 mith v. Goguen, 415 U.S. 566, 573-75 (1974) (observing

that given “widely varying attitudes and tastes .. . what is contemptuous to one man

may be a work of art to another’); see, ¢.¢., Coates v. Cincinnati, 402 U.S. 611, 614 (1971)

(observing that conduct that annoys some people does not annoy others resulting in

“an unascertainable standard”). Congress needs to specify from whose perspective a

reasonable opportunity to observe is to be defined. See United States v. Bass, 404 USS.

336, 348 (1971) (“[B]ecause of the seriousness of criminal penalties, and because

ctiminal punishment usually represents the moral condemnation of the community,

legislatures and not courts should define criminal activity”); United States v. Evans, 333

USS. 483, 495 (1948) (“It is better for Congress, and more in accord with its function,

to revise the statute than for us to guess at the revision it would make. That task it can

do with precision. We could do no more than make speculation law.”).

Because this Court can “do no more than make speculation law” as to whose

perspective Congress intended to define “a reasonable opportunity to observe,” Mr.

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Llerenas’s conviction under § 1591 violates the Fifth Amendment's prohibition

p

against impermissibly vague statutes.

Conclusion

Based on the arguments discussed herein, it is requested that this Court grant

this Petition for Writ of Certiorari, reverse the Ninth Circuit’s decision affirming the

District Court’s denial of Mr. Mock’s motion, and remand with instructions to

conduct further proceedings consistent with this Court’s decision.

Dated: October 11, 2018

Respectfully Submitted,

MATTHEW CAMPBELL

Assistant Federal Defender

Federal Defenders of

Eastern Washington and Idaho

10 North Post, Suite 700

Spokane, Washington 99201

Matt_Campbell@fd.org

(509) 624-7606

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