United States v. Price, No. 15-50556 (9th Cir. 2020)
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The Ninth Circuit denied a petition for panel rehearing, denied on behalf of the court a petition for rehearing en banc, and filed an Amended Opinion and Concurrence.
The panel affirmed defendant's conviction and sentence for knowingly engaging in sexual contact with another person without that other person's permission on an international flight, in violation of 18 U.S.C. 2244(b). The panel rejected defendant's contention that the district court erred in giving the Ninth Circuit Model Instruction on the elements of section 2244(b), which does not require that the government prove beyond a reasonable doubt that the defendant subjectively knew that his victim did not consent to his conduct. The panel rejected defendant'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. Because unwanted sexual contact of the type defendant engaged in—touching first, and asserting later that he "thought" the victim consented—is precisely what section 2244(b) criminalizes, the panel rejected defendant's claim of instructional error. Furthermore, the Supreme Court's recent decision in Rehaif v. United States, 139 S. Ct. 2191 (2019), does not alter the panel's conclusion. The panel also concluded that the police had probable cause to arrest defendant, that he was properly Mirandized, and that the district court acted within its discretion in refusing to read back to the jury portions of the victim's testimony.
Court Description: Criminal Law. The panel denied a petition for panel rehearing, denied on behalf of the court a petition for rehearing en banc, and filed an Amended Opinion and Concurrence, in a case in which the panel affirmed a conviction for knowingly engaging in sexual contact with another person without that other person’s permission on an international flight, in violation of 18 U.S.C. § 2244(b). * The Honorable Ronald Lee Gilman, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. ** This case was submitted to a panel that included Judge Stephen R. Reinhardt. Following Judge Reinhardt’s death, Judge Nguyen was drawn by lot to replace him. Ninth Circuit General Order 3.2.h. Judge Nguyen has read the briefs, reviewed the record, and listened to oral argument. UNITED STATES V. PRICE 3 In the Amended Opinion, the panel rejected the defendant’s argument that the district court erred in giving the Ninth Circuit Model Instruction on the elements of § 2244(b), which does not require that the government prove beyond a reasonable doubt that the defendant subjectively knew that his victim did not consent to his conduct. The panel rejected the defendant’s claim of instructional error because unwanted sexual contact of the type the defendant engaged in—touching first, and asserting later that he “thought” the victim consented—is precisely what § 2244(b) criminalizes. The panel explained that the Supreme Court’s recent decision in Rehaif v. United States, 139 S. Ct. 2191 (2019), does not alter its conclusion. The panel held that the police had probable cause to arrest the defendant, that he was properly Mirandized, and that the district court acted within its discretion in refusing to read back to the jury portions of the victim’s testimony. Concurring that the conviction should be affirmed, Sixth Circuit Judge Gilman disagreed with the majority’s holding that “knowingly” in § 2244(b) does not extend to the phrase “without that other person’s permission.” He wrote that despite the district court’s error in refusing to instruct the jury that such knowledge was necessary to convict, the error was harmless because no reasonable juror could have concluded that the defendant subjectively believed he had permission to touch a sleeping stranger’s breast. Judge Wardlaw, joined by Judge Nguyen, concurred in the denial of rehearing en banc. She wrote that in his dissent from the denial of rehearing en banc, Judge Collins wishes to rewrite § 2244(b)—and the Ninth Circuit Model Instruction—by inserting a subjective-knowledge requirement that is at odds with the very purposes of the 4 UNITED STATES V. PRICE Sexual Abuse Act of 1986, creating a shield for sexual predators that Congress did not intend. Judge Collins—joined by Judges Ikuta and VanDyke as to Parts I and II, and by Judge Bumatay as to Part II(B)(1)— dissented from the denial of rehearing en banc. He wrote that the panel majority (1) erroneously holds that there was no missing element at all by reading the word “knowingly” out of § 2244(b), ignoring the plain language of the statute and disregarding applicable canons of construction; and (2) wrongly concludes that, in any event, the omission of the scienter element was harmless error.
This opinion or order relates to an opinion or order originally issued on April 12, 2019.
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