Fourth Circuit Holds That Reckless Disregard for Minor’s Age Will Suffice for Sex Trafficking Conviction

U.S. v. Terrell Banker (No. 16-4413)

Terrell Banker appeals his convictions for conspiracy to engage in sex trafficking of a minor, in violation of 18 U.S.C. § 1594; sex trafficking of a minor, in violation of 18 U.S.C. § 1591(a); and enticement of a minor for illegal sexual activity, in violation of 18 U.S.C. § 2422(b). At Banker’s trial, it was disputed whether Banker had actual knowledge that the alleged victim, C.O., was underage. There was testimony that C.O. had lied to Banker about her age, and also testimony that Banker had later been informed of her actual age.

The district court ruled that, with respect to the § 1591(a) sex trafficking offense, it would charge the jury that it needed to find beyond a reasonable doubt that Banker “knew, or was in reckless disregard of the fact that [C.O.] was under the age of eighteen.” Additional instructions emphasized that this element could be satisfied by proof of either knowledge or reckless disregard, and that in considering proof of reckless disregard, the jury could “consider [Banker’s] reasonable opportunity to observe.”

On appeal, Banker contends that the district court’s jury instructions concerning § 1591(a) and § 2422(b) misstated the law. He maintains that to convict him of sex trafficking of a minor under § 1591(a) the jury had to find that he actually knew C.O. was a minor and could not properly base its verdict on the lesser mens rea of reckless disregard.

The Fourth Circuit examined the applicable statute, quoting the following portion:

Whoever knowingly—

(1) in or affecting interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States, recruits, entices, harbors, transports, provides, obtains, or maintains by any means a person; or

(2) benefits, financially or by receiving anything of value, from participation in a venture which has engaged in an act described in violation of paragraph (1),

knowing, or in reckless disregard of the fact, that means of force, threats of force, fraud, coercion described in subsection (e)(2), or any combination of such means will be used to cause the person to engage in a commercial sex act, or that the person has not attained the age of 18 years and will be caused to engage in a commercial sex act, shall be punished . . . . 18 U.S.C. § 1591(a) (2012).

The Fourth Circuit agrees with the Government’s proposed interpretation of the statute, that the first instance of “knowingly” in the statute applies to the indented subsections (1) and (2), and that the latter prase “knowing, or in reckless disregard of the fact,” modifies both clauses that follow it, allowing either mental state to exist for proof of either force or the victim’s age.

Put another way, the Fourth Circuit reads the statute’s linguistic structure as follows:

“Whoever knowingly, [A] or [B], knowing, or in reckless disregard of the fact, that [X], or that [Y], shall be punished . . . .”

Banker also challenges his conviction under 18 U.S.C. § 2422(b) on similar grounds. The statute provides as follows:

Whoever . . . knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be fined under this title and imprisoned not less than 10 years or for life.

Banker argues that the district court should have instructed the jury that it must find that he had actual knowledge that C.O. was a minor for purposes of a conviction under § 2422(b). He asserts that the “knowingly” requirement extends to both the verbs that follow and their direct object (i.e. that the “knowingly” requirement also applies to the fact that the victim was under 18 years old). The Fourth Circuit rejects this argument, noting a prior case, United States v. Washington, 743 F.3d 938 (4th Cir. 2014), in which the court considered a similar argument regarding nearly identical language in 18 U.S.C. § 2423(a). There, the court recognized that in cases where “a victim’s underage status [is] an aggravating factor in order to provide minors with special protection, the Government must prove the victim was a minor, but is not required to prove the defendant’s actual knowledge of that fact.”

Lastly, the court rejects Banker’s claim that the evidence was constitutionally insufficient to sustain his convictions. The court notes the “heavy burden” that a defendant faces in order to prevail on a sufficiency challenge, and concludes that the evidence at trial meets the requisite burden to authorize conviction.

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