In United States v. Jayavarman, --- F.3d ---, No. 16-30082 (9th Cir. 2017), the Court issued a lengthy opinion addressing numerous issues in a case where the defendant was convicted of attempting to produce
and transport into the United States a visual depiction of a
minor engaged in sexually explicit conduct in violation of
18 U.S.C. § 2251(e).
The key fact was that the defendant thought the person he filmed was a minor, but she was not. The Court concluded this did not matter: "We [] hold that a defendant may be convicted of
an attempt to violate § 2251(c) if he believes that the victim
is a minor, even if the victim turns out to be an adult."
The Court also rejected the defendant's arguments based on the foreign commerce clause, the First Amendment, constructive amendment of the indictment, sufficiency of the evidence, Rule 403, and failure to provide an interpreter.
Of note, the Court accepted the government's concession to vacate that the defendant's other conviction for attempt to aid and abet travel with intent to engage in illicit
sexual conduct in violation of 18 U.S.C. § 2243(b). The Court noted the statute does not cover an attempt to aid and abet:
The substantive statute does not contain an aiding and abetting provision, and the general aiding and abetting statute does not contain an attempt provision. [Thus,] a defendant could be convicted of aiding and abetting an attempt to violate § 2423(b), but he cannot be convicted of attempting to aid and abet a violation of § 2423(b)
Because the Court vacate one count of conviction, it remanded for resentencing: "remand of all sentences is often
warranted, even when only one conviction is vacated."
