UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 22-50024

Plaintiff-Appellee, D.C. No. 2:07-cr-00168- v. DSF-1 MICHAEL JOSEPH PEPE, OPINION Defendant-Appellant.

Appeal from the United States District Court for the Central District of California Dale S. Fischer, District Judge, Presiding

Argued and Submitted June 27, 2023 Pasadena, California

Filed August 28, 2023 Before: N. Randy Smith, Kenneth K. Lee, and Lawrence VanDyke, Circuit Judges.

Opinion by Judge VanDyke 2 USA V. PEPE

SUMMARY *

Criminal Law

The panel affirmed Michael Pepe’s jury conviction on two counts of violating 18 U.S.C. § 2423(b) by traveling in foreign commerce with the purpose of committing illicit sexual acts and two counts of violating 18 U.S.C. § 2241(c) by crossing a state line to sexually abuse a child under 12 and then so doing. Pepe contended that no rational finder of fact could have found beyond a reasonable doubt that he violated §§ 2423(b) and 2241(c). He argued that the Supreme Court in Mortensen v. United States, 322 U.S. 369 (1944), ruled categorically that a jury cannot rationally find that a defendant who leaves his home for an innocent purpose on a round trip returns for a criminal purpose. Declining Pepe’s invitation to expand Mortensen beyond its rationale and facts, the panel wrote that Mortensen does not remove from the jury’s province its ability to rationally find that a person embarked on a trip with an innocent purpose but returned home with a motivating purpose of illicit conduct. The panel held that a jury could rationally find that the sexual abuse of children was one of Pepe’s primary motivations for returning from the United States to Cambodia, which is sufficient to uphold his convictions under § 2423(b) (Counts 1 and 2). Noting that § 2241(c) (Counts 3 and 4) requires the jury to find a slightly more specific motivating purpose, the panel held that a rational trier of fact could have found that Pepe’s * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. USA V. PEPE 3

charged victims were, in fact, under 12, and that Pepe crossed state lines with a motivating purpose of sexually abusing girls under 12. Because Mortensen does not preclude the government’s theory of the case, and Ninth Circuit precedent clearly establishes that a defendant can have mixed motives for traveling, the panel held that the district court did not err in declining to instruct the jury on Pepe’s innocent round trip theory of defense. The panel also held that the district court did not err in its instructions to the jury on the requisite mens rea. The panel wrote that Congress’s 2018 amendment of § 2423(b) is not clearly irreconcilable with this court’s precedent upholding a “motivating purpose” as sufficient for conviction, the district court did not abuse its discretion in declining Pepe’s request to add a requirement that the government prove that the criminal sexual activity was “not merely incidental,” and the district court properly declined to instruct the jury that the improper conduct must be a but- for cause of the travel.

COUNSEL James H. Locklin (argued), Deputy Federal Public Defender; Cuauhtemoc Ortega, Federal Public Defender; Federal Public Defender’s Office, Los Angeles, California; for Defendant-Appellant. Elana Shavit Artson (argued), Stephanie S. Christensen, and Damaris Diaz, Assistant United States Attorneys; Bram M. Alden, Assistant United States Attorney, Criminal Appeals 4