United States v. Encarnacion-Ruiz

787 F.3d 581

UNITED STATES of America, Appellee

v.Roberto ENCARNACION–RUIZ, Defendant, Appellant.

No. 12–2030.

United States Court of Appeals, First Circuit.

May 28, 2015.

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.

Opinion

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, ––– U.S. ––––, 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.

I.

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,¹ 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.

II.

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, Félix Iván 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.²

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. § 2.³ 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.⁴

III.

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.

1. Waiver

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”).

2. Forfeiture

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. Pagán–Ferrer, 736 F.3d 573, 593 (1st Cir.2013). However, in this case, the government has not asked us to review...