4th U.S. Circuit Court rules ignorance of victim's age no defense

Daily Record, The (Baltimore), Jan 4, 2007 by Caryn Tamber

The 4th U.S. Circuit Court of Appeals has joined other circuits in holding that ignorance of the victim's age is no defense to charges of transporting a minor across state lines for prostitution.

The decision affirms the conviction of Charles E. Jones III for taking a 13-year-old runaway from Ohio to West Virginia and prostituting her at a truck stop.

Any other holding would render the federal anti-child prostitution statute meaningless, Judge J. Harvie Wilkinson III wrote for a three-judge panel.

"If the prosecution were required to prove knowledge with regard to the victim's age, it would be the rare defendant who would not claim to have mistaken the victim for an adult," he wrote. "Imposing such a mens rea requirement would be tantamount to permitting adults to prey upon minors so long as they cultivate ignorance of their victims' age."

The 2nd, 3rd, 9th and 10th Circuits have already held that the government does not need to prove knowledge of a victim's age, Wilkinson noted.

Interpretation

According to the opinion, Jones and his friend Jamie Derek Bennett met the 13-year-old victim in Ohio and, for three nights in September 2003, took her across the border to a West Virginia truck stop to perform sex acts with truckers.

Each night, Jones, Bennett and the girl returned to Ohio and bought alcohol and drugs with the night's proceeds.

The federal statute, 18 U.S.C. Section 2423(a), refers to "a person who knowingly transports an individual who has not attained the age of 18 years" for prostitution. Jones had argued that "knowingly" modifies "who has not attained the age of 18 years," an interpretation the court held would "cause grammarians to recoil."

Jones also argued that the statute should be interpreted as the Supreme Court has interpreted the anti-child pornography and anti- automatic weapon laws. In interpreting those statutes, the high court has held that knowledge of the minor status of the subject of pornography and of the automatic nature of a gun are necessary elements for a conviction.

Unlike those statutes, however, the conduct prohibited by Section 2423(a) would be illegal even if the victim were not a minor, Wilkinson wrote. In the other two statutes, it is the age of the victim and the automatic nature of the gun that make the conduct criminal.

Heart of the system

The panel also held that comments made by the prosecutor during closing arguments did not prejudice Jones' right to a fair trial.

The prosecutor asked the jury, "If [the defense] had real evidence, don't you think they would have presented it to you?"

Jones argued that the remark was a comment on Jones' failure to testify and therefore violated his Fifth Amendment right not to incriminate himself. The government argued it was a comment on Jones' claim that Bennett and the victim cooked up the prostitution scheme without his knowledge; the prosecutor was commenting on Jones' lack of evidence to support that version of events.

The 4th Circuit agreed with the government, writing last month that interpreting an effort to point out the inadequacies of Jones' case as "improper" is "to strike at the heart of the adversary system."

Jones also challenged the prosecution's statement that the jury could be sure Bennett was telling the truth about Jones' involvement "because he pled to it." That statement, which the trial judge immediately told the jury to disregard, was prejudicial and deprived Jones of his right to a fair trial, Jones argued on appeal.

The 4th Circuit held that the prosecutor's statement was not an impermissible "vouching" for the witness's truthfulness but simply "a permissible reference to facts relevant to the jury's assessment of the witness's credibility."