United States v. Lindsay

931 F.3d 852

UNITED STATES of America, Plaintiff-Appellee/ Cross-Appellant,

v.Michael LINDSAY, Defendant-Appellant/ Cross-Appellee.

Nos. 16-10349

16-10384

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 14, 2018

Withdrawn from Submission May 21, 2018

Re-submitted March 13, 2019 San Francisco, California

Filed July 23, 2019

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.

Before: J. Clifford Wallace and N. Randy Smith, Circuit Judges, and Deborah A. Batts,^* District Judge.

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 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 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.

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, 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. 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 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...