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United States v. Johnson

United States District Court, D. Oregon

January 17, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
DANIEL JOHNSON, Defendant.

          ORDER

          MICHAEL J. MCSHANE, UNITED STATES DISTRICT JUDGE

         After eleven days of trial in May of 2018, a jury found Defendant Daniel Johnson guilty of crimes involving the sexual assault of multiple children in the Kingdom of Cambodia. As to Counts 1 through 6 of the Superseding Indictment, the jury found Mr. Johnson guilty of "traveling in foreign commerce and engaging in illicit sexual conduct in a foreign place" in violation of Title 18, U.S.C. § 2423(c) and (e)." Verdict Form 1-4, ECF No. 234.

         Following Mr. Johnson's convictions and prior to the imposition of sentence, the Ninth Circuit clarified the scope of § 2423(c) in United States v. Pepe, 895 F.3d 679 (9th Cir. 2018). Mr. Johnson now argues, among other things, that he is entitled to a new trial or post-verdict acquittal because he was a resident of Cambodia at the time of the sexual assaults and that Pepe requires that the illicit sexual conduct occur during a period of travel. Def.'s Mot. 1-2, ECF No. 267. Because the evidence at trial supported a finding that Mr. Johnson was guilty of "traveling in foreign commerce and engaging in illicit sexual conduct in a foreign place," Mr. Johnson's motion is DENIED.

         STANDARDS

         A court "may vacate any judgment and grant a new trial if the interest of justice so requires." Fed. R. Crim. P. 33(a). Motions for a new trial should only be granted in exceptional cases "in which the evidence weighs heavily against the verdict." See United States v. Del Toro-Barboza, 673 F.3d 1136, 1153 (9th Cir. 2012). A court also may set aside a guilty verdict and enter an acquittal. Fed. R. Crim. P. 29(c). A court may do so where, viewing the evidence in the light most favorable to the prosecution, no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979) (citation omitted); United States v. Nevils, 598 F.3d 1158, 1163-64 (9th Cir. 2010) (en banc).

         DISCUSSION

         I. The "Travel" Element

         Mr. Daniel Johnson is a U.S. citizen. Def.'s Mot. 6. At trial he stipulated that his last known domestic residence was in the State of Oregon. Id.; Jury Instructions 20, ECF No. 230. Although he travelled extensively to and from Cambodia, he maintained an Oregon driver's license, listed Oregon as his permanent address on his U.S. Passport, held a bank account in Oregon, applied for credit using his Oregon address, and owned a car in Oregon. Gov.'s Resp. 6-8, ECF No. 292.

         The evidence at trial did not support Mr. Johnson's contention that he was a resident of Cambodia. Mr. Johnson stipulated that between November of 2005 and January of 2011, he travelled back and forth between the United States and Cambodia numerous times:

Mr. Johnson traveled in interstate and foreign commerce between the United States and Cambodia between on or about the following dates:
• November 28, 2005 (departing the U.S.) - December 6, 2005 (arriving in Cambodia)
• January 11, 2007 (departing the U.S.) - January 12, 2007 (arriving in Cambodia)
• October 10, 2008 (departing the U.S.) - October 11, 2008 (arriving in Cambodia)
• October 22, 2009 (departing the U.S.) - October 23, 2009 ...

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