Metropolitan News-Enterprise


Monday, April 15, 2019


Page 1


Ninth Circuit:

No Need to Prove Fondler on Plane Knew Consent Lacking

Wardlaw Says Statute Simply Requires That Defendant Know That Contact Is of a Sexual Nature;

Visiting Judge Says Wording Indicates Accused Must Appreciate That Touching Is Unwelcomed


By a MetNews Staff Writer


Prosecutors in a case in which the defendant is charged with a nonconsensual sexual touching of another person on an international flight need not show subjective awareness on the part of the accused that consent was not given, the Ninth U.S. Circuit Court of Appeals held Friday in a 2-1 decision.

Judge Kim McLane Wardlaw wrote the majority opinion, in which Judge Jacqueline H. Nguyen joined. Sixth Circuit Court of Appeals Judge Ronald Lee Gilman, sitting by designation, concurred in the affirmance of the conviction of Juan Pablo Price for abusive sexual contact, but disagreed with Wardlaw’s reasoning.

At issue was an interpretation of 18 U.S.C. § 2244(b), which provides:

“Whoever, in the special maritime and territorial jurisdiction of the United States...knowingly engages in sexual contact with another person without that other person’s permission shall be fined under this title, imprisoned not more than two years, or both.”

Mental Element

The word “knowingly,” Wardlaw wrote, “modifies only the verb phrase ‘engages in sexual contact with another person’ and does not modify the adverbial prepositional phrase ‘without that other person’s permission.’ ” She said the mens rea element is “that the defendant engage in sexual contact knowingly.”

That reading, Gilman insisted, is “contrary to the plain text of the provision,” opining that District Court Judge George H. King of the Central District of California erred in not instructing the jury that, to convict, it would have to find that Price had an awareness that female passenger he was fondling as she slept had not consented. But, the visiting judge said, the error was, under the facts, harmless.

The incident took place on a flight from Tokyo to Los Angeles. Price was arrested by Los Angeles Airport Police Division (“LAXPD”) officers when he departed from the plane.

Wardlaw’s Opinion

Wardlaw wrote:

“We reject Price’s reading of the statute as contrary to its Text, the structure of the statutory scheme and its very purpose in penalizing Those who sexually prey upon victims on the seas or in the air within federal jurisdiction. Congress’s purpose in enacting the Sexual Abuse Act of 1986 was to criminalize sexual contact by focusing on the defendant’s conduct.

She continued:

“If the government were required to prove that the defendant subjectively knew he lacked consent, as Price urges here, every accused sexual predator could defend his admitted sexual contact in the face of no objective sign of permission by asserting a supposed subjective belief that the victim was ‘enjoying herself,’ a result directly contrary to the purpose of the 1986 Act.”

This echoed Wardlaw’s comments at oral argument in Pasadena on Nov. 6, 2017, that if the government had to prove a defendant’s awareness of a lack of consent, “Nobody would ever be guilty.” She commented:

“They’d just say, ‘Oh well, I thought there was consent.’ ‘Oh, well, I thought she liked it.’ ”

Gilman’s View

In his opinion Friday, Gilman expressed this view:

“In order to obtain a conviction under 18 U.S.C. § 2244(b), I believe that the government has the burden of proving that Price subjectively knew that he was acting without [the victim]’s permission. The statute, in other words, does not criminalize otherwise innocent sexual contact based on a fact—the lack of permission—unknown to the defendant. That the defendant knew he lacked permission may be proved by circumstantial evidence but, nevertheless, the defendant’s subjective knowledge is an issue to be resolved by the jury.

“Accordingly, the district court erred in refusing to instinct the jury that such knowledge was necessary to convict Price under 18 U.S.C. § 2244(b). Despite the court’s faulty instructions, however, the error was harmless beyond a reasonable doubt because no reasonable juror could have concluded that Price subjectively believed that he had permission to touch a sleeping stranger’s breast. I therefore concur in the ultimate judgment reached by the lead opinion.”

Reinhardt’s Stance

Gilman noted that his opinion was largely taken from a draft opinion penned by Judge Stephen Reinhardt, who died March 29, 2018.

At oral argument, Reinhardt signaled his intent to find instructional error on intent. He said it should have been “up to the jury to decide whether they believed that” Price “knew or didn’t know” that there was a lack of consent.

Gilman said he found it “odd” that if the woman Price fondled “didn’t want the contact…she would have screamed or hollered or pushed him away—and she didn’t do any of those things.”

The case was taken under submission at the end of oral argument. Submission was vacated May 18, 2018, following Reinhardt’s death; Nguyen was randomly assigned to the case; it was resubmitted Friday.

Price argued that his statements to LAXPD officers and a U.S. Customs and Border Protection officer after they escorted him from the plane should be suppressed because they had no probable cause to arrest him.

Wardlaw rejected King’s notion that Price was merely subjected to a “temporary detention occasioned by border crossing formalities” and that no arrest took place. She pointed out that he was subjected to a pat-down search was in in handcuffs from about 9:08 a.m. until after the time an FBI special agent arrived at approximately 11:30 a.m.

Declaring that “this was an arrest,” she said:

“We nevertheless conclude that the officers had probable cause to believe Price had committed a crime when they arrested him….

“Here, the officers had ‘reasonably trustworthy information’ to arrest Price as he deplaned….They knew That a female passenger had reported That Price had perpetrated a sexual offense. The pilot had sent an advance message asking LAXPD to meet the airplane, stating ‘WE HAVE A MOLESTER/FONDLER ON BOARD.’ The actions of the flight crew demonstrated that they viewed the allegations as credible as they sought law enforcement assistance.”

 Wardlaw also saw no merit to Price’s contention that his statements to the FBI agent were not voluntary because he did not understand the Miranda warning.

King sentenced Price to three years of probation, conditions of which included one year of home detention, 360 hours of community service, registering as a sex offender, and participating “in a psychological counseling or psychiatric treatment or a sex offender treatment program, as approved and directed by the Probation Officer.”

The case is United States v. Price, 15-50556.


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