United States District Court, D. Oregon
MICHAEL J. MCSHANE, UNITED STATES DISTRICT JUDGE
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.
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.
"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).
The "Travel" Element
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.
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,