In United States v. Lopez, --- F.3d ---, No. 19-10017 (9th Cir. 2021), the Court affirmed convictions for attempting to entice a minor to engage in prohibited sexual activity (18 U.S.C. § 2422(b)) and attempting to transfer obscenity to a minor under sixteen years of age (18 U.S.C. § 1470).
The circumstances giving rise to this case took place mostly on the Andersen Air Force Base in Guam. Lopez, who was in the U.S. Army, tried to solicit an undercover agent who posed online as an underage girl.
During trial, the district court allowed the government to admit heavily edited selections from his post-arrest statement.
The Ninth Circuit found this was error, but harmless: "We hold the district court abused its discretion and violated Rule 106 by categorically excluding the entirety of the remaining interrogation footage as inadmissible hearsay despite the risk that the Government’s selective editing of the interrogation footage would mislead the jury. However, we agree with the Government that the district court’s evidentiary ruling was harmless error."
"When Rule 106 and Rule 802 collide, the critical inquiry for the trial court is the purpose for which the evidence is offered. Portions of a document or recording are admissible under Rule 106 notwithstanding the bar on hearsay evidence when offered 'to correct a misleading impression in the edited statement' introduced by an opposing party. In the interrogation context, for example, we have held that Rule 106 provides for the admission of additional portions of a defendant’s statement when the prosecution offers a redacted version that 'distorts the meaning of the statement,' 'excludes information substantially exculpatory of the declarant,' or 'excludes portions of a statement that are . . . explanatory of [or] relevant to the admitted passages.' By contrast, hearsay evidence is evidence offered 'to prove the truth of the matter asserted.' Fed. R. Evid. 801(c)(2). There is no conflict between evidence introduced under the rule of completeness and the bar on inadmissible hearsay because the former serves the purpose of correcting a distortion created by an opposing party’s misleading proffer of part of a document or recording, while the latter serves the purpose of barring introduction of hearsay evidence proffered for its truth."
"On a fair review of the interrogation recording, it should have been apparent that the excerpts risked misleading the jury by making it seem as though Lopez confessed during interrogation to believing 'Brit' was underage when, in reality, the full recording conveys a different impression."
"In response to Lopez’s objection, the district court could have excluded the video clips offered by the Government or admitted the Government’s clips subject to Lopez’s ability to proffer additional portions of the recording under Rule 106. The only course foreclosed by the Federal Rules of Evidence was the one taken here: admitting portions of a document or recording that risked misleading the jury while foreclosing the admission of any additional portions of the same document or recording."
The next issue is technical but particularly interesting because the panel split. The indictment alleged Lopez violated Section 2422(b) by attempting to entice a minor to engage in sexual activity criminalized by Guam’s First Degree Criminal Sexual Conduct statute, 9 G.C.A. § 25.15(a)(1).
Despite this express indictment, the majority held that 2422(b) did not require and the government did not have to prove that Guam or another governmental entity would have had jurisdiction to prosecute violations of the Guam statute cited in the indictment that were to occur on the base, a federal enclave.
"We hold as a matter of first impression that Lopez’s reading of Section 2422(b) to require charging a specific predicate offense is inconsistent with the statute’s text and how the statute has been interpreted. Instead, Section 2422(b)’s 'sexual activity for which any person can be charged with a criminal offense' element requires the Government to prove the defendant proposed sexual conduct that would have constituted any criminal offense in one or more relevant territorial jurisdictions. Under this reading of Section 2422(b), the Government presented sufficient evidence to allow the jury to conclude Lopez attempted to entice 'Brit' to engage in sexual conduct that is criminal in Guam."
The dissent by Judge Bennet is thorough. He explained:
The grand jury charged Lopez with attempting to “entice[] a person who the defendant believed to be under eighteen years of age[] to engage in sexual activity for which a person can be charged with a criminal offense, to wit: First Degree Criminal Sexual Conduct, in violation of 9 [Guam Code Annotated (“GCA”)] § 25.15(a)(1).” As I explain below, Lopez could not have been charged with or committed First Degree Criminal Sexual Conduct in violation of 9 GCA § 25.15(a)(1) as the predicate offense for his § 2422(b) violation, because the sexual activity he proposed was to take place on Anderson Air Force Base (AAFB), a place within the Special Maritime and Territorial Jurisdiction of the United States, and that crime is not assimilated under the Assimilative Crimes Act (“ACA”), 18 U.S.C. § 13. Thus, Lopez could not have committed and did not commit the crime with which he was charged in the indictment. Per force, the government presented insufficient evidence of his guilt. The Majority convicts the defendant for a different, uncharged crime—attempting to “entice[] a person who the defendant believed to be under eighteen years of age[] to engage in sexual activity for which a person can be charged with a criminal offense, to wit: attempted First Degree Criminal Sexual Conduct, in violation of 9 GCA §§ 13.10, 13.60(a), & 25.15(a)(1). Though I harbor serious doubts about whether such a crime (attempting to entice to attempt) could even exist, Lopez was neither charged with nor convicted of that theoretical offense, nor was the jury instructed as to that theoretical offense. Thus, I dissent.
