United States District Court, D. Alaska
For Jason Jayavarman, Defendant: Rex Lamont Butler, LEAD ATTORNEY, Rex Lamont Butler and Associates, Inc., Anchorage, AK; Vikram N. Chaobal, LEAD ATTORNEY, Law Office of Vikram Chaobal, Anchorage, AK.
For USA, Plaintiff: Audrey J. Renschen, LEAD ATTORNEY, U.S. Attorney's Office (Anch), Anchorage, AK; Ravi Sinha, LEAD ATTORNEY, U.S. Department of Justice - Criminal Division, Washington, DC.
FINAL REPORT AND RECOMMENDATION REGARDING MOTION TO DISMISS [Docket No. 85]
Kevin F. McCoy, United States Magistrate Judge.
I. MOTION PRESENTED
Before the Court is Jason Jayavarman's motion to dismiss Count 2 of the Superseding Indictment. The government opposes the motion. No party asked for argument, and the Court concludes that additional argument is unnecessary. For the reasons set forth below, the Court recommends that the District Court deny the motion to dismiss.
The Superseding Indictment charges Jayavarman in two counts with sexual exploitation of children. Count 2 alleges Jayavarman attempted to travel in foreign commerce for the purpose of engaging in illicit sexual conduct with another person. In particular, Count 2 alleges the following conduct violated 18 U.S.C. § 2423(b) & (e):
Between on or about April 23, 2013 and on or about August 14, 2013, in the District of Alaska and elsewhere, the Defendant, JASON JAYAVARMAN, a United States citizen, did attempt to travel in foreign commerce for the purpose of engaging in illicit sexual conduct, as defined in 18 U.S.C. § 2423(f), with another person.
Title 18 United States Code Section 2423(b) proscribes travel in interstate or foreign commerce for the purpose of engaging in illicit sexual conduct with another person. As pertinent here, § 2423(f) defines illicit sexual conduct as sexual misconduct with a person under 18 years of age if the sexual act occurred in the special maritime jurisdiction of the United States or was a commercial sex act with a person under 18 years of age. Section 2423(e) outlaws an attempt to violate § 2423(b). To be convicted of an attempted violation of 18 U.S.C. § 2423(b) at trial, the government must prove beyond a reasonable doubt that Jayavarman intended to violate § 2423(b) and thereafter took a substantial step towards doing so. Proof of a substantial step requires evidence that the defendant's actions crossed the line between preparation and attempt by unequivocally demonstrating that the crime would have taken place unless interrupted by independent circumstances. 
A. Jayavarman's Motion to Dismiss
Jayavarman asks the Court to dismiss Count 2 of the Superseding Indictment pretrial because he " did not make a substantial step towards completing the alleged crime."  Jayavarman's motion then catalogues the government's evidence against him. He says the government will rely primarily on statements he made to an undercover agent. These statements detailed his interest in underage girls, his past sexual conduct with underage girls, the number of times he traveled to Cambodia to engage in sexual conduct with underage girls, his interest in filming sexual conduct with underage girls, the equipment needed to record such conduct, how to get these recordings from Cambodia to the United States, and how to deal with the Cambodian police. These statements also indicated Jayavarman's interest in joining the undercover agent in Cambodia to engage in sexual conduct with underage girls. The government's evidence will include video recordings of encounters Jayavarman had with underage girls while in Cambodia and air travel he booked from Alaska to Cambodia in August 2013.
Jayavarman then argues that his conduct, as a matter of law, cannot constitute a substantial step towards the commission of attempted travel in foreign commerce for the purpose of engaging in prohibited sexual misconduct. This is so, he says, because speech alone cannot constitute a substantial step towards committing a crime. Finally, he argues that his ownership of land in Cambodia, coupled with his purchase of an airline ticket for travel to Cambodia weeks earlier ...