Professional Documents
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Pursuant to Rule 29(a) of the Federal Rules of Criminal Procedure, and the Court’s
directive of today, Doc.# 392, Defendant Brian David Mitchell, by and through counsel of
record, submits the following motion requesting the Court to enter a judgment of acquittal on
both Indictment counts, but particularly on count two of the Indictment, an alleged violation of
18 U.S.C. §2423.
The motion is appropriate because the evidence presented at the close of the
government has not presented sufficient evidence for a rational jury to find beyond a reasonable
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Ms. Smart from Utah to California was that she engage in illegal sexual activity. To the contrary,
the evidence suggests that the sexual activity, while foreseen by Mr. Mitchell, was incidental to
FACTS
Relative to the instant motion, in its case in chief the government has adduced the
following evidence in this case: Ms. Smart testified that from the night that Mr. Mitchell took her
from her bedroom in June of 2001, he had raped her approximately once a day, sometimes more.
Jury Trial Transcript, 737: 18-23. (Hereinafter “Tr.”) During this time, Ms. Smart, Mr. Mitchell
and Ms. Barzee were living in a tent in a remote mountain campsite in Salt Lake City, Utah. Tr.
Vol. V. However, as time wore on Mr. Mitchell began to take Ms. Smart down into the Salt
Lake Valley where they would travel by foot or by bus. Tr. at 777:11-13; 787: 21-23; 788: 18.
While in the Salt Lake Valley they went to restaurants, a grocery store and Liberty Park. Tr. at
777:22; 788:14-25. They also attended a party at a private home, and spent the night at two
private residences, at one of which Mr. Mitchell raped Ms. Smart. Tr. at 780: 19; 789: 16-17;
791: 16. At the beginning of fall, Mr. Mitchell told Ms. Smart that they “needed to find a new
city for a new wife,” because he had received a revelation that “seven different wives would be
from seven different cities.” Tr. at 794: 21-25. Either Mr. Mitchell or Ms. Barzee had instructed
Ms. Smart that if they acquired an additional wife, Ms. Smart’s role “was to be the one who
would demonstrate” sexual intercourse for the new wife. Tr. at 800: 25; 801:1-9. Mr. Mitchell
told Ms. Smart that he “felt inspired” to go to San Diego. Tr. at 795: 3-8. The trio went to the
Salt Lake City library in order to look at maps of the different places. Tr. at 794: 24-25. At the
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library they were approached by a police officer. Tr. at 796: 3. The police officer talked to Mr.
Mitchell for about five or ten minutes about looking under Ms. Smart’s veil. Tr. at 797: 23-24.
The officer ultimately left without looking under Ms. Smart’s veil. Tr. at 798: 4-5. After this
incident Mr. Mitchell told Ms. Smart that he believed “the Lord was really protecting [them] and
that that was a definite sign that it was time for [them] to leave.” Tr. at 800:16-18. Additional
testimony provided today by the government’s final witness, Agent Dougherty, singularly
focused the position of the government’s evidence–that the primary purpose of the trip south
from Utah to California during that Fall of 2001 was for the group to find a warmer climate for
ARGUMENT
[a]fter the government closes its evidence or after the close of all
the evidence, the court on the defendant’s motion must enter a
judgment of acquittal of any offense for which the evidence is
insufficient to sustain a conviction. The court may on its own
consider whether the evidence is insufficient to sustain a
conviction. If the court denies a motion for judgment of acquittal
at the close of the government’s evidence, the defendant may offer
evidence without having reserved the right to do so.
the Court must determine whether “viewing the evidence in the light most favorable to the
Government, any rational trier of fact could have found the defendant guilty beyond a reasonable
doubt.” United States v. Delgado-Uribe, 363 F.3d 1077, 1081 (10th Cir. 2004) citing United
The defendant is charged in count two with a violation of 18 U.S.C. §2423, which makes
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it a crime to:
18 U.S.C. §2423. The Government has stipulated that in order to prove that the defendant
transported Elizabeth Smart with the intent that she would engage in illegal sexual activity, they
must prove “beyond a reasonable doubt that a significant, or dominant, or motivating purpose of
the travel from Utah to California was that Elizabeth Smart would engage in illegal sexual
activity. In other words that illegal sexual activity must not have been merely incidental to the
This is consistent with case law from the Tenth Circuit in which says that “the interstate
transportation must be for immoral purposes in order to constitute an offense . . . [a]nd the
immoral purpose ‘must be found to exist before the conclusion of the interstate journey and must
be the dominant motive of such interstate movement. Without that necessary intention and
motivation, immoral conduct during or following the journey is insufficient to subject the
transporter to the penalties of the Act.’” Long v. United States, 160 F.2d 706, 708-709 (10th
Cir.1947) citing Mortensen v. United States, 322 U.S. 369, 374 (1944). While illicit sexual
activity need not be the only purpose for interstate travel, it must be “one of defendant’s ‘efficient
and compelling purposes.’” United States v. Meacham, 115 F.3d 1488, 1495 (10th Cir. 1997)
citing Dunn v. United States, 190 F.2d 496, 497 (10th Cir. 1951). “If the sole purpose of the
interstate journey is legitimate, a purely incidental intent to have intercourse en route is not a
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federal offense.” Long, 160 F.2d at 709, citing Caminetti v. United States, 242 U.S. 470, 491
(1917).
United States v. Wolf, 787 F.2d 1094, 1097 (7th Cir. 1986) (emphasis added). As this language
suggest, the federal charge Mr. Mitchell faces in this matter in count two is distinct, as a matter
of vertical separation of powers under the Constitution of the United States, from the sex charge
still pending against Mr. Mitchell in the Courts of the State of Utah. The federal statute, based
on Congress’s commerce power, regulates transportation; as the Wolf case goes on to clarify,
to count two because insufficient evidence has been presented from which the jury could find
beyond a reasonable doubt that a significant, dominant or motivating purpose of Mr. Mitchell’s
travel from Utah to California with Ms. Smart was that she engage in sexual activity.
Ms. Smart testified clearly that Mr. Mitchell was sexually assaulting her on a daily basis
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during the several months that she was in Salt Lake City. When he was able to find lodging for
them under the roofs of kind strangers, the act of residing with others did not deter him from
sexually assaulting her. Indeed, the only evidence provided by the government suggests that Mr.
Mitchell was able to, and did, have sexual relations with Ms. Smart nearly any time he had the
inclination during the several months they were in Utah prior to leaving for California. As such,
this situation is markedly different from scenarios such as that in United States v. Mecham, 115
F.3d 1488 (10th Cir. 1997) where the defendant did not have unfettered sexual access to the
victim without the benefit of the seclusion and privacy provided by the interstate travel. To put it
bluntly, Mr. Mitchell had no need to travel outside of Utah for the purpose of engaging in sexual
Ms. Smart’s testimony, as well as that of all others put on by the government, such as
Agent Dougherty, suggests that Mr. Mitchell had two purposes for traveling to California; 1) to
acquire an additional wife or additional wives; and 2) to find a warmer climate with the coming
colder months.
Regarding the first proffered purpose, Ms. Smarts testimony suggests that Mr. Mitchell
search for a new wife or wives in Utah, including Ms. Smart’s cousin. More importantly,
however, the act searching for a new wife is, in an of itself, an insufficient motive to support a
conviction under 18 U.S.C. §2423. Even assuming the defendant expected Ms. Smart to
“demonstrate” sexual activity for a new wife, if one had been acquired, the fact that Ms. Smart
would be expected to demonstrate sexual acts was a secondary consideration to, and incidental to
the primary goal of, attaining a new wife. In other words, the demonstration of sexual acts was
not the motivating factor of the travel to California. The evidence does not show that Mr.
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Mitchell went to San Diego specifically so that Ms. Smart could demonstrate a sexual act for a
new wife; rather, it may suggest he went to San Diego to acquire a new wife. Once acquired, Ms.
Smart’s activities in relation to the new wife would be at least incidental, and certainly not
necessary (as Ms. Smart testified that Ms. Barzee also supposedly performed this function), to
The second possible motive for the travel to California was a search of a more favorable
climate in which to live throughout the winter months. The evidence establishes that Mr.
Mitchell and Ms. Barzee lived a transitory lifestyle both before and during the time they lived
with Ms. Smart. Traveling to warmer climates in the winter months is an obvious way to survive
with minimal resources and is not uncommon for transients. The fact that Mr. Mitchell likely
intended to continue his well established pattern of sexually assaulting Ms. Smart once they
arrived in California does not make the sexual activity the primary or motivating purpose of the
travel. Even though the sexual activity may have been likely foreseen by Mr. Mitchell, the
anticipated sexual conduct in California was, at best, incidental to the primary purpose of the
travel, which was to stay warm and live comfortably with little money and minimal shelter just as
they had been doing in Utah for several months prior to the journey.
It is clear from Ms. Smart’s testimony that Mr. Mitchell had already formed the intent to
travel to California in pursuit of a new wife and warmer climate before they encountered the
police officer in the library while searching for maps of San Diego. While Ms. Smart testified
that this event reinforced Mr. Mitchell’s pre-existing belief that the Lord was protecting them and
that it was time for them to leave Salt Lake City, there is insufficient evidence to suggest that the
incident at the library provided an additional motive for the travel. While Ms. Smart testified
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that after the incident at the library Mr. Mitchell discussed leaving for California with some
frequency and was in a rush to leave, there is no evidence to suggest that this behavior
constituted a change from his behavior before the incident at the library, or that event at the
library was the cause of the discussions or the rush. In response to questioning by the
Q. (Mr. Viti) Ms. Smart, turning your attention back to the incident in the library with the
detective, did you notice if this had any effect on the defendant?
A. In what way?
Q. Did he discuss leaving for California a lot after that incident in the library?
A. Yes.
A. Yes.
Tr. at 801;10-19.
However, the prosecutor’s questions and Ms. Smart’s answers in no way establish that the
library was the cause of a change of the defendant’s attitude towards the travel to California. Ms.
Smart’s answers simply suggest that Mr. Mitchell discussed leaving for California a lot both
before and after the library incident. Nor do Ms. Smart’s answers suggest that Mr. Mitchell was
in any more of a rush to leave Utah after the event than he had been previously. The evidence is
clear that Fall was coming and the weather was likely getting colder. Mr. Mitchell had already
gone to the library in search of maps with which to aid his anticipated trip. The quickly changing
weather is the obvious reason why Mr. Mitchell was hurried to leave Utah and no contradictory
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Even if an inference could be drawn from these statements that the incident at the library
hastened the pre-planned trip, it still does not provide a new or additional motive for the travel. It
simply may have expedited the execution of the trip which was still made for the purposes that
pre-existed the encounter. The evidence does not establish that the interaction with the police
officer at the library created any new or additional motive for the trip.
CONCLUSION
Based upon the foregoing, no rational trier of fact could find the defendant guilty beyond
a reasonable doubt[,]” Delgado-Uribe, 363 F.3d at 1081, and consequently Mr. Mitchell, by and
through his counsel, hereby moves the court to enter a judgment of acquittal.
__/s/AudreyK. James__________
AUDREY K. JAMES
Attorney for Defendant
__/s/Parker Douglas___________
PARKER DOUGLAS
Assistant Federal Defender