United States v. Durham

902 F.3d 1180

UNITED STATES of America, Plaintiff-Appellee,

v.Matthew Lane DURHAM, Defendant-Appellant.

No. 16-6075

United States Court of Appeals, Tenth Circuit.

Filed August 29, 2018

Stephen Jones (Ashley Morey with him on the brief), Jones, Otjen, Davis & Bloyd, Enid, Oklahoma, for Defendant-Appellant.

Steven W. Creager, Assistant United States Attorney (David P. Petermann, Assistant United States Attorney, and Mark Yancey, United States Attorney, with him on the brief), Oklahoma City, Oklahoma, for Plaintiff - Appellee.

Before HARTZ, MATHESON, and MORITZ, Circuit Judges.

MATHESON, Circuit Judge.

TABLE OF CONTENTS

I. BACKGROUND....1189

A. Factual Background....1189

B. Procedural Background....1191

II. DISCUSSION....1192

A. Issue One: Constitutionality of 18 U.S.C. § 2423(c) under the Foreign Commerce Clause....1192

1. Section 2423(c) and Congress's Efforts to Combat Sex Trafficking....1193

a. Provisions of the statutory scheme....1193

b. Early efforts to combat sex trafficking....1194

c. Legislative history leading to passage of § 2423(c)....1195

i. Enactment of § 2423(b)....1195

ii. Enactment of § 2423(c)....1196

2. The Commerce Clause....1197

a. ICC case law....1197

i. Channels....1197

ii. Instrumentalities....1198

iii. Substantial effect....1198

b. FCC case law....1199

3. Congressional Authority Broader Under the FCC than the ICC....1200

a. History....1201

b. Text....1201

c. Purpose....1202

d. The dissent's view....1203

i. Japan Line and the scope of FCC power....1203

ii. Sovereignty of other nations....1204

iii. Summary....1206

4. The Lopez Categories in the Foreign Commerce Context....1206

a. The ICC's three categories as a starting point....1207

b. The substantial-effect category is applicable here....1207

c. Evolution of the third Lopez category....1207

d. Adapting the third Lopez category to the FCC....1209

5. Constitutionality of § 2423(c)....1210

a. Section 2423(c)'s legislative history supports rational basis....1210

b. Section 2423(c) is an essential part of a broader statutory scheme....1211

c. Section 2423(c)'s jurisdictional element supports rational basis....1212

d. Raich supports rational basis for § 2423(c)....1212

e. Rational basis standard....1215

6. Legal Landscape....1215

7. Conclusion....1216

B. Issue Two: Brady Claim....1217

1. Additional Procedural Background....1217

a. Trial testimony....1217

b. Supplemental motion for new trial....1218

2. Analysis....1220

a. Standard of Review....1220

b. Legal Background....1220

c. No prejudice for a....1221

C. Issue Three: Mr. Durham's Statements about Child Pornography and Homosexuality....1222

1. Standard of Review....1222

2. Additional Factual Background....1222

a. Evidence about child pornography and homosexuality....1222

b. District court rulings....1223

3. Legal Background....1224

a. Rule 404(b)....1224

b. Rules 401 and 402....1224

c. Rule 403....1224

4. Analysis....1224

a. Rule 404(b)....1224

b. Rules 401 and 402....1225

c. Rule 403....1225

D. Issue Four: Prosecutorial Misconduct....1225

1. Standard of Review....1226

2. Additional Factual Background....1226

a. The Government's cross-examination of Mr. Durham....1226

b. The Government's closing argument....1226

3. Additional Procedural Background....1227

4. Legal Background....1227

5. Analysis....1227

a. Preservation....1228

i. Alleged misconduct during cross-examination of Mr. Durham....1228

ii. Alleged misconduct during closing argument....1228

b. Plain error—substantial rights....1228

i. Alleged misconduct during cross-examination of Mr. Durham....1228

ii. Alleged misconduct during closing argument....1229

E. Issue Five: Cellphone Videos Authentication....1230

1. Standard of Review....1230

2. Additional Background....1230

a. Pre-Trial....1230

b. Trial....1231

3. Legal Background....1232

4. Analysis....1232

F. Issue Six: Victims' Medical Records....1233

1. Standard of Review....1233

2. Additional Background....1233

3. Legal Background....1234

a. Invited error....1234

b. Authentication....1234

c. The hearsay rule and pertinent exceptions....1234

d. Unfair prejudice....1234

4. Analysis....1235

G. Issue Seven: Substantive Reasonableness of Sentence....1236

1. Standard of Review....1236

2. Additional Factual Background....1236

3. Legal Background....1238

4. Analysis....1238

H. Issue Eight: Cumulative Error....1239

III. CONCLUSION....1240

Matthew Durham appeals his convictions and sentence on four counts for illicit sex with minors in Kenya after travelling there from the United States. This opinion addresses the following eight issues presented for appellate review.

1. Is 18 U.S.C. § 2423(c), the statute on which the convictions were based, unconstitutional on its face and as applied to Mr. Durham because it exceeds Congress's power under the Foreign Commerce Clause in Article 1, Section 8, Clause 3 of the Constitution? We hold that § 2423(c) is constitutional because Congress could rationally conclude that travel abroad followed by illicit sex with a minor, in the aggregate, substantially affects foreign commerce.

2. Did the district court err when it denied Mr. Durham's supplemental motion for a new trial alleging that the Government suppressed exculpatory evidence in violation of Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ? We affirm because Mr. Durham has not shown that nondisclosure of the evidence prejudiced his case.

3. Did the district court err under Federal Rules of Evidence 401, 403, and 404(b) when it allowed admission of Mr. Durham's statements about his struggles with child pornography and homosexuality? We affirm. The district court did not abuse its discretion in determining the evidence was intrinsic, relevant, and not unduly prejudicial.

4. Did the district court err when it denied Mr. Durham's motion for a new trial alleging that the Government made improper statements about his struggle with homosexuality during cross-examination of Mr. Durham and during closing argument? We affirm under plain error review because Mr. Durham cannot show that the prosecutor's statements affected his substantial rights.

5. Did the district court err in admitting cellphone video recordings because they were not properly authenticated? We affirm. The district court did not abuse its discretion because the Government presented sufficient foundation evidence for authentication.

6. Did the district court err when it admitted the victims' entire medical records? We affirm because Mr. Durham invited any error and because his arguments alleging lack of authentication, inadmissible hearsay, and unfair prejudice do not show that the district court erred in admitting the records.

7. Did the district court abuse its discretion and impose a substantively unreasonable sentence when it sentenced Mr. Durham to 480 months in prison? We affirm because Mr. Durham cannot overcome the presumption that the district court reasonably weighed the sentencing factors under 18 U.S.C. § 3553(a) or show that its sentencing decision exceeds the bounds of permissible choice.

8. Should the convictions be reversed because the errors, considered cumulatively, deprived him of a fair trial? Mr. Durham cannot show that any errors that may be eligible for cumulative error review cumulatively affected his substantial rights.

Exercising jurisdiction under 18 U.S.C. § 3742(a) and 28 U.S.C. § 1291, we therefore affirm Mr. Durham's convictions and sentence.

I. BACKGROUND

A. Factual Background

On May 1, 2014, Mr. Durham, then 19 years old, arrived in Kenya on his fourth Christian missionary trip there. ROA, Vol. 12 at 1818 (TT 1204); ROA, Vol. 10a at 25.¹ In Kenya, he volunteered at the Upendo Children's Home ("Upendo"), where 33 children from impoverished backgrounds live. ROA, Vol. 12 at 695-97, 787 (TT 81-83, 173). Upendo Kids International, an Oklahoma non-profit founded and directed by Eunice Menja, operates Upendo. Id. at 787, 960 (TT 173, 346), Aplee. Br. at 3. Ms. Menja's sister, Josephine Wambugu,² is the manager of Upendo. ROA, Vol. 12 at 695, 788 (TT 81, 174).

On his previous trips to Kenya, Mr. Durham had stayed with a host family, but on the fourth trip, he asked to stay at Upendo instead. Id. at 1811 (TT 1197). On June 12, 2014, Ms. Wambugu entered one of the girls' bedrooms and saw Mr. Durham lying on a bed with one of the girls. Id. at 705, (TT 91). When Ms. Wambugu came into the room, Mr. Durham left quickly. Id. at 705-06 (TT 91-92). Ms. Wambugu then spoke to some of the girls, who said they had "been doing bad manners" with Mr. Durham. ROA, Vol. 12 at 710-11 (TT 96-97). The children used "bad manners" to mean engaging in sexual acts. See id. at 662 (TT 48); 1412 (TT 798); 1443-44 (TT 829-30).

On June 13, Ms. Menja, Ms. Wambugu, Jason Jeffries (another American volunteer at the home), and Tom Mutonga (a local supporter of Upendo) met with Mr. Durham at Upendo. Id. at 817, 825 (TT 203, 211). When he entered the meeting, Mr. Durham yelled, "You can fire me, fire me now." Id. at 825 (TT 211). Ms. Menja accused him of hurting the girls and asked for his response. Id. at 826 (TT 212). Mr. Durham said he did not remember, and asked to speak to Ms. Wambugu alone. Id. at 826-27 (TT 212-13).

Once alone, he asked Ms. Wambugu to defend him, and she asked him whether he had done the acts reported by the girls. Id. at 723 (TT 109). He said, "Yes, I did it. Yes, I did." Id. at 723 (TT 109). But when he went back to talk to the group, Mr. Durham again said he could not remember assaulting the children. He added that he had been struggling with child pornography and homosexuality. Id. at 724, 828 (TT 110, 214). Ms. Menja told Mr. Durham she was going to take him to a different location, explaining that, for the safety of the children, she did not want him to stay at the children's home. Id. at 829 (TT 215). He spent the next three days at an empty house owned by Ms. Menja's father-in-law. Id. at 830 (TT 216). One of the volunteers had taken Mr. Durham's passport after hearing about the allegations. Id. at 1052 (TT 438).

During his time away from Upendo, Mr. Durham sent his father text messages stating: "I don't want to...