Professional Documents
Culture Documents
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Defendant.
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The United States, by and through the undersigned Assistant United States
Acquittal as to Count Two Pursuant to Fed. R. Crim. P. 29(a). The defendant asserts that
there exists insufficient evidence to prove beyond a reasonable doubt that defendant is
Case 2:08-cr-00125-DAK Document 396 Filed 11/16/10 Page 2 of 7
guilty of Count Two of the Indictment, which alleges a violation of 18 U.S.C. § 2423(a)
since “[t]he government has not presented sufficient evidence for a rational jury to find
defendant’s transportation of Ms. Smart from Utah to California was that she engage in
illegal activity.” (Defense Memorandum at 1-2.) The defendant asserts that evidence
“suggests” that the illegal sexual activity was merely incidental. (Id. at 2.)
The United States submits that the motion should be denied for the reasons set
forth below.
A NALYSIS
The only proper basis for a motion for a judgment of acquittal is that the evidence
is insufficient to sustain a conviction. Fed. R. Crim. Pro. 29(a). The test for reviewing
the sufficiency of the evidence is “whether taking the evidence-both direct and
circumstantial, together with the reasonable inferences to be drawn therefrom-in the light
most favorable to the government, a reasonable jury could find the defendant guilty
beyond a reasonable doubt.” United States v. McKissick, 204 F.3d 1282, 1289 (10th Cir.
2000).
person less that 18 years of age with the intent to engage in illegal sexual activity.
It is well-settled, and in fact, stipulated by the parties, that it is not necessary for the
government to prove that the sexual activity was the sole purpose for transporting
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Elizabeth Smart from Utah to California. A person may have several different purposes
or motives for such travel, and each may prompt, in varying degrees, the act of making
the journey. The government need only prove beyond a reasonable doubt that a
significant or dominant or motivating purpose of the travel from Utah to California was
that the victim would engage in illegal sexual activity. The illegal sexual activity must
not have been merely incidental to the trip. United States v. Meacham, 115 F.3d 1488,
1495-96 (10th Cir. 1997); United States v. Sciscum, 32 F.3d 1479, 1485-86 (10th Cir.
1994).
U.S.C. § 2423. Meacham, 115 F.3d at 1490. The defendant was a commercial truck
driver who took the victim across state lines on one of his commercial runs and sexually
abused her. Id. at 1495. At trial, the Government introduced evidence that two years
prior to the interstate trip that formed the basis for the count of conviction, the defendant
had sexually abused the victim on another interstate trip, and just before the interstate trip
for which he was convicted, the defendant took the victim from school, gave her a
camera, money, and a birthday card, and asked her to come on another interstate trip with
him. Id. On appeal the defendant argued that he made the trips primarily to drive his
truck for business and therefore the sexual abuse was not a dominant purpose of the trip.
Id.
In rejecting this argument the Tenth Circuit held that illicit sexual activity need not
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be the only purpose for the interstate travel, and that it was sufficient if such activity was
one of defendant’s efficient and compelling purposes. Id. (citing Dunn v. United States,
190 F.2d 496, 497 (10th Cir. 1951) (internal quotations omitted). See also United States
v. Campbell, 49 F.3d 1079, 1083 (5th Cir. 1995) (the sole or primary reason for interstate
travel need not be illicit sexual activity as long as it is one of the motivating purposes);
United States v. Kinslow, 860 F.2d 963, 967-68 (9th Cir. 1988) (although primary purpose
for taking a hostage across state lines was to ensure his own safety, defendant also had
Kinslow, which the Meacham Court cited with approval, is particularly instructive.
In Kinslow, the defendant escaped from a New Mexico penitentiary and traveled to
Arizona. Kinslow, 860 F.3d at 965. He entered the home of a family there and, according
to the testimony of the mother of the family, raped her. Id. He then forced the family into
a car and drove them to California in order to meet with other fugitives from the New
Mexico penitentiary, and, once there, raped the victim again. Id. The defendant asserted
that the only purpose in taking the victim across state lines was to insure safe passage
from Arizona to California, and therefore, the evidence was insufficient to support a
The Court rejected this argument, and held the statute is violated if the sexual
activity is one of the dominant purposes of the transportation. Id. The Court stated that it
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was not necessary that the sexual activity be the only purpose of the trip. Id.
In the instant matter, Miss Smart testified, like the victim in Kinslow, that she was
kidnapped and repeatedly raped and sexually abused in Utah. According to Miss. Smart’s
testimony, while still in Utah, the defendant told her that she was his wife, and that
engaging in sex with him was part of her duties as his wife. (Trial Transcript at 818-19)
(hereinafter cited as Tr.). Miss Smart testified that he forced her to California, and that
the defendant expected her to be his wife in California, and that her responsibilities as his
wife in California included having sex with the defendant. (Tr. at 819.) Miss Smart also
testified that the defendant told her that they had come to California to obtain another
young, LDS, and therefore, malleable female to be his wife, and that Miss Smart’s duties
as a wife included demonstrating for the new wife the sexual conduct that was
demonstrated for her. (Tr. at 834-35, 841.) Miss Smart testified that within 24 hours of
This evidence clearly shows that illegal sexual activity was either a significant or
dominant or motivating purpose for the travel to California. The evidence is clear that the
defendant intended to treat Miss Smart as his “wife” in California, which treatment
included raping and otherwise sexually abusing her. The evidence is clear that within 24
hours of her arrival in California, Miss Smart was raped by the defendant. The evidence
is clear that the defendant traveled to California with the intention of obtaining a new
“wife” in California, and part of Miss Smart’s responsibilities as his “wife” was to
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demonstrate sex for the new “wife.” This evidence “together with the reasonable
inferences to be drawn therefrom-in the light most favorable to the government, [is
sufficient for] a reasonable jury,” McKissick, 204 F.3d at 1289, to conclude that the illegal
CARLIE CHRISTENSEN
United States Attorney
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C ERTIFICATE OF S ERVICE
I hereby certify that I am an employee of the United States Attorney’s Office for
the District of Utah and that a copy of the foregoing UNITED STATES' RESPONSE TO
prepaid, delivered through interoffice mail, or electronically filed to all parties named
Steven B. Killpack
Robert L. Steele
Parker Douglas
Audrey K. James
Utah Federal Defender Office
46 West Broadway, Suite 100
Salt Lake City, Utah 84101
Michael P. O'Brien
Jones Waldo Holbrook & McDonough
170 S. Main Street, Suite 1500
Salt Lake City, Utah 84101