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Case 2:08-cr-00125-DAK Document 394 Filed 11/16/10 Page 1 of 9

STEVEN B. KILLPACK, Federal Defender (#1808)


ROBERT STEELE, Assistant Federal Defender (#5546)
WENDY M. LEWIS, Assistant Federal Defender (#5993)
PARKER DOUGLAS, Assistant Federal Defender (#8924)
AUDREY K. JAMES, Attorney for Defendant (#9804)
UTAH FEDERAL DEFENDERS
46 West Broadway, Suite 110
Salt Lake City, Utah 84101
Telephone: (801) 524-4010
Telefax: (801)-524-4060
parker_douglas@fd.org
Counsel for Mr. Mitchell
______________________________________________________________________________

IN THE UNITED STATES COURT FOR THE DISTRICT OF UTAH


CENTRAL DIVISION
______________________________________________________________________________

UNITED STATES OF AMERICA, DEFENDANT’S MOTION REQUESTING


ENTRY OF JUDGEMENT OF
ACQUITTAL PURSUANT TO
Plaintiff,
FED.R.CRIM.P. 29(a)

vs. Case No. 2:08-CR-125 DAK


BRIAN DAVID MITCHELL, Judge Dale Kimball
Defendant.

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’s case is manifestly insufficient to sustain a conviction on count two. The

government has not presented sufficient evidence for a rational jury to find beyond a reasonable
Case 2:08-cr-00125-DAK Document 394 Filed 11/16/10 Page 2 of 9

doubt that a significant, or dominant, or motivating purpose of the defendant’s transportation of

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

the primary purpose of the trip.

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

the coming colder months.

ARGUMENT

According to Rule 29 of the Federal Rules of Criminal Procedure,

[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.

Fed.R.Crim.P. 29(a). In considering whether there is sufficient evidence to support a conviction

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

States v. Vallo, 238 F.3d 1242, 1246-40 (10th Cir. 2001).

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:

knowingly transport an individual who has not attained the age of


18 years in interstate or foreign commerce, or in any
commonwealth, territory or possession of the United States, with
intent that the individual engage in prostitution, or in any sexual
activity for which any person can be charged with a criminal
offense.

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

trip.” Joint Requested Jury Instruction No. 42.

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).

The Seventh Circuit put it succinctly,

[T]he Mann Act is not of course a general regulation of sexual


immorality. The primary responsibility for policing sexual
misconduct lies with the states rather than the federal government.
The Mann Act is merely a prohibition against transporting women
across state lines for immoral purposes. The immorality must
motivate the transportation. If it does not, the defendant’s
immoral conduct is a matter of state rather than federal concern.

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,

[t]he [Mann] Act itself says that the transportation must be


undertaken with the purpose of engaging in immoral activity. An
incidental intention to engage in such activity at the conclusion of a
journey is not enough to violate the Act; the immoral purpose must
play a role in causing the woman to be transported rather than just
be an opportunity created by transporting her entirely for other
reasons . . . even if the opportunity was foreseen.
Id.

Here, the evidence presented by the government is insufficient to sustain a conviction as

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

activity with Ms. Smart.

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

this alleged primary purpose of the trip.

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

government, Ms. Smart said the following:

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.

Q. Did he seem to be in a rush to leave Utah after that incident?

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

evidence was provided by Ms. Smart.

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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.

DATED THIS 16th DAY OF NOVEMBER 2010.

__/s/AudreyK. James__________
AUDREY K. JAMES
Attorney for Defendant

__/s/Parker Douglas___________
PARKER DOUGLAS
Assistant Federal Defender

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