United States v. Terrell Banker , 876 F.3d 530 ( 2017 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 16-4413
UNITED STATES OF AMERICA,
Plaintiff – Appellee,
v.
TERRELL BANKER,
Defendant – Appellant.
Appeal from the United States District Court for the Western District of Virginia, at
Roanoke. Glen E. Conrad, District Judge. (7:15-cr-00023-GEC-1)
Argued: September 15, 2017 Decided: November 14, 2017
Before SHEDD, AGEE, and FLOYD, Circuit Judges.
Affirmed by published opinion. Judge Agee wrote the opinion, in which Judge Shedd and
Judge Floyd joined.
ARGUED: Robert Edwin Dean, II, ROB DEAN LAW, Roanoke, Virginia, for
Appellant. Laura Day Rottenborn, OFFICE OF THE UNITED STATES ATTORNEY,
Roanoke, Virginia, for Appellee. ON BRIEF: John P. Fishwick, Jr., United States
Attorney, Anthony P. Giorno, Assistant United States Attorney, Chief of the Civil
Division, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for
Appellee.
AGEE, Circuit Judge:
Terrell Banker appeals his convictions for conspiracy to engage in sex trafficking
of a minor, in violation of 18 U.S.C. § 1594; sex trafficking of a minor, in violation of 18
U.S.C. § 1591(a); and enticement of a minor for illegal sexual activity, in violation of 18
U.S.C. § 2422(b). He contends the district court improperly instructed the jury on the
scienter element of each offense because they require proof that he knew the victim was a
minor. Banker also contends that, regardless of the scienter standard required, the
evidence was insufficient to support his convictions. For the reasons set out below, we
reject these arguments and affirm Banker’s convictions.
I.
We recount the relevant facts “in the light most favorable to the Government.”
Evans v. United States, 504 U.S. 255, 257 (1992). In early February 2015, Banker met
C.O. through a mutual friend, Laura Cook, who had only recently met C.O. At that time,
C.O. was seventeen years old. After all the events at issue in this case occurred, C.O.
turned eighteen years of age on June 1, 2015.
Although C.O. initially lied to Cook and said that she was eighteen, C.O. soon told
her the truth that she was a minor. C.O. never directly told Banker her age.
Around the time they met in person, Banker, Cook, and C.O. also became
“friends” on Facebook, where C.O.’s account incorrectly represented that she was
eighteen years old. Despite that representation, in a March 2015 Facebook update, which
Banker would have been able to see, C.O. tagged Cook and another mutual friend and
2
referenced her upcoming 18th birthday: “I can’t wait for the summer. It’s going to be a
live [sic] AF . . . . Girls you gonna party with me on my birthday in June? It’s the big one,
ladies.” J.A. 150.
Prior to the events leading to Banker’s indictment, he, Cook, and C.O. spent most
weekends together. Banker supplied illicit drugs to both women and, because C.O. did
not have money to pay him, accepted payment in the form of sex from her.
Several days prior to the charged events, C.O. extended her weekend visit with
Cook. Although Banker had agreed to take C.O. to her high school on Monday morning,
C.O. ended up “d[oing] coke all [Sunday] night” and did not make it to school. J.A. 155.
Despite that decision, C.O. confided in Cook that she was scared about missing another
day of school because she was already on probation. Cook invited C.O. to “stay with her
until [C.O.] turned 18.” J.A. 161. Having decided to stay with Cook, C.O. told Banker
that she was “not going home, [she was now] a runaway.” J.A. 162.
C.O. asked if Banker could sell her phone because she needed money and did not
want anyone to be able to track her location via her phone. In addition, C.O. asked
Banker to take her to her stepfather’s house while he was at work so that she could take
some things to pawn. Banker agreed, though they did not follow through with that plan.
During the same time, C.O. and Cook discussed how C.O. could earn money. Cook
suggested that C.O. become a prostitute and that Banker could help her do so.
After that conversation, Cook and Banker sat in Banker’s truck in front of Cook’s
residence and talked for several hours. During that conversation, overheard by C.O.,
Cook asked Banker, “What are we going [to] do with her? She’s 17. She’s a runaway.”
3
J.A. 174; see also J.A. 237. Banker’s expression did not noticeably change immediately
thereafter and no verbal response from Banker is in the record.
A few days later, Banker arranged for C.O. to have sex with a local truck driver
upon payment of a fee to Banker. He had periodically arranged for the truck driver to
meet women in the past for such services, so Banker and the truck driver negotiated a
price of $150 and agreed to meet at midnight on April 1 in the parking lot of an area
hotel.
Banker and C.O. coordinated the rendezvous through a series of messages on
Facebook. C.O. expressed hesitation because she had “never prostituted [her]self before”
and she was concerned about the truck driver’s appearance. J.A. 179. Banker attempted
to allay her doubts, encouraging her to just get it over with quickly, directing her to a
photograph of the truck driver on Facebook, and reassuring her that the man was “cool”
and that a mutual friend had previously had sex with him as well. J.A. 179–80. He also
reminded her that she needed money quickly. C.O. agreed to do as Banker proposed.
At the arranged time, Banker drove C.O. to the hotel parking lot. He then took
$200 from the truck driver and left the scene in order to get change. While he was gone,
C.O. and the truck driver had sex in the driver’s truck.
In the meantime, a bystander telephoned the police to report suspicious activity in
the hotel parking lot. The police officer dispatched to the hotel discovered C.O. and the
truck driver waiting in the truck for Banker to return. C.O. initially provided false
identifying information, but soon started cooperating with the police and relayed the
recent course of events with Banker and Cook. Banker did not return to the hotel.
4
The police asked C.O. to contact Banker on Facebook. When she did, C.O. told
Banker that she had been “held . . . as a runaway,” but was finally back home. J.A. 190.
She told him “[t]hey didn’t charge me because I’m a minor.” J.A. 190. Banker did not
reply directly to C.O.’s statement that she was a minor.
Banker was charged in a superseding indictment with conspiracy to engage in sex
trafficking of a minor, in violation of 18 U.S.C. § 1594; sex trafficking of a minor, in
violation of 18 U.S.C. § 1591(a); and enticement of a minor, in violation of 18 U.S.C.
§ 2422(b). He pleaded not guilty to all charges.
Before trial, the Government filed a motion in limine concerning its burden of
proof with respect to the knowledge element of each offense. In relevant part, the district
court ruled that, with respect to the § 1591(a) sex trafficking offense, it would charge the
jury that it needed to find beyond a reasonable doubt that Banker “knew, or was in
reckless disregard of the fact that [C.O.] was under the age of eighteen.” J.A. 29.
Additional instructions emphasized that this element could be satisfied by proof of either
knowledge or reckless disregard, and that in considering proof of reckless disregard, the
jury could “consider [Banker’s] reasonable opportunity to observe” C.O. J.A. 29–30. As
for the § 2422(b) enticement offense, the district court indicated it would charge the jury
that it needed to find that Banker “knowingly persuaded, induced, enticed, or coerced
[C.O.] to engage in prostitution.” J.A. 30. However, regarding the element of age, the
district court ruled the jury must find “that [C.O.] was less than eighteen years old at the
time,” but that the statute did not require the Government to prove that Banker knew C.O.
was under the age of eighteen. J.A. 30.
5
At trial, several witnesses testified to the foregoing course of events, including
C.O., Cook, and the truck driver. Both Cook and the truck driver had been charged with
offenses arising from their involvement with C.O., and both had pleaded guilty. As part
of their respective plea agreements, they agreed to cooperate in any prosecutions. Banker
did not call any witnesses or present any other evidence.
The district court instructed the jury on the elements of the offenses in a manner
consistent with its pretrial order. The jury convicted Banker on all three counts, and the
district court sentenced Banker to 156 months’ imprisonment for each count, to run
concurrently, plus ten years’ supervised release.
Banker noted a timely appeal, and we have jurisdiction pursuant to 28 U.S.C.
§ 1291 and 18 U.S.C. § 3742.
II.
Banker contends that the district court’s jury instructions concerning § 1591(a)
and § 2422(b) misstated the law. He maintains that to convict him of sex trafficking of a
minor under § 1591(a) the jury had to find that he actually knew C.O. was a minor and
could not properly base its verdict on the lesser mens rea of reckless disregard. In
addition, he asserts that, to convict him of enticing a minor to engage in prostitution
under § 2422(b), the jury had to find not only that C.O. was a minor, but also that he
knew that fact.
6
We review de novo whether jury instructions accurately state the law. United
States v. Mouzone, 687 F.3d 207, 217 (4th Cir. 2012). 1
A. Section 1591(a)
In relevant part, the applicable version of § 1591(a) provides:
Whoever knowingly—
(1) in or affecting interstate or foreign commerce, or within the
special maritime and territorial jurisdiction of the United States,
recruits, entices, harbors, transports, provides, obtains, or maintains
by any means a person; or
(2) benefits, financially or by receiving anything of value, from
participation in a venture which has engaged in an act described in
violation of paragraph (1),
knowing, or in reckless disregard of the fact, that means of force, threats
of force, fraud, coercion described in subsection (e)(2), or any
combination of such means will be used to cause the person to engage in
a commercial sex act, or that the person has not attained the age of 18
years and will be caused to engage in a commercial sex act, shall be
punished . . . .
18 U.S.C. § 1591(a) (2012). 2
Banker contends the district court erred by instructing the jury that it could convict
him based upon proof he acted either knowingly or in reckless disregard of C.O.’s age.
According to Banker, a conviction under the minors clause of the statute (“that the person
1
We have omitted internal quotation marks, alterations, footnotes, and citations
throughout this opinion, unless otherwise noted.
2
Congress amended § 1591 after the charged events occurred. See Justice for Victims of
Trafficking Act of 2015, Pub. L. No. 114-22, §§ 108(a), 118(b), 129 Stat. 227, 238–39, 247
(codified as amended at 18 U.S.C. § 1591). Banker was indicted under the prior version of this
offense, and all references to § 1591 in this opinion are to the version applicable to Banker.
7
has not attained the age of 18 years”) requires actual “knowledge” and the alternative “or
in reckless disregard” language only applies to the force clause that immediately follows
it. He asserts that any ambiguity must be resolved in his favor under the rule of lenity and
that his convictions for conspiracy and trafficking must be vacated as a result of the
incorrect jury instructions. 3
The Government responds that the jury instructions are proper because a natural
reading of § 1591(a) allows the finding of either force or the victim’s age to be based on
the defendant’s knowledge or reckless disregard. It notes the parallel structure of the
phrases, which are joined by the disjunctive word “or”—“that means of force . . . , or that
the person has not attained the age of 18 years”—as support for its position. And it points
to unpublished opinions in this Circuit, as well as persuasive authority from other
circuits, which have implicitly and explicitly held that the element of age can be proven
by either “knowledge” or “reckless disregard.”
“The starting point for any issue of statutory interpretation . . . is the language of
the statute itself.” Ignacio v. United States, 674 F.3d 252, 254 (4th Cir. 2012). The Court
considers the “statute’s full text, language as well as punctuation, structure, and subject
matter.” U.S. Nat’l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 455
(1993). When a statute is unambiguous, “our inquiry . . . is at an end, for if the language
is plain and the statutory scheme is coherent and consistent, we need not inquire further.
3
Banker also challenges his conspiracy conviction on the same grounds. Because the
conspiracy relies on a violation of § 1591, the analyses of both statutes for purposes of this
appeal are identical. See 18 U.S.C. § 1594(c).
8
Our sole function is to enforce the statute according to its terms.” William v. Gonzales,
499 F.3d 329, 333 (4th Cir. 2007).
The Government’s position is consistent with both the words and punctuation of
§ 1591(a). The first instance of “knowingly” in the statute applies to the indented
subsections (1) and (2). The separate phrase “knowing, or in reckless disregard of the
fact,” however, modifies both clauses that follow it, allowing either mental state to exist
for proof of either force or the victim’s age. As a matter of linguistic form, the skeleton of
the statute provides: “Whoever knowingly, [A] or [B], knowing, or in reckless disregard
of the fact, that [X], or that [Y], shall be punished . . . .” Cf. § 1591(a). The district court
and Government’s interpretation is faithful to this text, giving meaning to each word and
punctuation mark. See Branigan v. Bateman (In re Bateman), 515 F.3d 272, 277 (4th Cir.
2008) (affirming an interpretation of a statute that “gives effect to the logical sequence of
the language used. . . . All words are given effect. No punctuation needs to be added or
deleted.”); see also Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation
of Legal Texts 140–43 (2012) (The Grammar Canon: “Words are to be given the meaning
that proper grammar and usage would assign them.”); id. at 161–66 (The Punctuation
Canon: “Punctuation is a permissible indicator of meaning.”).
Banker’s strained reading of § 1591(a), by contrast, does not account for the
provision’s grammar, syntax, and punctuation because it ignores three basic applications
of those principles: (1) the commas surrounding the reckless disregard clause set it off
from “knowing”; (2) the word “that” introduces two clauses to which both mens rea
provisions apply; and (3) both uses of the word “or” introduce a choice: first, between
9
knowing and reckless disregard, and second, between the force clause and the minor
clause. It is thus apparent that the mental states found in § 1591(a)’s second paragraph
modify not only the force clause, but also the age of the victim clause at issue here.
Accordingly, the district court did not err in instructing the jury as to the requisite mental
state required to convict under § 1591(a) and § 1594(c).
B. Section 2422(b)
In relevant part, § 2422(b) provides:
Whoever . . . knowingly persuades, induces, entices, or coerces any
individual who has not attained the age of 18 years, to engage in
prostitution or any sexual activity for which any person can be charged
with a criminal offense, or attempts to do so, shall be fined under this
title and imprisoned not less than 10 years or for life.
18 U.S.C. § 2422(b).
Banker contends the district court should have instructed the jury that it must find
that he had actual knowledge that C.O. was a minor for purposes of a conviction under
§ 2422(b). He asserts that the “knowingly” requirement extends to both the verbs that
follow and their direct object. As support for this position, he points to the Supreme
Court’s decision in Flores-Figueroa v. United States, 556 U.S. 646 (2009), where the
Supreme Court held that the word “knowingly” in the statute criminalizing aggravated
identity theft, 18 U.S.C. § 1028A(a)(1), applied to both the following verb and its direct
object. Banker argues that this construction of § 2422(b) also makes sense because,
10
without this requirement, § 2422(b) would merely penalize the same conduct as
§ 2422(a). 4
The Government responds that in United States v. Washington, 743 F.3d 938 (4th
Cir. 2014), this Court rejected the same Flores-Figueroa-based argument with respect to
identical language in 18 U.S.C. § 2423(a). In Washington, we recognized that in cases
where “a victim’s underage status [is] an aggravating factor in order to provide minors
with special protection,” the Government must prove the victim was a minor, but is not
required to prove the defendant’s actual knowledge of that fact. 743 F.3d at 943. It urges
us to adopt the same reasoning here regarding § 2422(b).
Because Banker’s argument centers on Flores-Figueroa, we begin there. The
aggravated identity theft statute at issue in that case required proof that, in committing
certain acts, the offender “knowingly transfer[red], possesse[d], or use[d], without lawful
authority, a means of identification of another person.” 18 U.S.C. § 1028A(a)(1). The
Supreme Court held that this language “require[d] the Government to show that the
defendant knew that the ‘means of identification’ he or she unlawfully transferred,
possessed, or used, in fact, belonged to ‘another person.’” Flores-Figueroa, 556 U.S. at
647. In so holding, the Supreme Court stated, “[a]s a matter of ordinary English grammar,
4
Subsection (a) provides:
Whoever knowingly persuades, induces, entices, or coerces any individual to
travel in interstate or foreign commerce, or in any Territory or Possession of the
United States, to engage in prostitution, or in any sexual activity for which any
person can be charged with a criminal offense, or attempts to do so, shall be fined
under this title or imprisoned not more than 20 years, or both.
11
it seems natural to read the statute’s word ‘knowingly’ as applying to all the subsequently
listed elements of the crime.” Id. at 650. At the same time, however, the Supreme Court
recognized that “the inquiry into a sentence’s meaning is a contextual one,” and it
allowed that the “special context” of a statute may warrant a different reading. Id. at 652.
Whether Flores-Figueroa should be taken to mean that § 2422(b) requires proof
that the defendant knew the victim was a minor is an issue of first impression in this
Circuit. But we previously considered the nearly identical question: how Flores-Figueroa
affects § 2423(a), which prohibits the knowing transport of a minor for prostitution or
other unlawful sexual activity. See Washington, 743 F.3d at 941; see also 18 U.S.C.
§ 2423(a) (“A person who knowingly transports an individual who has not attained the
age of 18 years in interstate or foreign commerce, or in any commonwealth, territory or
possession of the United States, with intent that the individual engage in prostitution, or
in any sexual activity for which any person can be charged with a criminal offense, shall
be fined under this title and imprisoned not less than 10 years or for life.”). Prior to
Flores-Figueroa, we had held that “requiring knowledge of the act of transporting the
victim—not knowledge of the victim’s age—was a more natural reading of the statute.”
Washington, 743 F.3d at 941; see also id. (“[T]he adverb ‘knowingly’ modifies the verb
‘transports’ because adverbs generally modify verbs, and the thought that they would
typically modify the infinite hereafters of statutory sentences would cause grammarians
to recoil.”). But the defendant in Washington argued that Flores-Figueroa undermined
our interpretation.
12
We disagreed with the defendant’s reading of the statute for three reasons. First,
we noted that Flores-Figueroa “did not purport to establish a bright-line rule that a
specified mens rea always applies to every element of the offense.” Id. at 942. Our view
was first based on the Supreme Court’s statement that the context of a statute must
inform a sentence’s meaning. Id. Second, we observed that Flores-Figueroa had
specifically observed that a “special context” may warrant a different view, and that it
had cited approvingly Justice Alito’s concurrence for that principle. Id. We recognized
that one special context Justice Alito had described was § 2423(a), where a victim’s age
is an element of the offense, yet circuit courts had “uniformly held that knowledge of the
victim’s age is not required.” Id. at 943. Third, we acknowledged that the circuit courts to
consider Flores-Figueroa’s effect on § 2423(a) had “universally concluded that the
knowledge requirement does not apply to the victim’s age.” Id. We then joined those
sister circuits in holding that Flores-Figueroa did not require us to revisit our
interpretation of § 2423 because of the statute’s special context—“Congress enacted the
provision to provide minors with special protection against sexual exploitation.” Id. As
such, we concluded that “a victim’s underage status [is] an aggravating factor in order to
provide minors with special protection” rather than a factor that should make the offense
involving minors “more difficult to prove than its more general counterpart in § 2421.”
Id.
Under standard principles of statutory interpretation, as we consider the meaning
of § 2422(b), we must take into account our decision in Washington and the meaning we
gave to the identical language in § 2423(a). These are adjacent statutes, both part of the
13
amended Mann Act, and use the same syntax prohibiting individuals from “knowingly
[engaging in proscribed behavior toward] an[] individual who has not attained the age of
18 years.” 5 Compare § 2422(b), with § 2423(a). Thus, absent an indication that we should
do otherwise, the Court should interpret these statutes in pari materia, that is, in a
consistent manner. United States v. Mills, 850 F.3d 693, 698–99 (4th Cir. 2017) (stating
that the doctrine of in pari materia means that “adjacent statutory subsections that refer to
the same subject matter should be read harmoniously,” and outlining the doctrine’s
scope); see also Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 222 (2008) (“[T]o the extent
possible, [a court’s interpretation should] ensure that the statutory scheme is coherent and
consistent.”); United States v. Morison, 844 F.2d 1057, 1064 (4th Cir. 1988) (“When a
statute is a part of a larger Act . . . , the starting point for ascertaining legislative intent is
to look to other sections of the Act in pari materia with the statute under review.”).
Given these textual and contextual similarities between the statutes, it is not
surprising that the reasoning we set out in Washington with respect to § 2423(a) applies
equally well to § 2422(b). As noted, Flores-Figueroa did not establish the bright-line rule
Banker urges for interpreting all similarly worded statutes. Instead, it specifically
acknowledged that a “special context” could lead to a different interpretation. The
“special context” we concluded was present in Washington is the same one at issue here:
Congress’ desire to protect minors by making the victim’s age an element of the offense.
5
That § 2422(b) refers to “any individual” and § 2423(a) refers to “an individual” is of
no consequence.
14
See United States v. Engle, 676 F.3d 405, 419 (4th Cir. 2012) (“Section 2422(b) was
designed to protect children from the act of solicitation itself . . . .”). And, as in
Washington, it would be inconsistent with Congress’ stated purpose to make it more
difficult to prove a § 2422(b) offense against minors than the § 2422(a) corollary with
respect to “any individual.” 6
At oral argument, Banker advanced three additional reasons why § 2423(a) and
§ 2422(b) should have different knowledge requirements. 7 First, he maintained that
6
The two subsections of § 2422 are not identical, though they do target similar conduct.
Subsection (a) makes it an offense to “knowingly persuade[], induce[], entice[], or coerce[] any
individual to travel in interstate or foreign commerce, or in any Territory or Possession of the
United States, to engage in prostitution, or in any sexual activity for which any person can be
charged with a criminal offense, or attempt[] to do so.” Subsection (b), in contrast, prohibits
individuals from “using the mail or any facility or means of interstate or foreign commerce, or
within the special maritime and territorial jurisdiction of the United States [to] knowingly
persuade[], induce[], entice[], or coerce[] any individual who has not attained the age of 18
years, to engage [or attempt to engage] in prostitution” or unlawful sexual activity.
Contrary to Banker’s argument, reading § 2422(b) to not require knowledge of the
victim’s minor status does not render § 2422(b) duplicative of § 2422(a). The statutes may
occasionally overlap regardless of whether the age of the victim is a strict liability element or one
that requires proof of the defendant’s knowledge. This is so because subsection (a) encompasses
victims of any age and requires as its jurisdictional hook the victim’s travel, while subsection (b)
is restricted to minor victims, and has a broader jurisdictional hook as it applies any time the
defendant “use[s] the mail or any facility or means of interstate or foreign commerce, or [acts]
within the special maritime and territorial jurisdiction of the United States.” A defendant’s
knowledge that his victim is a minor would not make the two statutes cover any more or less
different behavior than they otherwise would.
In addition, the two subsections contain different penalty provisions, which is consistent
with Congress intending the victim’s age to be an aggravating factor. Subsection (a) sets a
statutory maximum penalty of imprisonment of twenty years, while subsection (b) sets a
statutory minimum penalty of ten years’ imprisonment and allows up to life imprisonment.
7
Strikingly, Banker’s briefs make no attempt to distinguish § 2423(a) or Washington, and
instead urge the Court to follow Flores-Figueroa, implying that Washington was wrongly
decided. Nonetheless, we will consider the arguments Banker made at oral argument because
(Continued)
15
transportation inherently involves proximity to and observation of the victim, while the
same cannot be said of the communicative acts described in § 2422(b) (persuasion,
inducement, enticement, or coercion). Yet, on questioning, he conceded that while
§ 2423(a) requires “transport,” it does not require that a defendant actually see the victim,
a fact that fatally undermines this purported distinction.
Second, Banker posited that § 2422(b) must have a different scienter requirement
to prevent a conviction based on online communication between an adult who mistakenly
believes he is communicating with another adult, but who is in fact communicating with
a minor. This hypothetical is simply one variant of the unremarkable observation that if
“knowingly” does not modify the age requirement, then a defendant whose conduct
satisfies the other elements of the offense will be held strictly liable when the victim is a
minor. But there is nothing inherently unlawful about that result where it is constitutional
and consistent with congressional intent. 8
Third, Banker pointed to cases from the Seventh and Ninth Circuits, arguing that
they have held that § 2422(b) requires proof of the defendant’s knowledge of the victim’s
age. See United States v. Coté, 504 F.3d 682, 684–88 (7th Cir. 2007); United States v.
Meek, 366 F.3d 705, 717–22 (9th Cir. 2004). As an initial matter, those cases are not
binding on us and are not persuasive. They pre-date Flores-Figueroa and its discussion of
they offer additional reasons why the issue he raised on brief should be resolved in his favor
rather than presenting a new issue for us to consider.
8
Banker only raises a statutory interpretation argument and has not suggested that the
statute is unconstitutional facially or as applied to him.
16
when the scienter element properly extends beyond the verbs to the direct object as well.
Nor did either case consider § 2422(b)’s interpretation in light of § 2423(a)’s
interpretation either as an interpretive tool or because of binding authority—like
Washington is for us—construing § 2423(a)’s knowledge requirement. Finally, despite
the broad language the Seventh and Ninth Circuits used, both cases involved
constitutional challenges to § 2422(b)’s attempt offense where the defendant had been
communicating with an adult posing as a minor. See Coté, 504 F.3d at 683–84 (stating
that the person Coté “attempt[ed] to persuade or induce or entice” into a sexual act was “a
Cook County Sheriff’s Deputy”); Meek, 366 F.3d at 717 (“[T]he boy Meek attempted to
contact was under 18 years old, and . . . , assisted by the anonymity of the Internet, a
detective—an adult—stood in the shoes of the boy in their instant messenger
conversations.”). They did not entail challenges to the completed offense involving an
actual minor victim, which is Banker’s conviction. The attempt offense puts the
defendant’s knowledge at issue in a different way than the completed offense, given that
attempt requires proof of “culpable intent to commit the [underlying] crime” and
“[f]actual impossibility is not a defense.” Engle, 676 F.3d at 419–20. Given all of the
above, these cases do not cause us to reconsider the Washington-derived analysis that
leads us to reject Banker’s contentions.
Lastly, we note that our reasoning and holding are consistent with the only other
circuit court to consider the issue of whether, under Flores-Figueroa, the government is
required to prove a defendant knew the victim was a minor to establish a violation of
§ 2422(b). See United States v. Daniels, 685 F.3d 1237, 1246–50 (11th Cir. 2012) (per
17
curiam); id. at 1250 (“Our ruling today . . . honor[s] the congressional goal inherent in the
[Act], and [we] reach a holding that aims to protect minors—not make conviction more
difficult for crimes that affect them. A defendant . . . who lures and encourages young
children into these activities does so at his own peril, regardless of what the victim says
or how she appears. He runs the risk that he is dealing with someone who falls within the
purview of § 2422(b), thus subjecting him to its enhanced penalties.”).
C. Sufficiency of the Evidence
Banker’s final challenge is to the sufficiency of the evidence with respect to the
elements that he knew or recklessly disregarded that C.O. was under the age of eighteen
years. 9 He contends that C.O. repeatedly lied about her age and never told Banker she
was a minor. And he maintains that the jury drew an unreasonable inference that Banker
in fact heard Cook tell him that C.O. was a minor during their conversation in his truck a
few days before the charged events.
After noting the high hurdle Banker faces in seeking to disrupt a jury verdict, the
Government urges the Court to affirm Banker’s convictions. It notes that both Cook and
C.O. testified about the conversation between Cook and Banker in his truck, and this
evidence alone is sufficient to affirm the jury’s finding that Banker knew that C.O. was a
minor. It also points to numerous other pieces of evidence that would support a finding
that he recklessly disregarded her age, including the numerous occasions on which he
9
In view of our holding that § 2422(b) conviction does not require evidence that Banker
knew C.O. was a minor, this issue is only relevant with respect to Banker’s conspiracy and sex
trafficking convictions.
18
observed C.O. in person, his access to her Facebook profile and messages, and his
knowledge that she attended high school and lived with her stepfather.
“A defendant challenging the sufficiency of the evidence faces a heavy burden.”
United States v. Foster, 507 F.3d 233, 245 (4th Cir. 2007). “[T]he jury’s verdict must be
upheld on appeal if there is substantial evidence in the record to support it”; that is, there
must be “evidence that a reasonable finder of fact could accept as adequate and sufficient
to support” the defendant’s guilt. United States v. Young, 609 F.3d 348, 355 (4th Cir.
2010). The Court’s review “is thus limited to determining whether, viewing the evidence
and the reasonable inferences to be drawn therefrom in the light most favorable to the
government, . . . the evidence adduced at trial could support any rational determination of
guilty beyond a reasonable doubt.” Id.The evidence adduced at trial readily satisfies this standard. At trial, both C.O. and
Cook testified that Cook told Banker that C.O. was seventeen years old shortly before the
charged offenses occurred. Banker’s only argument for disregarding this testimony is that
C.O. did not immediately overhear his response or observe a change in Banker’s
expression that would indicate that he had heard Cook. Banker’s overt response is not the
issue, however, as the jury is allowed to credit C.O. and Cook’s testimony and reach the
imminently reasonable inference that Banker heard—and thus knew—what Cook told
him: that C.O. was a minor. We need not proceed any further in order to conclude that the
evidence was sufficient for the jury to find guilt beyond a reasonable doubt. See United
States v. Baker, 985 F.2d 1248, 1255 (4th Cir. 1993) (“The law is well settled in this
19
circuit that the uncorroborated testimony of an accomplice may be sufficient to sustain a
conviction.”); see also United States v. Zayyad, 741 F.3d 452, 462–63 (4th Cir. 2014). 10
III.
For these reasons, the judgment of the district court is
AFFIRMED.
10
The record also contained evidence from which the jury could have found that Banker
recklessly disregarded that C.O. was a minor, which—as we have held above—would also have
been sufficient to convict Banker of violating § 1591(a). See Safeco Ins. Co. of Am. v. Burr, 551
U.S. 47, 68 & n.18 (2007) (stating that criminal reckless disregard of a fact exists where the
evidence demonstrates “an unjustifiably high risk” of a fact). That evidence consisted of
evidence that Banker had multiple opportunities to observe and spend time with C.O. in the
weeks leading up to the charged events; he knew she lived with her stepfather, attended the local
high school, and did not have a source of income; they’d engaged in sexual activities together;
and he knew that she described herself as a “runaway” when she elected not to return home to
her stepfather. See, e.g., United States v. Robinson, 702 F.3d 22, 35–36 (2d Cir. 2012) (“A
reasonable jury could conclude that [the defendant’s] ability to personally observe his underage
victim, especially given their intimate relationship, put him on notice of an unjustifiably high risk
that she was underage.”).
20