Opposition Brief — Daederick Lacy, Petitioner v. United States

No. 18-6755

________________________________________________________________

________________________________________________________________

IN THE SUPREME COURT OF THE UNITED STATES

_______________

DAEDERICK LACY, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

NOEL J. FRANCISCO

Solicitor General

Counsel of Record

BRIAN A. BENCZKOWSKI

Assistant Attorney General

ANDREW W. LAING

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

________________________________________________________________

________________________________________________________________

QUESTIONS PRESENTED

1.

Whether in a prosecution for transporting a minor to

engage in prostitution or other criminal sexual activity, in

violation of 18 U.S.C. 2423(a), the government is required to prove

that the defendant knew the victim’s minor status.

2.

Whether in such a prosecution the government is required

to prove not only that the criminal sexual activity was the

dominant purpose of bringing the minor, but also that it was the

dominant purpose of the travel itself.

IN THE SUPREME COURT OF THE UNITED STATES

_______________

No. 18-6755

DAEDERICK LACY, PETITIONER

v.

UNITED STATES OF AMERICA

_______________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

_______________

BRIEF FOR THE UNITED STATES IN OPPOSITION

_______________

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1-22) is

reported at 904 F.3d 889.

JURISDICTION

The judgment of the court of appeals was entered on September

18, 2018.

The petition for a writ of certiorari was filed on

November 15, 2018. The jurisdiction of this Court is invoked under

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

STATEMENT

Following a jury trial in the United States District Court

for the District of Kansas, petitioner was convicted on one count

2

of sex trafficking of a minor, in violation of 18 U.S.C. 1591(a)(1)

and

(b)(2)

(Supp.

V

2017);

one

count

of

sex

trafficking

accomplished by force, fraud, or coercion, in violation of 18

U.S.C. 1591(a)(1) and (b)(1) (Supp. V 2017); and one count of

transporting a minor to engage in criminal sexual activity, in

violation of 18 U.S.C. 2423(a).

Judgment 1; Pet. App. 1-2.

The

district court sentenced petitioner to 293 months of imprisonment,

to be followed by five years of supervised release.

3; Pet. App. 2.

1.

The court of appeals affirmed.

Judgment 2-

Pet. App. 1-22.

This case concerns petitioner’s illicit relationships

with three young women in November and December 2015.

In November

2015, petitioner started a relationship with B.J., a 16-year-old

girl, via Facebook.

D. Ct. Doc. 50, at 3 (May 9, 2017).

Shortly

thereafter, petitioner “began posting advertisements for B.J. on

Backpage.com, suggesting that B.J. would perform ‘sex acts for

money.’”

Ibid.

Over the course of the next month, individuals

would contact petitioner in response to those advertisements,

petitioner “would drive B.J. to the ‘call,’” where B.J. would

engage in prostitution with the client, and B.J. would hand over

to petitioner the money she had been paid.

Id. at 3-4.

Petitioner also contacted S.G., a different young woman who

was

not

a

minor,

via

Facebook

during

the

same

time

period,

promising her “more than $500,000 in income if she would agree to

work for him, possibly as a model.”

D. Ct. Doc. 50, at 5.

When

3

S.G. met petitioner in person, petitioner took her phone and her

car keys and, using pictures from her phone, posted a similar

advertisement for her on Backpage.com.

Ibid.

Petitioner “then

told S.G. that she had a client, and he drove her to a hotel to

meet the client, at which point S.G. engaged in a sex act with the

client in exchange for money, which she provided to [petitioner]

after the encounter.” Ibid. S.G. later testified that she engaged

in the sex act because she “had lost [her] control.”

Id. at 6.

Finally, petitioner established a relationship with S.B., a

17-year-old girl, during the same time period.

7-8.

D. Ct. Doc. 50, at

Like the other victims, S.B. engaged in prostitution at

petitioner’s direction in Wichita, Kansas.

App. 14-15.

Id. at 8; see Pet.

Then, in early December 2015, petitioner borrowed a

friend’s car.

D. Ct. Doc. 50, at 8.

Petitioner told his friend

that he “‘need[ed] a week max to stack’” -- i.e., make money -“‘and lay low.’”

Id. at 8-9 (brackets in original).

On December

7, 2015, police pinged petitioner’s cell phone and located it

near a hotel in Mesquite, Texas.

the

hotel,

police

found

the

Pet. App. 16.

borrowed

car

Upon arriving at

parked

nearby,

and

discovered S.B. in a hotel room, as well as a receipt for condoms

indicating that petitioner had purchased them in Wichita five days

earlier.

2.

Ibid.

A federal grand jury in the District of Kansas returned

an indictment charging petitioner with one count of sex trafficking

4

of a minor, in violation of 18 U.S.C. 1591(a)(1) and (b)(2) (Supp.

V 2017) (Count 1); one count of sex trafficking accomplished by

force, fraud, or coercion, in violation of 18 U.S.C. 1591(a)(1)

and (b)(1) (Supp. V 2017) (Count 2); and one count of transporting

a minor to engage in criminal sexual activity, in violation of 18

U.S.C. 2423(a) (Count 3).

Indictment.

Petitioner proceeded to

trial and was convicted on all three counts.

court of appeals affirmed.

Judgment 1.

The

Pet. App. 1-22.

As relevant here, the court of appeals rejected petitioner’s

argument that his conviction on Count 3 must be vacated on the

theory that the government had been required to prove that he knew

that S.B. was a minor.

Pet. App. 11-14.

Section 2423(a) prohibits

“knowingly transport[ing] an individual who has not attained the

age of 18 years in interstate or foreign commerce

* * *

with

intent that the individual engage in prostitution, or in any sexual

activity for which any person can be charged with a criminal

offense.” 18 U.S.C. 2423(a). Joining every other court of appeals

to

have

considered

the

issue,

the

court

determined

that

a

conviction under Section 2423 does not require proof that the

defendant knew the victim’s minor status.

The

court

of

appeals

explained

Pet. App. 11-12.

that

whether

a

mens

rea

requirement applies to a particular element of the offense is a

“‘contextual’ inquiry.”

Pet. App. 13 (quoting Flores-Figueroa v.

United States, 556 U.S. 646, 652 (2009)).

Here, it observed that

5

the age of the victim is not “the crucial element separating legal

innocence from wrongful conduct,” because “the conduct prohibited

by [Section] 2423(a)” -- transporting an individual across state

lines for the purpose of prostitution -- is unlawful under 18

U.S.C.

2421

regardless

(citations omitted).

evident

of

the

victim’s

age.

Pet.

App.

12

And the court reasoned that, given the

“‘congressional

intent

that

minors

receive

special

protection against sexual exploitation,’ it [wa]s 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.’”

Pet. App. 13 (brackets and citation omitted).

The court of appeals also rejected petitioner’s argument that

his conviction must be vacated on the theory that the government

was required to prove that the primary purpose of his interstate

travel was prostitution.

Pet. App. 19-22.

“Section 2423(a),” the

court observed, “is concerned not with why a defendant travels,

but rather with the question why he transports a minor.”

20

(citation

omitted).

The

court

thus

determined

Id. at

that

the

government is required to prove only that “the illicit sexual

activity was a dominant purpose for transporting the minor in

interstate travel,” not for the travel itself.

Ibid.

The court

explained that, “even if a defendant’s primary purpose for the

trip itself is to conduct legitimate business or to leave a

6

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 illicit sexual activity.”

Ibid.

And it found the

evidence sufficient to allow the jury to conclude that petitioner’s

dominant purpose for transporting S.B. to Texas was “to continue

using her as a source of income there” -- i.e., prostitution.

Id.

at 21-22.

ARGUMENT

Petitioner

renews

his

contentions

(Pet.

15-23)

that

his

conviction for transporting a minor to engage in criminal sexual

activity, in violation of 18 U.S.C. 2423(a), required proof that

he knew S.B. was a minor at the time he transported her and that

the dominant purpose of his interstate travel was to transport

S.B. to engage in prostitution.

rejected both contentions.

The court of appeals correctly

Its decision does not conflict with

any decision of this Court or another court of appeals.

Further

review is not warranted.

1.

Under 18 U.S.C. 2423(a), it is a crime to “knowingly

transport[] an individual who has not attained the age of 18 years

in interstate or foreign commerce

* * *

with intent that the

individual engage in prostitution, or in any sexual activity for

which any person can be charged with a criminal offense.”

Every

court of appeals to consider the question has determined that,

while Section 2423(a) applies only if the individual who was

7

knowingly transported across state lines to engage in criminal

sexual activity was a minor, the government is not required to

prove that the defendant knew of the victim’s minor status.

See

United States v. Tavares, 705 F.3d 4, 18-20 (1st Cir.), cert.

denied, 569 U.S. 986, and 571 U.S. 964 (2013); United States v.

Griffith, 284 F.3d 338, 350-351 (2d Cir.), cert. denied, 537 U.S.

986 (2002); United States v. Hamilton, 456 F.2d 171, 173 (3d Cir.)

(per curiam), cert. denied, 406 U.S. 947 (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), cert. denied, 565 U.S.

1138 (2012); United States v. Cox, 577 F.3d 833, 836-838 (7th Cir.

2009); United States v. Taylor, 239 F.3d 994, 997 (9th Cir. 2001).

The court of appeals correctly reached the same conclusion here.

As this Court has recognized, “many sex crimes involving

minors do not ordinarily require that a perpetrator know that his

victim is a minor.”

646, 653 (2009).

Flores-Figueroa v. United States, 556 U.S.

Congress enacted Section 2423(a) alongside

another provision that already prohibits “knowingly transport[ing]

any individual in interstate or foreign commerce

* * *

with

intent that such individual engage in prostitution, or in any

sexual activity for which any person can be charged with a criminal

offense.”

18

U.S.C.

2421

(emphasis

added).

The

evident

congressional purpose of specifically prohibiting the same conduct

with respect to minors, and attaching a higher sentencing range,

8

was to “provide heightened protection for minors against sexual

exploitation.”

997.

Cox, 577 F.3d at 837; see also Taylor, 239 F.3d at

Given the difficulties in proving a defendant’s knowledge of

the victim’s age, the courts of appeals have recognized that

Section 2423(a) is correctly interpreted as “requiring a 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.”

Daniels, 653 F.3d at 410; see Taylor, 239 F.3d at 997 (“Ignorance

of the victim’s age provides no safe harbor from the penalties in

18 U.S.C. § 2423(a).”).

Petitioner contends that “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 element.”

(quoting

Flores-Figueroa,

556

U.S.

at

652).

But

Pet. 16

petitioner

acknowledges that no “rigid rule” to that effect exists, and that

the inquiry into whether “knowingly” applies to a particular

element of an offense “‘is a contextual one.’”

Pet. 18 (quoting

Flores-Figueroa, 556 U.S. at 652). As noted, “sex crimes involving

minors” is a context in which “knowingly” ordinarily does not apply

to a victim’s minor status.

Flores-Figueroa, 556 U.S. at 653.

And the more specific context of Section 2423(a) reinforces that

general rule.

See pp. 7-8, supra.

Unlike in United States v.

X-Citement Video, Inc., 513 U.S. 64 (1994), the minor victim’s age

9

in Section 2423(a) is not “the crucial element separating legal

innocence from wrongful conduct,” id. at 73; the transportation

for illicit sexual purposes is illegal either way, see 18 U.S.C.

2421, 2423(b).

As

petitioner

acknowledges

(Pet.

17),

Justice

Alito

specifically addressed 18 U.S.C. 2423(a) in his Flores-Figueroa

concurrence, noting with approval the courts of appeals’ uniform

recognition “that a defendant need not know the victim’s age to be

guilty under this statute.”

556 U.S. at 660 (citing, e.g.,

Griffith, supra, and Taylor, supra).

Justice Alito relied on

Section 2423(a) as his primary evidence that, while it may be “fair

to begin with a general presumption that the specified mens rea

applies to all the elements of an offense,

* * *

it must be

recognized that there are instances in which context may well rebut

that presumption.”

Ibid.

The majority did not disagree.

See id.

at 652 (“As Justice Alito notes, the inquiry into a sentence’s

meaning is a contextual one.”).

Petitioner also errs in suggesting (Pet. 15) that the general

common-law presumption of a scienter requirement for criminal

offenses compels a different result.

Whatever application the

common-law presumption might otherwise have, this Court has noted

that the presumption did not include “sex offenses, such as rape,

in

which

the

victim’s

actual

age

was

determinative

despite

defendant’s reasonable belief that the girl had reached the age of

10

consent.”

(1952).

Morissette v. United States, 342 U.S. 246, 251 n.8

In such cases, “the perpetrator confronts the underage

victim personally and may reasonably be required to ascertain that

victim’s age.”

X-Citement Video, 513 U.S. at 72 n.2.

The same is

true here. 1

2.

Petitioner also contends that his conviction must be

vacated because the government did not prove that “the dominant

purpose

of

[his]

in prostitution.

trip”

to

Texas

was

for

S.B.

to

engage

Pet. 21 (citing Mortensen v. United States,

322 U.S. 369, 374 (1944)); see id. at 20-23.

But Section 2423(a)

does not prohibit traveling interstate with a particular purpose;

it prohibits “transport[ing] an individual who has not attained

the age of 18” in interstate travel “with the intent that the

individual engage in prostitution.”

added).

18 U.S.C. 2423(a) (emphasis

Thus, as the court of appeals explained, the question

under Section 2423(a) is not the purpose of the interstate travel

itself, but the purpose of the transportation of the minor during

that travel.

See Pet. App. 20-21; see also United States v.

After this petition was filed, the Court granted review

in Rehaif v. United States, No. 17-9560, cert. granted (oral

argument scheduled for Apr. 23, 2019), to consider whether, in a

prosecution against an alien unlawfully in the United States who

possesses a firearm, see 18 U.S.C. 922(g)(5)(A), 924(a)(2), the

government must prove that the defendant knew that he was

unlawfully in the United States.

Petitioner has not since

requested that the Court hold this petition pending its decision

in Rehaif. And given the different contexts in which the mens rea

questions arise, no hold is necessary.

1

11

Vargas-Cordon, 733 F.3d 366, 377 (2d Cir. 2013) (“Section 2423(a)

is concerned not with why a defendant travels, but rather with

the question why he transports a minor.”); United States v. Snow,

507 F.2d 22, 24 (7th Cir. 1974) (“[W]hen examining defendant’s

purpose, the appropriate inquiry is not merely his reason for

making the trip but, more precisely, his reason for taking a female

companion with him.”).

sufficient

evidence

And, here, the court of appeals found

that

“the

illicit

sexual

activity

was

a

dominant purpose for transporting the minor in interstate travel.”

Pet. App. 20; see id. at 21-22.

Petitioner relies (Pet. 20-21) on the Court’s statement from

Mortensen v. United States, supra, that, under a predecessor to

Section 2423(a), “[a]n intention that the women or girls shall

engage in the conduct outlawed by [the statute]

* * *

the dominant motive of [the] interstate movement.”

must be

322 U.S. at

374. That statement referred to “interstate movement” with minors,

not the defendant’s travel in itself.

As the preceding sentence

made clear, the “essential” requirement was “that the interstate

transportation have for its object or be the means of effecting or

facilitating the proscribed activities.”

Ibid. (emphasis added).

As petitioner recognizes (Pet. 20-21), “[t]he sole purpose of the

journey”

in

Mortensen

“from

beginning

to

end

was

to

provide

innocent recreation and a holiday for” the defendants and two of

their minor employees.

322 U.S. at 375.

“It was a complete break

12

or interlude in the operation of [the defendants’] house of ill

fame and was entirely disassociated therefrom.”

Ibid.

The Court

had no occasion to consider, and did not hold, that a defendant

like petitioner, who brings along a minor for purposes of illicit

sexual

activity,

may

avoid

conviction

under

Section

2423(a)

because he might have made the journey by himself anyway. 2

Petitioner also errs in relying (Pet. 21) on United States v.

McGuire,

627

prosecution

F.3d

not

622

under

(7th

Cir.

Section

provision in Section 2423(b).

2010).

2423(a),

McGuire

but

the

involved

a

neighboring

Unlike Section 2423(a), Section

2423(b) specifically prohibits “travel[ing] in interstate commerce

* * *

with a motivating purpose of engaging in any illicit sexual

conduct with another person.”

punishes

travel

in

interstate

18 U.S.C. 2423(b).

commerce

even

if

That is, “it

no

minor

is

transported, if the purpose of the travel is sex with a minor.”

McGuire, 627 F.3d at 624.

In McGuire, the defendant brought a

minor with him on various legitimate business trips with the

intention of sexually molesting the minor while on those trips.

Id. at 622-623; see id. at 625 (explaining that the defendant

“travel[ed] in interstate or foreign commerce to a retreat in the

Hansen v. Haff, 291 U.S. 559 (1934), did not directly

involve a statute proscribing transportation of another person and

thus is not controlling here.

That case considered whether an

alien who had traveled from California to Denmark and back with a

married man was deportable as a “person[] coming into the United

States for the purpose of prostitution or for any other immoral

purpose.” Id. at 560 (quoting 8 U.S.C. 136 (1934)).

2

13

company of a boy he intend[ed] to molest”).

The Seventh Circuit

viewed the government’s decision to charge the defendant only under

Section 2423(b) to present a difficult question whether travel

with such “dual purposes” violated Section 2423(b).

Id. at 624.

The Seventh Circuit did not suggest, however, that alternative

purposes for the interstate travel and having a minor accompany

the defendant during that travel would present difficulties under

Section 2423(a).

To the contrary, the Seventh Circuit found it

readily “apparent” that if the defendant in McQuire had committed

the conduct he was accused of, he had violated Section 2423(a).

Ibid.; see Snow, 507 F.2d at 24.

Indeed, petitioner has not

identified any decision of another court of appeals holding that

Section 2423(a) would not apply in a case like his.

Finally, to the extent defendant seeks (Pet. 22-23) this

Court’s review of the court of appeals’ determination that the

evidence was sufficient for a reasonable jury to find that a

dominant purpose in his transporting S.B. to Texas (as opposed to

his purpose in traveling to Texas at all) was, in fact, for S.B.

to engage in prostitution, that factbound determination does not

warrant further review.

See United States v. Johnston, 268 U.S.

220, 227 (1925) (“We do not grant

* * *

evidence and discuss specific facts.”).

certiorari to review

14

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

NOEL J. FRANCISCO

Acting Solicitor General

BRIAN A. BENCZKOWSKI

Assistant Attorney General

ANDREW W. LAING

Attorney

APRIL 2019