United States v. Michael Lindsay

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 16-10349
Plaintiff-Appellee/ 16-10384
Cross-Appellant,
D.C. No.
v. 3:12-cr-00873-
CRB-1
MICHAEL LINDSAY,
Defendant-Appellant/ OPINION
Cross-Appellee.
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Argued and Submitted May 14, 2018
Withdrawn from Submission May 21, 2018
Re-submitted March 13, 2019
San Francisco, California
Filed July 23, 2019
Before: J. Clifford Wallace and N. Randy Smith, Circuit
Judges, and Deborah A. Batts, * District Judge.
*
The Honorable Deborah A. Batts, United States District Judge for
the Southern District of New York, sitting by designation.
2 UNITED STATES V. LINDSAY
Opinion by Judge Wallace
SUMMARY **
Criminal Law
The panel affirmed a jury conviction for illicit sexual
conduct abroad and other crimes, vacated defendant’s
sentence, and remanded for resentencing.
Defendant had sex with a minor in the Philippines.
Agreeing with the analysis of the Fourth and Tenth Circuits,
the panel held that 18 U.S.C. § 2423(c), which prohibits
engaging in illicit sexual conduct in foreign places, did not
exceed Congress’s authority under the Foreign Commerce
Clause, as applied to the criminalization of non-commercial
sexual abuse of a minor. Applying rational basis review, the
panel concluded that the elements of the crime fairly relate
to foreign commerce.
The panel held that the district court did not err in its jury
instruction on the intent element of § 2423(b), which
prohibits traveling abroad with intent to engage in illicit
sexual conduct. The district court also did not err by failing
to instruct the jury on a “reasonable belief” defense to
§ 2423(b).
The panel held that the district court did not abuse its
discretion by excluding defendant’s foreign deposition
testimony, excluding evidence of an extortion plot, or
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. LINDSAY 3
admitting evidence of defendant’s sexual relations with
other underage individuals.
On the government’s cross-appeal of the sentence, the
panel held that the district court miscalculated the
Sentencing Guidelines range by failing to apply an
obstruction of justice enhancement under U.S.S.G. § 3C1.1.
The panel therefore vacated the sentence and remanded for
resentencing.
COUNSEL
Ethan A. Balogh (argued) and Dejan M. Gantar, Coleman &
Balogh LLP, San Francisco, California, for Defendant-
Appellant/Cross-Appellee.
Philip Kopczynski (argued), Assistant United States
Attorney; J. Douglas Wilson, Chief, Appellate Division;
Brian J. Stretch, United States Attorney; United States
Attorney’s Office, San Francisco, California; for Plaintiff-
Appellee/Cross-Appellant.
OPINION
WALLACE, Circuit Judge:
Michael Lindsay was convicted of travel with intent to
engage in illicit sexual conduct, engaging in illicit sexual
conduct abroad, attempted witness tampering, and
obstruction of justice. At trial, Lindsay raised constitutional,
statutory, and evidentiary objections, which the district court
overruled. At sentencing, the United States asked the district
court to enhance Lindsay’s base offense level with an
4 UNITED STATES V. LINDSAY
obstruction of justice enhancement, which the district court
declined to do. Lindsay appeals from his conviction; the
United States cross-appeals Lindsay’s sentence. We have
jurisdiction over Lindsay’s appeal under 28 U.S.C. § 1291
and the United States’ cross-appeal under 18 U.S.C. § 3742,
and we affirm the conviction, vacate the sentence, and
remand for resentencing.
I.
A.
Lindsay is a United States citizen born in 1959. In 2012,
Lindsay frequently traveled abroad to spend time in the
Philippines, where he owned a home.
S.Q. is a Philippine resident born in 1998. According to
her testimony at trial, S.Q. met Lindsay in October 2011 near
his home in Manila. That night, S.Q., her mother, and other
family members stayed at Lindsay’s home, as part of a
scheme to frame Lindsay and extort money from him. No
sexual activity between S.Q. and Lindsay occurred that
night. S.Q. and an older friend later returned to Lindsay’s
home at her mother’s urging. S.Q. testified that her friend
and Lindsay would often have sex, and that Lindsay paid
S.Q.’s mother in exchange. S.Q.’s mother pressured S.Q. to
do the same, and S.Q. did so in May 2012. S.Q. testified that
she and Lindsay had sex “a lot of times” in May, again in
August, and that Lindsay paid her mother after every
encounter. S.Q. saw Lindsay for the last time on August 22,
2012. After they had sex that day, S.Q.’s father “showed up”
at the condo and took S.Q. home. S.Q.’s father then went
with her to the Philippine police, where she reported the
sexual activities. United States law enforcement became
involved in September 2012, when they received a “lookout”
from Philippine authorities regarding Lindsay. United States
UNITED STATES V. LINDSAY 5
authorities then detained Lindsay when he returned to the
United States, and began investigating his activities in the
Philippines.
B.
The United States filed a criminal complaint against
Lindsay in November 2012, and indicted Lindsay in
December on two counts of violating 18 U.S.C. § 2423. The
indictment charged Lindsay with traveling abroad with
intent to engage in illicit sexual conduct, 18 U.S.C.
§ 2423(b), and engaging in illicit sexual conduct in foreign
places, 18 U.S.C § 2423(c). Lindsay was released pre-trial.
One condition of his release was that he make no contact
with witnesses.
In March 2014, Lindsay moved to take depositions of six
individuals in the Philippines. The district court granted the
motion, vacated the upcoming trial date, and issued a letter
rogatory in August to the judicial authority of the Philippines
requesting assistance with the depositions. The district court
issued a second letter rogatory in July 2015 again requesting
depositions, after the Philippine court responded by
suggesting written interrogatories. The record does not
reflect whether the Philippine judiciary ever responded to the
second letter.
While the second request to take depositions abroad was
pending, Lindsay moved to dismiss count two: engaging in
illicit sexual conduct in foreign places. See 18 U.S.C.
§ 2423(c). Lindsay argued that Congress exceeded its
constitutional authority under the Commerce Clause when it
enacted the non-commercial aspect of section 2423(c). The
district court denied that motion in November 2015.
6 UNITED STATES V. LINDSAY
Meanwhile, with no response from the Philippine court
forthcoming, Lindsay’s counsel traveled to the Philippines
and deposed five witnesses there. 1 Lindsay’s counsel
advised the Assistant United States Attorney assigned to the
case of the depositions and invited the United States to
participate. The government declined, explaining that under
the Consular Convention the Philippines would not allow
United States consular officials to attend depositions not
presided over by a Philippine judge.
In January 2016, the United States moved to revoke
Lindsay’s pre-trial release, alleging that Lindsay had
violated his conditions of release by repeatedly contacting
witnesses. The United States argued that Lindsay had
contacted defense witnesses, told them not to contact him
through email addresses that the government was aware of,
instructed them to testify falsely on his behalf, told them to
delete his messages to them, and wired money to them. A
magistrate judge revoked Lindsay’s pre-trial release, and
shortly thereafter the United States filed a superseding
indictment charging Lindsay with attempted witness
tampering, 18 U.S.C. § 1512(b), obstruction of justice,
18 U.S.C. § 1503, and contempt of court, 18 U.S.C.
§ 401(3).
In March 2016, Lindsay moved to admit the five
videotaped depositions taken in the Philippines,
acknowledging their hearsay nature but arguing that they
were admissible as former testimony. See Fed. R. Evid.
804(b)(1). The United States opposed the motion, arguing
that the hearsay exception did not apply. The district court
held a hearing, ruled that the depositions were inadmissible,
1
One of the six individuals Lindsay originally sought to depose was
in custody in the Philippines and could not attend a voluntary deposition.
UNITED STATES V. LINDSAY 7
and denied the motion. In subsequent pre-trial proceedings,
the district court also ruled that messages exchanged
between Lindsay and others about his sexual relations with
other teenage girls in the Philippines were admissible under
Evidence Rule 404(b). The district court ruled that such
evidence, though prejudicial, was “admissible to show his
state of mind, to show his plan, to show to his opportunity,
. . . in addition to being inextricably intertwined with the
offense itself,” and that the probative value of the evidence
outweighed its prejudicial effect.
The case proceeded to a jury trial on the first four counts
in May. 2 The government’s theory of the case was that
Lindsay traveled to the Philippines with the purpose of
having sex with S.Q., and that once there, he did have sex
with her. The United States pressed two theories of illicit
sexual conduct to the jury: either that Lindsay and S.Q. had
commercial sex and S.Q. was under 18, or Lindsay and S.Q.
had non-commercial sex and S.Q. was between the ages of
12 and 16. Either way, the prosecution argued, Lindsay had
engaged in illicit sexual activity. In support of its theory, the
United States introduced S.Q.’s testimony and evidence to
corroborate it, including a notebook found in Lindsay’s
luggage containing a list of names, phone numbers, and
dates. The list included S.Q.’s name and phone number,
along with the names of other girls that appeared in the
messages the district court ruled pre-trial were admissible.
Lindsay’s defense focused on S.Q.’s credibility and the
lack of corroborating witnesses. Lindsay highlighted internal
contradictions in S.Q.’s testimony and introduced witnesses
who contradicted her account, including S.Q.’s boyfriend.
2
The district court dismissed the fifth count (contempt of court) at
sentencing.
8 UNITED STATES V. LINDSAY
During direct examination of S.Q.’s boyfriend, Lindsay’s
counsel began asking him questions about his cell phone and
messages to S.Q. After Lindsay’s counsel began asking
questions about the existence of specific messages, the
district court called a sidebar conference and asked if
Lindsay was going to introduce the messages into evidence.
When Lindsay’s counsel responded affirmatively, the court
asked, “Does this fall within reciprocal discovery or does it
not,” to which counsel responded, “I just found out about it
about 40 minutes ago.” The district court then asked if
Lindsay had informed the United States of his intention to
introduce the messages before beginning the direct
examination, and Lindsay’s counsel responded, “No.” The
district court ruled that it was “[t]oo late” to have the United
States examine the cell phone before resuming questioning,
and instructed the jury to disregard the previous questions
about the cell phone. Lindsay also attempted to elicit
testimony about S.Q.’s father speaking to S.Q.’s
grandmother at a Philippine courthouse and asking for
money, but the district court ruled that whether or not that
occurred was collateral to the main issues in the case.
The jury was instructed on the final day of trial. Relevant
to this appeal, the district court instructed that for the section
2423(b) count, the United States “does not have to prove that
Defendant traveled in foreign commerce for the sole and
exclusive purpose of engaging in illicit sexual conduct. The
government must prove that a dominant, significant, or
motivating purpose of Defendant’s travel in foreign
commerce was to engage in illicit sexual conduct.” Lindsay
did not object to this instruction. The district court also
instructed, on the section 2423(c) count, that it was “a
defense to (1) an illicit sex act . . . but not (2) a commercial
sex act . . . if Defendant reasonably believed that the other
person had attained the age of 16 years.” Lindsay did not
UNITED STATES V. LINDSAY 9
request, nor did the district court give, the same instruction
for the section 2423(b) count.
The jury returned a verdict of guilty on all four counts.
The verdict form did not distinguish between commercial
sexual conduct and non-commercial sexual conduct as the
basis for the sex offense counts.
In post-trial proceedings, Lindsay filed a motion for a
new trial based in part on his mid-trial discovery of the
messages on S.Q.’s boyfriend’s cell phone. The motion
included a translation from Tagalog into English of the
complete message Lindsay had attempted to introduce at
trial. The district court denied that motion, ruling in part that
the message Lindsay had sought to have admitted was
“inadmissible hearsay.”
The district court sentenced Lindsay in August 2016.
The district court separately grouped the sex offense
convictions and obstruction of justice convictions and for the
former arrived at a total offense level of 31. The United
States then argued that the level should be increased to 33
for obstructive conduct. See USSG § 3C1.1 (providing for a
two-level increase if “the defendant willfully obstructed or
impeded, or attempted to obstruct or impede, the
administration of justice”). The district court declined to
apply the enhancement, explaining that of the obstructive
conduct alleged, 3 the conduct “that was established beyond
any doubt” was the conduct charged in counts three and four,
and the sentence for those counts “will take care of it.” When
3
The United States alleged that Lindsay engaged in additional
uncharged obstructive conduct, but the district court found that the
evidence of that conduct was not “satisfactory.” The United States does
not challenge that finding on appeal.
10 UNITED STATES V. LINDSAY
the United States argued that the enhancement applied even
if the district court only considered the obstructive conduct
for which Lindsay was separately convicted, the district
court again demurred, explaining that to do so would “count
it twice.” The district court subsequently imposed a sentence
of 96 months for the first group of counts, based on a
Guidelines range of 108–135 months. The district court
imposed a sentence of 21 months for the second group of
charges, to run concurrently with the 96-month sentence.
Lindsay appealed, challenging the district court’s denial
of his motion to dismiss, jury instructions, and evidentiary
rulings. The United States cross-appealed, challenging the
district court’s sentence. We heard argument and submitted
the case in May 2018, but withdrew submission pending
United States v. Pepe, 895 F.3d 679 (9th Cir. 2018) and
United States v. Abramov, 741 F. App’x 531 (9th Cir. 2018).
Because neither of those decisions fully resolved this appeal,
we resubmitted the case in March 2019 and now issue this
opinion.
II.
“We apply de novo review to a denial of a motion to
dismiss a criminal indictment on constitutional grounds.”
United States v. Andaverde, 64 F.3d 1305, 1308–09 (9th Cir.
1995). “We review de novo whether the district court’s jury
instructions misstated or omitted an element of the charged
offense and review the district court’s formulation of jury
instructions for abuse of discretion.” United States v. Chi
Mak, 683 F.3d 1126, 1133 (9th Cir. 2012). “We review a
district court’s evidentiary rulings for an abuse of discretion
and its interpretation of the Federal Rules of Evidence de
novo. We also review de novo whether a district court’s
evidentiary rulings violated a defendant’s constitutional
rights.” United States v. Waters, 627 F.3d 345, 351–52 (9th
UNITED STATES V. LINDSAY 11
Cir. 2010). “We review a district court’s construction and
interpretation of the Guidelines de novo and its application
of the Guidelines to the facts for abuse of discretion.” United
States v. Johnson, 913 F.3d 793, 799 (9th Cir. 2019) (quoting
United States v. Simon, 858 F.3d 1289, 1293 (9th Cir. 2017)
(en banc)).
III.
We begin our analysis with Lindsay’s appeal. Lindsay
assigns error to the district court on six grounds: (1) that the
district court erred in denying his motion to dismiss because
enacting 18 U.S.C. § 2423(c) exceeded Congress’s authority
under the Commerce Clause; (2) that the district court erred
in its instruction on the intent element of 18 U.S.C.
§ 2423(b); (3) that the district court erred by failing to
instruct the jury on a “reasonable belief” defense to
18 U.S.C. § 2423(b); (4) that the district court erred or
abused its discretion by excluding the Philippine
depositions; (5) that the district court abused its discretion
by excluding S.Q.’s Facebook messages and related
“extortion plot” evidence; and (6) that the district court
abused its discretion by admitting evidence that Lindsay had
sex with other Philippine minors. Lindsay also argues that
cumulative error requires us to vacate his conviction if
vacatur is not compelled by any error standing alone. We
address each of his arguments in turn.
A.
The Commerce Clause provides that “The Congress
shall have Power . . . To regulate Commerce with foreign
Nations, and among the several States, and with the Indian
Tribes.” U.S. Const. art. I, § 8, cl. 3. We are concerned here
with the first part of this clause, “Commerce with foreign
Nations,” often referred to as the Foreign Commerce Clause.
12 UNITED STATES V. LINDSAY
See United States v. Clark, 435 F.3d 1100, 1102 (9th Cir.
2006). We must decide whether Congress acted within the
boundaries of the Foreign Commerce Clause when it enacted
18 U.S.C. § 2423(c), as applied to the criminalization of non-
commercial sexual abuse of a minor.
We begin with the text of the relevant statute. At the time
of Lindsay’s conduct, section 2423(c) provided:
Any United States citizen or alien admitted
for permanent residence who travels in
foreign commerce, and engages in any illicit
sexual conduct with another person shall be
fined under this title or imprisoned not more
than 30 years, or both.
18 U.S.C. § 2423(c) (2012). 4 Section 2423(f) in turn defined
“illicit sexual conduct” as:
(1) a sexual act (as defined in section 2246)
with a person under 18 years of age that
would be in violation of chapter 109A if
the sexual act occurred in the special
maritime and territorial jurisdiction of the
United States; or
4
The statute now punishes any United States citizen “who travels in
foreign commerce or resides, either temporarily or permanently, in a
foreign country, and engages in any illicit sexual conduct with another
person.” 18 U.S.C. § 2423(c) (2018); see Violence Against Women
Reauthorization Act of 2013, Pub. L. 113-4, 127 Stat. 54, § 1211(b)
(Mar. 7, 2013); see also Pepe, 895 F.3d at 682, 686.
UNITED STATES V. LINDSAY 13
(2) any commercial sex act (as defined in
section 1591) with a person under 18
years of age.
18 U.S.C. § 2423(f) (2012). 5 Finally, the use of “chapter
109A” in section 2423(f)(1) referred to 18 U.S.C. § 2241–
2248 which, as relevant here, provided:
Whoever, in the special maritime and
territorial jurisdiction of the United States or
in a Federal prison, or in any prison,
institution, or facility in which persons are
held in custody by direction of or pursuant to
a contract or agreement with the head of any
Federal department or agency, knowingly
engages in a sexual act with another person
who —
(1) has attained the age of 12 years but
has not attained the age of 16 years;
and
(2) is at least four years younger than the
person so engaging;
or attempts to do so, shall be fined under this
title, imprisoned not more than 15 years, or
both.
5
The current statute is identical in relevant part, but also includes
“production of child pornography” as illicit sexual conduct. 18 U.S.C.
§ 2423(f) (2018); see Justice for Victims of Trafficking Act of 2015,
Pub. L. 114-22, 129 Stat. 227, § 111(a) (May 29, 2015).
14 UNITED STATES V. LINDSAY
18 U.S.C. § 2243(a) (2012). 6
Altogether then, section 2423(c) criminalized non-
commercial sexual activity between a United States citizen
of Lindsay’s age and a minor between the ages of 12 and 16,
if the citizen also traveled in foreign commerce. Although
we once interpreted these elements as requiring transit in
foreign commerce followed by illicit sexual conduct, Clark,
435 F.3d at 1107, we have recently clarified that the statute
proscribes illicit sexual conduct while traveling, where
traveling is broader than transit and encompasses the entire
trip or tour, Pepe, 895 F.3d at 685–86. The question before
us is whether it was within Congress’s power to criminalize
such conduct.
We have some assistance when we answer that question.
In Clark, we addressed the constitutionality of section
2423(c) as applied to commercial sex acts. 435 F.3d at 1103.
There, we explained the history of section 2423(c) and the
text, structure, and history of the Commerce Clause, id.
at 1110–14, ultimately establishing the governing
framework for our review and concluding that the act
“implicates foreign commerce to a constitutionally adequate
degree.” Id. at 1114. Our analysis here must begin from and
abide by that framework. See Miller v. Gammie, 335 F.3d
889, 893 (9th Cir. 2003) (en banc). We therefore begin with
a description of our reasoning in Clark.
Our analysis in Clark started by considering the
Commerce Clause as a whole, and how Congress’s powers
under the Foreign Commerce Clause related to the Interstate
Commerce Clause and Indian Commerce Clause. 435 F.3d
at 1110–13. Recognizing the different opinions on the
6
The current statute is identical. 18 U.S.C. § 2243(a) (2018).
UNITED STATES V. LINDSAY 15
subjects, we explained that “[r]egardless of how separate the
three subclauses may be in theory, the reality is that they
have been subject to markedly divergent treatment by the
courts” in light of the “considerably different interests at
stake when Congress regulates in the various arenas.” Id.
at 1111. We then compared the Supreme Court’s approach
to the Interstate Commerce Clause, defined by the three
familiar categories of permissible regulation, see United
States v. Lopez, 514 U.S. 549, 558–59 (1995); United States
v. Morrison, 529 U.S. 598, 609–14 (2000), with its approach
to the Indian Commerce Clause, which is not dependent on
“the rigid categories of Lopez and Morrison.” Clark,
435 F.3d at 1112–13. We recognized that the Foreign
Commerce Clause was more akin to the Indian Commerce
Clause than the Interstate Commerce Clause in this way, as
the Supreme Court “has been unwavering in reading
Congress’s power over foreign commerce broadly.” Id.
at 1113. We also added that there were structural reasons to
think that the Foreign Commerce Clause might be broader
than the Interstate Commerce Clause, because “[f]ederalism
and state sovereignty concerns do not restrict Congress’s
power over foreign commerce.” Id.; see also Japan Line,
Ltd. v. Cty. of Los Angeles, 441 U.S. 434, 448 (1979) (“[T]he
Founders intended the scope of the foreign commerce power
to be the greater”); Bd. of Trs. of Univ. of Ill. v. United States,
289 U.S. 48, 57 (1933) (“The principle of duality in our
system of government does not touch the authority of
Congress in the regulation of foreign commerce”).
Based on this broad understanding of the Foreign
Commerce Clause, we announced that we would review
section 2423(c) “under the traditional rational basis
standard.” Clark, 435 F.3d at 1114 (citing Gonzales v. Raich,
545 U.S. 1, 26 (2005)). The relevant question thus became
“whether the statute b[ore] a rational relationship to
16 UNITED STATES V. LINDSAY
Congress’s authority under the Foreign Commerce Clause.”
Id. While examining the statute through the lens of the
Lopez/Morrison categories was one way of approaching this
question, we made clear that “the categories have never been
deemed exclusive or mandatory,” comparing such forced
analysis to “one of the stepsisters trying to don Cinderella’s
glass slipper.” Id. at 1116. Instead, we compared the
elements established by section 2423(c) with the “species of
commercial intercourse between the United States and
foreign nations,” id. at 1114 (quoting Gibbons v. Ogden,
22 U.S. 1, 193 (1824)), concluding that a U.S. citizen’s
travel to a foreign country and commercial sex act with a
person abroad were each commercial activities that formed
part of “foreign trade and commerce,” id. at 1114–15.
Because both elements in combination “fairly relate[d] to
foreign commerce,” section 2423(c) “implicate[d] foreign
commerce to a constitutionally adequate degree.” Id.
at 1114.
Clark thus establishes the governing framework for our
review here. We must apply rational basis review to section
2423(c), asking whether its elements fairly relate to foreign
commerce. We already know that the first element, traveling
abroad, does so. Id. at 1114. But in Clark we reserved our
decision on whether section 2423(c) could constitutionally
apply to non-commercial conduct. Id. at 1110 & n.16.
Therefore, we must decide whether the second element also
fairly relates to foreign commerce when it is based not on
“any commercial sex act . . . with a person under 18 years of
age,” see 18 U.S.C. § 2423(f)(2) (2012), but on non-
commercial sex “with another person who . . . has attained
the age of 12 years but has not attained the age of 16 years,”
see id. § 2243(a) (2012). We cannot uphold Lindsay’s
conviction based on the commercial part upheld in Clark
because there was no special verdict form and the United
UNITED STATES V. LINDSAY 17
States urged the jury to convict on either the commercial part
or the non-commercial part, making it impossible for us to
tell what legal theory the jury’s conviction rests upon. See
Leary v. United States, 395 U.S. 6, 31–32 (1969).
We hold that non-commercial sex with a minor abroad
fairly relates to foreign commerce, and that Congress
accordingly acted within its constitutional bounds when it
enacted the non-commercial part of section 2423(c). The
question is admittedly difficult, having led judges across the
country to reach different outcomes. Compare United States
v. Durham, 902 F.3d 1180, 1210 (10th Cir. 2018) (upholding
section 2423(c) under broader power than under Interstate
Commerce Clause); United States v. Bollinger, 798 F.3d
201, 218 (4th Cir. 2015) (same), with United States v.
Pendleton, 658 F.3d 299, 308 (3rd Cir. 2011) (upholding
section 2423(c) under Lopez/Morrison framework), and
Durham, 902 F.3d at 1241 (Hartz, J., dissenting) (concluding
that section 2423(c) exceeds Foreign Commerce Clause
authority); United States v. Reed, 2017 WL 3208458, at *14
(D.D.C. July 27, 2017) (same); United States v. Al-Maliki,
787 F.3d 784, 793–94 (6th Cir. 2015) (concluding that it was
likely that section 2423(c) was unconstitutional, but that
such error was not plain). “We see no need to re-plow the
same ground here” canvassing the many arguments
discussed in those cases. See CFPB v. Seila Law LLC,
923 F.3d 680, 682 (9th Cir. 2019). Instead, we agree with
our sister circuits’ analysis in Durham and Bollinger, and
briefly explain the most important features of section
2423(c) that lead us to our conclusion.
First, and most important, we consider the non-
commercial part to be an essential component of Congress’s
overall scheme to combat commercial sex tourism by
Americans abroad. International sex tourism is a multi-
18 UNITED STATES V. LINDSAY
billion dollar industry that relies on the exploitation of
women and children in dire economic circumstances. See
Kalen Fredette, International Legislative Efforts to Combat
Child Sex Tourism, 32 B.C. Int’l & Comp. L. Rev. 1, 4–12
(2009). Such exploitation can feed the commercial sex
tourism industry in many ways. For example, non-
commercial sexual abuse of minors can drive commercial
demand for sex with minors by reinforcing the idea that such
conduct is acceptable, or by allowing traffickers to use non-
commercial arrangements to entice patrons into engaging in
subsequent commercial behavior. By serving as a
“gateway,” non-commercial conduct can fuel commercial
demand. See id. at 8 (“[S]exual arrangements with
prostituted children can look remarkably non-commercial,
with prostitutes performing both sex labor and non-sex labor
for patrons”). Thus, Congress rationally could have
concluded that non-commercial illicit sexual conduct abroad
relates to commercial illicit sexual conduct abroad. See
Durham, 902 F.3d at 1211; Bollinger, 798 F.3d at 219.
Because the prohibition on commercial illicit sexual conduct
is constitutional, the prohibition on non-commercial illicit
sexual conduct is also constitutional as an essential part of
that prohibition.
Second, Congress could have rationally concluded that
the American appetite for sex with minors abroad
substantially affects other aspects of foreign commerce
because sex with minors is generally illegal in the United
States. If Americans believe that traveling to a particular
foreign country includes the opportunity for unregulated,
non-commercial illicit sexual conduct, they may travel to
that country when they otherwise would not, and they may
pay more in airfare, lodging costs, vacation packages, or
simply stay in the country longer spending money on other
things. See Durham, 902 F.3d at 1211; Bollinger, 798 F.3d
UNITED STATES V. LINDSAY 19
at 219; see also Fredette, supra, at 9 (“Between 2–14% of
the GDPs of Indonesia, Malaysia, the Philippines, and
Thailand can be linked to sex tourism”). These substantial
collateral effects of American sex tourism, which
unquestionably constitute transactions in foreign commerce,
thus flow directly from the non-commercial sexual activity
prohibited by section 2423(c). These collateral effects make
non-commercial illicit sexual activity abroad related to the
“species of commercial intercourse between the United
States and foreign nations.” See Clark, 435 F.3d at 1114
(quoting Gibbons, 22 U.S. at 193).
These two features together lead us to conclude that
section 2423(c)’s second element fairly relates to foreign
commerce, even when predicated solely on non-commercial
sex with a minor between the age of 12 and 16. Additionally,
as we have already explained, section 2423(c)’s first element
of travel abroad also fairly relates to foreign commerce. We
are thus left here with the same situation we had in Clark:
the “combination of requiring travel in foreign commerce,
coupled with engagement in [non-commercial sexual
activity impacting foreign commerce] while abroad,
implicates foreign commerce to a constitutionally adequate
degree.” See Clark, 435 F.3d at 1114. Accordingly, the
district court did not err by denying Lindsay’s motion to
dismiss.
In light of our holding, we need not address the United
States’s alternative arguments that section 2423(c) could
have been enacted pursuant to Congress’s treaty power, see
Missouri v. Holland, 252 U.S. 416, 432 (1920), or its
inherent power over international affairs, see United States
v. Curtiss-Wright Export Corp., 299 U.S. 304, 318 (1936).
20 UNITED STATES V. LINDSAY
B.
We next turn to Lindsay’s statutory arguments, as
reflected in the district court’s instructions to the jury on the
section 2423(b) count. Lindsay asserts that the district court
erred by (1) failing to instruct the jury that the United States
needed to prove that Lindsay’s travel would not have
occurred but for his intent to engage in illicit sexual activity;
and (2) failing to instruct the jury that Lindsay could not be
convicted based on non-commercial sexual conduct if he
reasonably believed that S.Q. was 16. We address each
argument in turn.
1.
Lindsay did not object to the district court’s jury
instructions concerning 18 U.S.C. § 2423(b)’s intent
element, so we review only for plain error. See United States
v. Depue, 912 F.3d 1227, 1234 (9th Cir. 2019) (en banc).
Plain error is “(1) error, (2) that is plain, and (3) that affects
substantial rights. If all three conditions are met, an appellate
court may then exercise its discretion to notice a forfeited
error, but only if (4) the error seriously affects the fairness,
integrity, or public reputation of judicial proceedings.”
Johnson v. United States, 520 U.S. 461, 467 (1997)
(quotation marks and citations omitted). “Plain” error is
error that is “clear” or “obvious.” Id. (quoting United States
v. Olano, 507 U.S. 725, 734 (1993)).
Here, there is no obvious error. In 2012, 18 U.S.C.
§ 2423(b) provided that it was illegal for a United States
citizen to “travel[] in foreign commerce, for the purpose of
UNITED STATES V. LINDSAY 21
engaging in any illicit sexual conduct with another person.” 7
Lindsay argues that “for the purpose of” clearly refers to a
but-for causation standard, contrary to the “dominant,
significant, or motivating” standard the district court
applied. However, this contention “ignores the human ability
and propensity to act in light of multiple motives and
purposes.” United States v. Lukashov, 694 F.3d 1107, 1118
(9th Cir. 2012). It is not obviously wrong to interpret “for
the purpose of” as applying to any dominant, significant, or
motivating purpose to account for that fact, as a plain
understanding of the phrase can encompass multiple
intentions. For instance, in common conversation a person
can travel to the grocery store “for the purpose of” buying
milk and getting gas if both milk and gas are motivating
reasons for the excursion.
Lindsay’s argument to the contrary relies on Burrage v.
United States, 571 U.S. 204 (2014). However, Burrage is
inapposite here. In that case, the Supreme Court held that the
phrase “results from” in 21 U.S.C. § 841 refers to but-for
causation. Id. at 218–19. So, reasons Lindsay, “for the
purpose of” must also refer to but-for causation. But “results
from” and “for the purpose of” are materially different
phrases: Whereas “results from” necessarily implies
causality, “for the purpose of” does not. Burrage therefore
does not control here, and the district court did not plainly
err by instructing the jury that Lindsay traveled in foreign
commerce for the purpose of engaging in illicit sexual
7
The statute now prohibits traveling in foreign commerce “with a
motivating purpose of engaging in any illicit sexual conduct with another
person.” 18 U.S.C. § 2423(b) (2018); see Abolish Human Trafficking
Act of 2017, Pub. L. 115-392, 132 Stat. 5250, § 14 (Dec. 21, 2018).
22 UNITED STATES V. LINDSAY
activity if that purpose was dominant, significant, or
motivating.
2.
We likewise reject Lindsay’s argument that the district
court should have instructed the jury that it was a defense to
18 U.S.C. § 2423(b) if he believed that S.Q. was 16. Lindsay
did not request such an instruction from the district court, so
our review is again for plain error. See Depue, 912 F.3d
at 1234. Once more, under plain error review there was no
“obvious” error, and therefore no reversible error. See
Johnson, 520 U.S. at 467.
There are two “reasonable belief” defenses that could
apply to this case. 8 First, 18 U.S.C. § 2423(g) provides a
defense to illicit sexual conduct based on commercial sex
acts with minors under the age of 18, if the defendant
establishes that he or she reasonably believed that the minor
had attained the age of 18 years. Lindsay does not argue that
this defense applied to him or that an instruction based on it
should have been given. Second, 18 U.S.C. § 2243(c)(1)
provides a defense to prosecutions under section 2243(a), if
the defendant establishes by a preponderance of the evidence
that he or she reasonably believed that the minor had attained
the age of 16. Lindsay argues that this defense applies to the
section 2423(b) charge against him because section
8
The current statutes are identical in relevant part to the statutes in
force at the time. See 18 U.S.C. § 2423(g) (2012); 18 U.S.C. § 2243(c)(1)
(2012). The only distinction is section 2423(g) now requires the
defendant to prove his or her reasonable belief by clear and convincing
evidence, and at the time it required only a preponderance of the
evidence. See 18 U.S.C. § 2423(g) (2018); 18 U.S.C. § 2423(g) (2012);
Justice for Victims of Trafficking Act of 2015, § 111(b). This distinction
is not relevant to our decision.
UNITED STATES V. LINDSAY 23
2423(f)(1) defines “illicit sexual conduct,” as used in section
2423(b), as a sexual act with a person under 18 years of age
“that would be in violation of [18 U.S.C. § 2243(a)].”
Lindsay’s argument fails because the language of both
sections 2243(c)(1) and 2423(g) provide that the defense
applies in a prosecution under that relevant section:
18 U.S.C. § 2243(c)(1) states that the defense applies “[i]n a
prosecution under subsection (a) of this section” and
18 U.S.C. § 2423(g) states that the defense applies “[i]n a
prosecution under this section based on illicit sexual conduct
as defined in subsection (f)(2).” This language suggests that
Congress limited each affirmative defense to specific
prosecutions. Thus, the section 2243(c)(1) defense likely
applies to section 2243(a) prosecutions, and the section
2423(g) defense likely applies to section 2423 prosecutions,
but the section 2243(c)(1) defense likely does not apply
section 2423 prosecutions. At the very least, the section
2243(c)(1) defense does not “obviously” apply here,
precluding plain error correction. To the extent this means
the district court erred by allowing the defense as to the
section 2423(c) count, that error was harmless, as it could
have only helped Lindsay.
We therefore hold that there was no plain error in the
district court’s jury instructions.
C.
We next turn to Lindsay’s evidentiary objections.
Lindsay argues that the district court erred or abused its
discretion by (1) excluding his foreign deposition testimony,
(2) excluding S.Q.’s Facebook messages and related
extortion evidence, and (3) admitting evidence of Lindsay’s
sexual relations with other underage individuals. We address
each in turn.
24 UNITED STATES V. LINDSAY
1.
Lindsay does not argue on appeal, nor did he in the
district court, that the Philippine depositions are not hearsay
subject to Rule 802’s bar against admission. See Fed. R.
Evid. 801, 802. Therefore, the depositions were only
admissible if some exception to the hearsay rule applied.
Before the district court, Lindsay offered two evidentiary
exceptions: the former testimony exception for unavailable
declarants, Fed. R. Evid. 804(b)(1), and the residual
exception, Fed. R. Evid. 807. Lindsay also argued that
excluding the depositions would violate his right to due
process. The district court rejected all three arguments and
excluded the evidence.
We hold that the district court did not abuse its discretion
or violate Lindsay’s constitutional right to present a defense
by excluding the depositions. First, the former testimony
exception requires, as relevant to this case, that (1) the
declarant be unavailable at trial, (2) the testimony be given
at a lawful deposition, and (3) the United States had an
opportunity and similar motive to develop the testimony
through cross-examination. See Fed. R. 804(a), (b)(1). The
district court found that Lindsay had not shown that the
deponents were unavailable at trial, and that finding is not
clearly erroneous in light of Lindsay’s failure to support the
reasonable means he used to obtain their attendance,
especially given that the United States offered to help secure
visas for the witnesses. In fact, two of the five witnesses that
Lindsay argued were unavailable ultimately traveled to the
United States and testified at trial. Accordingly, the district
UNITED STATES V. LINDSAY 25
court did not abuse its discretion by declining to apply this
exception. 9
Second, as relevant here the residual exception requires
that the hearsay statement (1) have equivalent guarantees of
trustworthiness to other hearsay exceptions and (2) best
serve the purpose of the rules and the interests of justice. Fed.
R. Evid. 807(a). The district court here did not abuse its
discretion by declining to apply the residual exception
because equivalent guarantees of cross-examination were
not present. First, the government did not have an adequate
opportunity to cross-examine the deponents. Cf. United
States v. Sanchez-Lima, 161 F.3d 545, 547–48 (9th Cir.
1998) (“The government had an opportunity to develop the
testimony of these witnesses before they were deported, and
the government also had notice and the option to participate
in taking the videotaped statements”). Second, the probative
value of the deponents’ testimony was uncertain because it
was unclear whether their oath subjected them to perjury and
what effect Lindsay’s obstructive pre-trial conduct may have
had on their testimony, especially absent cross-examination.
The district court accordingly did not abuse its discretion by
declining to apply the residual exception.
9
Further, even assuming the remaining three witnesses were
actually unavailable, the only evidence of Philippine law before the
district court suggested that the depositions were not “lawful” because
they were not presided over by a Philippine judge. See United States v.
Salim, 855 F.2d 944, 953 (2d Cir. 1988) (explaining that Rule 804
“lawfulness” in this context refers to Civil Rule 28(b), as incorporated
by Criminal Rule 15(e)). Lindsay’s argument that he was required only
to abide by the text of Rule 28, and not Philippine law, is unavailing. See
id. (“Rule 28 . . . was specifically designed to permit depositions to be
taken in the manner provided by the law of the foreign country in which
the deposition is conducted”).
26 UNITED STATES V. LINDSAY
Finally, the constitutional guarantee of the right to
present a defense “is not absolute, since the adversary
process could not function effectively without adherence to
rules of procedure that govern the orderly presentation of
facts and arguments.” United States v. Evans, 728 F.3d 953,
959 (9th Cir. 2013) (quotation marks and citations omitted).
In cases such as this one, where exclusion of evidence by the
district court was not an abuse of discretion under the
Federal Rules of Evidence, we must consider “the probative
value of the evidence on the central issue; its reliability;
whether it is capable of evaluation by the trier of fact;
whether it is the sole evidence on the issue or merely
cumulative; and whether it constitutes a major part of the
attempted defense,” before we hold that a constitutional
violation has taken place. United States v. Stever, 603 F.3d
747, 756 (9th Cir. 2010) (quoting Alcala v. Woodford,
334 F.3d 862, 877 (9th Cir. 2003)). Balancing these factors,
the exclusion did not deprive Lindsay of his right to present
a defense because the excluded evidence was neither
significantly probative nor reliable. For example, the fact
that one witness testified that she was with S.Q. on one of
the nights S.Q. claimed she had sex with Lindsay, and did
not witness any sexual activity, is not significantly probative
of the central issue in the case given that Lindsay and S.Q.
had sex several times and Lindsay otherwise attacked S.Q.’s
credibility. Additionally, another witness’s testimony that
she heard S.Q. discussing “setting up” Lindsay was not
particularly important given that S.Q. admitted that the
family made contact with Lindsay as part of an extortion
scheme. Finally, even considering the limited probative
value of the excluded depositions, they were unreliable
under the circumstances presented here — the depositions
occurred against the backdrop of Lindsay’s pre-trial
attempted witness tampering and obstruction of justice.
Accordingly, no constitutional error occurred.
UNITED STATES V. LINDSAY 27
The district court therefore did not err or abuse its
discretion by excluding the Philippine depositions.
2.
We likewise reject Lindsay’s argument that the district
court abused its discretion by excluding S.Q.’s Facebook
messages discovered mid-trial. The thrust of Lindsay’s
argument is that he did not commit a discovery violation
because the messages were not in his “possession, custody,
or control.” See Fed. R. Crim. P. 16(b)(1)(A)(i). However,
Lindsay’s counsel represented to the district court that she
had found out about the messages 40 minutes before the
court raised the issue; i.e., prior to the current round of
questioning. Lindsay’s counsel therefore knew about the
messages before she began questioning S.Q.’s boyfriend,
and the duty of disclosure continued to apply. See Fed. R.
Crim. P. 16(c).
The closer question is whether the district court abused
its discretion by excluding the evidence in its entirety, rather
than attempting to craft a narrower sanction. Although Rule
16 allows district courts to exclude untimely evidence,
“[e]xclusion is an appropriate remedy for a discovery rule
violation only where ‘the omission was willful and
motivated by a desire to obtain a tactical advantage.’” United
States v. Finley, 301 F.3d 1000, 1018 (9th Cir. 2002)
(quoting Taylor v. Illinois, 484 U.S. 400, 415 (1988)). In this
case, however, even if we were to assume that exclusion was
an abuse of discretion, any error would be harmless. In post-
trial litigation, the full text of the relevant message was
disclosed, and the district court correctly held that that it was
inadmissible hearsay. See Fed. R. Evid. 801, 802. Thus, even
28 UNITED STATES V. LINDSAY
if the message had not been excluded on discovery grounds,
it would not have been admissible evidence. 10
Finally, Lindsay argues that the district court abused its
discretion by preventing him from asking questions about a
scheme by S.Q.’s father to extort S.Q.’s mother and
grandmother. However, all of the excluded testimony would
have concerned whether or not S.Q.’s father asked for
500,000 pesos at the Philippine courthouse. As the district
court recognized, whether or not this fact was true was
collateral to the relevant issues in the case: the chain of
inferences from the proposed testimony to the relevant issues
required the jury to believe that (1) the ask for money
occurred, (2) the ask for money was part of a scheme by
S.Q.’s father’s to extort the Del Pilars, (3) S.Q.’s father’s
extortion reflected negatively on S.Q.’s credibility, and
(4) S.Q. therefore should not be believed when she testified
that she and Lindsay had sex. The district court did not abuse
its discretion by preventing this testimony, given the remote
chain of inferences and given that Lindsay was otherwise
able to attack S.Q.’s credibility and to argue that he was the
victim of an extortion scheme.
3.
Finally, we also reject Lindsay’s argument that the
district court abused its discretion by admitting evidence that
he had sex with other teenage girls in the Philippines.
Lindsay argues that the evidence was inadmissible under
10
Lindsay argues on appeal that the exclusion was also overbroad
because he might have used it for other purposes, such as to refresh
S.Q.’s boyfriend’s recollection, but he did not argue at that time that the
district court’s exclusion was overbroad for that reason, and he has not
demonstrated that the district court’s decision constituted plain error. See
Depue, 912 F.3d at 1234.
UNITED STATES V. LINDSAY 29
Evidence Rule 404(b), but that rule operates only to exclude
the propensity inference that can be drawn from evidence of
other bad acts. See Fed. R. Evid. 404(b)(1). When certain
evidence may allow the jury to draw a propensity inference,
but may also allow the jury to evaluate a legitimate purpose,
“such as proving motive, opportunity, intent, preparation,
plan, knowledge, identity, absence of mistake, or lack of
accident,” the mere fact of the potential propensity inference
does not render the evidence inadmissible. See Fed. R. Evid.
404(b)(2).
That is the case here. While there was a strong propensity
inference that could have been drawn from the instant
messages, the messages were not admissible or admitted for
that purpose. Instead the district court admitted the messages
to show the purpose of the list in Lindsay’s notebook, which
made it more likely that Lindsay had sex with S.Q. In other
words, the messages did not show that Lindsay must have
had sex with S.Q. because he is the sort of person who has
sex with teenage girls; they showed that Lindsay was more
likely to have had sex with S.Q. because her name appeared
on a list of girls, at least some of with whom Lindsay had
sex. Such evidence is not prohibited by Rule 404(b) because
it does not “prove a person’s character in order to show that
on a particular occasion the person acted in accordance with
the character.” Fed. R. Evid. 404(b)(1).
Lindsay’s stronger argument is that, even if the evidence
was not introduced solely for the propensity inference, the
prejudice from that inference and the possible negative
emotional reaction of the jury to it was so great as to make
the evidence “substantially outweighed by a danger of . . .
unfair prejudice.” See Fed. R. Evid. 403. There is no
question that Lindsay is correct on the evidence’s prejudice.
However, the district court recognized that the evidence was
30 UNITED STATES V. LINDSAY
prejudicial and nonetheless decided that the probative value
justified admission. “The district court is to be given ‘wide
latitude’ when it balances the prejudicial effect of proffered
evidence against its probative value,” United States v.
Higuera-Llamos, 574 F.3d 1206, 1209 (9th Cir. 2009)
(quoting United States v. Spencer, 1 F.3d 742, 744 (9th Cir.
1993)), and we hold that the district court’s admission of the
evidence was not so unreasonable as to constitute an abuse
of discretion.
We therefore hold that there was no abuse of discretion
or constitutional error in the district court’s evidentiary
rulings.
D.
Lindsay last argues that, even if none of the errors
individually require us to vacate his conviction, the
cumulative effect of the errors denied him a fair trial. We
reject this argument. Cumulative error applies only when
multiple errors exist such that our review of them would be
better served by examining the prejudice collectively, rather
than through “a balkanized, issue-by-issue harmless error
review.” United States v. Wallace, 848 F.2d 1464, 1476 (9th
Cir. 1988). There were not multiple errors here and therefore
there cannot be cumulative error. See United States v.
Jeremiah, 493 F.3d 1042, 1047 (9th Cir. 2007) (“[B]ecause
we hold that there was no error committed by the district
court, Jeremiah’s theory of cumulative error necessarily
fails”).
We therefore affirm Lindsay’s conviction.
UNITED STATES V. LINDSAY 31
IV.
We next address the United States’s cross-appeal,
concerning Lindsay’s sentence. The United States’s sole
argument on cross-appeal is that Lindsay’s sentence should
be set aside because the district court miscalculated
Lindsay’s Guidelines range before imposing the sentence.
Although the United States Sentencing Guidelines are no
longer binding, they must be correctly calculated; it is
procedural error for a district court to calculate the
Guidelines range incorrectly. United States v. Carty,
520 F.3d 984, 993 (9th Cir. 2008) (en banc). The United
States argues that the district court miscalculated Lindsay’s
Guidelines range because it failed to apply a two-level
obstruction of justice enhancement, USSG § 3C1.1.
According to the United States, Lindsay’s base offense level
of 31 should have been 33, which would have increased the
Guidelines range from 108–135 months to 135–168 months.
See USSG Ch. 5, Pt. A.
We conclude that the district court erred by failing to
apply the enhancement. There is no dispute that section
3C1.1 applied in this case because Lindsay committed
obstructive conduct within the meaning of the section.
Instead, the district court declined to apply the enhancement
because doing so would have been to “count it twice.”
Lindsay defends this reasoning on appeal, arguing that
applying the obstruction enhancement would have
impermissibly “double-counted” his obstructive conduct at
sentencing. But double-counting was not at issue in
Lindsay’s sentence; the Guidelines contemplate that if a
defendant is convicted of both an obstruction offense and an
underlying offense, the counts will be grouped, and “[t]he
offense level for that group of closely related counts will be
the offense level for the underlying offense increased by the
32 UNITED STATES V. LINDSAY
2-level adjustment . . . or the offense level for the obstruction
offense, whichever is greater.” USSG. § 3C1.1 cmt. 8. By
ignoring this comment and imposing concurrent sentences,
the district court never accounted for Lindsay’s obstructive
conduct in his sentence as the Guidelines contemplate.
Lindsay argues that, even if this is true, it is solely
because the district court separately grouped the sex offence
counts and the obstruction counts, which the United States
affirmatively agreed to. We agree that the United States
waived any challenge to the separate grouping, and that its
argument would fail if the grouping was determinative of the
enhancement issue. However, whether the counts should
have been grouped or not does not affect whether the
obstruction enhancement should have applied to the sex
offense counts. The plain text of section 3C1.1 instructs
sentencing courts to increase the offense level whenever the
defendant has “willfully obstructed or impeded . . . the
administration of justice.” USSG § 3C1.1. This increase is
mandatory; the district court did not have discretion to
ignore it. United States v. Ancheta, 38 F.3d 1114, 1118 (9th
Cir. 1994). Thus, regardless whether the counts were
grouped or not, the district court should have applied the
obstruction enhancement to Lindsay’s total offense level. By
failing to do so, the district court committed procedural
error. See Carty, 520 F.3d at 993.
Nor can we say that the error was harmless. See United
States v. Munoz-Camarena, 631 F.3d 1028, 1030 & n.5 (9th
Cir. 2011). After incorrectly calculating Lindsay’s
Guidelines range as 108–135 months, the district court
sentenced Lindsay to a term of 96 months. While the district
court explained the reasons for that variance, “[t]he court
must explain, among other things, the reason for the extent
of a variance.” Id. at 1031 (emphasis in original). “The
UNITED STATES V. LINDSAY 33
extent necessarily is different when the range is different, so
a one-size-fits-all explanation ordinarily does not suffice,”
and we “are not convinced that the district court would
impose the same sentence if the correct Guidelines range
was ‘kept in mind throughout the process.’” Id. (quoting
Carty, 520 F.3d at 991). Remand for resentencing is
therefore required. We do not opine on the appropriateness
of any ultimate sentence, but leave that issue in the district
court’s capable hands.
Therefore, while we affirm Lindsay’s conviction, we
vacate his sentence and remand for resentencing.
AFFIRMED in part, VACATED in part, and
REMANDED.