Petition for Writ of Certiorari — Daederick Lacy, Petitioner v. United States

No. _____

__________________________________

IN THE

SUPREME COURT OF THE UNITED STATES

__________________________________

DAEDERICK LACY

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

___________________________________

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

___________________________________

PETITION FOR A WRIT OF CERTIORARI

__________________________________

William D. Lunn

Oklahoma Bar Number 5566

Counsel of Record for Petitioner

320 S. Boston, Suite 1130

Tulsa, Oklahoma 74103

918/582-9977

QUESTION PRESENTED

The crime of Transportation with Intent to Engage in Criminal Sexual

Activity under 18 U.S.C. 2423(a) reads:

A person who knowingly transports an individual who has

not attained the age of 18 years in interstate or foreign

commerce, or in any commonwealth, territory or possession

of the United States, with intent that the individual engage in

prostitution, or in any sexual activity for which any person can

be charged with a criminal offense, shall be fined under this

title and imprisoned for not less than 10 years or for life.

Does the statute require proof that the defendant knew the individual

transported had not attained the age of 18 years?

Does the statute require proof that the dominant purpose of the trip was to

take a minor across state lines to engage in prostitution, or other criminal

sexual activity?

PARTIES TO THE PROCEEDING AND RULE 29.6 STATEMENT

The Petitioner, Daederick Lacy, was a defendant in the district court and

was the appellant in the Tenth Circuit. Mr. Lacy is an individual. Thus,

there are no disclosures to be made by him pursuant to Supreme Court Rule

29.6.

The Respondent is the United States of America.

ii

TABLE OF CONTENTS

Question Presented...........................................................................................i

Parties to the Proceeding and Rule 29.6 Statement……………...………..…ii

Table of Authorities.......................................................................................iv

Appendix…………………………………………………….…………....…v

Prayer..............................................................................................................1

Opinions Below.............................................................................................. 1

Jurisdiction......................................................................................................1

Constitutional and Statutory Provisions Involved...........................................1

Statement of the Case......................................................................................1

Statement of the Facts……………………………………………………….2

Motion for Judgment of Acquittal…………………………………………...…10

District Court’s Jury Instructions…………………………………...…………10

Reason for Granting the Writ

THIS COURT’S PRECEDENTS REQUIRE A MORE STRINGENT

EVIDENTIARY THRESHOLD APPLIES TO 18 U.S.C. 2423(a):

(1) THAT THE WORD KNOWINGLY IN THE STATUTE REQUIRES

PROOF THAT A DEFENDANT ACTUALLY KNEW THE MINOR

TRANSPORTED INTERSTATE WAS UNDER THE AGE OF 18, AND

(2) THAT THE GOVERNMENT MUST ESTABLISH THAT THE

PRIMARY PURPOSE OF THE TRIP WAS TO ENGAGE THE MINOR

IN PROSTITUTION, OR SOME OTHER ILLEGAL SEXUAL

ACTIVITY…………………………………………………………..……15

iii

Knowledge that the Person Transported was a Minor…………………...…15

Whether the Principle Purpose of the Trip Was Prostitution………………20

Conclusion.....................................................................................................23

Affidavit of Service.......................................................................................24

Affidavit of Mailing......................................................................................26

iv

TABLE OF AUTHORITIES

CASES

Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857 (1951).……………....16

Direct Sales Co. v. United States, 319 U.S. 703, 63 S.Ct. 1265 (1945)…....23

Flores-Figueroa v. United States, 556 U.S. 646, 129 S.Ct. 1886 (2009)….16

Hansen v. Haff, 291 U.S. 559, 54 S.Ct. 495 (1934)………….…………….20

Liparota v. United States, 421 U.S. 419, 105 S.Ct. 2084 (1985)…….…….16

Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240 (1952)…….……..17

Mortensen v. United States, 322 U.S. 369, 64 S.Ct. 1037 (1944)…….……20

Staples v. United States, 511 U.S. 600, 114 S.Ct. 1793 (1994)……………17

United States v. Balint, 258 U.S. 250, 42 S.Ct. 301 (1922)……………..…16

United States v. Cox, 577 F.3d 833 (7th Cir. 2009)……………..……...13, 18

United States v. Daniels, 653 F.3d 399 (6th Cir. 2011)…………………….13

United States v. Daniels, 685 F.3d 1237 (11th Cir. 2012)………………….13

United States v. Griffith, 284 F.3d 338 (2nd Cir. 2002)………….…………13

United States v. Hamilton, 456 F.2d 171 (3rd Cir. 1972)………….……….13

United States v. Hon, 306 F.2d 52 (7th Cir. 1962)…………………….……23

United States v. Lacy, 904 F.3d 889 (10th Cir. 2018)………………….…….1

Unite States v. McGuire, 627 F.3d 622 (7th Cir. 2010)…………………….21

United States v. Meachum, 115 F.3d 1488 (10th Cir. 1997)…………....14, 15

v

United States v. Taveres, 705 F.3d 4 (1st Cir. 2013)………………..….13, 14

United States v. Taylor, 239 F.3d 994 (9th Cir. 2001)……………..…...13, 18

United States v. X-Citement Video, 513 U.S. 64, 115 S.Ct. 464 (1994).16, 18

United States v. Washington, 743 F.3d 938 (4th Cir. 2014)………………..13

STATUTES AND RULES

18 U.S.C. 1591……………………………………………..……….…….1, 2

18 U.S.C. 2421……………………………………………………………..13

18 U.S.C. 2422……………………………………………………………..13

18 U.S.C. 2423..……………………………………………………………..1

28 U.S.C. 1254(1)...........................................................................................1

Fed.R.Crim.Proc. 29………………………...………………………….…..12

Sup. Ct. R. 29.6……………………………………………………...………ii

APPENDIX

Opinion and Judgment of the United States Court of Appeals for the

Tenth Circuit (September 18, 2018)……………….…………...…………1a

vi

vii

PETITION FOR WRIT OF CERTIORARI

Daederick Lacy respectfully petitions for a writ of certiorari to review the

judgment of the United States Court of Appeals of the Tenth Circuit.

OPINIONS BELOW

The Tenth Circuit’s controlling decision is reported at United States v.

Lacy, Appx. 1-22, at 904 F.3d 889 (10th Cir. 2018).

JURISDICTION

The Tenth Circuit issued its decision on September 18, 2018, Appx. 1-22.

Mandate was issued in the case on October 10, 2018. This Court has

jurisdiction under 28 U.S.C. Sect. 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

This case involves the evidentiary requirements of 18 U.S.C. 2423(a):

A person who knowingly transports an individual who has

not attained the age of 18 years in interstate or foreign

commerce, or in any commonwealth, territory or possession

of the United States, with intent that the individual engage in

prostitution, or in any sexual activity for which any person can

be charged with a criminal offense, shall be fined under this

title and imprisoned for not less than 10 years or for life.

STATEMENT OF THE CASE

Petitioner was charged in a three-count indictment in the District of

Kansas. Count one alleged sex trafficking of a minor in violation of 18

U.S.C. 1591(a)(1) and (b)(2). Count two alleged sex trafficking

accomplished by force, fraud or coercion in violation of 18 U.S.C.

1591(a)(1) and (b)(1). Count three alleged Petitioner transported a minor

with intent to engage in prostitution or other criminal sexual activity under

18 U.S.C. 2423(a). A two-day trial ensued, where Petitioner was convicted

on all three counts. He was subsequently sentenced to 293 months

imprisonment on each of the counts to run concurrently, to be followed by

five years of supervised release, which also ran concurrently, and a

$15,000.00 assessment pursuant to the Justice for Victims Trafficking Act of

2015. Petitioner filed a timely appeal.

STATEMENT OF FACTS

Petitioner returned to the campus of Friends University in Wichita,

Kansas in the fall of 2015 after playing football professionally in Serbia the

previous year. Petitioner played football for Friends the year before and

came back to the campus so he could work out in the hope of playing

football professionally in the United States. He met Dana Reed, another

football student athlete, before he left for Europe. When he returned,

Petitioner discovered that Reed’s roommate had moved out, which made it

possible for Petitioner on occasion to have a place to stay. Sometimes

Petitioner brought girls with him to Reed’s living quarters, but Reed did not

pay much attention to them. Reed did not suspect that any of the girls were

2

minors (CA 10, Vol. III: pg. 575). Reed helped out his friend occasionally

by getting him a motel room “because you just wanted to give him his

space.” After football practice, when Reed was studying in his room, he

occasionally let Petitioner use his car. “You didn’t see anything that gave

you any indication or clue that anything illegal was going on, did you?”

Reed was asked. He answered, “No” (III:579).

In fact, Reed described Petitioner’s activity with these girls as “friends

interacting” (III:574). “They talk, joke, make jokes, what not,” Reed

testified (Id.). Did Reed “ever see any problems” between these girls and

Petitioner? Reed answered, “No, sir” (III:574). Although Petitioner had

been accused of “pimping minors,” Reed said, “I wasn’t aware of that at the

time” (III:574). Reed, in fact, met each of the three girls involved in the

three separate charges in Petitioner’s case, who had all been with Petitioner

on various occasions in Reed’s room.

The two other girls not involved in this appeal were B. J. and S. G.

B. J. was sixteen. She testified she had a “physical relationship” with

Petitioner, who was 26. “I loved him,” B. J. testified. She also testified she

engaged in sex acts for money that was given to Petitioner either at Dana

Reed’s room when Reed was gone or at motels. Clients were generated by

advertisements on the Internet. The second girl, S. G., called herself

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“Paradise” and provided provocative photos to Petitioner to place in ads on

the Internet. She even suggested Petitioner bring in other girls in their

prostitution service. “I understand the more girls you get, the more money

you get,” she wrote. Her association with Petitioner as a prostitute lasted

only one day. She later testified Petitioner took the keys to her car and put

her in a position where she was forced to work for Petitioner.

The third girl, which is the focus of this case, was S. B. She remained an

enigma. She never appeared during the trial and therefore never testified.

Respondent’s attorney in closing argument described her as “uncooperative”

(III:295). The charges involving S. B. were that Petitioner drove to Texas

with her for the purpose of engaging her in prostitution there. The only

testimony about her age came from her mother, who said on the date S. B.

arrived in Texas, she was three months short of being 18 years old (III:667).

One photo was introduced of her standing next to B. J. The government

never argued the photo was evidence she was under 18. In fact, the photo

supported Dana Reed’s testimony that S. B. appeared to be 18 or over.

S. B. sometimes stayed with Petitioner and B. J. in Dana Reed’s dorm

suite. The relationships Petitioner had with B. J. and S. B. appeared to be

normal boyfriend-girlfriend interaction. “Babe, we hungry,” B. J. texted on

November 30, 2015. B. J. testified the “we” included S. B. Forty-nine

4

minutes later, B. J. texted Petitioner, “Okay, did y get condoms?” Petitioner

answered, “Yes,” then told her he was heading back home from

McDonald’s.

The evidence of just what S. B. was doing with Petitioner was limited.

Respondent’s officer witnesses admitted they had no evidence S. B. ever

appeared in an Internet ad, like those from Backpage used for S. G. and

possibly for B. J. (III:630). Similarly, Respondent introduced no text

messages between S. B. and Petitioner. Respondent introduced the photo of

S. B. taken with B. J. in Reed’s dorm room (III:319, Tr Ex 19). The photo

was not provocative, but appeared to be two girls having fun. Whether

someone would have known S. B. was a minor based on the photo is

doubtful. What was S. B.’s relationship to the Petitioner, B. J. was asked.

“Pretty much had the same relationship,” she replied, although B. J.

acknowledged the two never went together on a call. Was she doing “sex

acts?” B.J. answered, “Yes” (III:320), but never elaborated as to what “sex

acts” meant. B. J. said she saw S. B. once return from a call with money that

B. J. said S. B. gave to the Petitioner, but could not say how S. B. had gotten

the money.

Did S. B. and Petitioner travel across state lines from Kansas to Texas on

the night of December 6, 2015, or the next day? Respondent presented no

5

witness that identified Petitioner in the state of Texas on either day. S. B.

was found by Mesquite police officers near a hotel in the Texas town at 3:00

a.m. on the morning of December 8 after the Mesquite Police Department

had received a bulletin at 1:00 a.m. to look for them in the town. Without

objection, Wichita Police Officer Bruce Huhman testified someone at

dispatch tried to “geolocate his cell phone,” and it tracked to Mesquite. But

no records were introduced to support just whose cell phone number got

pinged, and certainly no texts from the phone that was tracked were ever

introduced in evidence.

The hotel room at the Tejas Motel in Mesquite, where S. B. was staying,

was registered in the name of Jsamard Cory Ford (III:398). Although cell

phone records from Reed were introduced of his conversations with

Petitioner on December 6 and 7, where Petitioner had asked Reed to get a

room for him, no records were introduced that Reed had secured the room at

the Tejas Motel for Petitioner. Respondent presented no evidence the

Petitioner’s personal clothing or other belongings were found in the motel

room. No one from the motel was called to identify Petitioner. Respondent

introduced only a plastic bag found in the motel room that the district judge

noted S. B. herself could have picked up before she left Kansas (III:639) that

had some receipts almost a week old still inside it with Petitioner’s name on

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them. One receipt had been to purchase condoms from a store in Wichita

five days earlier on December 3, 2005. Reed’s car was found on the side of

the road near the hotel. Although the Tenth Circuit opinion states evidence

was introduced that a man was seen running away from the scene where

S. B. was found, no testimony at trial appears to support this. Respondent

presented no witness who saw anyone driving Reed’s car in Texas.

Most importantly to this case, Respondent presented no evidence of a

prostitution operation involving S. B. in Texas. No Backpage ads were

introduced. No large amount of condoms, or other materials commonly used

in prostitution, were found in the motel room. And, even though

Respondent suggested it had conducted a data search with the phone

company to obtain Petitioner’s phone records, it obtained no texts to indicate

Petitioner conducted the same type of operation described by S. G. via a cell

phone where calls were made and prostitution activity was arranged in

Texas.

Moreover, the text messages on Reed’s cell phone made with Petitioner

did not indicate Petitioner himself ever left the state of Kansas. “We have

no where to stay tonight and I really need a room so that I can get money

tonight to pay for a bus ticket back to Texas,” Petitioner texted within 30

minutes of receiving a text from B. J.’s guardian telling Petitioner that he

7

wanted Petitioner in jail because he had been having an affair with his ward

and had involved her in prostitution. “We just got no where to stay and I

want to leave back home asap,” Petitioner texted Reed. When told he

could stay with Reed, Petitioner replied, “Nah. They was looking for me.

That’s why I’m trynna make a little money and leave.”

By the next morning, however, the texts sent to Reed indicated Petitioner

was still in Kansas. “Wya?” Reed asked at 8:29:36 a.m. on December 7.

Petitioner responded, “On the road headed to Salina.” Reed then responded,

“Nobody hasn’t said anything to me yet.” Petitioner replied, “OK good I just

need a week max to stack and lay low.” Reed then texted, “I’ll send you

some more $$$ too.” Respondent subsequently introduced no financial

records to indicate where Reed might have sent Petitioner money, if he did.

A little more than two hours later, Petitioner, at 10:41:55 a.m., texted Reed,

“Everything good we checkin in the hotel.” If Petitioner had been heading

for Salina just two hours before, it would appear Petitioner had just checked

into a hotel somewhere in Kansas at that time. Respondent certainly

introduced no evidence to suggest Petitioner had checked into the Tejas

Motel in Mesquite, Texas that morning. Respondent called no motel

receptionist or guest to identify Petitioner having been present at the motel

that night. Ten minutes later, Reed sent another text: “Aye I didn’t wanna

8

tell y this but Dontaye told me that the cops r looking for ya.” Petitioner

responded, “Delete our text. Just to be safe.” The last message Petitioner

sent was an hour later at 12:31 p.m. on December 7: “And everything good

my way.”

More than twelve hours passed before Wichita dispatch called Mesquite

Police at 1:00 a.m. on December 8 to say a cell phone ping suggested S. B.

or Petitioner might be in Mesquite. Did Petitioner travel to his hometown of

Mesquite from Salina that afternoon and early evening? Did Petitioner send

S. B. to Texas while he stayed in Kansas to get the police off his track?

Petitioner introduced no documentary evidence from any phone company, or

anyone else, to establish what occurred the rest of the day on December 7.

During the trial, Petitioner’s counsel without objection allowed Detective

Latavia Klumpp, who worked for the Exploited Missing Children’s Unit as

an officer for the Wichita Police Department, to testify. The “we” in the

messages sent to Dana Reed, the prosecutor asked, “would have been

defendant and S. B.?” With no first-hand knowledge, Klumpp claimed that

the two had checked into a motel in Texas. Later, Klumpp had to admit that

only S. B. was found in the vicinity of the Tejas Motel, that Petitioner had

not been found there at all, and that the room was registered in another

man’s name (III:628-629).

9

Motion for Judgment of Acquittal

At the conclusion of Respondent’s case, Petitioner moved for judgment

of acquittal on all three counts (III:634). The district court overruled

Petitioner’s motion as to the first two counts, but stated the evidence as to

count three, which involved transportation of S. B. to Texas with intent that

she engage in prostitution, was “a much closer call” (III:635). The district

court noted no condoms were found in Texas, just the receipt from a store in

Wichita from days before (III:638). “Well,” the district court said, “left over

in a bag from Wichita. That could mean anything” (III:639). The district

court continued, “We had testimony about condoms being used in Wichita.

The receipt could have been stuffed in a bag that ended up in Texas” (Id.).

The district court described the evidence to support count three as “very thin,

almost vanishingly thin” (III:640). Nevertheless, it took the Petitioner’s

motion as to count three under advisement (Id.). The Petitioner afterwards

rested without putting on any evidence (III:642).

District Court’s Jury Instructions

The district court instructed the jury that count three did not require that

Petitioner actually know that S. B. was 18, nor did it require that the

principle purpose of Petitioner’s trip to Texas with S. B., if it occurred at all,

10

was prostitution. In Instruction 17, the district court told the jurors they

must “prove each of the following elements beyond a reasonable doubt:

(1) That the defendant knowingly transported S. B. from one state into

another;

(2) That S. B. was under the age of 18 at the time; and

(3) That the defendant did this with the intent that S. B. would engage in

criminal sexual activity, that being prostitution.”

In Instruction 18, the district court clarified the government’s burden as

to the Petitioner’s knowledge that S. B. was under 18. “With respect to the

second element of Count 3, the government does not have to prove that the

defendant knew that the individual he transported across state lines was

under the age of eighteen at the time she was transported in order for you to

find the defendant guilty of Count 3.” Knowledge that S. B. was a minor

simply “was not part of the proof required of the government in order to

sustain a conviction.” The district court went even further: “That the

defendant may have been mistaken about, or ignorant of the age of the transported individual is not a defense. The law places the risk of such a mistake

or ignorance on the defendant.”

The district court similarly provided a reduced burden for the government

as to the purpose for the interstate trip. “It is not necessary for the

government to prove that prostitution or other illegal sexual activity was the

sole purpose for any transportation from one state to another,” the district

11

court instructed the jury. “A person may have several different purposes or

motives for such travel and each may prompt, in varying degrees, the act of

making the journey,” the district court elaborated. “To satisfy this element,

the government need only prove, beyond a reasonable doubt, that a

significant or dominant purpose of the travel from one state to another was

to have the person transported engage in prostitution or in any other illegal

sexual activity.”

Following the jury’s verdict of guilty on all three counts, Petitioner filed

a motion pursuant to Fed. R.Crim.P. 29(c) to set aside the verdict and enter

an acquittal (#47, I:103). The district court denied it (#50, I:111). Now the

district court found that the bag with the receipt for condoms purchased

several days earlier supported the verdict. Without much explanation, the

district court additionally wrote, “In addition, Lacy also sent Reed a text

message saying he needed ‘a week max to stack and lay low,’ which could

reasonably be interpreted to conclude that Lacy intended to ‘stack’ –or make

money—by having S. B. engage in sex acts for money there in Texas” (I at

118-119). The district court concluded, “Although this evidence is

circumstantial, it does support the reasonable inference that Lacy transported

S. B. from Kansas to Texas with the intent that S. B. engage in prostitution”

(I at 119).

The Tenth Circuit Opinion

The Tenth Circuit Court affirmed all three counts. With respect to count

three, the court held Petitioner’s knowledge of the age of S. B. was not

12

essential. The court initially noted “that every circuit court to have

considered this issue has ruled that 18 U.S.C. 2423(a) does not require proof

that a defendant knew the person he transported was under the age of

eighteen.” Appx. at 11, citing United States v. Taveres, 705 F.3d 4, 18-20

(1st Cir. 2013), United States v. Griffith, 284 F.3d 338, 350-51 (2nd Cir.

2002), United States v. Hamilton, 456 F.2d 171, 173 (3rd Cir. 1972), United

States v. Washington, 743 F.3d 938, 943 (4th Cir. 2014), United States v.

Daniels, 653 F.3d 399, 410 (6th Cir. 2011), United States v. Cox, 577 F.3d

833, 836-38 (7th Cir. 2009), United States v. Taylor, 239 F.3d 994, 996 (9th

Cir. 2001), also citing United States v. Daniels, 685 F.3d 1237, 1249-50

(11th Cir. 2012) (adopting the reasoning of these decisions in the context of a

conviction under 18 U.S.C. 2422(b)). Appx at 11-12.

The Tenth Circuit found “congressional intent that minors receive special

protection against sexual exploitation which made it ‘appropriate for the

‘defendant – who would presumably know he is treading close to the line in

transporting a young person to engage in illicit sexual activity – to bear the

risk that the person transported is underage.’” Appx. at 13, quoting Daniels,

653 F.3d at 410. Moreover, the Tenth Circuit reasoned, “(T)he conduct

prohibited by 2423(a) is already unlawful under Sect. 2421, and a defendant

is ‘already on notice that he is committing a crime when he transports an

individual of any age in interstate commerce for the purpose of

prostitution.’” Appx. at 12, quoting Cox, 557 F.3d at 837 and Griffith, 284

F.3d at 351.

13

The Tenth Circuit never suggested that evidence had been presented that

Petitioner actually knew S. B. was underage. “Even assuming…that the

government had not produced sufficient evidence of Defendant’s knowledge

of the victim’s age, such a failure is irrelevant,” the court held. Appx. at 1314, quoting Taveres, 705 F.3d at 20. “The Government was not required to

prove that Defendant knew his victim was underage,” the court concluded.

Appx. at 14. “It is enough that the government proved the victim was

actually seventeen years old during the relevant time period.” Id.

The Tenth Circuit also found that a lower burden of proof was required to

show that the purpose of the trip Petitioner made to Texas with S. B. was

prostitution. The court reasoned that Petitioner “did not have a job” and his

only source of income in Kansas had been “pimping minors.” His only three

clients had been B. J., S. G. and S. B. With B. J. and S. G. not available on a

trip to Texas, the court reasoned that a purpose of taking S. B. to his

hometown in Texas where he had been a star football player must

necessarily include her becoming involved in the only business he knew,

prostitution. The court acknowledged Petitioner’s immediate purpose was

to evade B. J.’s guardian who had “sent an angry message to Defendant

telling him that he was going to jail.” Appx. at 15. “ ‘Illicit sexual activity

need not be the only purpose for interstate travel’ under 2423,” the court

wrote, “but it must be ‘one of the defendant’s efficient and compelling

purposes.’” Id. at 19, quoting United States v. Meachum, 115 F.3d 1458,

1495 (10th Cir. 1997). “Even if Defendant’s primary purpose for the trip

14

itself is to conduct legitimate business or to leave a particular state, his

conviction may be sustained if one of his motivating or dominant reasons for

bringing a minor with him on the trip is for illegal sexual activity.” Appx. at

20, quoting Meachum, 115 F.3d at 1496. The court concluded, using this

reasoning, that “one of Defendant’s primary purposes for transporting the

seventeen-year-old to Texas was to continue using her as a source of income

there.” Appx. at 21.

REASON FOR GRANTING THE WRIT

THIS COURT’S PRECEDENTS REQUIRE A MORE STRINGENT

EVIDENTIARY THRESHOLD APPLIES TO 18 U.S.C. 2423(a):

(1) THAT THE WORD KNOWINGLY IN THE STATUTE REQUIRES

PROOF THAT A DEFENDANT ACTUALLY KNEW THE MINOR

TRANSPORTED INTERSTATE WAS UNDER THE AGE OF 18, AND

(2) THAT THE GOVERNMENT MUST ESTABLISH THAT THE

PRIMARY PURPOSE OF THE TRIP WAS TO ENGAGE THE MINOR IN

PROSTITUTION, OR SOME OTHER ILLEGAL SEXUAL ACTIVITY,

IN THE DESTINATION STATE, NOT JUST THAT IT MIGHT BE ONE

AMONG MANY REASONS FOR THE TRIP

Knowledge that the Person Transported was a Minor

Whether 18 U.S.C. 2423(a) requires that proof that a defendant actually

knew the person transported was a minor has not been resolved by this

Court. Based on the wording of the statute, precedent suggests strongly the

Court would find a defendant’s knowledge of the minor’s age is required.

The general rule at common law was that scienter was a necessary

element in the indictment and proof of every crime. United States v. Balint,

15

258 U.S. 250, 251-52 (1922). The existence of a mens rea is the rule of,

rather than the exception to, the principles of American-Anglo

jurisprudence. Dennis v. United States, 341 U.S. 494, 499 (1951). This

Court “interpret(s) criminal cases to include broadly applicable scienter

requirements, even where the statute by its terms does not contain them.”

United States v. X-Citement Video, Inc., 513 U.S. 64, 70. 115 S. Ct. 464, 468

(1994). “The manner in which the courts ordinarily interpret criminal

statutes is fully consistent with this ordinary English usage,” the Court

further explained in Flores-Figueroa v. United States, 556 U.S. 646, 652,

129 S.Ct. 1886, 1891 (2009). “That is to say courts ordinarily read a phrase

in a statute that introduces the elements of a crime with the word

‘knowingly’ as applying the word to each clement.” Id. In every instance,

without exception, the Supreme Court has done this, even when ‘knowingly’

appears in the statute in odd places or in a convoluted sentence structure.

Flores-Figueroa, infra (‘knowingly’ applied to all elements in straightforward sentence structure), X-Citement Video, Inc., infra, (‘knowingly’

applied to age of minor, even though ‘use of a minor’ used in statute in

independent transitive clause), Liparota v. United States, 421 U.S. 419, 105

S.Ct. 2084 (1985)(‘knowingly’ applied to require actual knowledge of

statute that contained language ‘in any manner not authorized by statute’),

16

Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240 (1952)(‘knowingly’

appeared midway through statute but nevertheless applied to all its terms),

Staples v. United States, 511 U.S. 600, 616, 114 S.Ct. 1793, 1802

(1994)(‘knowingly’ applied to knowledge of the statute, emphasizing that

the statute’s “harsh penalties” were “a significant consideration in

determining whether the statute should be construed as dispensing with mens

rea”).

Respondent claimed in the Tenth Circuit Court appeal that this Court has

“seemingly endorsed” the various circuit court’s holdings that there is no

scienter requirement as to the victim’s age in an interstate transportation case

under 18 U.S.C. 2423(a). Aple. Br. at 38. But this is far from the case. In

Figueroa-Flores, Justice Alito wrote a concurring opinion in which he noted

several circuits had held as much in 2423(a) cases. But the Court, if

anything, refused to endorse such an exception. “(T)he government has not

provided us with a single example of a sentence that, when used in typical

fashion, would lead the hearer to believe that the word ‘knowingly’ modifies

only a transitive verb without the full object, i.e., that it leaves the hearer

gravely uncertain about the subject’s state of mind in respect to the full

object of the transitive verb in the sentence,” the Court held in the very same

paragraph that it acknowledged Justice Alito’s concurrence. Figueroa-

17

Flores, 556 U.S. at 651-52, 129 S.Ct. at 1891. At best, the Court withheld

making a rigid rule, and held “the inquiry into a sentence’s meaning is a

contextual one.” Id.

Respondent also claimed, “Congressional intent indicated there was no

scienter relating to the victim’s age,” Aple. Br. at 38. This is similarly

unfounded. Some of the circuit courts that hold a scienter requirement does

not apply under 18 U.S.C. 2423(a) have justified their rulings based on

Congress’ desire “to provide heightened protection against sexual

exploitation of minors.” United States v. Cox, 577 F.3d 833 (7th Cir. 2009),

quoting United States v. Taylor, 239 F.2d 994, 997 (9th Cir. 2001). But this

is different from the type of explicitly-stated language of intent to waive the

scienter requirement Chief Justice Rehnquist demanded in X-Citement

Video, Inc. “(A) statute completely bereft of a scienter requirement as to the

age of the performer would raise serious constitutional doubts,” he wrote.

Id., 513 U.S. at 78, 115 S.Ct. at 472. “It is therefore incumbent upon us to

read the statute to eliminate those doubts so long as such a reading is not

plainly contrary to the intent of Congress.” Id. X-Citement Video, Inc. noted

the type of explicit language required by referencing Congress’ actions in

the enactment of 18 U.S.C. 2251(a), the statute prohibiting the production of

child pornography. “(T)he new bill retained the adverb ‘knowingly’ in 2252

18

while simultaneously deleting the word ‘knowingly’ in 2251(a),” the Court

held. Id., 513 at 76, 115 S.Ct. at 471. “The Conference Committee

explained the deletion in 2251(a),” the Court noted, “as reflecting an ‘intent

that it is not a necessary element of a prosecution that the defendant know

the actual age of the child.’” Id. X-Citement Video, Inc. also noted

Congress had taken extra precautions in child pornography production cases

to insure a defendant’s knowledge of the victim’s age: “(C)ongress has

independently required both primary and secondary producers to record the

ages of performers with independent penalties for failure to comply. 18

U.S.C. 2257(a) and (i).” Id., at fn 5.

X-Citement Video, Inc. had only recently been decided when 18 U.S.C.

2423(a) was enacted in 1998. What this Court expected for such a statute

carrying a harsh ten-year mandatory minimum penalty was well known.

Congress knew how to express its intent such a criminal statute not carry a

mens rea requirement as to the age of the minor, but it chose not to do so.

‘Knowingly’ appears conspicuously in the statute. While there may be some

instances where the “context” may create an exception to the mens rea

requirement, this Court’s precedents would appear to hold 18 U.S.C. 2423(a)

is not one of them. Because Respondent failed to present sufficient evidence

to establish Petitioner knew S. B. was a minor, this Court should reconsider

19

the Tenth Circuit opinion that held the Respondent adequately proved the

element of the crime requiring knowledge of the minor’s age.

Whether the Purpose of the Trip was Prostitution

The third requirement of count three, that Petitioner took S. B. to Texas

for the purpose of prostitution, similarly allowed a watered-down

evidentiary burden under the district court’s instructions to what this Court

has previously required. This Court addressed the issue in Mortensen v.

United States, 322 U.S. 369, 374, 64 S.Ct. 1037 (1944) and Hansen v. Haft,

291 U.S. 559, 54 S.Ct. 495 (1934). “People not of good moral character,

like others, travel from place to place and change their residence,” the Court

wrote in Hansen. Id. at 562. “But to say because they indulge in illegal or

immoral acts, they travel for that purpose, is to emphasize that which is

incidental and ignore what is of primary significance.” Id. In Mortenson,

the defendants operated a brothel in Nebraska. They took two of the girls

who worked at the brothel with them on a vacation, where no illicit sexual

activity was ever proven to have occurred. Prostitution was not even

discussed during the vacation. The girls had no obligation to return. When

they returned to Nebraska, the defendants were arrested. This Court held the

evidence was insufficient to sustain a conviction. “The statute thus aims to

penalize only those who use interstate commerce with a view toward

20

accomplishing the unlawful purpose,” the Court held. Id., 322 U.S. at 374.

“To constitute a violation of the Act, it is essential that the interstate

transportation have for its object or has the means of effecting or facilitating

the proscribed activities.” Id., citing Hansen, infra. “An intention that the

women or girls shall engage in the conduct outlawed by Section 2 must be

found to exist before the conclusion of the interstate journey and must be the

dominant motive of such interstate movement.” Id.

Circuit courts “turn handsprings” trying to deal with Mortensen’s

requirement that the dominant purpose of the trip must be to engage in

immoral, or illegal sexual, activity. United States v. McGuire, 627 F.3d 622,

625 (7th Cir. 2010). Virtually all circuit courts “define it down to mean

‘significant,’ ‘efficient and compelling,’ ‘predominating,’ ‘motivating,’ (but)

not ‘incidental’ or not ‘an incident’ to the defendant’s purpose in traveling.”

Id. “It would be better to ask”, McGuire held, “whether, had a sex motive

not been present, the trip would not have taken place or would have differed

substantially.” McGuire, 627 F.3d at 625.

The principle reason for Petitioner’s trip undoubtedly would have been

so that Petitioner could evade imminent arrest for his illegal relationship

with B. J. Petitioner was on the road texting Reed within an hour of

receiving B. J.’s guardian’s text threatening to have him sent to jail. If he

21

brought S. B. with him, the reason could just have easily been

companionship, even sexual companionship, which would not have been

illegal at S. B.’s age of 17 in either Texas or Oklahoma, the two states in

which he travelled after allegedly leaving Kansas. Returning to his

hometown, where he had many friends from his high school football days,

offered legal work rather than a continuation of the prostitution activities of

his days in Kansas. Appellee never introduced any evidence Petitioner

planned to establish a prostitution operation in another state, including

Texas. Although several texts to Reed indicated he wanted to get back to his

home in Texas, none of those texts suggested he intended to engage anyone

in prostitution once he got there. Respondent never presented any evidence

S. B. was equipped or set up to engage in prostitution at the Mesquite motel.

There were no ads placed, no texts received, not even evidence of any

condoms. And because S. B. did not testify, there was no evidence of what

the two might have discussed as Petitioner sought to avoid the law. Setting

up a new prostitution operation in his hometown would have been

financially unnecessary and would have drawn unwanted scrutiny toward

him, so it would not have been at all logical for him to do such a thing. The

Tenth Circuit opinion appears to be based on nothing but unreasonable

speculation. This Court has held that caution must be taken that a conviction

22

is not obtained “by piling inference upon inferences.” Direct Sales Co. v.

United States, 319 U.S. 703, 711, 63 S.Ct. 1265 (1945). Courts have

rejected finding criminal intent to commit the crime of crossing state lines to

engage a woman in prostitution where an alternative purpose for the trip is

obvious. United States v. Hon, 306 F.2d 52 (7th Cir. 1962) (purpose of trip

was to return to Maryland to retrieve girl’s child).

CONCLUSION

Petitioner’s case offers the Court the opportunity to examine whether the

circuit court opinions relating to the level of proof required to sustain a

conviction under 18 U.S.C. 2423(a) have travelled too far from this Court’s

long-established precedents. This Court should grant certiorari to establish

what degree of scienter is required and whether the principle purpose of the

interstate trip must indeed be prostitution.

Respectfully submitted,

William D. Lunn

Oklahoma Bar Association #5566

320 S. Boston, Suite 1130

Tulsa, Oklahoma 74103

918/582-9977

23

No. ___

____________________________

IN THE

SUPREME COURT OF THE UNITED STATES

____________________________

DAEDERICK LACY,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

____________________________

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

____________________________

AFFIDAVIT OF SERVICE

_____________________________

William D. Lunn, attorney for Petitioner Daederick Lacy, hereby attests

that pursuant to Supreme Court Rule 29, the preceding Petition for Writ of

Certiorari to the United States Court of Appeals for the Tenth Circuit was

served on counsel for the Respondent by enclosing a copy of these

documents in an envelope, first-class prepaid and addressed to:

24

Noel J. Francisco

Solicitor General of the United States

Room 5614

Department of Justice

10th Street and Constitution Avenue, N.W.

Washington, D.C. 20530

and that the envelope was deposited with the United States Postal Service,

Tulsa, Oklahoma 74103, on November 15, 2018, and further attests that all

parties required to be served have been served.

___________________

William D. Lunn

STATE OF OKLAHOMA )

) ss.

COUNTY OF TULSA

)

Subscribed and sworn to before me this 15th day of November, 2018.

____________________

Notary Public

25

NO. ___

_____________________________

IN THE

SUPREME COURT OF THE UNITED STATES

_____________________________

DAEDERICK LACY,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

_____________________________

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Tenth Circuit

_____________________________

AFFIDAVIT OF MAILING

_____________________________

WILLIAM D. LUNN, counsel for Daederick Lacy, and a member of the

bar of the State of Oklahoma and the United States Supreme Court bar,

attests that he placed the foregoing petition for a writ of certiorari in the

26

United States mail on November 15, 2018.

____________________

WILLIAM D. LUNN

STATE OF OKLAHOMA )

) ss.

COUNTY OF TULSA

)

This affidavit of mailing subscribed and sworn to before me this

November 15, 2018.

____________________

Notary Public

27