United States District Court, D. Oregon
Edward Allen McElroy, 74723-065, Columbia County Jail, St. Helens, OR, Pro Se Plaintiff.
Gary Y. Sussman, United States Attorney's Office, Portland, OR, Paul T. Maloney, Washington County District Attorney, Hillsboro, OR, Attorneys for Defendant.
FINDINGS OF FACT & CONCLUSIONS OF LAW
MARCO A. HERNNDEZ, District Judge.
Defendant Edward McElroy waived his right to have a jury determine factual issues regarding the application of an enhanced penalty under 18 U.S.C. § 3559(e)(1). Waiver of Jury Trial . The enhanced penalty is considered only after Defendant is convicted of count one for Sexual Exploitation of a Child, 18 U.S.C. § 2251(a). On May 2, 2014, after a three-day trial, the jury found Defendant guilty of count one, as well as all the other counts. That same day, a court trial was held on the issue of the enhanced penalty. The following are my findings of fact and conclusions of law.
An individual convicted of a federal sex offense in which the victim is a minor faces mandatory life imprisonment if the individual has previously been convicted of either a federal sex offense or an equivalent state sex offense in which the victim was a minor. 18 U.S.C. § 3559(e)(1). A state sex offense is defined as "an offense under State law that is punishable by more than one year in prison and consists of conduct that would be a Federal sex offense if... (i) the offense involved interstate or foreign commerce" or "(ii) the conduct occurred in any commonwealth, territory, or possession of the United States...[.]" Id. at § 3559(e)(2)(B). There are several qualifying federal sex offenses under § 3559(e)(1), such as an offense under section 1591 (sex trafficking of children), 2241 (aggravated sexual abuse), 2242 (sexual abuse), and 2244 (abusive sexual contact). Id. at § 3559(e)(2)(A).
I first must determine whether Defendant has a prior sex conviction in which the victim was a minor. The government presented evidence of Defendant's conviction for Count 1 Sexual Abuse I, Marion County Case No. 99C41069, in violation of ORS § 163.427. Ex. 26 at 3 (judgment of the conviction for Count 1 Sexual Abuse I). For the § 3559(e)(1) enhancement penalty to apply, the prior conviction (1) must have been punishable by more than a year, (2) "consists of conduct" equivalent to a federal sex offense, and (3) the victim was minor.
Under Oregon law, Sexual Abuse I is a Class B felony. ORS § 163.427(b)(2). I find that the Sexual Abuse I offense is punishable by more than a year in prison. ORS § 161.605 (maximum prison term for Class B felony is 10 years). The first requirement of § 3559(e)(1) is met.
For the second requirement of § 3559(e)(1), I must determine whether the Sexual Abuse I offense is equivalent to any of the qualifying federal sex offenses listed in § 3559(e)(2)(A). The government argues that § 2241(c) for aggravated sexual abuse with children is equivalent to the Sexual Abuse I state offense. The government directs the court to the definition of aggravated sexual abuse in which a person "crosses a State line with intent to engage in a sexual act with a person who has not attained the age of 12 years[.]" 18 U.S.C. § 2241(c). "Sexual act" is defined in several ways, but as argued by the government, may include "the penetration, however slight, of the anal or genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person" or "the intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person[.]" 18 U.S.C. § 2246(2)(C)-(D).
Under Oregon law, Sexual Abuse I occurs when a person
(a) Subjects another person to sexual contact and:
(A) The victim is less than 14 years of age;
(B) The victim is subjected to forcible compulsion by the actor; or
(C) The victim is incapable of consent by reason of being mentally defective, mentally incapacitated ...