In United States v. Flucas, --- F4th ---, No. 19-10065 (9th Cir. 2020), a divided panel affirmed the convictions and a life sentence for transportation of a minor with intent to engage in criminal sexual activity in violation of 18 U.S.C. § 2423(a), and transportation of an individual with intent to engage in criminal sexual activity in violation of 18 U.S.C. § 2421(a).
On appeal, the question was whether the district court properly instructed the jury that it could convict Flucas if a motivating purpose of his transportation of his victims from Oregon to California was to engage in criminal sexual activity.
Flucas maintained that the district court was required to instruct the jury that the government must prove beyond a reasonable doubt that the dominant purpose of his transportation of his sexual abuse victims was to engage in criminal sexual activity.
The majority disagreed. The opinion is very long and goes through many many cases in support of its conclusion that "the district court did not abuse its discretion in instructing the jury, consistent with our precedent, that the government was required to prove beyond a reasonable doubt that a dominant, significant, or motivating purpose of the transportation of Flucas’ victims was to engage in criminal sexual activity."
Judge Bybee dissented: "The question before us is a linguistic one. No court has considered whether 'a motivating purpose' is different from 'a dominant or significant purpose.' In my view, those terms are not synonymous. The instruction lowered the government’s burden of proof, contrary to the Supreme Court’s decision in Mortensen v. United States, 322 U.S. 309 (1944), and our own Mann Act decisions; and the error in instruction is not harmless beyond a reasonable doubt. Flucas may be guilty of committing heinous acts in multiple jurisdictions. But the government must show that his dominant or significant purpose for traveling between those jurisdictions was to commit those unlawful sexual acts. He may or may not have done so."
