As Amended June 2, 2015.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF PUERTO RICO. Hon. José A. Fusté, U.S. District Judge.
Mary Davis, with whom Tisdale & Davis, P.A., was on brief, for appellant.
Nelson Pérez-Sosa, Assistant United States Attorney, Chief, Appellate Division, with whom Rosa Emilia Rodríguez-Vélez, United States Attorney, was on brief, for appellee.
Before Thompson, Baldock,[*] and Lipez, Circuit Judges. THOMPSON, Circuit Judge, dissenting.
LIPEZ, Circuit Judge.
This case presents an issue of first impression, requiring us to decide the applicability of the Supreme Court's decision in Rosemond v. United States, 134 S.Ct. 1240, 188 L.Ed.2d 248 (2014), to appellant's claim that the government has to prove beyond a reasonable doubt that an aider and abettor to a production of child pornography charge knew that the victim was a minor.
Roberto Encarnación-Ruiz (" Encarnación" ) was charged with one count of aiding and abetting the production of child pornography in connection with a pornographic film that he made in 2010 with Rey Vilanova-Delgado (" Vilanova" ) and KMV, a 14-year-old girl. In the district court, Encarnación argued that he was mistaken as to KMV's age, and his mistake of age should be a defense to the child pornography charge. The government moved in limine to preclude Encarnación from arguing that he " lacked knowledge of, or [was] mistaken about, the age of the minor victim." The district court granted the motion in limine. Encarnación subsequently entered a conditional guilty plea. In entering this plea, he reserved his right to appeal " whether the defendant's mistake of age of the victim can be raised as a defense to a charge of production of child
pornography under [18 U.S.C. § ] 2251(a)."
After this case was argued before us, the Supreme Court issued its opinion in Rosemond, which clarified the mens rea requirement for aiding and abetting a crime. The Court held that the government must prove that an aider and abettor of criminal conduct participated with advance knowledge of the elements that constitute the charged offense. 134 S.Ct. at 1248-49. We requested supplemental briefing from the parties to address whether Rosemond " requires the government in a prosecution for aiding and abetting a violation of 18 U.S.C. § 2251(a) to prove the aider and abettor's knowledge of the element that the victim is a minor." Encarnación contends that Rosemond supports his argument that, to aid and abet the production of child pornography, he must have had advance knowledge that the victim was a minor. The government counters that there is no knowledge requirement for principals of a § 2251(a) offense, and, hence, Rosemond does not create such a requirement for aiders and abettors.
After review, we agree with Encarnación that Rosemond requires the government in a prosecution for aiding and abetting a violation of 18 U.S.C. § 2251(a) to prove the aider and abettor's knowledge that the victim was a minor. Therefore, we vacate Encarnación's conviction and remand the case to the district court for further proceedings.
Encarnación met KMV at a beach near San Juan, Puerto Rico, when she was in the company of Vilanova. Vilanova in turn knew KMV through one of her family friends, FélixIván Rodríguez--Acevedo. Because KMV lacked Internet access at home, she would occasionally visit Vilanova's apartment to use his computer and Internet connection. At some point during KMV's visits, Vilanova and Rodríguez--Acevedo began to engage in sexual acts with her. Other men, including Encarnación, came to the apartment when she was there and also engaged in sexual acts with her.
Encarnación and Vilanova were recorded engaging in sexual acts with KMV in a video made in April or May 2010. KMV was 14 years old at the time. Police discovered the recording about a year later, after Vilanova's neighbors became aware of his sexual relationship with KMV and attacked him with a baseball bat. This incident sent Vilanova to the hospital and the police to his door.
Encarnación was charged, in count three of a superseding indictment, with aiding and abetting Vilanova to use KMV, a minor, in the production of child pornography, in violation of 18 U.S.C. § 2251(a) and 18 U.S.C. § 2. Section 2, the aiding and
abetting statute, provides that a defendant " is punishable as a principal" if he " aids, abets, counsels, commands, induces or procures" the commission of a federal crime. After the district court rejected Encarnación's mistake of age defense, he entered a conditional guilty plea and was sentenced to a mandatory minimum of 15 years in prison.
A. Waiver and Forfeiture
The argument that Encarnación has raised on appeal -- that the government must prove that an aider and abettor of the production of child pornography under 18 U.S.C. § 2251(a) knew that the victim was a minor -- was not the exact argument that he presented in the district court. This fact raises two preliminary issues: (1) whether Encarnación's argument is waived because it exceeds the scope of the issue preserved in his plea agreement, or (2) whether the argument is forfeited, and, therefore, we should review it under the plain error standard. The dissent adds that Encarnación waived his Rosemond argument because he only addressed it in a cursory fashion on appeal. We address the waiver and forfeiture issues in turn.
a. Plea Agreement
Encarnación's plea agreement contained a conditional waiver provision where he agreed to " waive and permanently surrender his right to appeal the judgment and sentence in this case" but preserved the right to appeal " the unresolved legal issue in the First Circuit of whether the defendant's mistake of age of the victim can be raised as a defense to a charge of production of child pornography under [18 U.S.C. § ] 2251(a)." Plea Agreement at 10. When determining whether an appeal falls within a waiver's scope, " we rely on basic contract interpretation principles, construing the agreement where possible to give effect to every term and phrase, and construing any ambiguities in favor of allowing the appeal to proceed." United States v. Santiago-Burgos, 750 F.3d 19, 23 (1st Cir. 2014) (internal citation omitted).
Encarnación's appellate argument fits within the question he preserved in the plea agreement. He contends that he was mistaken as to KMV's age and, because he was charged as an aider and abettor, his lack of knowledge that the victim was a minor is a defense to a § 2251(a) charge. Put differently, the argument that the prosecution cannot establish the mens rea element of aiding and abetting because it cannot prove beyond a reasonable doubt that a defendant knew that the victim was a minor is a " defense" to a § 2251(a) charge. See 1 Wayne LaFave, Substantive Criminal Law § 5.6(a) (2d ed. 2014) (hereinafter LaFave) (" [I]gnorance or mistake of fact . . . is a defense when it negat[es] the existence of a mental state essential to the crime charged." ). A defendant who successfully raises such a defense would be acquitted by a jury because the government had failed to prove his knowledge of the age of the victim beyond a reasonable doubt. See Dixon v. United States, 548 U.S. 1, 23, 126 S.Ct. 2437, 165 L.Ed.2d 299 (2006) (noting that a defendant's mens rea " is always for the prosecution to prove beyond a reasonable doubt" ). Moreover, in this case, the government
itself is not arguing waiver, but instead does " not object that the issue as raised was not the precise issue preserved by the conditional plea." For these reasons, we find that Encarnación's argument is not waived.
b. "Conclusory" argument
The dissent suggests that Encarnación waived his appellate argument for another reason. Specifically, the dissent claims that Encarnación waived the argument that " Rosemond requires the government to prove an aider an abettor's knowledge of age as an element of the crime" because " he gave us nothing more than conclusory statements" on appeal.
We have repeatedly stated that " we deem waived claims not made or claims adverted to in a cursory fashion, unaccompanied by developed argument." Rodriguez v. Municipality of San Juan, 659 F.3d 168, 175 (1st Cir. 2011). " We require parties to 'spell out their issues clearly, highlighting the relevant facts and analyzing on-point authority.'" United States v. Gray, 780 F.3d 458, 464 (1st Cir. 2015) (quoting
Rodriguez, 659 F.3d at 175).
Here, Encarnación's supplemental brief argued that " a person becomes an aider and abettor if and only if the person 'actively participates in a criminal venture with full knowledge of the circumstances constituting the charged offense,' and the age of the victim is one of the circumstances that constitutes the charged offense." Appellant's Supp. Br. at 10-11 (quoting Rosemond, 134 S.Ct. at 1248-49). Encarnación also identified four other passages in Rosemond to support his on-point argument. Therefore, we find the argument has been sufficiently developed and is not waived.
See Gray, 780 F.3d at 464 (finding that argument not waived where defendant cited only one case but " offered a short but on-point argument" ).
Although Encarnación's appellate argument is not waived because it fits within the broad legal question he preserved in the plea agreement, and the government does not argue to the contrary, we also address whether his argument is forfeited because he did not raise it in the district court. These two issues, though related, are distinct. The first asks whether Encarnación's argument falls within the scope of the conditional waiver provision in his plea agreement. The second asks whether Encarnación raised the argument in front of the district court judge.
When a party fails to raise an argument in the district court, we generally review the claim under the plain error standard of review.
See United States v. Pagá n-Ferrer, 736 F.3d 573, 593 (1st Cir. 2013). However, in this case, the government has not asked us to review Encarnación's argument for plain error and, instead, agrees to de novo review. When the government fails to request plain error review, we, and many of our sister circuits, review the claim under the standard of review that is applied when the issue is properly preserved below. See United States v. Tapia-Escalera, 356 F.3d 181, 183 (1st Cir. 2004) (declining to apply plain error review to unpreserved claim when not requested by government); see also United States v. Williams, 641 F.3d 758, 763-64 (6th Cir. 2011) (applying de novo review to unpreserved legal claim because government did not request plain error standard); United States v. Salem, 597 F.3d 877, 884 (7th Cir. 2010) (stating that government " waived its right to rely on plain error review" when it failed to request that standard of review); United States v. Kortgaard, 425 F.3d 602, 610 (9th Cir. 2005) (refusing to apply plain error
standard because " [e]ven if Kortgaard failed to preserve the error below, the government nonetheless elected to address the merits of Kortgaard's challenge . . . without raising the issue of waiver" ); United States v. Cyr, 29 F.App'x 1, 4 n. 3 (D.C. Cir. 2001) (choosing not to apply plain error review because government did not argue for it); but see United States v. Bain, 586 F.3d 634, 639 n.4 (8th Cir. 2009) (stating that " a party's concession on the standard of review does not bind the court" ). Therefore, even if Encarnación did not sufficiently raise his appellate argument in the district court, we will review de novo the question of law posed by this case. See United States v. Carter, 752 F.3d 8, 13 (1st Cir. 2014); see also United States v. Duquette, 778 F.3d 314, 317 (1st Cir. 2015) (applying de novo review where " the government appears to have conceded that de novo reviews applies" ).
B. The Supreme Court's Rosemond Decision
Rosemond involved a " drug deal gone bad," after either the defendant (Rosemond) or his confederate (it was unclear who) fired a gun at the buyers, who had taken the drugs and run away without paying. 134 S.Ct. at 1243. Rosemond was charged with violating 18 U.S.C. § 924(c) by using a firearm in connection with a drug trafficking offense, or, in the alternative, aiding and abetting that crime under 18 U.S.C. § 2. Id.
At trial, Rosemond contended that he " took no action with respect to any firearm." Id. at 1246. More specifically, he did not buy, borrow, carry, or use a gun in connection with the alleged drug transaction. Id. Building on this factual premise, he argued that he could be found guilty of aiding or abetting a § 924(c) violation only if he " intentionally took some action to facilitate or encourage the use of the firearm, as opposed to the predicate drug offense." Id. at 1244 (internal quotation marks omitted). Disagreeing, the district court instructed the jury that Rosemond was guilty of aiding and abetting if " (1) [he] knew his cohort used a firearm in the drug trafficking crime, and (2) [he] knowingly and actively participated in the drug trafficking crime." Id. (internal quotation marks omitted). Rosemond was convicted by the jury, and the Tenth Circuit affirmed. Id. at 1244.
The Supreme Court vacated Rosemond's § 924(c) conviction. Id. at 1252. The Court first restated longstanding aiding and abetting law: " [A] person is liable under § 2 for aiding and abetting a crime if (and only if) he (1) takes an affirmative act in furtherance of that offense, (2) with the intent of facilitating the offense's commission." Id. at 1245. Regarding the affirmative act requirement, the Supreme Court concluded that the district court correctly instructed the jury that Rosemond could be convicted of aiding and abetting a § 924(c) offense even if he facilitated only the drug trafficking element, and not the use of the gun. Id. at 1247; see also id. at 1246 (" [A] defendant can be convicted as an aider and abettor without proof that he participated in each and every element of
the offense." (internal quotation marks omitted)).
Regarding the intent requirement, the Court stated that a person must intend to facilitate " the specific and entire crime charged." Id. at 1248; see also id. (" [A]n aiding and abetting conviction requires . . . a state of mind extending to the entire crime." (emphasis added)). Therefore, with a § 924(c) offense, the aider and abettor must have knowledge of the full scope of the crime, that is, " that the plan calls not just for a drug sale, but for an armed one." Id. at 1249; see also id. (stating that a defendant must intend to commit " the illegal scheme in its entirety -- including its use of a firearm" ).
The Court further held that this knowledge has to be " advance knowledge," meaning " knowledge at a time the accomplice can do something with it -- most notably, opt to walk away." Id. at 1249-50. The jury instructions at Rosemond's trial were in error because they did not require that Rosemond knew in advance that one of his cohorts would be armed. See id. at 1251. By instructing the jurors to consider merely whether Rosemond " knew his cohort used a firearm," the district court failed to direct them to determine when Rosemond obtained the requisite knowledge -- i.e., to decide whether Rosemond knew about the gun in sufficient time to withdraw from the crime. Id. at 1251-52.
C. Application of Rosemond to Encarnación
The application of Rosemond to the charge in this case is relatively straightforward. The prosecution charged Encarnación with aiding and abetting Vilanova in the production of child pornography in violation of 18 U.S.C. § 2251(a) and 18 U.S.C. § 2. An individual violates § 2251(a) if he " employs, uses, persuades, induces, entices, or coerces any minor to engage in . . . any sexually explicit conduct for the purpose of producing any visual depiction of such conduct . . . using materials that have been mailed, shipped, and transported in or affecting interstate or foreign commerce." (emphasis added). Under Rosemond, to establish the mens rea required to aid and abet a crime, the government must prove that the defendant participated with advance knowledge of the elements that constitute the charged offense. See 134 S.Ct. at 1248-49; see also id. (stating that an aider and abettor must have " full awareness of [the crime's] scope," " full knowledge of the circumstances constituting the charged offense," and " participate in a criminal scheme knowing its extent and character" ); United States v. Diaz-Castro, 752 F.3d 101, 107 n.4 (1st Cir. 2014) (stating that Rosemond clarified that a defendant needs " advance knowledge" of the elements of an offense to be convicted as an aider and abettor).
Producing child pornography is illegal precisely because the person in the visual depiction was a minor. If an individual charged as an aider and abettor is unaware that the victim was underage, he cannot " wish to bring about" such criminal conduct and " seek . . . to make it succeed." Rosemond, 134 S.Ct. at 1248 (quoting Nye & Nissen v. United States, 336 U.S. 613, 619, 69 S.Ct. 766, 93 L.Ed. 919 (1949)). Therefore, under Rosemond, an aider and abettor of such an offense must have known the victim was a minor when it was still possible to decline to participate in the conduct.
D. Arguments Against the Applicability of Rosemond
While accepting, as it must, the principles of aider and abettor liability set forth in Rosemond, the government argues that Rosemond is not applicable to a charge of aiding and abetting the production of child
pornography for two reasons: (1) 18 U.S.C. § 2251(a) does not contain a knowledge requirement for principals or aiders and abettors, and (2) Rosemond's analysis applies only to offenses with two distinct actions. The dissent adds that we can avoid the Rosemond issue because, in its view, Encarnación pleaded guilty as both a principal and an aider and abettor, and, hence, we can affirm his conviction as a principal. In the alternative, the dissent argues that, on the facts of this case, Rosemond does not require Encarnación to have advance knowledge that the victim was a minor to be convicted. We address each argument in turn.
1. Principal vs. Aider And Abettor
The government is correct that § 2251(a) itself contains no mens rea requirement as to the victim's age, and the majority of courts that have addressed the issue have held that knowledge of the age of the victim is not required to convict a principal under the statute. See, e.g., United States v. Fletcher, 634 F.3d 395, 400 (7th Cir. 2011); United States v. Pliego, 578 F.3d 938, 943-44 (8th Cir. 2009); United States v. Malloy, 568 F.3d 166, 172-73 (4th Cir. 2009); United States v. Deverso, 518 F.3d 1250, 1257 (11th Cir. 2008); United States v. Griffith, 284 F.3d 338, 349 (2d Cir. 2002); see also United States v. X-Citement Video, Inc., 513 U.S. 64, 77, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994) (stating that Congress intended to exclude a scienter requirement from § 2251(a)); but see United States v. U.S. Dist. Court, 858 F.2d 534, 538-43 (9th Cir. 1988) (holding that while " [t]he defendant's awareness of the subject's minority is not an element of [a § 2251(a)] offense," the First Amendment requires reading a reasonable mistake of age affirmative defense into the statute).
However, even assuming that a principal of a § 2251(a) offense can be held strictly liable (that is, convicted without knowing that the victim was a minor), the government's argument that an aider and abettor must also be held liable without fault has been rejected by longstanding law. See 2 LaFave § 13.2(f) (" Under the general principles applicable to accomplice liability, there is no such thing as liability without fault." ).
In other contexts, courts have consistently found a mens rea requirement for
aiders and abettors of strict liability crimes. See, e.g., United States v. Lawson, 872 F.2d 179, 181 (6th Cir. 1989) (upholding conviction after finding that aider and abettor " knew that [principal's] possession of the unregistered guns would be illegal" under 26 U.S.C. § 5861(c)); United States v. Baumgarten, 517 F.2d 1020, 1027 (8th Cir. 1975) (stating that aider and abettor of 26 U.S.C. § 5861 offenses must have a " purposeful attitude" to be found guilty (internal quotation marks omitted)); State v. Bowman, 188 N.C.App. 635, 656 S.E.2d 638, 651 (N.C. Ct.App. 2008) (holding that government must prove that aider and abettor of statutory rape " acted with knowledge that the [victims] were under the age of sixteen" ); id. at 650 (" Although statutory rape is a strict liability crime, aiding and abetting statutory rape is not." ) (citing People v. Wood, 56 Cal.App. 431, 205 P. 698 (1922)).
Professor LaFave explains that in the situation where an " alleged accomplice is aiding another with intent to do so, but the aid is given without knowledge of the facts which make the principal's conduct a crime," the argument that the " accomplice may be held on a liability-without-fault basis if the crime committed by the principal is of the strict liability variety . . . has been rejected [and] is not sound." 2 LaFave § 13.2(f). LaFave adds, " the special circumstances which justify the imposition of liability without fault on certain persons who themselves engage in the proscribed conduct are not likely to exist as to those rendering aid." Id.
LaFave's analysis is directly applicable to the § 2251(a) charge in this case. Encarnación admits that he aided Vilanova in producing pornography, but his aid was given without knowledge of the only fact which makes Vilanova's conduct a crime, namely that one of the participants was a minor. Criminalizing non-obscene adult pornography would violate the Constitution's right to free speech. See Ashcroft v. Free Speech Coal., 535 U.S. 234, 240, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002); United States v. Hilton, 386 F.3d 13, 14 (1st Cir. 2004).
If the government's argument were correct, individuals could be convicted of aiding and abetting the production of child pornography even when they had only a fleeting connection to the crime. For example, a set decorator who believes he is working on the production of a legal adult pornographic film could be held liable as an aider and abettor even if he had no knowledge that one of the participants in the film was underage. This outcome would be possible, because, as Rosemond explains, a " defendant can be convicted as an aider and abettor without proof that he participated in each and every element of the offense . . . even if that aid relates to only one (or some) of a crime's phases or elements." 134 S.Ct. at 1246. Therefore, as long as the set decorator participated in any aspect of producing the child pornography, he would meet aiding and abetting's affirmative act requirement.
Principals, the argument goes, " may be convicted under § 2251(a) without proof they had knowledge of [the victim's] age" because they " confront the underage victim personally and may reasonably be required to ascertain that victim's age." X-Citement Video, Inc.,
513 U.S. at 76 n.5, 72 n.2. The same justification would not apply to a set decorator or other similarly situated aider and abettor, who may never even see the victim, much less interact with him or her.
To be sure, in this case, the government alleges that Encarnación had a previous relationship with KMV, including repeated sexual activity, and, as a main actor in the film, saw her face-to-face. At this juncture, however, these alleged facts are irrelevant. The government decided to proceed against Encarnación as an aider and abettor, even though it arguably would have been justified charging him as a principal. As we just discussed, this decision meant the government had to prove Encarnación knew the victim's age in advance. That the evidence strongly points to such knowledge means nothing until the government convinces a jury -- not us -- of this fact.
2. Double-barreled Crime
The government also contends that Rosemond is distinguishable, and thus inapplicable here, because " it dealt with a statute which requires two distinct actions." The statute at issue in Rosemond, 18 U.S.C. § 924(c), is a " double-barreled crime," requiring (1) using or carrying a gun while (2) engaging in a violent or drug trafficking offense. See 134 S.Ct. at 1245.
However, nothing about the Supreme Court's mens rea analysis limits its applicability to statutes requiring two distinct actions. When discussing the mens rea requirement for aiding and abetting liability, the Court states generally that the requirement is satisfied " when a person actively participates in a criminal venture with full knowledge of the circumstances constituting the charged offense." Id. at 1248-49. The Court then explains that it has previously employed this knowledge requirement in a variety of contexts, including aider and abettor liability for mail fraud and the evasion of liquor taxes. Id. at 1249. Two distinct actions are not required to convict a defendant under either the mail fraud or the evasion of liquor taxes statutes. See 18 U.S.C. § 1341 (proscribing, inter alia, the mailing of a letter for the purpose of executing a scheme to defraud); 26 U.S.C. § 5602 (proscribing the operation of a distilling business to defraud the government of liquor taxes). Finally, the Court applies this " same principle" -- that an aider and abettor must " participate in a criminal scheme knowing its extent and character" -- to a § ...