United States v. Richard Patrick Cole ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 00-3164
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United States of America, *
*
Appellee, *
* Appeal from the United States
v. * District Court for the
* Western District of Arkansas.
Richard Patrick Cole, *
*
Appellant. *
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Submitted: April 10, 2001
Filed: August 17, 2001
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Before HANSEN and BYE, Circuit Judges, and MELLOY,1 District Judge.
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HANSEN, Circuit Judge.
A jury found Richard Patrick Cole guilty of transporting a minor in interstate
commerce with the intent that the minor engage in illegal sexual activity, in violation
of the Mann Act, 18 U.S.C. § 2423(a) (1994). Cole appeals his conviction, arguing
that there was insufficient evidence to support the conviction and that the United States
1
The Honorable Michael J. Melloy, United States District Judge for the Northern
District of Iowa, sitting by designation.
District Court for the Western District of Arkansas was not the proper venue for his
prosecution. We affirm Cole's conviction.
I.
Cole befriended a 14-year-old girl (we will call her "M.S.") at a neighborhood
pick-up basketball game in 1997, and their relationship developed into a sexual one.
Cole was 32 years old at the time. After receiving a complaint filed by Cole's
roommate, the Arkansas Department of Human Services (DHS) investigated the sexual
relationship, which M.S. denied. Cole took M.S. from school and left Arkansas in
March 1998 shortly after the DHS investigation. M.S. was missing for three weeks
until she returned to her father's home in Texas. Cole and M.S. continued their daily
sexual relationship during the three-week trip.
A few days after dropping M.S. off near her father's home, Cole again contacted
M.S. while she shopped with her stepmother at a Jacksonville, Texas, store. M.S.
sneaked out of the store and again left with Cole without informing her parents. The
two went to Las Vegas, Nevada, where they lived together and continued their sexual
relationship from April until August 1998. Neither Cole nor M.S. contacted M.S.'s
family during that time. Nevada authorities located M.S. in Las Vegas and placed her
in a protective children's home until her mother could come from Arkansas to get her.
Cole was charged with contributing to the delinquency of a minor in Fort Smith,
Arkansas, Municipal Court. He appeared in that court on October 1, 1998, and pleaded
guilty to the charges. Cole received a suspended sentence, fines, and a "No Contact"
order, prohibiting him from contacting M.S. or her family.
Immediately following the sentencing and in contravention of the no-contact
order, Cole left the courthouse, went looking for M.S., and found her at a laundromat
with her sister. Once again, M.S. left with Cole without informing her family of her
whereabouts. They went to California with a friend of Cole's who had driven to
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Arkansas with Cole for his court appearance. They stopped in Kingman, Arizona, on
the way to California, where Cole and M.S. resumed their sexual relationship. After
a brief stay in California, they returned to Las Vegas for a few days and then, at M.S.'s
suggestion, went to Florida. Cole and M.S. were located at Disney World in Orlando,
Florida, and taken into custody on October 21, 1998. Cole was extradited back to
Arkansas and M.S.'s mother went to Florida to retrieve M.S. Cole was charged with
interference with custody in Arkansas state court and charged with violation of the
Mann Act in the United States District Court for the Western District of Arkansas.
Cole filed a motion to dismiss the Mann Act charges based on double jeopardy
and improper venue, both of which were denied. A jury convicted Cole on the Mann
Act charges and the district court2 denied Cole's motion for acquittal. Cole appeals the
denial of these motions.3
II.
Under the Mann Act, "[a] person who knowingly transports any individual under
the age of 18 years in interstate or foreign commerce . . . with intent that such
individual engage . . . in any sexual activity for which any person can be charged with
a criminal offense . . . shall be fined . . ., imprisoned . . ., or both." 18 U.S.C. §
2The Honorable Jimm Larry Hendren, Chief Judge, United States District Court
for the Western District of Arkansas.
3
Cole's counsel appeals the denial of the motion to dismiss only as to the venue
issue. Cole filed a supplemental pro se brief, raising the double jeopardy argument and
also arguing that his constitutional right to due process was violated because the
government was not required to prove that he knew that M.S. was under age 18. "It
is not our practice to consider pro se briefs filed by parties represented by counsel."
United States v. Peck, 161 F.3d 1171, 1174 n.2 (8th Cir. 1998). We abide by that
practice today, as the issues raised in Cole's pro se brief lack merit.
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2423(a). The indictment charged that Cole "did knowingly transport in interstate
commerce, a female who was under the age of 18 years, from the state of Arkansas to
the state of Florida, with the intent that such individual engage in sexual activity under
such circumstances as would constitute a criminal offense by any person under Florida
State Law, specifically Florida Statute 800.04(4)(a),4 in violation of 18 U.S.C. §
2423(a)." Cole argues that the Western District of Arkansas was not the proper venue
for his prosecution because he did not have the requisite intent to violate the Florida
statute while he was in Arkansas; it was not until he and M.S. were in Las Vegas,
Nevada, that M.S. suggested that they go to Florida. He also argues that this same lack
of intent mandates his acquittal as there is insufficient evidence to support his
conviction. We disagree and affirm his conviction.
A. Sufficiency of the Evidence
Cole argues that there was insufficient evidence to support his conviction that
he intended M.S. to engage in illegal sexual activity. Cole's trial attorney moved for
acquittal following the government's case in chief, but he did not renew that motion
following all of the evidence. Although such action generally constitutes a waiver of
the claims raised in the motion for acquittal, subjecting the claim to plain error review,
Cole's assertion that the government failed to prove one of the elements of his crime
would prejudice his substantial rights, if proven to be correct, and we thus review his
sufficiency of the evidence claim. See United States v. Wadena, 152 F.3d 831, 853
(8th Cir. 1998), cert. denied, 526 U.S. 1050 (1999). Sufficient evidence exists to
support the conviction
if 'after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential
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"A person who: (a) Engages in sexual activity with a person 12 years of age or
older but less than 16 years of age commits lewd or lascivious battery."
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elements of the crime beyond a reasonable doubt.' The standard for
determining the sufficiency of the evidence is strict, and a guilty verdict
should not be lightly overturned. 'We view the evidence in a light most
favorable to the verdict, giving the verdict the benefit of all reasonable
inferences, and [we] will reverse only if the jury must have had a
reasonable doubt concerning one of the essential elements of the crime.'
United States v. Dugan, 238 F.3d 1041, 1043 (8th Cir. 2001) (internal citations
omitted).
The only element Cole disputes is the intent element, which requires that the
defendant intended "that the [minor] engage . . . in any sexual activity for which any
person can be charged with a criminal offense." 18 U.S.C. § 2423(a). Because the
indictment listed a Florida statute as the crime under which any person could be
charged, Cole argues that he must have intended to have illegal sexual activities with
M.S. in Florida before he left Arkansas. The Florida statute was used in the indictment
to establish the crime for which any person can be charged, i.e., to establish that the
sexual activity was illegal. That statute makes it a felony to engage in sexual activity
with a person between ages 12 and 16. FLA. STAT. CH. 800.04(4)(a). Thus, to be
convicted under § 2423(a), Cole must have transported M.S., age 15 at the time, with
the intent to engage in sexual activity with her. Cole's twisted reading of the
statute–that he must have intended to go to Florida to violate the Florida statute before
he began the interstate journey–is not supported by the language of the statute or the
case law construing it. Whether Cole intended to have sex with M.S. in Florida when
he transported her out of Arkansas is irrelevant to his conviction. His illicit intent must
have been formed only "'before the conclusion of the interstate state [sic] journey.'"
Reamer v. United States, 318 F.2d 43, 49 (8th Cir.) (quoting Mortensen v. United
States, 322 U.S. 369, 374 (1944)), cert. denied, 375 U.S. 869 (1963). Cole's argument
that his conviction cannot stand because he did not know he was going to Florida when
he left Arkansas is futile.
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Cole argues alternatively that the evidence is insufficient to establish that his
intentions regarding sexual activity were any more than incidental to the purposes of
the interstate trip. The illicit behavior must be "one of the purposes motivating . . . the
interstate transportation," but need not be the dominant purpose. United States v.
Vang, 128 F.3d 1065, 1071 (7th Cir. 1997) (internal quotations and citations omitted),
cert. denied, 522 U.S. 1140 (1998); see also Reamer, 318 F.3d at 49. Arguably, when
Congress amended the Mann Act in 1986 to remove the commercial nexus and to
remove the "purpose" language, replacing it with the "intent that such individual engage
. . . in any [illegal] sexual activity," Pub. L. No. 99-628, Congress lessened the
prosecution's burden, such that it need not prove that illegal sexual activity was a
purpose of the interstate transportation at all. See United States v. Ellis, 935 F.2d 385,
391-92 (1st Cir.) (discussing the change in the language but declining to decide the
impact of the change as the evidence supported the conviction even under the more
stringent standard), cert. denied, 502 U.S. 869 (1991). Like the court in Ellis, we leave
for another day the effect of the change in the statutory language because the evidence
establishes that illegal sexual activity was at least one of Cole's purposes in transporting
M.S. in interstate commerce.
Cole's intent "may be inferred from all the circumstances." Reamer, 318 U.S.
at 49. Reviewing the evidence in the light most favorable to the guilty verdict, the jury
could easily have found that Cole took M.S. out of Arkansas with the intent–and for the
purpose–of having illegal sexual relations with her. First, Cole had taken M.S. away
from her family on two prior occasions, during which time the two had sexual relations
nearly every day. On the first of those occasions, Cole took M.S. out of the state
shortly after the relationship had been investigated by the Arkansas DHS, which the
jury could have surmised was to facilitate the sexual relationship by getting away from
the scrutiny and influence of the DHS and M.S.'s family. Further, Cole had been
ordered by the Fort Smith, Arkansas, municipal court not to have any contact with M.S.
the very day he removed her from Arkansas on October 1, 1998. Finally, Cole and
M.S. had sex on the first night away from Arkansas during this final trip when they
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stopped in Kingman, Arizona. This evidence amply supports the conclusion that Cole
intended to have sex with M.S.–and transported her out of Arkansas for that
purpose–when they left Arkansas and that sexual activity was not merely incidental to
the trip. See Ellis, 935 F.2d at 391(holding that Mann Act conviction was supported
by evidence of illicit sexual acts during interstate travel and in destination state to
"permit inference that one of defendant's purposes in transporting [Ellis's step-daughter]
was to have her continuously available to commit such acts" during business trips and
family vacations).
B. Venue
We review de novo the district court's denial of the motion to dismiss for
improper venue,5 as it involves a matter of law. See Crawford, 115 F.3d at 1405. "A
criminal defendant's venue rights are protected by Article III, § 2, and the Sixth
Amendment, of the Constitution. Both of these constitutional provisions require that
a defendant's trial take place where 'the crime shall have been committed.'" Id. See also
Fed. R. Crim. P. 18 ("Except as otherwise permitted by statute or by these rules, the
prosecution shall be had in a district in which the offense was committed."). The
United States Code further provides that:
Except as otherwise expressly provided by enactment of Congress, any
offense against the United States begun in one district and completed in
another, or committed in more than one district, may be inquired of and
prosecuted in any district in which such offense was begun, continued, or
completed.
5
Cole phrases the argument in terms of lack of jurisdiction based on improper
venue. We limit our discussion to venue, however, as the "constitutional and statutory
venue provisions [upon which Cole relies] are not restrictions on the court's
jurisdiction." United States v. Crawford, 115 F.3d 1397, 1403 n.12 (8th Cir.), cert.
denied, 522 U.S. 934 (1997).
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Any offense involving . . . transportation in interstate or foreign commerce
. . . is a continuing offense and, except as otherwise expressly provided
by enactment of Congress, may be inquired of and prosecuted in any
district from, through, or into which such commerce . . . or imported
object or person moves.
18 U.S.C. § 3237(a).
The parties do not dispute that § 3237(a) controls the selection of proper venue.
Cole argues that the determination of where the "offense was begun, continued, or
completed" controls the proper venue for his prosecution, and because he did not intend
to violate the Florida law when he left Arkansas, the offense did not begin there.
However, the offense for which Cole was charged involved transportation in interstate
commerce of an individual under the age of 18, and thus, venue is proper under the
second paragraph of § 3237(a) "in any district from, through, or into which" the minor
was transported. See Clinton v. United States, 293 F.2d 47, 47-48 (10th Cir. 1961).
Cole does not dispute that he transported M.S. from Arkansas to California, then
Nevada, and eventually to Florida. Because Cole transported M.S. from Arkansas with
the intent to engage her in illegal sexual activity, see discussion supra Part II.A., the
Western District of Arkansas was a proper venue for his prosecution.
C. Ineffective Assistance of Counsel
Finally, Cole argues that he received ineffective assistance from his trial counsel.
Although claims of ineffective assistance are generally not reviewed on direct appeal,
United States v. Jennings, 12 F.3d 836, 840 (8th Cir. 1994), we hold that Cole's claim
of ineffective assistance fails, even without an extended record below. Cole's sole
argument is that there was no reason for his trial attorney not to have renewed the
motion for acquittal following all of the evidence. Even if his attorney's actions meet
the first prong of Strickland v. Washington, 466 U.S. 668, 687 (1984) (requiring both
deficient conduct by counsel and prejudice from that conduct to state a cognizable
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ineffective assistance claim), we have not limited our review of the denial of Cole's
motion for acquittal to plain error, which is normally the penalty for failing to renew
such a motion. Thus, Cole was in no way prejudiced by his attorney's actions.
Accordingly, we reach, determine, and reject Cole's ineffective assistance of counsel
claim.
III.
For the foregoing reasons, we affirm Cole's conviction.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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