Case 2:08-cr-00125-DAK Document 396 Filed 11/16/10 Page 1 of 7

CARLIE CHRISTENSEN, United States Attorney (#0633)

FELICE JOHN VITI, Assistant United States Attorney (#7007)
DAVID F. BACKMAN, Assistant United States Attorney (#8044)
DIANA HAGEN, Assistant United States Attorney (#8205)
ALICIA COOK, Special Assistant United States Attorney (#8851)
Attorneys for the United States of America
185 South State Street, #300
Salt Lake City, Utah 84111-1506
Telephone: (801) 524-5682
Facsimile: (801) 524-6924
E-mail: Felice.Viti@usdoj.gov
))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))
IN THE UNITED STATES DISTRICT COURT

DISTRICT OF UTAH, CENTRAL DIVISION

))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))

UNITED STATES OF AMERICA, 2:08-CR-00125-DAK

:
Plaintiff,
: UNITED STATES' RESPONSE TO
v. DEFENDANT’S MOTION FOR
: JUDGMENT OF ACQUITTAL
BRIAN DAVID MITCHELL,

:
Defendant.
:

S)))))))))))))))))))))))))))))))))))))))))))))))))))))))))))))

The United States, by and through the undersigned Assistant United States

Attorney, files this Response to Defendant’s Motion Requesting Entry of Judgment of

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

beyond a reasonable 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 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).

One of the elements of 18 U.S.C. § 2423(a) is that the defendant transported a

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

2
 Case 2:08-cr-00125-DAK Document 396 Filed 11/16/10 Page 3 of 7

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).

In United States v. Meacham, the defendant was convicted of a violation of 18

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

3
 Case 2:08-cr-00125-DAK Document 396 Filed 11/16/10 Page 4 of 7

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

immoral activity as a dominant purpose), overruled on other grounds, United States v.

Brackeen, 969 F.2d 827 (9th Cir. 1992) (en banc).

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

conviction for a violation of 18 U.S.C. § 2423. Id. 967.

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

4
 Case 2:08-cr-00125-DAK Document 396 Filed 11/16/10 Page 5 of 7

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

her arrival in California she was raped. (Tr. at 825.)

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

5
 Case 2:08-cr-00125-DAK Document 396 Filed 11/16/10 Page 6 of 7

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

sexual activity in California was not merely incidental to the trip.

RESPECTFULLY SUBMITTED this 16 th day of November, 2010.

CARLIE CHRISTENSEN
United States Attorney

/s/ Felice John Viti

FELICE JOHN VITI
Assistant United States Attorney

6
 Case 2:08-cr-00125-DAK Document 396 Filed 11/16/10 Page 7 of 7

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

DEFENDANT’S MOTION FOR JUDGMENT OF ACQUITTAL was mailed postage

prepaid, delivered through interoffice mail, or electronically filed to all parties named

below, this 16th day of November, 2010.

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

/s/ Diana Hagen