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United States v. Jayavarman

United States District Court, District of Alaska

March 16, 2015

UNITED STATES OF AMERICA, Plaintiff,
v.
JASON JAYAVARMAN, Defendant.

ORDER RE PENDING MOTIONS

Sharon L. Gleason, United States District Judge

Currently pending before the Court are the following motions: (1) the United States’ First Motion in Limine at Docket 101; (2) the United States’ Motion in Limine and Notice Regarding Anticipated Introduction of Evidence Pursuant to Fed.R.Evid. 404(b) at Docket 102; and (3) the United States’ Supplemental Motion in Limine and Notice Regarding Anticipated Introduction of Evidence Pursuant to Fed.R.Evid. 404(b) at Docket 104. The motions have been fully briefed.

DISCUSSION

I. United States’ First Motion in Limine

The Court ruled on most of the issues raised by the Government’s First Motion in Limine on the record at the March 13 Final Pretrial Conference. Left unresolved at the hearing, and addressed in Order, is the Government’s request for an order (1) “prohibiting Defendant Jason Jayavarman, his counsel, and any defense witnesses from asking any question, introducing any evidence, or making any statement regarding [the age of consent in Cambodia or elsewhere that is contrary to existing United States law] while the jury is present.”[1] Also unresolved from the First Motion in Limine is the Government’s request for an order “allowing the United States to admit a sampling of the child pornography found to have been in Defendant’s possession into evidence and to publish those images to the jury in a way that they are not viewable to members of the public who attend the trial.”[2]

A. Age of Consent Evidence

The Government asserts that the “appropriate age considerations for this case . . . are identified by U.S. law.”[3] Accordingly, the Government maintains that “[m]ention of any foreign or non-applicable age of consent-such as the age of consent in Cambodia or elsewhere-is wholly irrelevant, would be a misstatement of the applicable law, would be contrary to the anticipated jury instructions, and would serve no function but to mislead the jury, confuse the issues, and waste this Court’s time.”[4]

In his Opposition, Jayavarman asserts that Cambodia “is a sovereign nation” and “has the right to prescribe rules of conduct for its citizens while they are in Cambodia.”[5] Jayavarman asserts that he is a Cambodian citizen and the relevant conduct occurred in Cambodia.[6]

In United States v. Clark, the Ninth Circuit considered an appeal from a defendant who argued, inter alia, that 18 U.S.C. § 2423(c) was beyond Congress’ authority under the commerce clause. The Ninth Circuit disagreed and held that “[w]here . . . the defendant [a United States citizen] travels in foreign commerce to a foreign country and offers to pay a child to engage in sex acts, his conduct falls under the broad umbrella of foreign commerce and consequently within congressional authority under the Foreign Commerce Clause.”[7] The Western District of Texas has specifically considered the relevance of the age of consent in a foreign country under § 2423 and stated that it “fail[ed] to see how the target country’s law [in that case, Mexico’s age of consent] is relevant in the [reasonableness of extraterritorial jurisdiction] analysis, given the nationality of the parties and the fact that the statute specifically applies [U.S.] federal law to determining the legality of the predicate sexual conduct.”[8]

Here, the Government has alleged that Jayavarman is a United States Citizen. Jayavarman has indicated he is also a citizen of Cambodia. With respect to the alleged violations of 18 U.S.C. § 2423(b), travel with intent to engage in illicit sexual conduct, and 18 U.S.C. § 2251, sexual exploitation of children, the fact that Jayavarman is a citizen of Cambodia, in addition to being a United States citizen, is not relevant to either charge. Moreover, both of the counts in the Superseding Indictment are based on statutes that define the relevant age of the victim.[9] The Court agrees with the Government that the age of consent under Cambodian law or elsewhere is not relevant to the charges brought by the United States in this case. Accordingly, the Government’s motion to preclude evidence regarding the age of consent under Cambodian law or elsewhere is granted.

B. Admitting and Showing Child Pornography

The Government seeks to admit “a sampling of the child pornography relevant to the charges against Defendant into evidence and to publish those images to the jury in a manner that ensures that they are not viewable by the public.”[10] The Government asserts that this sampling is highly probative to the charged activity but that, because the “child depicted in those images would be revictimized every time an image depicting her abuse is viewed, ” any courtroom spectators should not be able to view the images.[11] At the March 13 status hearing, the Government indicated that the sampling is approximately 60 seconds long out of a total of approximately eight hours of child pornography videos that were found at Jayavarman’s residence.

In his Opposition, Jayavarman asserts that “the Government will not be able to establish that the woman involved was a child at the time the image was produced, ” and that absent reliable evidence of the female’s age, “simply publishing the image invites the jury to speculate about the woman’s age.”[12] Jayavarman also asserts that publishing the sampling would violate Evidence Rule 403 because the images, “absent reliable, non-speculative evidence of age, have no probative value” and because “[j]urors are likely to regard Jayavarman as a sexual pervert for permitting himself to be depicted sans clothing and engaged in sexual intercourse.”[13]

The Court finds that there is sufficient evidence in the record to support the Government’s assertion that the female is under the age of 18, including Jayavarman’s statement to Alex Banks in which Jayavarman stated that he had made a movie with a girl in Cambodia who “was about 14 when I met her, ” that Jayavarman had with him in the United States as a “souvenir.”[14] With respect to the Rule 403 objection, the Court has viewed the proposed images, and in light of the charges in this case, the Court finds that overall their probative value is not substantially outweighed by a danger of unfair prejudice. However, the Court finds that the length of time that close-up images of sexual intercourse are ...


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