United States v. Pepe

81 F.4th 961

UNITED STATES of America, Plaintiff-Appellee, v. Michael Joseph PEPE, Defendant-Appellant.

No. 22-50024

United States Court of Appeals, Ninth Circuit

Argued and Submitted June 27, 2023 Pasadena, California

Filed August 28, 2023

Appeal from the United States District Court for the Central District of California Dale S. Fischer, District Judge, Presiding, D.C. No. 2:07-cr-00168-DSF-1

James H. Locklin (argued), Deputy Federal Public Defender; Cuauhtemoc Ortega, Federal Public Defender; Federal Public Defender's Office, Los Angeles, California; for Defendant-Appellant.

Elana Shavit Artson (argued), Stephanie S. Christensen, and Damaris Diaz, Assistant United States Attorneys; Bram M. Alden, Assistant United States Attorney, Criminal Appeals Section Chief; E. Martin Estrada, United States Attorney; United States Attorney's Office, Los Angeles, California; for Plaintiff-Appellee.

Before: N. Randy Smith, Kenneth K. Lee, and Lawrence VanDyke, Circuit Judges.

OPINION

VANDYKE, Circuit Judge:

Michael Pepe moved from the United States to Cambodia in the spring of 2003. Between June 2005 and June 2006, he sexually abused young girls, eight of whom eventually testified against him at trial. The government presented evidence at trial from which a jury could infer that one of Pepe's primary activities in Cambodia was molesting children. A jury convicted Pepe of two counts of violating 18 U.S.C. § 2423(b) by traveling in foreign commerce with the purpose of committing illicit sexual acts and two counts of violating 18 U.S.C. § 2241(c) by crossing a state line with intent to sexually abuse a child under 12 and then so doing. Pepe appeals the sufficiency of the evidence for each of these convictions, as well as the district court's instructions to the jury. Because the evidence was sufficient for the jury to rationally find beyond a reasonable doubt that Pepe was guilty on all counts and the district court did not err or abuse its discretion in instructing the jury, we affirm.

BACKGROUND

I. Factual Background¹

Pepe is a citizen of the United States. In March 2003, when he was nearly fifty, Pepe moved to Phnom Penh, Cambodia. Pepe told his sister that Cambodia "was a very dysfunctional country" and that "it was like the wild, wild west there; . . . there weren't any rules." "He was not very complimentary about [the Cambodian people]. He thought that they were a lower class of citizen, that all the police were corrupt, and that all the ordinary people were peasants who lived in huts with dirt floors."

Sometime after Pepe arrived in Cambodia but before May 2004, Pepe hired a woman known as Basang as a prostitute.² Basang later procured children for Pepe to sexually abuse and taught at least some of the children how to behave when being abused by Pepe. Soon after his May 2005 travel, Pepe received a letter from a pen pal called "Mack," thanking Pepe for loaning Mack money. Pepe would later thank Mack for sending Pepe an "email with pictures," an email that "help[ed Pepe] make up [his] mind to continue to stay . . . longer."

On May 26, 2005, Pepe returned to his Cambodian residence from a trip to the United States. Two weeks later, Basang brought N.P., a young Cambodian girl, to Pepe's house where Pepe raped her and, over the span of at least 13 days, took 67 photos of her, including nude photos.³ N.P. was the first of eight girls whom Pepe sexually abused and who ultimately testified at his trial.

On or before August 6, 2005, Basang brought K.S. to Pepe's house. Photos were taken of K.S. at Pepe's house with Pepe's camera on August 6, 2005. Pepe admitted to taking nude photos of two of Basang's "nieces" and acknowledges in his briefing that K.S. was one of Basang's nieces. K.S. testified that she stayed in Pepe's house for "several months." Pepe raped K.S., leading her to be hospitalized for a week.

On September 3, 2005, Pepe returned to Cambodia from a trip to the United States. In late October or early November, Basang brought L.K. to Pepe's house, where she remained for "[a]bout eight months" until the Cambodian police searched the home in June 2006. Pepe took photos of L.K. and, between November 2005 and June 2006, his camera captured 493 photos of L.K. Pepe persisted in "raping [L.K.] the entire time that [she] lived at his house." L.K. testified that Pepe raped her once a week, "sometime[s] every day or once every two weeks."

Pepe's photos of S.R., yet another girl, date from as early as November 26, 2005, although, as is true for perhaps all of the girls, the evidence does not precisely establish the date when S.R. arrived at Pepe's house. S.R. testified that Pepe sexually abused her every night he was home during her time at his house. Pepe took photos of S.R. and the government found at least 315 photos of her taken from his camera. S.R.'s sister, S.S., arrived at Pepe's house by, at latest, December 4, 2005, the date of the first photo of her on Pepe's camera. The government recovered 278 photos of S.S. from Pepe's camera. S.S. testified that Pepe sexually abused her "frequently." Meanwhile, Basang taught S.S. to perform sexual acts with Pepe. Photos of S.S. and S.R. were taken at Pepe's house as late as June 11, 2006.

T.C. spent nearly a month at Pepe's house, and although the dates of her arrival and departure are unclear, photos of T.C. taken at Pepe's house span from February 14, 2006, to February 28, 2006. While T.C. was at his house, Pepe raped her four times.

N.T.D. arrived at Pepe's house during the Vietnamese lunar new year. N.T.D. testified that Pepe raped N.T.D. "[a]t least one time a day" during her time at Pepe's house, which was "[a]bout a week." She also testified that Pepe brought in another girl—unidentified here—and sexually abused her. At least a dozen photos of N.T.D. were taken at Pepe's house on April 17, 2006.

I.T. could not recall when Basang brought her to Pepe's house, but photos of I.T. were taken with Pepe's camera between April 21, 2006, and May 20, 2006. Pepe raped I.T. multiple times. Basang eventually took I.T. back home. When she returned home, I.T. told her grandmother about pain she was suffering and I.T. later led "the police to [Pepe's] house."

The Cambodian police, along with a United States agent observer, arrested Pepe in June 2006. When searching Pepe's home, the police found condoms, drugs, KY jelly, baby oil, rope, and "strips of cloth that were tied together." The drugs included Viagra and drugs that, according to an expert, could be used to sedate a child. The police also found a bedroom close to Pepe's bedroom that had stuffed animals, children's bedding, and children's clothes. In the space between the children's room and Pepe's room, there was a massage table and photos of Pepe's victims. The police found digital storage devices that contained more than a thousand photos, including the photos of the victims discussed above. Among other items, the police also found cuttings of newspaper articles discussing pedophiles in Cambodia. Soon after the police searched Pepe's house and arrested him, Dr. Laura Watson, who at that time "work[ed] at an International Clinic in Phnom Penh, Cambodia," examined some of Pepe's victims on June 20, 2006. She then reexamined those same victims, as well as several additional victims she hadn't examined before, a year later in June 2007.

II. Procedural Background

Pepe was initially tried and convicted of violating 18 U.S.C. § 2423(c). That conviction was vacated on appeal. See United States v. Pepe, 895 F.3d 679, 682 (9th Cir. 2018). On remand, a grand jury charged Pepe with two counts of violating § 2423(b) and two counts of violating § 2241(c). Counts 1 and 2, arising under § 2423(b), charged Pepe with knowingly traveling in foreign commerce "for the purpose of engaging in illicit sexual conduct." The two counts differed from each other only in the dates of the charged travel: Count 1 related to travel in May 2005, and Count 2 related to travel in September 2005.

Counts 3 and 4 charged Pepe with violating § 2241(c). Count 3 charged Pepe with knowingly crossing a state line in May 2005 "with the intent to engage in a sexual act . . . with a person who had not attained the age of 12 years, and engag[ing] in a sexual act . . . with K.S., who had not attained the age of 12 years" when Pepe "engaged in a sexual act with her." Count 4 differed only in the time of the travel (August-September 2005) and the victims, which were S.S., S.R., and I.T., "each of whom had not attained the age of 12 years at the time that defendant [Pepe] engaged in a sexual act with that person."⁴

At the end of the trial, over Pepe's objections to the instructions' phrasing, the court instructed the jury regarding the two statutes' mens rea requirements. Pepe also requested that the court instruct the jury on his theory of defense—namely, that he could not have a criminal intent in returning to Cambodia if his return trip was part of a round trip journey with an "innocent" beginning (i.e., the outgoing leg of the trip was taken for a purpose unrelated to his illicit sexual activity). The court declined to give that instruction and the court later, after the jury returned its guilty verdict, denied Pepe's post-trial motion for acquittal. Pepe now appeals the district court's order denying his motion for acquittal, the district court's jury instructions, and the jury verdict.

DISCUSSION

Pepe contends that there was insufficient evidence for his convictions under 18 U.S.C. §§ 2423(b) and 2241(c) on the theory that no rational factfinder could have found beyond a reasonable doubt that he traveled to Cambodia with the intent to sexually abuse children. Although Pepe supplies reasons that a factfinder could have found in his favor, he falls short of showing that no reasonable factfinder could have found he had the requisite intent. Pepe also contends that the district court erred in instructing the jury but fails to show any error or abuse of discretion. We affirm Pepe's...