United States of America v. Jason Jayavarman

It is a crime to produce outside the United States a visual

depiction of a minor engaged in sexually explicit conduct and

to then transport that visual depiction into the United States.

18 U.S.C. § 2251(c). It is also a crime to attempt to produce

and transport into the United States a visual depiction of a

minor engaged in sexually explicit conduct. 18 U.S.C.

§ 2251(e).

In this case, we consider what happens when a defendant

believes that the victim appearing in a depiction is a minor

but the victim turns out to be an adult. That defendant cannot

be convicted of the completed version of the crime, but can

he be convicted of attempt? We answer that question in the

UNITED STATES V. JAYAVARMAN 5

affirmative: a defendant attempts to produce and transport a

visual depiction of a minor engaged in sexually explicit

conduct when he believes that the victim is a minor,

regardless of the victim’s actual age.

This conclusion undermines a number of the grounds on

which the defendant in this case challenges his conviction for

attempted production and transportation of a visual depiction

of a minor engaged in sexually explicit conduct. We reject

the other grounds on which he challenges that conviction, and

we affirm that conviction. As the government concedes we

must, we vacate his conviction for attempting to aid and abet

an undercover FBI agent’s travel with intent to engage in

illicit sexual conduct because the statute does not proscribe an

attempt to aid and abet such travel. We vacate his sentences

on both counts and remand for resentencing.

I. Background

Between 2010 and 2012, Defendant-Appellant Jason

Jayavarman, who is a dual citizen of the United States and

Cambodia, traveled repeatedly from his residence in

Anchorage to Cambodia. While in Cambodia, Jayavarman

had sexual relations with a female, referred to as “Ann” or

“Ana.” He made video recordings of the sexual relations and

transported the recordings back to his residence in

Anchorage.

It was disputed whether the victim was actually a minor

and whether Jayavarman believed she was a minor at the time

he made and transported the recordings. At trial, the jury

heard audio recordings of Jayavarman stating that the victim

was fourteen years old at the time he began having sexual

relations with her and that he began making the video

UNITED STATES 6 V. JAYAVARMAN

recordings of their sexual relations either at that time or the

next year. Documents of questionable provenance that

purported to be the victim’s birth certificate and national ID

card, as well as an attestation, were also introduced into

evidence. The documents asserted that the victim was born

on a date that would have meant she was an adult at the time

the recordings were made.

Jayavarman was tried in federal court for his conduct, and

the jury was asked to consider two related subcounts. Count

1A asked the jury to determine whether Jayavarman had

produced a visual depiction of a minor engaged in sexually

explicit conduct while outside the United States and then

transported the depiction into the United States in violation of

18 U.S.C. § 2251(c). Count 1B asked the jury to determine

whether Jayavarman had attempted to perform the conduct

described in Count 1A in violation of 18 U.S.C. § 2251(e),

which criminalizes attempted violations of any of § 2251’s

subsections. The jury did not return a verdict on Count 1A,

apparently not reaching a conclusion on the issue of whether

the victim was actually a minor. The jury found Jayavarman

guilty on Count 1B.

Jayavarman was tried for other alleged misconduct at the

same time he was tried for the alleged violations of 18 U.S.C.

§ 2251 described above. Specifically, it was alleged that

Jayavarman engaged in a number of telephone and in-person

conversations in 2013 with an undercover FBI agent who

pretended to be interested in traveling to Cambodia to have

sexual relations with minors. Jayavarman made arrangements

to travel to Cambodia and expressed an intent to meet the

agent in Cambodia. Jayavarman was arrested before he left

on the trip. It was disputed whether Jayavarman intended to

have illicit sexual relations when he arrived in Cambodia and

UNITED STATES V. JAYAVARMAN 7

how he intended to assist the FBI agent. The jury was asked

to consider two related subcounts. Count 2A asked the jury

whether Jayavarman had, while a United States citizen,

attempted to travel to a foreign country with the intent to

engage in illicit sexual conduct in violation of 18 U.S.C.

§§ 2423(b) and (e). Count 2B asked the jury whether

Jayavarman had attempted to aid and abet another person in

performing the conduct described in Count 2A. The jury did

not return a verdict on Count 2A and found Jayavarman

guilty on Count 2B. As was true with Counts 1A and 1B,

most of the evidence in support of the conviction consisted of

recordings of Jayavarman’s conversations with law

enforcement officers.

After filing several post-trial motions, Jayavarman timely

appealed his convictions on a number of grounds. In its

answering brief on appeal, the government conceded that the

conviction as to Count 2B must be vacated because the statute

does not cover attempted aiding and abetting, the theory of

the crime on which Jayavarman was convicted.1 We accept

1 The government concedes in reliance on our decision in United

States v. Kuok, 671 F.3d 931, 941–42 (9th Cir. 2012), in which we vacated

a conviction for attempting to cause the commission of a federal crime

where the substantive statute did not contain a causation provision and the

general causation statute did not contain an attempt provision. We

explained that “there is no general federal ‘attempt’ statute. A defendant

therefore can only be found guilty of an attempt to commit a federal

offense if the statute defining the offense also expressly proscribes an

attempt.” Id. at 941 (some internal quotation marks and alteration

notations omitted).

The jury convicted Jayavarman under Count 2B of attempting to aid

and abet the undercover FBI agent’s travel with intent to engage in illicit

sexual conduct in violation of 18 U.S.C. § 2423(b). Section 2423(b)

covers the substantive offense of traveling with intent to engage in illicit

UNITED STATES 8 V. JAYAVARMAN

the concession and vacate Jayavarman’s conviction and

sentence as to Count 2B.

II. Discussion

Jayavarman challenges his conviction on a variety of

theories, most of which relate to his contention that a jury

must find that the victim was actually a minor, as opposed to

finding that the defendant believed the victim was a minor, in

order to convict a defendant of an attempted violation of

18 U.S.C. § 2251(c). He makes this argument as a matter of

statutory construction, and he further contends that his

conviction on the basis of his belief that the victim was a

minor violated the Foreign Commerce Clause and the First

Amendment and also constituted a constructive amendment

of the indictment. Relatedly, he claims that there was

insufficient evidence to prove that he believed the victim was

a minor. Jayavarman also argues that the district court did

not adequately review exhibits before admitting them over his

challenges made pursuant to Federal Rule of Evidence 403.

Finally, he contends that the district court erred in concluding

that he did not need an interpreter, an issue that he did not

raise until the trial was over. We are not persuaded by any of

these challenges.

sexual conduct. Section 2423(e) prohibits attempting to violate § 2423(b),

and 18 U.S.C. § 2(a) is a general provision prohibiting aiding and abetting

the commission of a federal crime. The substantive statute does not

contain an aiding and abetting provision, and the general aiding and

abetting statute does not contain an attempt provision. The government

reasons that, under Kuok, a defendant could be convicted of aiding and

abetting an attempt to violate § 2423(b), but he cannot be convicted of

attempting to aid and abet a violation of § 2423(b). The government notes

that it disagrees with Kuok and states that it reserves the right to seek

review of Kuok’s holding in the future.

UNITED STATES V. JAYAVARMAN 9

A. Statutory Construction

Jayavarman argues that, as a matter of statutory

construction, the jury had to find beyond a reasonable doubt

that his victim was actually a minor in order to convict him of

attempted production and transportation of a visual depiction

of a minor engaged in sexually explicit conduct in violation

of 18 U.S.C. §§ 2251(c) and (e). On this basis, he challenges

the district court’s jury instruction regarding the victim age

element of the crime charged under Count 1B. He also

claims that there was insufficient evidence for the jury to find

that the victim was actually a minor and that he is therefore

entitled to a judgment of acquittal. We conclude that a person

may be convicted for attempting to commit the crime charged

in Count 1B if he believed that the victim was a minor, even

if the victim was not in fact a minor. On this attempt theory

of the crime, the prosecution did not have to prove that the

victim was actually a minor, and the district court correctly

instructed the jury accordingly.

18 U.S.C. § 2251(c) provides:

(1) Any person who, in a circumstance

described in paragraph (2), employs, uses,

persuades, induces, entices, or coerces any

minor to engage in, or who has a minor assist

any other person to engage in, any sexually

explicit conduct outside of the United States,

its territories or possessions, for the purpose

of producing any visual depiction of such

conduct, shall be punished as provided under

subsection (e).

UNITED STATES 10 V. JAYAVARMAN

(2) The circumstance referred to in paragraph

(1) is that—

(A) the person intends such visual

depiction to be transported to the United

States, its territories or possessions, by

any means, including by using any means

or facility of interstate or foreign

commerce or mail; or

(B) the person transports such visual

depiction to the United States, its

territories or possessions, by any means,

including by using any means or facility

of interstate or foreign commerce or mail.

18 U.S.C. § 2251(e) specifies punishments for “[a]ny

individual who violates, or attempts or conspires to violate,”

§ 2251.

With regard to Count 1B, the district court instructed the

jury:

In order for the defendant to be found guilty

of Count One under this second theory, the

government must prove . . . beyond a

reasonable doubt [that] the defendant intended

to employ, use, persuade, induce, entice, or

coerce a minor to take part in sexually explicit

conduct outside of the United States for the

purpose of producing a visual depiction of

such conduct, and transport such visual

depiction to the United States by any means,

including by using any means or facility of

UNITED STATES V. JAYAVARMAN 11

interstate or foreign commerce . . . . [I]n

order to convict the defendant of attempting to

violate 18 U.S.C. § 2251(c) under this second

theory, you do not need to find that

“Ann/Ana” was under the age of eighteen

years. Rather, the government must only

prove that the defendant subjectively believed

that “Ann/Ana” was under the age of eighteen

years at the time. It is not a defense to this

attempted crime that no minor was actually

involved.

Jayavarman contends that this instruction was incorrect

because, he says, even for an attempted violation of

§ 2251(c), the district court should have required the jury to

find that the victim was actually a minor.

The parties agree that a defendant can properly be

convicted of a completed violation of § 2251(c), as

distinguished from an attempted violation of that statute,

without a finding by the jury that the defendant actually knew

or should have known that the victim was a minor. That is,

they agree that a defendant can be guilty of the completed

version of § 2251(c) even if he did not act with mens rea or

a guilty state of mind (whether purposefully, knowingly,

recklessly, or negligently) as to the victim’s age. The text of

the statute does not provide a state of mind requirement, and

we have previously concluded that there is no state of mind

requirement as to age in § 2251(a), a closely analogous

provision.2 United States v. U.S. Dist. Court (“Kantor”),

2 We acknowledge, however, that § 2251(c) was added many years

after § 2251(a). Prosecutorial Remedies and Other Tools to End the

Exploitation of Children Today Act of 2003, Pub. L. No. 108-21, 117 Stat.

UNITED STATES 12 V. JAYAVARMAN

858 F.2d 534, 538 (9th Cir. 1988). Typically we apply a

“presumption in favor of a scienter requirement . . . to each of

the statutory elements that criminalize otherwise innocent

conduct,” “even where the statute by its terms does not

contain” a scienter requirement. United States v. X-Citement

Video, Inc., 513 U.S. 64, 70–72 (1994). That presumption

has not historically applied, however, to the element of a

victim’s age in a sex crime when the defendant personally

confronts the victim. Id. at 72 n.2. Therefore, at least when

the defendant personally confronts the victim, as happened in

Jayavarman’s case, there is no requirement that the defendant

be aware that the victim was actually a minor for the

completed crime under § 2251(c). The age of the victim is a

strict liability element, meaning that there is no guilty state of

mind or mens rea requirement. A defendant may invoke a

reasonable mistake of age defense, see Kantor, 858 F.2d at

541, but there is no burden on the government to prove the

defendant was actually aware that the victim was a minor.

The parties disagree, though, as to whether an attempted

violation of § 2251(c) requires that the victim actually be a

minor. When Jayavarman argued in a post-trial motion that

proof of the victim’s actual minority was required, the district

court rejected his contention on the basis of our decision in

United States v. Meek, 366 F.3d 705 (9th Cir. 2004). Meek

dealt with a child prostitution statute, 18 U.S.C. § 2422(b),

which included a state of mind requirement. Because that

statute covered someone who “knowingly persuades, induces,

entices, or coerces any individual who has not attained the

age of 18 years, to engage in prostitution or any sexual

activity for which any person can be charged with a criminal

650. Therefore, the legislative history arguments that we cited in

interpreting § 2251(a) are not applicable to interpreting § 2251(c).

UNITED STATES V. JAYAVARMAN 13

offense, or attempts to do so,” it required the jury to conclude

that the defendant knew the victim was a minor in order to

support a conviction for the completed version of the crime.

The defendant in Meek was charged with attempted violation

of the statute based on his correspondence with someone who

was not a minor, in particular an undercover adult police

officer. We held that “[t]he fact that Meek was mistaken in

his belief that he was corresponding with a minor does not

mitigate or absolve his criminal culpability; the simple fact of

Meek’s belief is sufficient as to this element of a § 2422(b)

violation.” Id. at 720. The government contends that the

same reasoning applies to Jayavarman’s case. We agree.

The differences between the statute at issue in Meek and

§ 2251(c) do not justify departing from our reasoning in

Meek. Section 2251(c) targets producers of sexually explicit

visual depictions of minors. The Supreme Court has

explained that Congress has subjected producers of child

pornography to criminal liability regardless of their state of

mind as to the age of their victims because “producers are

more conveniently able to ascertain the age of performers”

than are individuals who, for example, come into contact with

depictions after the depictions have been produced. XCitement

Video, 513 U.S. at 76 n.5; see also Ashcroft v. Free

Speech Coal., 535 U.S. 234, 255 (2002) (“Where the

defendant is not the producer of the work, he may have no

way of establishing the identity, or even the existence, of the

actors.”). In other words, for the completed versions of the

crimes, Congress has intentionally elected to hold violators of

§ 2251(c) to a higher standard than violators of statutes like

the one at issue in Meek, which require knowledge that the

victim is a minor.

UNITED STATES 14 V. JAYAVARMAN

Jayavarman would have us reverse those relative burdens

in the context of attempted violations of these statutes. That

is, he would have us hold that belief of the victim’s minority

is sufficient for an attempt to violate the statute at issue in

Meek but not for an attempt to violate § 2251(c). There is no

principled reason to accept such a distinction, and we decline

to do so. Just as in Meek, “[i]t would be contrary to the

purpose of the statute to distinguish the defendant who

attempts to induce an individual who turns out to be a minor

from the defendant who, through dumb luck, mistakes an

adult for a minor. To hold otherwise would bestow a windfall

to one defendant when both are equally culpable.” 366 F.3d

at 718; see also United States v. Williams, 553 U.S. 285, 300

(2008) (“[I]mpossibility of completing the crime because the

facts were not as the defendant believed is not a defense” to

attempt.); United States v. Johnson, 376 F.3d 689, 693–94

(7th Cir. 2004) (concluding that belief of a performer’s

minority is sufficient to convict for an attempted violation of

18 U.S.C. § 2251(a)).

We therefore hold that a defendant may be convicted of

an attempt to violate § 2251(c) if he believes that the victim

is a minor, even if the victim turns out to be an adult.3 The

district court did not err in instructing the jury accordingly,

and Jayavarman is not entitled to a judgment of acquittal on

these grounds.

In a similar vein, Jayavarman contends that the district

court should have given an instruction for a reasonable

3 This case does not present, and we do not decide, the issue of

whether a defendant may be convicted of an attempt to violate § 2251(c)

if he believes that the victim is an adult but the victim turns out to be a

minor.

UNITED STATES V. JAYAVARMAN 15

mistake of age defense. That defense is meant to protect a

defendant who, after sufficiently diligent investigation,

formed a reasonable belief that he was engaged in lawful

activity with an adult but was mistaken and was actually

engaged in unlawful activity with a minor. Kantor, 858 F.2d

at 540–41. Under the attempt theory for Count 1B, however,

Jayavarman was found guilty of the opposite, based on a

finding that he believed the victim to be a minor. The

reasonable mistake of age defense did not apply to him.

B. Foreign Commerce Clause

Jayavarman cites the Foreign Commerce Clause of the

Constitution as another ground for his challenge to the district

court’s conclusion that an attempt to violate § 2251(c)

requires only a belief that the victim is a minor. He asserts

that the Foreign Commerce Clause does not authorize

Congress to prohibit transportation of a sexually explicit

visual depiction pursuant to § 2251(c) if the depiction does

not depict an actual minor. We reject this challenge.

The Foreign Commerce Clause grants Congress the

power “[t]o regulate Commerce with foreign Nations.” U.S.

Const. art. I, § 8, cl. 3. Statutes adopted under the authority

granted by the Foreign Commerce Clause must regulate

conduct that has a sufficient “nexus with foreign commerce.”

United States v. Clark, 435 F.3d 1100, 1114 (9th Cir. 2006).

When a defendant transports a visual depiction into the

United States from a foreign country, the presence or absence

of an actual minor in the visual depiction does not impact the

strength of the conduct’s nexus with foreign commerce.

Regardless of what the depiction depicts, it is still being

transported. The theory of the crime articulated in the jury

UNITED STATES 16 V. JAYAVARMAN

instruction did not run afoul of the Foreign Commerce

Clause.

C. First Amendment

Jayavarman also contends that prohibiting an attempt to

make a sexually explicit video with a performer who the

producer mistakenly believes to be a minor would chill lawful

speech in violation of the First Amendment. Specifically,

Jayavarman argues that the government’s theory would chill

both speech by adults who appear young and who wish to

perform in sexually explicit videos as well as speech by

persons who wish to produce such videos with performers

who seem to be adults but who might turn out to be minors.

We reject this argument.

“There is no First Amendment exception from the general

principle of criminal law that a person attempting to commit

a crime need not be exonerated because he has a mistaken

view of the facts.” Williams, 553 U.S. at 304. The Supreme

Court has explained that inchoate crimes relating to

pornography that a defendant believes to depict a minor are

not protected by the First Amendment just because it turns

out that the pornography actually depicts an adult. Id. at 300.

It is true that non-obscene sexually explicit material

depicting only adults is protected speech, even if it may

appear that the material depicts minors. Free Speech Coal.,

535 U.S. at 244–56. Such speech might be chilled when there

is no guilty state of mind requirement as to the age element of

a child pornography statute, which is why we have read such

statutes to implicitly include reasonable mistake of age

defenses. Kantor, 858 F.2d at 541–42. But “[t]he potential

for unconstitutional chilling of legitimate speech disappears

UNITED STATES V. JAYAVARMAN 17

[when a statute] requires the prosecution to prove that a

defendant actually knows or believes that the [victim] is a

minor.” Meek, 366 F.3d at 721. That is what was required

here: the jury found beyond a reasonable doubt “that the

defendant subjectively believed that ‘Ann/Ana’ was under the

age of eighteen years at the time.” Jayavarman’s conviction

on these grounds did not violate the First Amendment.

D. Constructive Amendment

Jayavarman argues that the jury instruction as to Count

1B constituted a constructive amendment of the indictment.

This challenge also fails.

“An amendment of the indictment occurs when the

charging terms of the indictment are altered, either literally or

in effect, by the prosecutor or a court after the grand jury has

last passed upon them.” United States v. Ward, 747 F.3d

1184, 1189 (9th Cir. 2014) (emphasis omitted). Count 1 of

the superseding indictment charged that Jayavarman:

did, and did attempt to, employ, use, persuade,

induce, entice, and coerce a minor child to

engage in any sexually explicit conduct

outside of the United States for the purpose of

producing a visual depiction of such conduct

and thereafter transported such visual

depiction to the United States by any means,

including by using any means or facility of

interstate or foreign commerce.

Jayavarman contends that the jury instruction constructively

amended the indictment in a number of ways.

UNITED STATES 18 V. JAYAVARMAN

Most of Jayavarman’s arguments stem from his

contention that, although the indictment charged him with

attempting to violate § 2251(c)(2)(B), the jury instruction

instead related to conduct covered by § 2251(c)(2)(A). These

two subparagraphs are the two alternative means by which

the statute asserts federal jurisdiction. Section 2251(c)(2)(A)

applies when a defendant “intends such visual depiction to be

transported to the United States,” whereas § 2251(c)(2)(B)

applies when a defendant “transports such visual depiction to

the United States.” In the attempt context, the two

subparagraphs cover overlapping conduct: it is possible for a

person to intend that a depiction be transported (by any

person) and to also intend to transport that depiction

(personally). Thus, Jayavarman’s arguments that the jury

instruction described conduct covered by subparagraph (A)

are red herrings. That conduct was covered by subparagraph

(A) did not mean that it was not also covered by

subparagraph (B). Jayavarman was convicted of attempting

to violate subparagraph (B), the subparagraph under which he

was indicted, because the jury found that he intended to

transport a depiction and he believed that the depiction

depicted a minor engaging in sexually explicit conduct.

Two of Jayavarman’s constructive amendment arguments

have slightly more substance, but they too fail. First, he

correctly points out that the indictment alleged he

“transported” a depiction, whereas the jury instruction asked

the jury whether he “intended to . . . transport” a depiction.

While these terms cover some of the same conduct, they do

not mean the same thing. A hypothetical defendant could

have been convicted under the jury instruction (for attempted

transport) even if he did not perform the conduct described in

the indictment (actual transport). But Jayavarman did not

object to the jury instruction, so it is reviewed for plain error.

UNITED STATES V. JAYAVARMAN 19

Ward, 747 F.3d at 1188. As the district court explained,

“there was no dispute at trial that a visual depiction of Ana

had been transported into the United States—the evidence

was overwhelming and uncontroverted in that regard.” Thus

Jayavarman was not prejudiced by the discrepancy. See

United States v. Hartz, 458 F.3d 1011, 1022–23 (9th Cir.

2006).

Jayavarman also argues that there was a constructive

amendment of the indictment because, under one reading of

the jury instruction, a jury could have convicted if it

determined that the defendant initially made a sexually

explicit video involving a person he then thought to be a

minor, subsequently learned that the person depicted was in

fact an adult, and only then formed the intention to transport

the depiction to the United States. The reading of the

instruction that Jayavarman suggests strikes us as unnatural,

especially because the instruction’s requirement “that the

defendant subjectively believed that ‘Ann/Ana’ was under the

age of eighteen years at the time” would seem to apply

equally to “the time” when the depictions were made as to

“the time” when they were transported. At any rate, the

conversations that established Jayavarman’s belief as to the

victim’s age occurred after he had already transported the

depictions to the United States. Those conversations

demonstrated that, at the time of the conversations, he still

believed she had been a minor at the time the depictions were

made. Accordingly, there was no evidence that would have

supported a finding that Jayavarman decided to transport the

depictions only after learning that the victim was an adult.

He therefore was not prejudiced by any imprecision in the

instruction.

UNITED STATES 20 V. JAYAVARMAN

E. Sufficiency of the Evidence

Jayavarman contends that there was insufficient evidence

to prove that he believed the victim was a minor at the time

he made and transported the videos. “Evidence is sufficient

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 elements of the crime

beyond a reasonable doubt.” United States v. Sheldon,

755 F.3d 1047, 1051 (9th Cir. 2014) (internal quotation marks

omitted). We conclude that a rational jury could have found

that the evidence the government adduced proved beyond a

reasonable doubt that Jayavarman believed the victim was a

minor.

The evidence supporting the government’s contentions

regarding Jayavarman’s beliefs as to the victim’s age came

from audio recordings that were played in court. The jury

heard recordings of both a telephone call and an in-person

conversation between Jayavarman and an undercover FBI

agent, both of which occurred before Jayavarman knew he

was under suspicion. In the recordings, Jayavarman affirmed

that he had made video recordings of himself having sexual

relations with a fourteen-year-old girl beginning in 2010.

Jayavarman also described to the agent a strategy for hiding

from customs officers memory cards containing video

recordings. When law enforcement officers subsequently

searched Jayavarman’s residence, they found a number of

memory cards containing videos depicting Jayavarman

engaged in sexual contact with the victim. The videos were

recorded between 2010 and 2012.

After his arrest, Jayavarman made additional statements

about the victim’s age. The jury heard recordings of a

UNITED STATES V. JAYAVARMAN 21

conversation between Jayavarman and an Anchorage Police

Department officer and a conversation between Jayavarman

and another FBI agent. In those recordings, Jayavarman

stated that the victim was fourteen years old when he met her

and first had sex with her in 2009. He also affirmed that he

possessed a video depicting himself and the victim engaged

in sexual relations from when the victim was fourteen years

old. Furthermore, the government presented evidence that,

after his arrest, Jayavarman used dubious means to obtain

unreliable documents in an attempt to demonstrate that the

victim was an adult at the time the videos were made, thus

suggesting that Jayavarman was aware of his guilt. See

United States v. Renzi, 769 F.3d 731, 758 (9th Cir. 2014)

(considering evidence of “consciousness of guilt” in

evaluating a sufficiency of the evidence challenge).

Jayavarman argues that his claimed belief that the victim

was eighteen at the time he made his first sexually explicit

video depiction of her was supported by the “fact” that she

was born in 1992 and was therefore eighteen in 2010. The

evidence suggesting that the victim was actually an adult,

however, was not so compelling that a rational jury would be

required to reach that conclusion. Moreover, the jury could

have concluded that Jayavarman thought that the victim was

underage even if, in fact, she was not. We need not

determine why the jury did not credit the evidence offered by

Jayavarman. It is enough for us to conclude that the findings

essential to support the verdict could have been made by a

rational jury based on all the evidence, and that conclusion is

an easy one for us to reach here.

Jayavarman cites a number of cases in which the evidence

of the defendant’s belief regarding the intended victim’s age

was stronger than it was in this case. But the issue on appeal

UNITED STATES 22 V. JAYAVARMAN

is not whether the evidence presented at trial constituted the

strongest possible evidence of guilt. Rather, it is whether a

reasonable jury could have made the factual findings needed

to support a guilty verdict. Renzi, 769 F.3d at 758. The

government adduced sufficient evidence to permit a

reasonable jury to conclude beyond a reasonable doubt that

Jayavarman believed the victim was a minor at the time he

made and transported the visual depictions.

F. Federal Rule of Evidence 403

Next, Jayavarman challenges the district court’s grant of

the government’s motion in limine to admit audio recordings

of Jayavarman’s statements that he had sex with the victim in

2009 when she was thirteen or fourteen years old, before he

began making the recordings that were the subjects of the

prosecution. In the district court, Jayavarman challenged the

admission of this evidence under Federal Rules of Evidence

402, 403, and 404. On appeal, Jayavarman concentrates on

Rule 403, contending narrowly that the district court erred by

not reading every word of the transcripts of the recordings

that the government sought to admit before approving their

admission and also arguing generally that the statements

admitted were only marginally relevant and were unduly

prejudicial.

Rule 403 states: “The court may exclude relevant

evidence if its probative value is substantially outweighed by

a danger of one or more of the following: unfair prejudice,

confusing the issues, misleading the jury, undue delay,

wasting time, or needlessly presenting cumulative evidence.”

Typically a district court’s admission of evidence, including

its Rule 403 balancing, is reviewed for abuse of discretion.

UNITED STATES V. JAYAVARMAN 23

United States v. Hardrick, 766 F.3d 1051, 1055 (9th Cir.

2014).

In United States v. Curtin, 489 F.3d 935, 957 (9th Cir.

2007) (en banc), however, we held that, in the context of

reviewing “abhorrent [exhibits], . . . a district court making a

Rule 403 decision must know precisely what is in the

[exhibits] in order for its weighing discretion to be properly

exercised and entitled to deference on appeal.” The district

court in that case had not read certain pornographic stories

possessed by the defendant in their entirety before admitting

them, and we concluded that, had the district court read the

stories, it would have identified a particularly disgusting

passage and “required that it be edited out of the exhibit as

both irrelevant and dangerously prejudicial.” Id. We further

stated that “[o]ne cannot evaluate in a Rule 403 context what

one has not seen or read. Here, given the depraved and

patently prejudicial nature of the irrelevant evidence . . . that

the court overlooked, we are unable to conclude—as the

government would have us do—that this error was harmless.”

Id. at 958. The requirement to “read every word” of an

exhibit as part of the Rule 403 balancing was subsequently

expanded to all Rule 403 inquires into exhibits, not just

exhibits involving particularly inflammatory content as was

at issue in Curtin. United States v. McElmurry, 776 F.3d

1061, 1070 (9th Cir. 2015).

Curtin and our subsequent decisions leave unclear how

confident the court of appeals must be that the district court

did not read every word of an exhibit before we will conclude

that the district court erred in its Rule 403 analysis. In Curtin

as well as the two published decisions holding that a district

court erred pursuant to Curtin, the government conceded that

the district court had not reviewed the evidence completely,

UNITED STATES 24 V. JAYAVARMAN

so it was not necessary to consider how to evaluate cases

closer to the margin. McElmurry, 776 F.3d at 1070; United

States v. Waters, 627 F.3d 345, 356 n.4 (9th Cir. 2010);

Curtin, 489 F.3d at 956.

In Jayavarman’s case, the district court did not explicitly

state that it had reviewed the relevant transcripts. A district

court, however, need not necessarily declare that it has “read

every word” of an exhibit as if Curtin’s command were a

magical incantation. While it is not clear exactly which

exhibits the government provided to the district court, the

district court did have in its possession transcripts of

Jayavarman’s conversations that seem likely to have included

the disputed exhibits. Additionally, the district court was

aware of the requirement to read every word of disputed

evidence as part of its Rule 403 analysis. Citing Curtin, the

district court specifically stated that it did read every word of

other exhibits that were subjects of the motion in limine, and

it discussed the Curtin requirement with counsel on the

record on the same day that it ruled on the exhibits that are

the subjects of this dispute. Cf. McElmurry, 776 F.3d at 1069

(concluding the district court was unaware of its obligations

because, “unfortunately, counsel did not cite or otherwise

alert the district court to Curtin”). Because the district court

was aware of its obligation to review the transcripts, and

because it appears that the district court was given the

transcripts to review, we conclude that the district court did

review the transcripts and that there was no error.

Even if the district court had not reviewed every word of

the transcripts, the error would have been harmless because

the exhibits were clearly admissible under Rule 403. Cf.

Waters, 627 F.3d at 354–56 (concluding that exhibits of

which district court did not read every word would not have

UNITED STATES V. JAYAVARMAN 25

been admitted if they had been reviewed more thoroughly);

Curtin, 489 F.3d at 958 (same). The evidence was critical for

demonstrating Jayavarman’s belief about the victim’s age

because, if he thought the victim was thirteen or fourteen

years old in 2009, then he would also have thought she was

a minor in 2010 to 2012 when he made the visual depictions

that were the subjects of the prosecution. Accordingly, the

probative value of the evidence was very high. That value

was not substantially outweighed by any risk of unfair

prejudice that might have arisen from the evidence, especially

in the context of other evidence adduced at trial. There was

no error under Rule 403.

G. Need for an Interpreter

Jayavarman, whose first language is Khmer, contends that

the district court erred under the Court Interpreters Act,

28 U.S.C. § 1827, by not providing him with an interpreter.

Jayavarman did not provide any indication that he was having

difficulty participating in the proceedings until after the trial

was over. We conclude that the district court did not clearly

err in determining that Jayavarman was sufficiently proficient

in English that he did not require an interpreter.

The Court Interpreters Act requires courts to:

utilize the services of . . . an . . . interpreter, in

judicial proceedings instituted by the United

States, if the presiding judicial officer

determines . . . that [a] party . . . speaks only

or primarily a language other than the English

language . . . so as to inhibit such party’s

comprehension of the proceedings or

UNITED STATES 26 V. JAYAVARMAN

communication with counsel or the presiding

judicial officer.

28 U.S.C. § 1827(d)(1). “When a court becomes aware of a

criminal defendant’s potential difficulties in understanding or

speaking the English language, it has a mandatory duty to

make a determination on the record whether an interpreter is

required, and if so, to appoint a certified individual.” United

States v. Murguia-Rodriguez, 815 F.3d 566, 570 (9th Cir.

2016). When a defendant challenges a district court’s factual

finding that he does not need an interpreter, the decision is

reviewed for “clear error.” Id.; Gonzalez v. United States,

33 F.3d 1047, 1050 (9th Cir. 1994).

Jayavarman contends that he was discouraged from

testifying in violation of the Fifth Amendment because, when

he engaged in a colloquy with the district court regarding his

right to testify, he misinterpreted a statement that the district

court made and, as a result, incorrectly believed that the court

told him his testimony would not make a difference. He

argues that an interpreter would have helped avert that

misunderstanding. He also contends that, because he did not

have an interpreter, he did not fully understand his attorney,

he could not fully assist in his defense, he did not understand

witnesses’ testimony, and he was dissuaded from testifying

because he thought the jury would not understand him.

As an initial matter, it is noteworthy that Jayavarman did

not raise his alleged language issues at all until after the trial

was over. The district court stated that it had no indication

that Jayavarman was having language difficulties prior to or

during the trial. As we have previously explained, “[t]o allow

a defendant to remain silent throughout the trial and then . . .

assert a claim of inadequate translation would be an open

UNITED STATES V. JAYAVARMAN 27

invitation to abuse.” United States v. Si, 333 F.3d 1041, 1044

(9th Cir. 2003) (order) (omission in original). Jayavarman’s

failure to raise his concerns promptly to the district court

counsels against granting relief here.

With regard to Jayavarman’s right to testify, it appears

unlikely that he was influenced by any misunderstanding of

the colloquy because, as the district court noted, he

unequivocally stated, “I choose not to testify,” immediately

before the district court made the statement that he claims to

have misunderstood. Furthermore, he did not suggest that he

was having trouble understanding the district court when it

spoke to him about his right to testify.4

With regard to his more general allegations about the

consequences of the claimed language barrier, the district

court provided a number of reasons to support its conclusion

that the record clearly established that “Mr. Jayavarman does

not primarily speak a language other than the English

language, and even if he did, his English language skills are

not so deficient as to inhibit his comprehension of the

proceedings.” Specifically, the court found that

Jayavarman’s recorded conversations that were played during

trial revealed that he was good at understanding and speaking

English. The court found that its assessment was supported

by the fact that Jayavarman had moved to the United States

when he was nineteen years old and had lived here for the

4 Jayavarman’s assertion that his counsel advised him not to testify

because the jury would have trouble understanding him and his assertion

that his counsel did not discuss with him the possibility of having an

interpreter would have to be raised as part of a Sixth Amendment

ineffective assistance of counsel claim. See Strickland v. Washington,

466 U.S. 668 (1984).

UNITED STATES 28 V. JAYAVARMAN

following twenty-seven years, that he had long operated a

youth hostel in Anchorage that required communication with

customers in English, and that he had communicated

extensively in English with one of his friends. The district

court’s finding that Jayavarman spoke and understood

English well enough that he did not require an interpreter in

order to sufficiently comprehend the proceedings was well

supported and was not clearly erroneous.

H. Remand for Resentencing

In addition to vacating Jayavarman’s conviction and

sentence as to Count 2B, we also vacate his sentence as to

Count 1B and remand for resentencing because Jayavarman’s

sentence as to Count 1B was likely affected by his conviction

as to Count 2B.

The district court sentenced Jayavarman to concurrent

terms of 216 months for each of the two counts for which he

was convicted (followed by a lifetime term of supervised

release) and fined him $50,000 ($25,000 on each count).

“[W]hen a district court imposes multiple sentences on a

defendant, the degree to which each offense contributes to the

total sentence is usually affected by the other offenses of

conviction. Thus, remand of all sentences is often

warranted,” even when only one conviction is vacated.

United States v. Evans-Martinez, 611 F.3d 635, 645 (9th Cir.

2010) (citation and internal quotation marks omitted); see

also United States v. Rodriguez, 790 F.3d 951, 954 (9th Cir.

2015) (“Because the district court . . . premised the sentence

for the [conviction of violating one statute], in part, on the

fact that [the defendant] had also been convicted of violating

[another statute, the conviction for which was reversed], we

UNITED STATES V. JAYAVARMAN 29

also remand for resentencing on the [conviction that was

affirmed].”).

Though the district court formally imposed a separate

sentence for each of Jayavarman’s two counts of conviction,

it appears that it viewed the total length of imprisonment as

a package for both convictions. At sentencing, Jayavarman

argued that he should not be given the same sentence for each

count. When the district court solicited the probation

officer’s view, the probation officer said: “Well Your Honor,

I mean, I look at the cases, you know, in their totality, and

typically, I don’t separate out each count and do it that way.”

The district court then stated: “I did consider both of the

offenses together in imposing the sentence. . . . I did do the

sentencing rather holistically in reaching that figure, and I

will maintain that as concurrent on the 216.” The district

court also said: “I was viewing the two crimes jointly as the

basis for the Court’s finding.” Accordingly, we vacate both

of Jayavarman’s sentences even though we vacate only one

of his convictions.5

5 Jayavarman’s argument based on the Double Jeopardy Clause that

he cannot be retried on Counts 1A or 2A is without merit. See U.S. Const.

amend. V. The jury hung on Counts 1A and 2A and did not acquit

Jayavarman of anything. Thus, retrying Counts 1A and 2A would not

involve “relitigating any issue that was necessarily decided by a jury’s

acquittal in a prior trial.” Yeager v. United States, 557 U.S. 110, 119

(2009). Additionally, the district court did not rule on Jayavarman’s

motion for a judgment of acquittal as to Count 2A because there was no

conviction on that count. The government stated at oral argument that, if

we affirmed the conviction on Count 1B, nothing with regard to Count 2A

would matter, implying that the government did not intend to retry

Jayavarman on Count 2A. We leave it to the district court to address

Jayavarman’s motion for a judgment of acquittal as to Count 2A in the

first instance should the government elect to proceed on that count.

We affirm Jayavarman’s conviction as to Count 1B for

attempt to produce and transport a sexually explicit visual

depiction of a minor. We vacate Jayavarman’s conviction as

to Count 2B for attempt to aid and abet travel with intent to

engage in illicit sexual conduct. We vacate his sentence as to

both counts and remand for resentencing.

AFFIRMED IN PART; VACATED IN PART;

REMANDED.