United States v. Lopez

4 F.4th 706

UNITED STATES of America, Plaintiff-Appellee,

v.Wilfredo LOPEZ, Defendant-Appellant.

No. 19-10017

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 20, 2020 Honolulu, Hawaii

Filed July 6, 2021

Joshua D. Weiss (argued), Deputy Federal Public Defender; Cuauhtemoc Ortega, Interim Federal Public Defender; Office of the Federal Public Defender, Los Angeles, California; for Defendant-Appellant.

Rosetta L. San Nicolas (argued), Assistant United States Attorney; Shawn N. Anderson, United States Attorney; United States Attorney's Office, Hagatna, Guam; for Plaintiff-Appellee.

Before: J. Clifford Wallace, Carlos T. Bea, and Mark J. Bennett, Circuit Judges.

Partial Dissent by Judge Bennett

BEA, Circuit Judge:

Wilfredo Lopez was convicted in the U.S. District Court for the District of Guam of an attempt to entice a minor to engage in prohibited sexual activity and an attempt to transfer obscenity to a minor under sixteen years of age in violation of 18 U.S.C. §§ 2422(b) and 1470. On appeal, Lopez argues the district court erred by admitting into evidence edited video clips of his post-arrest interrogation, thereby creating the misleading impression that Lopez confessed to key elements of the charges, and further erred by denying his trial motions for acquittal under Federal Rule of Criminal Procedure 29. For the following reasons, we reject Lopez's claim of prejudicial error, deny relief with respect to additional contentions that the district court committed plain error, and affirm the judgment of conviction.

I. BACKGROUND

Wilfredo Lopez served as a member of the U.S. Army in the Territory of Guam. Lopez worked at Andersen Air Force Base (AAFB), a federal enclave within the special maritime and territorial jurisdiction of the United States, but lived off-base in territory subject to both federal law and the laws of Guam.

In November 2017, the U.S. Air Force Office of Special Investigations (OSI) identified Lopez as a potential child predator. An OSI agent had posted an advertisement on a classifieds website in which he posed as a thirteen-year-old girl named "Brit" seeking friends among "other mil brats" living on-base. Lopez responded to the advertisement under the alias "Chris Bain" with an email that invited "Brit" to "chill by the lookout on base" and "do whatever if you know what I mean." When "Brit" replied that she was thirteen years old, Lopez responded "I'm 29, I can get in trouble for this." Nevertheless, Lopez continued to communicate with "Brit" by email, asked for her phone number, and offered to message her using a Facebook account he operated under the alias "Blake Johnson."

In the email exchanges that followed, Lopez repeatedly asked "Brit" to do "naughty things" and offered to "teach [her] how to kiss, have sex, suck a dick." Lopez escalated the conversation by sending "Brit" a photograph of his erect penis and requesting nude photographs in return. "Brit" responded with photographs of a female law enforcement agent that appeared to depict a teenage girl in a sweater and in a dress. Lopez then sent "Brit" a second photograph of his erect penis and a video depicting the same. All told, Lopez asked to meet "Brit" on four separate occasions at different locations within AAFB. The first and second invitation involved proposed meetings at the Base Exchange and at an on-base Burger King, neither of which materialized. Lopez then proposed meeting "Brit" at the on-base library. Lopez appeared at the library, waited for some time, and left when "Brit" failed to arrive. Finally, Lopez arranged to meet "Brit" at her supposed on-base residence. OSI agents arrested Lopez when he arrived at the agreed-upon location.

After his arrest, Lopez consented to a video-recorded interview with two OSI agents and a special agent from the Federal Bureau of Investigation. During the eighty-minute interrogation, Lopez admitted to communicating online with a person claiming to be an underage girl. However, Lopez maintained that he knew "Brit" was an undercover agent because of the suspicious timing and content of the messages sent from her account. Lopez noted, for example, that many of the messages were sent during the middle of the day when school-aged girls would be in class and lack access to email. Lopez also described in some detail the process by which he checked the photographs received from "Brit" for evidence of law enforcement involvement. When asked why he continued the email and text message exchanges after "Brit" told him she was underage, Lopez claimed that he hoped to obtain a discharge from the military to avoid the automatic deduction of child support and alimony payments from his military wages for the benefit of his estranged wife.

In December 2017, a grand jury in the U.S. District Court for the District of Guam indicted Lopez on two counts of sex crimes against children. The first count alleged Lopez violated 18 U.S.C. § 2422(b) by an attempt to entice a minor "to engage in sexual activity for which a person can be charged with a criminal offense, to wit: First Degree Criminal Sexual Conduct, in violation of 9 [G.C.A.] § 25.15(a)(1), all in violation of Title 18, United States Code, Sections 2422(b) and 2." The Guam statute cited in the indictment punishes the sexual penetration of a minor under fourteen years of age as a first-degree felony. Notably, Guam law also punishes an attempt to the same grade and degree as a completed offense. 9 G.C.A. §§ 13.10, 13.60(a). The second count alleged Lopez violated 18 U.S.C. § 1470 by an attempt to transfer obscene materials to a minor under sixteen years of age.

At a pretrial hearing, the Government moved to introduce into evidence eleven video clips of the post-arrest interrogation in which Lopez appeared to confess he believed "Brit" was an underage girl. With few exceptions, the video clips were about ten seconds long, omitted the agents’ questions, and presented only portions of Lopez's complete statements. Lopez immediately objected on the ground that the rule of completeness codified in Federal Rule of Evidence 106 required either excluding the clips or admitting the entire recording. The district court reserved decision and invited written motions from Lopez and the Government. The Government subsequently filed a motion in limine arguing that, although prosecutors could introduce the video clips into evidence as admissions by a party opponent, the hearsay bar prohibited Lopez from introducing additional footage of the interrogation because the footage contained self-serving statements about his conduct and good character.

The district court considered the motion in limine prior to jury selection on the morning of trial. Lopez renewed his objection that the video recording should be admitted in full or not at all. Lopez explained through counsel that, although he believed that the Ninth Circuit precedents cited by the Government appeared to cut against his position, the Federal Rules of Evidence are nevertheless best read to require his requested ruling. The court overruled Lopez's objection and admitted into evidence the video clips proffered by the Government after concluding that they were not misleading and that the additional footage was inadmissible hearsay.

The case proceeded to trial. At the close of the Government's evidence, Lopez moved for a judgment of acquittal under Federal Rule of Criminal Procedure 29. Lopez predicated his Rule 29 motion exclusively on the argument that no reasonable jury could conclude Lopez believed "Brit" was an underage girl as required by the mens rea element of both charged offenses. The district court summarily denied the motion.

Lopez then took the stand in his own defense to testify that he believed "Brit" was a law enforcement agent all along. Lopez claimed to have spotted the ruse because of his familiarity with the tactics of sex offender sting operations and because the timing of the messages was inconsistent with the schedule of a school-aged girl. Lopez claimed he continued the conversation only because he sought discharge from the military to circumvent the garnishment of his wages for child support and alimony payments. Lopez further explained that the clips presented by the Government inaccurately portrayed the lengthy post-arrest interrogation by omitting footage in which he repeatedly denied believing "Brit" was underage. After the defense rested, Lopez renewed his Rule 29 motion on the same basis as the original motion. The district court found the record contained sufficient evidence to support conviction, denied the motion once again, and proceeded to instruct the jury using a written script agreed upon by both parties.

The jury returned a verdict of guilty on both counts. The court sentenced Lopez to concurrent 120-month sentences to be followed by 36 months of supervised release, including special conditions of supervised release, as well as registration under the terms of the Sex Offender Registration and Notification Act. Lopez timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291.

II. DISCUSSION

On appeal, Lopez argues the district court prejudiced his defense by admitting into evidence isolated excerpts of the post-arrest interrogation recording and denying his motion to introduce the remaining footage. Lopez also challenges the evidence and jury instructions supporting his attempt conviction pursuant to 18 U.S.C. § 2422(b) as well as the indictment, jury instructions, and jury verdict form supporting his attempt conviction pursuant to 18 U.S.C. § 1470 on several theories never raised below. We consider each argument in turn under the applicable standard of review.

A. Evidentiary Challenge

Lopez challenges his convictions on the ground that the district court violated Federal Rule of Evidence 106 by allowing the Government to introduce excerpts of the recorded post-arrest interrogation while excluding the remaining interrogation footage as inadmissible hearsay. We...