Petition for Writ of Certiorari — Laron Darrell Carter, Petitioner v. United States

Supreme Court briefApr 29, 2024

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APPENDIX

Case: 21-50234, 01/30/2024, ID: 12854241, DktEntry: 52, Page 1 of 1

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED

JAN 30 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,

No.

Plaintiff-Appellee,

21-50234

D.C. No.

2:14-cr-00297-VAP-1

Central District of California,

Los Angeles

LARON DARRELL CARTER, AKA Birdd,

AKA Gardena Pimpin Birdd, AKA Garr

ORDER

Birdd, AKA Pi Birdd, AKA Pi Pimpin Birdd,

Defendant-Appellant.

Before: RAWLINSON, HURWITZ, and OWENS, Circuit Judges.

The panel has voted to deny Appellant’s petition for panel rehearing. Judges

Rawlinson and Owens voted to deny the petition for rehearing en banc, and Judge

Hurwitz so recommends.

The full court has been advised of the suggestion for rehearing en banc, and

no judge has requested a vote on whether to rehear the matter en banc. Fed. R.

App. P. 35.

The petition for panel rehearing and the petition for rehearing en banc are

therefore DENIED.

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FILED

NOT FOR PUBLICATION

NOV 20 2023

UNITED STATES COURT OF APPEALS

MOLLY C. DWYER, CLERK

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

No.

Plaintiff-Appellee,

U.S. COURT OF APPEALS

21-50234

D.C. No.

2:14-cr-00297-VAP-1

LARON DARRELL CARTER, AKA Birdd, MEMORANDUM*

AKA Gardena Pimpin Birdd, AKA Garr

Birdd, AKA Pi Birdd, AKA Pi Pimpin Birdd,

Defendant-Appellant.

Appeal from the United States District Court

for the Central District of California

Virginia A. Phillips, Chief District Judge, Presiding

Submitted November 16, 2023**

Pasadena, California

Before: RAWLINSON, HURWITZ, and OWENS, Circuit Judges.

Laron Carter, who was convicted of multiple sex-trafficking and

transportation of minors offenses, appeals from the district court’s judgment

following our remand in United States v. Carter, 754 F. App’x 534 (9th Cir. 2018).

This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

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He argues that the district court erred in denying his motion to dismiss Counts 1-10

as barred by the statute of limitations. As the parties are familiar with the facts, we

do not recount them here. We affirm.

“We review de novo the district court’s compliance with our mandate.”

United States v. Luong, 627 F.3d 1306, 1309 (9th Cir. 2010). When an appellate

court decides a case, “whatever was before [the] court, and disposed of by its

decree, is considered as finally settled.” In re Sanford Fork & Tool Co., 160 U.S.

247, 255 (1895). This “rule of mandate” precludes a district court from

considering issues the appellate court resolved. United States v. Thrasher, 483

F.3d 977, 981 (9th Cir. 2007). This rule is jurisdictional and cannot be waived.

See Luong, 627 F.3d at 1310. If the district court does not have jurisdiction to rule

on an issue, we do not have jurisdiction to review it. Id. at 1309.

The district court did not have jurisdiction to consider Carter’s statute of

limitations argument because our prior decision resolved that issue. The panel in

Carter’s initial appeal explicitly considered his statute of limitations argument,

resolved it as waived because Carter did not raise it in the district court, and

affirmed the convictions on Counts 1-10. Carter, 754 F. App’x at 536. The panel

made no indication that the statute of limitations argument was unresolved; the

panel did not, for instance, ask the district court to make any additional factual

findings related to the statute of limitations argument. See, e.g., United States v.

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Standard, 207 F.3d 1136, 1143 (9th Cir. 2000) (remanding for resentencing

without limitation on the district court’s authority to consider additional evidence

where the district court had failed to make required factual findings). Thus,

Carter’s primary contention that the initial panel left unresolved the statute of

limitations issue is not supported by the record.

Carter’s other arguments are unavailing. Carter contends that the

government waived its objection to the district court’s jurisdiction by failing to

raise it below. However, as noted above, jurisdiction cannot be waived. See

Luong, 627 F.3d at 1310.

Carter next contends that the district court treated his statute of limitations

argument as an ineffective assistance of counsel claim, and thus had jurisdiction.

Carter waived this argument by not raising it in his opening brief. See United

States v. King, 257 F.3d 1013, 1029 n.5 (9th Cir. 2001). In any event, the record

does not support Carter’s reading of the district court’s decision, and our

precedents foreclose it. See United States v. Reyes Platero, 224 F.3d 1112, 1117

(9th Cir. 2000) (“We therefore reiterate that we will not remand a case from direct

appeal for fact-finding related to an ineffective assistance of counsel claim, but

allow a defendant to pursue the issue in district court collateral proceedings.”),

overruled on other grounds by United States v. Jacobo Castillo, 496 F.3d 947 (9th

Cir. 2007) (en banc). The case Carter relies on, United States v. Cronic, 466 U.S.

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648, 667 n.42 (1984), does not address a district court’s authority to consider the

claim on remand. Carter makes no argument for why we should depart from our

general rule and consider an ineffective assistance of counsel claim on direct

appeal. See United States v. Liu, 731 F.3d 982, 995 (9th Cir. 2013).

Carter finally contends that dismissing his claim only for him to raise it in a

28 U.S.C. § 2255 petition would lead to “inefficiency and absurdity.” Even if

efficiency could overcome jurisdiction, this argument is unconvincing. Limiting

the issues a district court may consider on remand serves the interests of

“consistency, finality and efficiency.” Thrasher, 483 F.3d at 982. Carter does not

raise any additional argument addressing the clear and contrary authority that

§ 2255 is the proper path to raise an ineffective assistance of counsel claim. See

Reyes Platero, 224 F.3d at 1117.

The district court acted outside the scope of the mandate when it considered

Carter’s statute of limitations argument. However, the unauthorized deviation did

not affect the district court’s resentencing, and it acted within the scope of the

mandate when it resentenced Carter. Because Carter does not raise any permitted

challenge to the district court’s sentence for Counts 1-12, we affirm.

AFFIRMED.

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FILED

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

NOV 2 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

No.

16-50271

Plaintiff-Appellee,

D.C. No.

2:14-cr-00297-VAP-1

LARON DARRELL CARTER, AKA

Birdd, AKA Gardena Pimpin Birdd, AKA

Garr Birdd, AKA Pi Birdd, AKA Pi

Pimpin Birdd,

MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court

for the Central District of California

Virginia A. Phillips, Chief Judge, Presiding

Argued and Submitted August 27, 2018

Pasadena, California

Before: GOULD and BYBEE, Circuit Judges, and HERNANDEZ,** District

Judge.

Laron Carter was convicted of seven counts of violating 18 U.S.C. § 1591

and seven counts of violating 18 U.S.C. § 2423(a). Carter appeals his convictions

This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

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and sentence. In an opinion concurrently filed with this memorandum disposition,

we vacate his convictions on two of the counts (Counts 13 and 14) because they

were obtained in violation of Carter’s Sixth Amendment right to confrontation.

We also remand to the district court for resentencing. Here, we review Carter’s

various challenges to his convictions on the remaining counts (Counts 1–12). We

affirm his convictions on these counts.

The district court correctly rejected Carter’s argument that Counts 11

and 12 are barred by the Double Jeopardy Clause. Although these counts are based

on the same conduct underlying his Nevada state conviction for pandering, the

“dual-sovereignty doctrine” provides that the Double Jeopardy Clause does not bar

successive state and federal prosecutions “for the same course of conduct.” Puerto

Rico v. Sanchez Valle, 136 S. Ct. 1863, 1869–71 (2016) (quoting Heath v.

Alabama, 474 U.S. 82, 88 (1985)). Carter asks us to reject the dual-sovereignty

doctrine, but we cannot ignore binding Supreme Court precedent. See Bosse v.

Oklahoma, 137 S. Ct. 1, 2 (2016) (per curiam).

We do not reach the merits of Carter’s argument that the prosecution

of Counts 1–10 was barred by the statute of limitations, 18 U.S.C. § 3282(a),

because Carter failed to raise the statute of limitations in the district court. He

“cannot successfully raise the statute-of-limitations defense . . . for the first time on

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appeal.” Musacchio v. United States, 136 S. Ct. 709, 718 (2016); see United States

v. Lo, 231 F.3d 471, 480–81 (9th Cir. 2000). We also decline Carter’s

request—made for the first time in his reply brief—that we consider his statute of

limitations argument as a claim of ineffective assistance of counsel. “[A]rguments

not raised by a party in its opening brief are deemed waived,” United States v.

King, 257 F.3d 1013, 1029 n.5 (9th Cir. 2001) (citation omitted), and in any event

we see no reason to depart from our “general rule” that “we do not review

challenges to the effectiveness of defense counsel on direct appeal,” United States

v. Liu, 731 F.3d 982, 995 (9th Cir. 2013).

The district court did not abuse its discretion in denying Carter’s

motion to dismiss on grounds of pre-indictment delay.1 See United States v.

Barken, 412 F.3d 1131, 1134 (9th Cir. 2005). To obtain relief for pre-indictment

delay under either the Fifth Amendment’s Due Process Clause or Federal Rule of

Criminal Procedure 48(b), the defendant must show “‘actual, non-speculative

prejudice from the delay,’ meaning proof that demonstrates exactly how the loss of

evidence or witnesses was prejudicial.” Id. (citation omitted); United States v.

Carter waived his right to object to any post-indictment delay under the

Sixth Amendment’s Speedy Trial Clause by specifically disavowing it in the

district court, and by stipulating to nearly all of the delay between his indictment

and trial. See Barker v. Wingo, 407 U.S. 514, 529 (1972).

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Jiang, 214 F.3d 1099, 1101 (9th Cir. 2000). Carter has not identified any actual

prejudice; his speculative assertion that one witness might have forgotten the

precise route he traveled from California to Nevada is insufficient. See United

States v. Corona-Verbera, 509 F.3d 1105, 1112–13 (9th Cir. 2007). Nor has Carter

identified “flagrant prosecutorial misconduct” that would compel the exercise of

the district court’s supervisory powers. United States v. Chapman, 524 F.3d 1073,

1085 (9th Cir. 2008).

We reject Carter’s arguments protesting the joinder of the counts for

trial. First, Carter waived his argument regarding severance of the counts under

Federal Rule of Criminal Procedure 14(a) by failing to renew his severance motion

at the close of evidence. See United States v. Sullivan, 522 F.3d 967, 981 (9th Cir.

2008).

Second, Carter forfeited his argument regarding misjoinder under Federal

Rule of Criminal Procedure 8(a) by failing to mention Rule 8(a) in his severance

motion. See United States v. Smith, 795 F.2d 841, 850 (9th Cir. 1986). We thus

review for plain error—i.e., an error that is “clear or obvious, rather than subject to

reasonable dispute,” Puckett v. United States, 556 U.S. 129, 135 (2009)—and find

no such error here. Counts 1–12 may reasonably be seen as being “of the same or

similar character,” Fed. R. Crim. P. 8(a), as they allege that Carter committed the

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same two statutory offenses against each of the victims, each of the victims was a

minor at the time of the offense, and each of the charges arose out of events

occurring at least in part in the same two counties in California. See United States

v. Jawara, 474 F.3d 565, 576–78 (9th Cir. 2007); United States v. Rousseau, 257

F.3d 925, 932 (9th Cir. 2001). The similarity of the offenses can be “reasonably

inferred” without having to “engage in inferential gymnastics or resort to

implausible levels of abstraction.” Jawara, 474 F.3d at 578. And even assuming

that the counts were improperly joined, Carter has not shown “actual prejudice,” as

the district court instructed the jury to treat each count separately, and the evidence

for each count was distinct. See id. at 579–81.

Finally, Carter’s retroactive misjoinder argument fails for lack of

“compelling prejudice.” United States v. Lazarenko, 564 F.3d 1026, 1043 (9th Cir.

2009).

For the foregoing reasons, we affirm Carter’s convictions on Counts 1–12.

And for the reasons given in the accompanying opinion, we vacate the convictions

on Counts 13 and 14 and remand to the district court for resentencing.

AFFIRMED IN PART, VACATED IN PART, AND REMANDED.

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

No. 16-50271

D.C. No.

2:14-cr-00297-VAP-1

LARON DARRELL CARTER,

AKA Birdd, AKA Gardena

Pimpin Birdd, AKA Garr

Birdd, AKA Pi Birdd, AKA Pi

Pimpin Birdd,

Defendant-Appellant.

OPINION

Appeal from the United States District Court

for the Central District of California

Virginia A. Phillips, Chief Judge, Presiding

Argued and Submitted August 27, 2018

Pasadena, California

Filed November 2, 2018

Before: Ronald M. Gould and Jay S. Bybee, Circuit

Judges, and Marco A. Hernandez,* District Judge.

Opinion by Judge Bybee

The Honorable Marco A. Hernandez, United States District Judge

for the District of Oregon, sitting by designation.

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UNITED STATES V. CARTER

SUMMARY**

Criminal Law

The panel vacated the defendant’s convictions on one

count of violating 18 U.S.C. § 1591 (sex trafficking of a

minor or by force, fraud, or coercion) and one count of

violating 18 U.S.C. § 2423(a) (transportation of a minor in

interstate commerce to engage in prostitution), and remanded

for resentencing on remaining counts as to which the panel

affirmed the defendant’s convictions in a concurrently-filed

memorandum disposition.

The panel held that a defendant’s right to physically

confront an adverse witness (whether child or adult) cannot

be compromised by permitting the witness to testify by video

(whether one-way or two-way) unless use of the remote video

procedure is necessary and the reliability of the testimony is

otherwise assured. Because alternatives were available for

obtaining a victim-witness’s testimony that would have

preserved the defendant’s right to physical confrontation, the

use of a remote video was not necessary in this case, and

violated the defendant’s Sixth Amendment right to confront

the witnesses against him.

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

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UNITED STATES V. CARTER

COUNSEL

Benjamin L. Coleman (argued), Coleman & Balogh LLP, San

Diego, California, for Defendant-Appellant.

Jeffrey Chemerinsky (argued) and Jeff Mitchell (argued),

Assistant United States Attorneys, Violent & Organized

Crime Section; Lawrence S. Middleton, Chief, Criminal

Division; Nicola T. Hanna, United States Attorney; United

States Attorney’s Office, Los Angeles, California; for

Plaintiff-Appellee.

OPINION

BYBEE, Circuit Judge:

Laron Carter was tried and convicted on seven counts of

violating 18 U.S.C. § 1591, and seven counts of violating

18 U.S.C. § 2423(a), based on his trafficking and prostitution

of seven minor girls. During Carter’s trial, one of the

victims, J.C., testified against him from Minnesota by twoway video, as she was seven months pregnant and unable to

travel. Carter contends that permitting J.C. to testify against

him remotely by two-way video, rather than in person,

violated his Sixth Amendment right to confront the witnesses

against him.

We agree. Criminal defendants have a right to “physical,

face-to-face confrontation at trial,” and that right cannot be

compromised by the use of a remote video procedure unless

it is “necessary” to do so and “the reliability of the testimony

is otherwise assured.” Maryland v. Craig, 497 U.S. 836, 850

(1990). Because alternatives were available for obtaining

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UNITED STATES V. CARTER

J.C.’s testimony that would have preserved Carter’s right to

physical confrontation, the use of a remote video procedure

was not necessary in this case. We therefore vacate Carter’s

convictions on the two counts involving J.C. and remand to

the district court for resentencing on the remaining counts.1

Carter was convicted of forcing seven minor girls into

prostitution and trafficking them across state lines. The

crimes took place over a ten-year period from 2003 to 2013.

For each of the seven victims, Carter was charged with one

count of violating 18 U.S.C. § 1591 (sex trafficking of a

minor or by force, fraud, or coercion), and one count of

violating 18 U.S.C. § 2423(a) (transportation of a minor in

interstate commerce to engage in prostitution), for a total of

fourteen counts.

One week before Carter’s April 2016 trial, the

government filed an ex parte application regarding the

anticipated testimony of J.C., the victim for Counts 13 and

14. J.C., who was by then an adult living in Minnesota, was

seven months pregnant with a due date in June. The

government explained that J.C. had been hospitalized for

complications with her pregnancy and that her doctor had

instructed her not to travel from Minnesota to California.

Accordingly, the government sought either to take J.C.’s

deposition in Minnesota pursuant to Federal Rule of Criminal

Procedure 15, or to have her testify during trial from

Minnesota via live two-way video conference. With respect

to the out-of-court deposition, the government proposed that

In a concurrently-filed memorandum disposition, we affirm Carter’s

convictions on the remaining counts.

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UNITED STATES V. CARTER

the parties would fly to Minnesota in the middle of trial and

suggested that it would try to secure, but could not guarantee,

Carter’s physical attendance.

Carter opposed both options on Confrontation Clause

grounds. He objected to the deposition because the logistics

for securing his attendance at the deposition could not be

arranged on such short notice, and because counsel would

have to forgo preparation for trial to attend the deposition.

He objected to the live two-way video procedure based on his

“constitutional rights to personally confront his accuser at

trial.” He concluded by noting that, if he were forced to

select one of the two alternatives, he would choose the twoway video procedure. The district court granted the

government’s application to use two-way video, and the case

proceeded to trial.

On the second day of trial, Carter again objected to the

two-way video procedure. He argued that under Craig,

permitting J.C. to testify by two-way video would violate his

right to confrontation unless the court found that J.C.’s

absence was “necessary to further an important public

policy.” The district court overruled Carter’s objection.

Despite the government’s failure to provide any “direct

evidence from [J.C.’s] physician,” the court concluded that

J.C. was “unavailable” because “she had been advised by her

doctor not to travel, given the advanced state of her

pregnancy.” The court also concluded that J.C.’s “testimony

[was] necessary” to the government’s case, and that the twoway video procedure would “satisfy all the requirements of

the Confrontation Clause”—J.C. would testify under oath, she

would be subject to cross-examination, and the jury would be

able to observe her demeanor.

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UNITED STATES V. CARTER

J.C. testified by two-way video at trial. At the start of her

testimony, the court instructed the jurors that, although J.C.

was testifying “via live video feed,” they were “to treat the

testimony the same as a witness who is physically present in

the courtroom.” J.C. was then sworn in by the courtroom

deputy and asked to identify Carter while the camera scanned

the courtroom. She responded: “Um, is that him right there

next to – I can’t really see that well on you guy’s thing, but I

believe that’s him next to these two gentlemen right there. I

can’t really see that well.” After she described Carter’s

clothing, the court “note[d] that the witness has identified the

defendant.”

J.C. proceeded to testify about her relationship with

Carter. She stated that she met Carter in 2013, when she was

16 years old. She was living in Minnesota at the time, and

Carter bought her a bus ticket to Los Angeles under an alias

because she was underage. When she arrived in Los Angeles,

Carter picked her up and took her to a motel room. There, he

photographed her in lingerie and used the photographs in an

advertisement on Backpage, a website used to advertise

sexual services. She then worked as a prostitute for Carter for

approximately two weeks. She testified that Carter kept all

of her earnings, dictated how much she should charge and

what she should wear, and threatened to beat her if she did

not comply.

In addition to J.C.’s testimony, the government introduced

as evidence her birth certificate, which confirmed that she

was 16 years old when the conduct took place, as well as a

record of the bus ticket J.C. used to get to Los Angeles, which

confirmed that Carter purchased it. The government also

introduced the Backpage advertisement, evidence showing

that the credit card used to pay for this advertisement was the

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UNITED STATES V. CARTER

same credit card used to pay for an advertisement of another

prostitute who worked for Carter, and evidence showing that

the Internet Protocol (“IP”) address used to access Carter’s

Facebook account matched the IP address used to create the

Backpage advertisement. That IP address was traced to a

Travelodge motel, the decor of which matched the

background in the Backpage advertisements featuring J.C.

Aside from J.C., five of the other victims testified in

person at trial, and one of the victims did not testify at all.

Carter was ultimately convicted on all fourteen counts and

sentenced to 40 years’ imprisonment. Because the group of

counts involving J.C. (Counts 13 and 14) carried the highest

offense level under the United States Sentencing Guidelines

(“U.S.S.G.”), those counts served as the base for calculating

his final sentencing range. See U.S.S.G. §§ 3D1.2, 3D1.4.

Carter argues that permitting J.C. to testify by two-way

video violated his rights under the Sixth Amendment’s

Confrontation Clause. “We review claims of a violation of

the Confrontation Clause de novo.” United States v. Nguyen,

565 F.3d 668, 673 (9th Cir. 2009).2

The government argues that this claim should be reviewed under the

plain error standard because Carter did not “request[] either a continuance

or severance” of Counts 13 and 14 in the district court. The argument has

no merit. Both before and during trial, Carter specifically objected to the

use of two-way video testimony on Confrontation Clause grounds. These

objections, which brought Carter’s “Confrontation Clause claim to the

attention of both the district court and the government,” were sufficient “to

avoid the plain error standard” on appeal. Nguyen, 565 F.3d at 673 n.2.

Carter was not obligated to suggest other strategies for how the

government could introduce evidence against him.

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UNITED STATES V. CARTER

The Confrontation Clause of the Sixth Amendment

guarantees a criminal defendant the right “to be confronted

with the witnesses against him.” U.S. Const. amend. VI.

“[T]he Confrontation Clause provides two types of

protections for a criminal defendant: the right physically to

face those who testify against him, and the right to conduct

cross-examination.” Coy v. Iowa, 487 U.S. 1012, 1017

(1988) (quoting Pennsylvania v. Ritchie, 480 U.S. 39, 51

(1987) (plurality opinion)). As the Supreme Court observed

in Coy, most Confrontation Clause cases concern the second

of these protections and its implications for using out-of-court

statements by witnesses who do not testify at trial. Id. at

1016. That remains true today. See, e.g., Ohio v. Clark,

135 S. Ct. 2173 (2015); Michigan v. Bryant, 562 U.S. 344

(2011); Giles v. California, 554 U.S. 353 (2008); Crawford

v. Washington, 541 U.S. 36 (2004). But at its core, “the

Confrontation Clause guarantees the defendant a face-to-face

meeting with witnesses appearing before the trier of fact.”

Coy, 487 U.S. at 1016; see California v. Green, 399 U.S. 149,

157 (1970) (explaining that the “literal right to ‘confront’ the

witness at the time of trial . . . forms the core of the values

furthered by the Confrontation Clause”).

The Supreme Court has twice addressed the right to faceto-face confrontation. In Coy, the Court held that the

placement of a screen between the defendant and two child

witnesses, which allowed the “witnesses to avoid viewing

[the defendant] as they gave their testimony,” constituted an

“obvious . . . violation of the defendant’s right to a face-toface encounter.” 487 U.S. at 1020. In reaching that

conclusion, the Court illustrated “the profound effect upon a

witness of standing in the presence of the person the witness

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UNITED STATES V. CARTER

accuses,” explaining that a physically-confronted “witness

‘may feel quite differently when he has to repeat his story

looking at the man whom he will harm greatly by distorting

or mistaking the facts.’” Id. at 1019–20 (quoting Zechariah

Chafee, The Blessings of Liberty 35 (1956)). The “right to

face-to-face confrontation” thus serves to “ensure the

integrity of the fact-finding process.” Id. (citation and

internal alteration omitted). Accordingly, the Court held that

the Confrontation Clause’s “irreducible literal meaning”

guarantees “a right to meet face to face all those who appear

and give evidence at trial.” Id. at 1021 (emphasis omitted)

(quoting Green, 399 U.S. at 175 (Harlan, J., concurring)).

Nevertheless, the Court acknowledged that “face-to-face

presence may, unfortunately, upset the truthful rape victim or

abused child; but by the same token it may confound and

undo the false accuser, or reveal the child coached by a

malevolent adult. It is a truism that constitutional protections

have costs.” Id. at 1020. The Court “le[ft] for another day”

the question whether there were exceptions to the right to

face-to-face confrontation, observing that any exception

“would surely be allowed only when necessary to further an

important public policy.” Id. at 1021.

That day came two years later in Craig. There, the Court

upheld a Maryland statute permitting child victims of abuse

to testify from outside the courtroom by one-way closed

circuit television. 497 U.S. at 840–41, 860. This procedure

could be invoked only if the trial judge found “that testimony

by the child victim in the courtroom will result in the child

suffering serious emotional distress such that the child cannot

reasonably communicate.” Id. at 840–41 (citation omitted).

The prosecutor and defense counsel could examine and crossexamine the child witness in a separate room. Id. at 841. The

defendant and jury could see the testifying child witness on

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UNITED STATES V. CARTER

a monitor in the courtroom, but the witness could not see the

defendant. Id. at 841–42.

The Court declared that, while “the Confrontation Clause

reflects a preference for face-to-face confrontation,”

defendants do not have an “absolute right to a face-to-face

meeting with witnesses against them at trial.” Id. at 844, 849

(quoting Ohio v. Roberts, 448 U.S. 56, 63 (1980)). But the

Court cautioned that “the face-to-face confrontation

requirement” should not “easily be dispensed with.” Id. at

850. Thus, the Court held that “a defendant’s right to

confront accusatory witnesses may be satisfied absent a

physical, face-to-face confrontation at trial only where”

(1) the “denial of such confrontation is necessary to further an

important public policy,” and (2) “the reliability of the

testimony is otherwise assured.” Id. at 850.

Armed with this two-part test, the Court turned to

Maryland’s video procedure. The Court first concluded that

the procedure adequately ensured the “reliability and

adversariness” of the testimony, as it “preserve[d] all of the

other elements of the confrontation right”—the child witness

had to be competent to testify under oath, the defendant could

conduct live cross-examination, and everyone in the

courtroom could observe the witness’s demeanor. Id. at 851.

The Court further concluded that “a State’s interest in the

physical and psychological well-being of child abuse victims

may be sufficiently important to outweigh, at least in some

cases, a defendant’s right to face his or her accusers in court.”

Id. at 853. But such cases would require a “case-specific

finding” that the procedure is “necessary to protect a child

witness from trauma that would be caused by testifying in the

physical presence of the defendant” when “such trauma

would impair the child’s ability to communicate.” Id. at

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UNITED STATES V. CARTER

857–58. The Court explained that the trial court would need

to find that the witness would be traumatized by the

defendant’s presence in the courtroom, not from the

courtroom generally, and that the trauma would rise to a level

that is “more than de minimis.” Id. at 856.

Craig involved one-way video testimony by a child

witness, while this case involves two-way video testimony by

an adult witness. The Supreme Court has not decided

whether Craig’s standard applies in these circumstances,3 and

until now we have applied Craig only in the context of

18 U.S.C. § 3509, a statute enacted in direct response to

Craig that permits child witnesses to testify by two-way

video. See United States v. Etimani, 328 F.3d 493, 499 (9th

Cir. 2003); United States v. Quintero, 21 F.3d 885, 892 (9th

Cir. 1994); United States v. Garcia, 7 F.3d 885, 888–89 (9th

Cir. 1993). We now make clear that a defendant’s right to

physically confront an adverse witness (whether child or

adult) cannot be compromised by permitting the witness to

testify by video (whether one-way or two-way) unless

The vitality of Craig itself is questionable in light of the Supreme

Court’s later decision in Crawford, which abrogated Roberts, a case relied

upon heavily in Craig that permitted “open-ended exceptions from the

confrontation requirement” based on “judicial determination[s] of

reliability.” Crawford, 541 U.S. at 54, 62 (abrogating Roberts, 448 U.S.

56); see Craig, 497 U.S. at 847–52. But while Craig and Crawford stand

in “marked contrast” in several respects, “Crawford did not overturn

Craig.” United States v. Cox, 871 F.3d 479, 492–95 (6th Cir. 2017)

(Sutton, J., concurring), cert. denied, 138 S. Ct. 754 (2018). We thus

remain bound by Craig until the Supreme Court “see[s] fit to reconsider

[it], regardless of whether subsequent cases have raised doubts about [its]

continuing vitality.” Bosse v. Oklahoma, 137 S. Ct. 1, 2 (2016) (per

curiam) (citation omitted).

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UNITED STATES V. CARTER

Craig’s standard is satisfied. And that standard is a stringent

one; the use of a remote video procedure must be reserved for

rare cases in which it is “necessary.” Craig, 497 U.S. at 850.

Our conclusion follows directly from the “core” of the

Confrontation Clause guarantee—providing the accused an

“opportunity to challenge his accuser in a face-to-face

encounter in front of the trier of fact.” Green, 399 U.S. at

156–57. Not only does physical confrontation at trial serve

as a symbol of fairness, but it also promotes reliability, for

“[i]t is always more difficult to tell a lie about a person ‘to his

face’ than ‘behind his back.’” Coy, 487 U.S. at 1019.

Compelling “adverse witnesses at trial to testify in the

accused’s presence” thus “enhances the accuracy of

factfinding” at trial. Craig, 497 U.S. at 846–47. So too does

“compelling [witnesses] to stand face to face with the jury”

as they tell their side of the story. Green, 399 U.S. at 158

(quoting Mattox v. United States, 156 U.S. 237, 242 (1895)).

These important components of confrontation are lost when

the witness is not testifying in court, regardless of the

witness’s age or ability to see the defendant on a screen from

a distant location. Any procedure that allows an adverse

witness to testify remotely necessarily diminishes “the

profound [truth-inducing] effect upon a witness of standing

in the presence of the person the witness accuses.” Coy,

487 U.S. at 1020 (emphasis added).

There are also important practical differences between

face-to-face confrontation and virtual confrontation. From

the remote witness’s point of view, the courtroom will

necessarily be defined by the angle and quality of the

courtroom camera as well as the size and quality of the screen

on which the video is projected. These variables can distort

any effort to approximate in-person testimony. The record in

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UNITED STATES V. CARTER

this case bears this out. When asked to identify Carter in the

courtroom, J.C. hesitantly did so after testifying that she

“c[ould]n’t really see that well.” Moreover, unless the

defendant has multiple attorneys, such that one could travel

to the witness’s remote location while the other remains in

the courtroom, the defendant would be unable to ensure that,

for example, “the witness is not being coached or influenced

during testimony, and that the witness is not improperly

referring to documents.” United States v. Hamilton, 107 F.3d

499, 503 (7th Cir. 1997). There is no suggestion of such

misconduct in this case; we point this out only to show that

physical confrontation serves purposes other than permitting

cross-examination and allowing the jury to see the witness’s

face.

It also bears noting that no procedural mechanism exists

for employing a video procedure in the manner it was

employed here. Federal Rule of Criminal Procedure 26

requires that, absent certain circumstances, “[i]n every trial

the testimony of witnesses must be taken in open court.” The

Judicial Conference once suggested a revision to Rule 26 that

would have allowed testimony by two-way video in special

circumstances, but the Supreme Court declined to transmit

the proposed revision to Congress. Order of the Supreme

Court, 207 F.R.D. 89, 91–92 (2002). Justice Scalia filed a

statement explaining that he “share[d] the majority’s view”

that the proposal was “of dubious validity under the

Confrontation Clause,” as it failed to “limit the use of

testimony via video transmission to instances where there has

been a ‘case-specific finding’ that it is ‘necessary to further

an important public policy.’” Id. at 93 (statement of Scalia,

J.) (citing Craig, 497 U.S. at 850, 857–58). Although Justice

Scalia’s statement is not controlling, his reasoning supports

our conclusion that Craig supplies the governing standard

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UNITED STATES V. CARTER

when the defendant is deprived of “a physical, face-to-face

confrontation at trial,” 497 U.S. at 850.

Further support for our view comes from other circuits

addressing this issue, which have held that Craig’s two-part

test applies to the use of two-way video testimony. See

United States v. Yates, 438 F.3d 1307, 1313–15 (11th Cir.

2006) (en banc); United States v. Bordeaux, 400 F.3d 548,

554–55 (8th Cir. 2005); see also State v. Rogerson,

855 N.W.2d 495, 502–03 (Iowa 2014) (collecting decisions

from several state courts holding that “Craig [provides] the

standard for assessing the constitutionality of two-way video

testimony”).4 We now join them and expressly hold that a

defendant’s right to “physical, face-to-face confrontation at

trial” may be compromised by the use of a remote video

procedure only upon a “case-specific finding” that (1) the

denial of physical confrontation “is necessary to further an

The Second Circuit has held that “the Craig standard” does not

apply to two-way video procedures, reasoning that, unlike the one-way

video in Craig, two-way video “preserve[s] the face-to-face

confrontation” required by the Confrontation Clause. United States v.

Gigante, 166 F.3d 75, 81 (2d Cir. 1999). Instead of applying Craig, the

Second Circuit thought the “more profitable comparison” was to Federal

Rule of Criminal Procedure 15, which permits the taking of an out-ofcourt deposition for use in trial in “exceptional circumstances . . . in the

interest of justice.” Id. (quoting Fed. R. Crim. P. 15(a)). We agree with

the Eighth and Eleventh Circuits that Gigante is an outlier and that the

proper test is Craig. See Yates, 438 F.3d at 1313; Bordeaux, 400 F.3d at

555. Regardless of whether the video procedure is one-way or two-way,

the defendant is being denied “a physical, face-to-face confrontation at

trial.” Craig, 497 U.S. at 850. And equating a two-way video procedure

with face-to-face confrontation necessarily neglects the “intangible

elements” of confrontation that, as even the Gigante court admits, may be

“reduced or even eliminated by remote testimony.” 166 F.3d at 81.

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UNITED STATES V. CARTER

important public policy,” and (2) “the reliability of the

testimony is otherwise assured.” Craig, 497 U.S. at 850, 857.

Craig’s requirement of necessity was not met here.

Although the district court concluded that J.C. was

“unavailable to travel to be physically present” at trial, all

agree that J.C.’s inability to travel was due to her

pregnancy—a temporary disability. There were alternatives

available to preserve Carter’s right to physical face-to-face

confrontation, meaning that denying him that right was not

necessary.

The most obvious alternative would have been to continue

the trial in anticipation of J.C.’s recovery. See United States

v. Jacobs, 97 F.3d 275, 281 (8th Cir. 1996); Peterson v.

United States, 344 F.2d 419, 425 (5th Cir. 1965). As the

government acknowledges in its brief, J.C. was unable to

travel “for the duration of her pregnancy (which was two

months).” Continuances have been granted in similar

circumstances. See, e.g., United States v. Howard, 218 F.3d

556, 562–63 (6th Cir. 2000) (affirming a four-month

“continuance requested by the government on the ground that

[a prosecution witness] had been hospitalized after going into

premature labor and was therefore unavailable to testify”).

Another alternative would have been to sever the two counts

involving J.C. while maintaining the scheduled trial date for

the remaining counts. See, e.g., Garris v. United States,

418 F.2d 467, 468–70 (D.C. Cir. 1969) (affirming severance

of counts at the government’s request when “the necessary

witnesses” for the various counts “could not be available at

the same time”). Although some of the government’s

evidence may have overlapped among the counts, the charges

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UNITED STATES V. CARTER

were not inseparable. To the contrary, the jury was

specifically instructed that the “verdict on one count should

not control [the] verdict on any other count.” Either of these

alternatives would have allowed Carter to confront J.C. faceto-face, without screens, cables, and thousands of miles

between them.

We are mindful that having to make these adjustments on

the eve of trial is not ideal. But a criminal defendant’s

constitutional rights cannot be neglected merely to avoid

“added expense or inconvenience.” Green, 399 U.S. at 189

n.22 (Harlan, J., concurring). We also realize that there may

be some cases in which it is truly necessary to forgo physical

confrontation at trial due to a witness’s medical condition.

See, e.g., Horn v. Quarterman, 508 F.3d 306, 310, 320 (5th

Cir. 2007) (finding Craig’s “necessity-based exception”

satisfied on habeas review when the witness was “terminally

ill with cancer and being treated in [another state]”). But in

this case, the government did not even attempt to continue the

trial, sever the counts, or both before resorting to a procedure

that prevented Carter from confronting his accuser in person.

“The right of confrontation may not be dispensed with so

lightly.” Barber v. Page, 390 U.S. 719, 725 (1968).

The government did suggest another possible

alternative—deposing J.C. in Minnesota.5 Although live, inperson testimony would be preferable to out-of-court

The government proposed taking J.C.’s deposition under Rule 15,

and offered two-way video as an alternative. Carter objected to both

proposals, expressing doubts that the deposition could be scheduled

without interfering with the trial schedule. The district court rejected the

proposed deposition without comment and granted the government’s

application to proceed by video.

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UNITED STATES V. CARTER

testimony, a deposition would have at least preserved Carter’s

right to physical confrontation. See Fed. R. Crim. P. 15(a),

(c)(1). Indeed, Craig itself notes that the “denial of face-toface confrontation would be unnecessary” if the witness could

testify elsewhere “with the defendant present.” 497 U.S. at

856; see Yates, 438 F.3d at 1317 (finding no necessity where

the defendants and witnesses could “be placed in the same

room for the taking of pre-trial deposition testimony pursuant

to Rule 15”). And if logistics prevented the government from

securing Carter’s physical presence at J.C.’s deposition while

also maintaining the trial schedule, the court could have

granted a brief continuance to allow the deposition to be

completed with Carter present.6 Given these various

alternatives, forgoing physical confrontation in favor of a

two-way video procedure was not “necessary.” Craig,

497 U.S. at 850.

The government tries to overcome this conclusion by

pointing to Federal Rule of Evidence 804, which permits the

introduction of certain hearsay statements made prior to trial

when the declarant is “unavailable” to testify in court because

of “a then-existing infirmity, physical illness, or mental

illness.” Fed. R. Evid. 804(a)(4), (b). As the government

correctly observes, we have held that “risks in late pregnancy,

when attested to by a physician, are an ‘infirmity’ within the

We express no opinion on whether the government could have

satisfied the Confrontation Clause by deposing J.C. without Carter

physically present, other than to note that the government is generally

required to “secure the defendant’s actual, physical presence” at a Rule 15

deposition and that we have excused this requirement only when fulfilling

it would be “impossibl[e].” United States v. Medjuck, 156 F.3d 916, 920

(9th Cir. 1998) (quoting Christian v. Rhode, 41 F.3d 461, 467 n.8 (9th Cir.

1994)); see Fed. R. Crim. P. 15(c)(1).

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UNITED STATES V. CARTER

meaning of [Rule 804(a)(4)].” United States v. McGuire,

307 F.3d 1192, 1205 (9th Cir. 2002).

This argument suffers from two flaws. First, this case

does not involve hearsay statements made prior to trial; J.C.

gave live testimony during trial, albeit remotely. As a

constitutional matter, the test for admitting out-of-court

testimony is “quite separate from” the test adopted in Craig,

which governs “what in-court procedures are constitutionally

required to guarantee a defendant’s confrontation right once

a witness is testifying.” White v. Illinois, 502 U.S. 346, 358

(1992). If anything, our decision in McGuire only sharpens

the point, as the hearsay testimony introduced in that case

was videotaped testimony from the defendant’s first trial.

307 F.3d at 1196; see Fed. R. Evid. 804(b)(1). The defendant

thus had the opportunity to physically confront the witness at

the time the testimony was given. Carter, by contrast, never

had that opportunity with respect to J.C.

Second, Rule 804 is a rule of evidence, and the

Confrontation Clause’s protections do not turn on “the

vagaries of the rules of evidence.” Crawford, 541 U.S. at 61;

see Idaho v. Wright, 497 U.S. 805, 814 (1990) (“[W]e have

. . . been careful not to equate the Confrontation Clause’s

prohibitions with the general rule prohibiting the admission

of hearsay statements.”). Indeed, the right to confrontation is

a rule of procedure, not evidence. See Crawford, 541 U.S. at

60–61. When testimony is being introduced against a

defendant in a criminal case, the Confrontation Clause’s

guarantees do not simply “evaporate when [the] testimony

happens to fall within some broad, modern hearsay exception,

even if that exception might be justifiable in other

circumstances.” Id. at 56 n.7. We therefore find the

government’s reliance on Rule 804 unpersuasive.

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UNITED STATES V. CARTER

The government also points out that the two-way video

procedure in this case preserved “all other elements of the

confrontation right,” Craig, 497 U.S. at 851, as J.C. was

required to be competent, to testify under oath, to undergo

contemporaneous cross-examination, and to be viewable by

the judge, jury, and defendant. But that is not sufficient.

Dispensing with physical confrontation must be “necessary.”

Id. at 850. And a finding that J.C. was temporarily unable to

come to court is not the sort of “requisite finding of

necessity” that justifies depriving Carter of his constitutional

right to physical, face-to-face confrontation. Id. at 855.

Having found a Confrontation Clause violation, Carter’s

convictions on Counts 13 and 14 cannot stand unless “the

error was harmless beyond a reasonable doubt.” United

States v. Larson, 495 F.3d 1094, 1107 (9th Cir. 2007) (en

banc). “The government bears the burden of proving that the

error was harmless beyond a reasonable doubt, and we assess

this issue by considering ‘the importance of the witness’

testimony in the prosecution’s case, whether the testimony

was cumulative, and, of course, the overall strength of the

prosecution’s case.’” United States v. Esparza, 791 F.3d

1067, 1074 (9th Cir. 2015) (internal alteration omitted)

(quoting Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986)).

The “assessment of harmlessness cannot include

consideration of whether the witness’ testimony would have

been unchanged, or the jury’s assessment unaltered, had there

been confrontation”; rather, harmlessness must “be

determined on the basis of the remaining evidence.” Coy,

487 U.S. at 1021–22; see Nguyen, 565 F.3d at 675.

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UNITED STATES V. CARTER

The government has not carried its burden of showing

that the Confrontation Clause violation was harmless beyond

a reasonable doubt. J.C. was not merely a witness, but the

alleged victim of Carter’s crimes, and she was the most recent

of Carter’s alleged victims. Her testimony was clearly

critical evidence with respect to Counts 13 and 14. The

government acknowledged as much in the district court,

arguing that “J.C.’s testimony [was] especially central to the

government’s case.” The remaining evidence for those

counts consisted of “documentary evidence” indicating that

Carter paid for J.C.’s bus ticket to Los Angeles and for a

Backpage ad that included a photograph of J.C. But this

evidence does not, standing alone, establish beyond a

reasonable doubt that Carter violated 18 U.S.C. §§ 1591 and

2423. The documents do not establish, for example, Carter’s

“intent that [J.C.] engage in prostitution.” 18 U.S.C.

§ 2423(a). Nor do they establish Carter’s knowledge that

“force, threats of force, fraud, [or] coercion . . . would be used

to cause [J.C.] to engage in a commercial sex act.” Id.

§ 1591(a). Only J.C. could fill in those gaps. And she

testified that she was 16 when Carter first contacted her, that

she told him she was 16, and that he purchased a bus ticket

because she was underage and could not get on a plane. J.C.

described how Carter put her up in motels, bought her

provocative clothes, and forced her onto the streets. She

testified that he coerced her into prostitution and maintained

control over her by collecting all of her earnings and by

threatening and beating her if she failed to follow his “rules.”

Her testimony was thus central to the government’s case on

Counts 13 and 14, which “strongly supports a finding that the

error was not harmless.” Fowler v. Sacramento Cty. Sheriff’s

Dep’t, 421 F.3d 1027, 1042 (9th Cir. 2005) (citing Olden v.

Kentucky, 488 U.S. 227, 232–33 (1988)).

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UNITED STATES V. CARTER

In any event, “[e]ven when the government’s case is

‘strong,’ a Confrontation Clause violation is not harmless

where the erroneously admitted evidence could have

‘significantly altered the evidentiary picture.’” Esparza,

791 F.3d at 1074 (quoting United States v. Bustamante,

687 F.3d 1190, 1195 (9th Cir. 2012)). There is no question

that J.C.’s testimony significantly altered the evidentiary

picture with respect to Counts 13 and 14. The government’s

essential argument at closing—that J.C. “worked for [Carter]

out on the track, having sex with adult men in cheap motels,

and giving all the money to [Carter]”—hinged entirely on

J.C.’s testimony. The government has not met its burden to

show harmlessness beyond a reasonable doubt. Counts 13

and 14 must be vacated.

III

Because we vacate Carter’s convictions on Counts 13 and

14, the sentencing package imposed by the district court has

become “unbundled.” United States v. Christensen, 828 F.3d

763, 821 (9th Cir. 2015) (quoting United States v. RuizAlvarez, 211 F.3d 1181, 1184 (9th Cir. 2000)). Indeed,

Carter’s sentence was based on Counts 13 and 14, the group

of counts with the highest offense level. See U.S.S.G.

§§ 3D1.2, 3D1.4. We therefore follow “our customary

practice” of remanding for the district court “to put together

a new package reflecting its considered judgment as to the

punishment the defendant deserve[s] for the crimes of which

he [i]s still convicted.” Christensen, 828 F.3d at 821 (internal

alterations omitted) (quoting Ruiz-Alvarez, 211 F.3d at 1184).

We decline to address Carter’s additional challenges to his

sentence, which he may raise to the extent appropriate on

remand.

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UNITED STATES V. CARTER

Permitting J.C. to testify against Carter by two-way video

violated Carter’s Sixth Amendment right to confrontation,

and that error was not harmless beyond a reasonable doubt.

For these reasons and those given in the accompanying

memorandum disposition, we affirm Carter’s convictions on

Counts 1–12, vacate his convictions on Counts 13 and 14, and

remand to the district court for resentencing.

AFFIRMED IN PART, VACATED IN PART, AND

REMANDED.

Case 2:14-cr-00297-VAP Document 350 Filed 07/10/20 Page 1 of 7 Page ID #:3452

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

United States of America,

Plaintiff,

Order DENYING Defendant’s

Motion to Dismiss Counts One

Through Ten of the Second

Superseding Indictment (Dkt. 337).

Laron Darrell Carter,

United States District Court

Central District of California

2:14-cr-00297-VAP

Defendant.

Before the Court is Defendant Laron Darrell Carter’s Motion to Dismiss

Counts One Through Ten of the Second Superseding Indictment (“the Motion”).

(Dkt. 337). Defendant filed the Motion on March 9, 2020. The Government filed

opposition on March 16, 2020 (the “Opposition,” Dkt. 340), and Defendant replied

on June 20, 2020 (the “Reply,” Dkt. 347). After considering all papers filed in

support of, and in opposition to, the Motion, the Court DENIES the Motion.

I. BACKGROUND

On April 18, 2014, the Government filed a Complaint charging Defendant

with a single count of violating 18 U.S.C. § 2423(a)1, transportation of minors with

intent to engage in criminal sexual activity, based on conduct that occurred in 2013.

(Dkt. 1). The Government filed a first superseding indictment on February 5, 2016,

adding seven new counts (Dkt. 125), and the operative second superseding

All section references in this Order are under 18 U.S.C. unless otherwise specified.

Case 2:14-cr-00297-VAP Document 350 Filed 07/10/20 Page 2 of 7 Page ID #:3453

indictment (“SSI”) on March 30, 2016 (Dkt. 195). The SSI charged Defendant with

14 total counts: seven violations of 18 U.S.C. § 2423(a) and seven violations of 18

U.S.C. § 1591 (sex trafficking of children by force, fraud, or coercion). (Dkt. 195).

Counts One through Ten of the SSI alleged offenses that occurred in 2003 and 2005.

(Id.). The Opposition summarizes the facts of these allegations. (Dkt. 340 at 4–7).

Defendant’s trial began on April 19, 2016 (Dkt. 228) and resulted in a verdict of

guilty on all counts. (Dkt. 247). Defendant now seeks to dismiss Counts One

through Ten as barred by the statute of limitations.

United States District Court

Central District of California

II.

DISCUSSION

Unless subject to another provision of law, the statute of limitations for non-

capital offenses is five years. 18 U.S.C. § 3282(a). In early 2006, Congress enacted

a pair of laws that extend the limitations period for certain crimes involving minors.

Section 3283 provides:

No statute of limitations that would otherwise preclude prosecution for an offense involving the sexual or physical abuse, or

kidnaping, of a child under the age of 18 years shall preclude

such prosecution during the life of the child, or for ten years after

the offense, whichever is longer.

18 U.S.C. § 3283. Section 3299 states:

Notwithstanding any other law, an indictment may be found or

an information instituted at any time without limitation for any

offense under section 1201 involving a minor victim, and for any

felony under chapter 109A, 110 (except for sections 2257 and

2257A), or 117, or section 1591.

18 U.S.C. § 3299. Defendant contends that the default, five-year statute of

limitations should apply here, because (1) § 3299, which was enacted in 2006, does

Case 2:14-cr-00297-VAP Document 350 Filed 07/10/20 Page 3 of 7 Page ID #:3454

not extend the limitations period for offenses occurring before its enactment

(Motion at 6–9) and (2) § 3283 does not apply to the offenses charged in Counts

One through Ten (id. at 9–11). The Court addresses each argument in turn.

United States District Court

Central District of California

A. 18 U.S.C. § 3299

The parties do not dispute that § 3299 specifically covers violations of §§

1591 and 2423(a), the offenses charged in Counts One through Ten. (Id. at 6;

Opposition. 340 at 8). Their disagreement concerns timing. Counts One though

Ten occurred in 2003 and 2005; Congress enacted § 3299 in 2006. Defendant

argues that § 3299 “does not apply to offenses . . . committed before its enactment,

due to the lack of clear congressional intent. Unless Congress clearly expresses its

intent otherwise, the presumption is that the statute of limitations in effect when the

offense was alleged to be committed applies. Because Congress did not clearly

express an intent for § 3299 to apply to offenses committed before its enactment . . .

that extended limitations provision does not apply to Counts One through Ten.”

(Motion at 6). Although Defendant’s argument is an accurate, general statement of

statutory construction, it fails as applied to § 3299.

First, the plain language of § 3299 undercuts Defendant’s assertion that

Congress did not provide a statement of intent. The statute applies

“[n]otwithstanding any other law,” 18 U.S.C. § 3299, indicating an intent to

override all other statutes of limitations, including the default five-year period for

non-capital crimes, see Cisneros v. Alpine Ridge Grp., 508 U.S. 10, 18 (1993) (“As

we have noted previously in construing statutes, the use of such a ‘notwithstanding’

clause clearly signals the drafter’s intention that the provisions of the

‘notwithstanding’ section override conflicting provisions of any other section.”

Case 2:14-cr-00297-VAP Document 350 Filed 07/10/20 Page 4 of 7 Page ID #:3455

(citations omitted)). Although Congress sometimes includes a separate note to

statutes when it intends a new limitations period to apply to pre-enactment offenses,

Defendant does not argue Congress does so uniformly. (See Dkt. 337 at 7–8).

United States District Court

Central District of California

Ninth Circuit precedent compels the same conclusion. In United States v.

Leo Sure Chief, 438 F.3d 920 (9th Cir. 2006), the “Defendant argue[d] that his

indictment, which was returned . . . approximately seven years after the alleged

sexual abuse[,] was untimely because a five-year statute of limitations applie[d].”

Id. at 922. At the time of his offense, the applicable statute of limitations allowed

prosecution until the victim’s 25th birthday. Id. At the time of indictment,

Congress had amended the statute to permit prosecution any time during the life of

the victim. Id. at 922–23. The Ninth Circuit rejected the defendant’s argument,

holding that, “[b]ecause Congress evinced a clear intent to extend, rather than

shorten, the statute of limitations applicable to sexual abuse crimes, and because

there is no ex post facto problem here, the prosecution was timely.” Id. at 924; see

also id. at 923 (“By contrast, here, Congress extended the limitations period. There

was no gap. Defendant’s indictment was timely under the 2003 amendment,

allowing prosecution during the life of the child, as well as under the 1994 statute. .

. . Defendant’s indictment remained viable at all times . . ..” (emphasis in original)).

Section 3299 similarly extended the applicable statute of limitations—and did so

before the limitations period had run under the previous regime, such that

Defendant’s indictment on Counts One through Ten was viable at all times.2

Defendant implicitly acknowledges this is the case by declining to challenge §

3299 as an ex post facto application of law. (See Motion at 6–7; Leo Sure Chief,

438 F.3d at 924).

Case 2:14-cr-00297-VAP Document 350 Filed 07/10/20 Page 5 of 7 Page ID #:3456

Defendant contends the question of retroactivity is a difficult one, which the

Court should interpret in favor of repose. (Reply at 2–3). He relies on First and

Second Circuit opinions and underplays the importance of Leo Sur Chief. (Id.).

Not only are these opinions not binding on the Court—unlike Leo Sur Chief—but

they explicitly recognize that Ninth Circuit law holds “that Congress intended that

the amended statute of limitations for crimes of child sexual abuse should be

applied retrospectively.” United States v. Miller, 911 F.3d 638, 644 (1st Cir. 2018);

Weingarten v. United States, 865 F.3d 48, 58 (2d Cir. 2017).

United States District Court

Central District of California

Defendant’s appeal to the Dictionary Act, 1 U.S.C. § 1, is also unavailing.

Although the Dictionary Act is a valuable tool of construction, its guidance applies

only “unless the context indicates otherwise,” 1 U.S.C. § 1, which is not the case

here. Accordingly, the Court finds “the prosecution was timely” under § 3299. Leo

Sure Chief, 438 F.3d at 924; see also United States v. Pittman, 2015 WL 4772731, at

*2–3 (S.D. Cal. Aug. 12, 2015) (subsequent history omitted).

18 U.S.C. § 3283

Even assuming Defendant’s § 3299 argument had merit, Counts One to Ten

were still timely under the limitations regime in effect from 2003 to 2005.

Before the enactment of § 3299 in 2006, the statute of limitations for child

sex offenses was set forth in § 3283, which provided:

No statute of limitations that would otherwise preclude prosecution for an offense involving the sexual or physical abuse, or

kidnaping, of a child under the age of 18 years shall preclude

such prosecution during the life of the child.

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18 U.S.C. § 3283. Defendant maintains that § 3283 applies only to offenses in

which the sexual or physical abuse of a minor is an essential element, and that “the

§§ 1591 and 2423(a) offenses alleged in Counts One through Ten . . . do not

categorically constitute ‘sexual abuse’ of children.” (See Dkt. 337 at 9–10). He

relies on the rule that exemptions to a statute of limitations apply only where the

category of behavior exempted is an “essential element” of the alleged offense.

Bridges v. United States, 346 U.S. 209, 220 (1953).

United States District Court

Central District of California

A categorical analysis of the violations alleged in Counts One through Ten,

however, indicates they are offenses involving sexual abuse. The Ninth Circuit has

held that the definition of “sexual abuse” provided in § 3509(a) applies to §3283.

See United States v. Carpenter, 680 F.3d 1101, 1103 (9th Cir. 2012). In Carpenter,

the court held: “Title 18’s only definition of that term is in 18 U.S.C. § 3509(a) and

states: ‘For purposes of this section . . . the term ‘sexual abuse’ includes the

employment, use, persuasion, inducement, enticement, or coercion of a child to

engage in, or assist another person to engage in, sexually explicit conduct or the

rape, molestation, prostitution, or other form of sexual exploitation of children, or

incest with children.’ . . . [W]e find the definition the appropriate one to use for

purposes of section 3283’s extended statute of limitations.” Id. at 1103 (emphasis

added).3

Contrary to the argument raised in the Reply, Esquivel-Quintana v. Sessions, 137

S. Ct. 1562 (2017), does not call Carpenter into question. That case considered the

definition of “sexual abuse of a minor or ward” for the purpose of determining what

age gap constituted statutory rape, see id. at 1570–71; it plainly did not undermine

Carpenter’s holding that “sexual abuse” is defined in § 3509(a). Indeed, the Ninth

Circuit expressly noted that 18 U.S.C. § 2243, the statute discussed in EsquivelQuintana, does not “claim[] to define ‘sexual abuse.’ Title 18’s only definition of

that term is in 18 U.S.C. § 3509(a).” Carpenter, 680 F.3d at 1103.

Case 2:14-cr-00297-VAP Document 350 Filed 07/10/20 Page 7 of 7 Page ID #:3458

United States District Court

Central District of California

The violations charged in Counts One through Ten fall within this definition

of sexual abuse, which defines “exploitation” to include “child prostitution,” 18

U.S.C. § 3509(a)(6). Although the parties disagree as to whether §§ 1591 and

2423(a) are offenses that require a sex act, the statutes undoubtedly criminalize

child prostitution. See § 1591 (Whoever knowingly . . . recruits, entices, harbors,

transports, provides, obtains, advertises, maintains, patronizes, or solicits by any

means a person . . . knowing . . . that means of force, threats of force, fraud,

coercion . . . 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 . . .”); § 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 . . .”). Thus, the Court

finds that Counts One through Ten were governed by § 3283 prior to the enactment

of § 3299 and, even if § 3299 does not have pre-enactment effect, were timely

brought under § 3283’s statute of limitations.

III.

CONCLUSION

The Court therefore DENIES the Motion.

IT IS SO ORDERED.

Dated:

7/10/20

Virginia A. Phillips

Chief United States District Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.