[00:00:00] Speaker 03:
United States versus Thompson, docket 2450-52.

[00:00:05] Speaker 03:
Counsel, please proceed when you're ready.

[00:00:10] Speaker 03:
Good morning.

[00:00:11] Speaker 01:
Good morning.

[00:00:12] Speaker 02:
May it please the Court.

[00:00:14] Speaker 02:
My name is Gregory Act and I'm representing the appellant, Garen Michael Thompson in this case.

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This is the case where Mr. Thompson took his daughter to a gymnastics competition and took

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her from Oklahoma to Texas to compete in this competition.

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And while they were there, he committed a sexual assault there.

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And the point of this appeal is that the jury was only asked to find whether or not he had the intention to do this prior to leaving for Texas.

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We don't take issue, or we're not in a position to take issue with the jury instruction.

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Who had been there at the time would have asked for a different jury instruction, but that wasn't objected to.

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But nevertheless, the issue remains was there sufficient evidence of what the government did have to prove, irrespective of whether or not the jury instruction itself guided the jury sufficiently.

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And the jury was only asked to decide whether or not he had the intention of doing so and did not require the jury to find that it was really the dominant purpose of the trip.

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And that word dominant purpose goes way back.

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We have the recent case here in the Tenth Circuit, the Lacey case.

[00:01:52] Speaker 00:
Uses the phrase efficient and compelling purpose but still goes back to these cases from the 40s and early 50s the Mortenson the Mortenson case in in Okay, so can I just stop please please to go back to it you talked a lot about the jury instruction or they weren't asked a particular question, but you just so I understand you you are not before us challenging a

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the jury instruction.

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They're not making that claim.

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You're only making a sufficiency claim.

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Only a sufficiency of the evidence claim?

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Absolutely, yes.

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I think, I have this, I thought it was an older case, but it looks like in my notes here, it's a 19, oh, it's 1944 U.S.

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Supreme Court.

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An intention that the woman or girl shall engage in the conduct must be found to exist before the conclusion of the interstate journey.

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I think we probably got that here.

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But then it says, and must be the dominant motivation for such interstate movement.

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And so it has to be the dominant motivation.

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I think court says that.

[00:03:01] Speaker 04:
So that was before the 1948 revisions to the statute.

[00:03:07] Speaker 04:
Well, and I think, but we're still not correct.

[00:03:10] Speaker 04:
Yes, Your Honor, I think there have been a number of... And they took the word purpose out.

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Right, and they... So it's all different field now after that, after that 1948 statutory change.

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I don't know if it has a completely different field because we still look back, just as recently as 2018 Lacey case, we look back there for some guidance on this because it's not just intent, there is a standard.

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It's not just any intent, there is a standard.

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And so I was going to say, it's not that it has to be the dominant purpose.

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OK.

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It doesn't have to be the dominant intent.

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Right.

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And you don't have to show motivation.

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You just have to show intent, correct?

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I'm not sure I know the difference between intent and motivation in this context.

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But I think to cut to the chase on this,

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I think that there's these two cases, the two more recent cases, the Lacey case, which is the man prostituting the women, and then he leaves the state to hide out.

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And his defense was, well, I was just hiding from the law.

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And the question is, OK, well, that's all well and good, but what was she doing there?

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Meacham case from 1997, the commercial truck driver.

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This commercial truck driver, he drives a truck.

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He goes across state lines.

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Okay, well, that's all well and good, but what was she doing there?

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I think that's really the question is what is she doing there?

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What's her purpose for being along on this trip?

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And that's why this case is so different from the cases where they found that there was that purpose to it.

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Were you going to ask me something there?

[00:05:03] Speaker 04:
Well, but you agree, regardless, that at least post-1948, there can be multiple intents, as long as one of the intent is to sexually assault.

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I agree there can be more than one intent.

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But there's a standard to that intent.

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There's a standard to it.

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It's not just any anticipation.

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It's not just any expectation.

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No, it's not anticipation.

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Well, it's intent to do it.

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OK, but that's just.

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It does not have to be the primary intent.

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Isn't that correct?

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It doesn't have to be the primary intent.

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But again, going back to- So you can have a circumstance where somebody wants to transport somebody in the interstate commerce for a lawful purpose.

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But while I'm there, I intend to commit an unlawful act of sexual assault.

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And you can be convicted on that basis.

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That would be sufficient.

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I don't think.

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That's effectively standardless.

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It's basically saying any intent is sufficient.

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This is a case where the trip never would have happened had she not gone on.

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You have conceded, I thought, that the intent to commit sexual crime does not have to be the primary intent.

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It does not have to be the primary intent.

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But there is still a standard for the intent.

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The primary intent is to transport somebody

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for a gymnastics meet.

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But the secondary intent is, while I'm there, I'm going to commit a sexual crime.

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That's good enough, isn't it?

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I don't think so, because the word is compelling.

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See, here's the difference.

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The trip would not have taken place.

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The trip would never have happened.

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This is a but-for type argument.

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But it explains the compelling purpose.

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It explains it's important to look at that and say, OK,

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He didn't decide the timing.

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He didn't decide the arrangement.

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It was going to be just him, because it was his wife that decided to stay home.

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According to your standard, as long as that standard was met the moment before they crossed the state line, that'd be enough, correct?

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I'm sorry.

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Again?

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OK.

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Under your standard.

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Yes.

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if they put on evidence that the moment before they cross the state line, he had the intent to make your standard have sex with his child.

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If he meets that standard again, yes, it has to be before he crosses the state line.

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In this case,

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The determination that there was going to be travel to a gymnastics meet happened long before, or before it was determined that the wife, I think her name was Holly, could not go, correct?

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Right.

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So at that point in time, if he formed the intent that while I am there, I'm going to sexually assault this child.

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That would be enough, right?

[00:08:19] Speaker 02:
I don't believe so.

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Can I go back?

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I think it's the Meacham case where the truck driver, where the court actually said, the question is, why was she going?

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What is her purpose in going?

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And so again, I don't think that that's sufficient.

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She was going to go to be in a gymnastics competition that was going to happen regardless.

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all of this would have happened regardless.

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And if she hadn't gone, it would not have happened at all.

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So I think that that puts that purpose as not only the predominant purpose, but the compelling purpose.

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I'm not really sure what the word efficient does there.

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But I do know how it's being applied.

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And this is the extreme opposite of how it's been applied.

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If I may, I'd like to just, because the other count is actually one that's got a very high

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statutory minimum of this count two, if I may move on to that, unless the court... Well, I have one more question.

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Absolutely.

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So under, I think what the government's going to say, or has said in their briefs, is that the defendant here took advantage of situations.

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He may not have set them up, but there was evidence that when the mom went to the grocery store, the mom took the other kids, and here the mom had to get a colonoscopy, he took advantage of that situation.

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And I'm wondering, is that just not actionable?

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I mean, can you not form an intent if you take an advantage

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of a situation.

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You didn't set it up, but the situation presented itself and you took advantage of that.

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You used it as an opportunity.

[00:10:16] Speaker 02:
I think it depends on the context.

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Obviously, as a state law crime, it requires intent and taking advantage of a situation

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You know.

[00:10:27] Speaker 00:
Well, I think you're not answering.

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I mean, I guess could taking advantage constitute intent?

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You're just saying it didn't.

[00:10:40] Speaker 02:
I'm not saying that it, I'm sorry.

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I'm done.

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I'm not saying that there was no intent.

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What I'm saying is if we look at cases like Lacey and Meacham and all these other cases, that mere intent, this is the minimum intent that I can imagine.

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It's intent.

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I give it.

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It's intent.

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But I can't imagine a scenario where there's less intent.

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He may be looking forward to it.

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But in terms of the intent, in terms of the purpose, because we're still going at the sufficient and compelling purpose, which is a phrase we're still using in 2018, that when you've got that purpose crossing the state line, that's the purpose of the trip.

[00:11:21] Speaker 02:
I don't think that that's what

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our history of cases interpreting this act require.

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Thank you.

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Real quickly on this other one, I know that the government called attention to the Walker case about evidence.

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I'm just going to take some time here to distinguish that case.

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They used that case to say, look, in our case, we have the ex-wife and the daughter saying he's not a member of the Indian tribe or an Indian tribe.

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And in the Walker case, we had a niece and a police sergeant.

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And the question wasn't whether there was sufficiency of the evidence.

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The question was whether it was a mistake or an error for the judge to let that evidence in.

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And in one instance, it was a plain error.

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having to do with the niece.

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And the court said this close relationship was sufficient for Ms.

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Dirksen to testify.

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OK.

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That's fine, but that doesn't say there's sufficient evidence.

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And then Sergeant Lizzie, what's interesting about that is he testified that after McGirt's case, he now has to inquire whether somebody is a member of

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any federally recognized tribe.

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And it doesn't really say how he inquired.

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So you're wondering, is it hearsay?

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But then in another paragraph, like in the same breath, it says, the personal knowledge standard is not difficult to meet.

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And a rational jury could find that he had personal knowledge because he was required to undertake these inquiries.

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So all this tells us is that those inquiries could have been made.

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But they weren't made here.

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There were just people.

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There's no indication that his family members took any particular interest in whether or not he had any degree of Indian blood.

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And this is a serious crime.

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And they had a responsibility to prove each element beyond a reasonable doubt.

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I'd like to reserve the rest of my time.

[00:13:33] Speaker 02:
I'm sorry.

[00:13:40] Speaker 04:
The relationship of husband and wife and the relationship of father-daughter is insufficient to have a foundation that they had knowledge.

[00:13:57] Speaker 04:
I'm not contesting.

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They're not an enrolled member of a federally recognized tribe.

[00:14:03] Speaker 02:
I have two parts to that.

[00:14:06] Speaker 02:
Two parts to that.

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One, it is admissible.

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And that's what Walker tells us, is that it is admissible.

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But when you're talking about a negative as opposed to a positive, proving somebody is not a member, well, that takes a little bit more.

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And did this family have any interest in genealogy?

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Did they take any?

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Do we know that they had any conversations on this, whether it was important to them?

[00:14:32] Speaker 02:
None of that's in the record, and so this question

[00:14:35] Speaker 04:
Well, let me ask you this.

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The obligation to challenge their credibility because of their lack of knowledge or lack of foundation for their testimony, isn't that incumbent on the defendant's lawyer to do?

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And he should have objected.

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He did not object.

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But the question here is whether there was sufficient evidence.

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So that doesn't get the government patented.

[00:14:59] Speaker 04:
But the evidence came in.

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And it was his obligation to try to keep it out.

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And he didn't keep it out because he did not challenge the foundation for their testimony.

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So it's gone.

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He didn't do his job.

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He or she didn't do their job.

[00:15:19] Speaker 04:
And that's, yeah, it's over.

[00:15:22] Speaker 02:
Correct?

[00:15:22] Speaker 02:
No.

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It's admitted.

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That's fine.

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The question is whether what is admitted is sufficient to be able to say, beyond a reasonable doubt,

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that this man was not a member of an Indian tribe.

[00:15:36] Speaker 03:
So what would be sufficient?

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Well, they'd have to at least do some kind of investigation.

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I mean, in the Walker case, we have Sergeant Lizzie, who apparently had the ability to do that.

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That's one thing the Walker case tells us.

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He was able to do an investigation.

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I imagine it's a database.

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At least they can check the federally recognized whether he's a member.

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And then there could be a DNA test taken.

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Or there could be some genealogical research.

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I'm not saying it's easy, but it is a serious crime.

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And it is an element.

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And they did have an obligation or they had a burden to prove it beyond a reasonable doubt.

[00:16:13] Speaker 03:
Thank you.

[00:16:27] Speaker 01:
Thank you.

[00:16:27] Speaker 01:
May it please the court.

[00:16:30] Speaker 01:
Elliot Anderson for the United States.

[00:16:34] Speaker 01:
This court should affirm on the 2423A conviction because under any reading of the word intent, whether intent simply means intent or whether it also carries a connotation of motive or purpose.

[00:16:47] Speaker 04:
Will you explain to me how this happened that

[00:16:53] Speaker 04:
The purpose got back into this statute after it was taken out.

[00:16:58] Speaker 04:
It's beyond me.

[00:17:00] Speaker 04:
I don't understand.

[00:17:01] Speaker 04:
And is this like a super intent that has to be shown, or a moderate intent, or what?

[00:17:09] Speaker 01:
My pet theory, Your Honor, is that Lacey and Meacham were not concerned with how to interpret intent.

[00:17:14] Speaker 01:
They were confirming the longstanding rule that under the Mann Act, intent can be mixed.

[00:17:19] Speaker 01:
You can have a legal intent and an illegal one, and you're still guilty.

[00:17:23] Speaker 01:
Citing that rule, Lacey and Meacham reach back to the old cases, which in turn are reaching back into the 40s.

[00:17:30] Speaker 01:
And that language propagates whenever you're looking for a case that says intent, mens rea can be mixed.

[00:17:37] Speaker 01:
Lacey and Meacham weren't saying that we should ignore what Congress did when they amended the statute and kicked out purpose and left it with intent.

[00:17:45] Speaker 01:
Unfortunately, to this point, we just don't have something on all fours.

[00:17:49] Speaker 01:
examining the question.

[00:17:50] Speaker 01:
We do have the Crier case here from this circuit, which looked at 2241 and noted, hmm, this statute just says intent.

[00:17:59] Speaker 01:
We've got a purpose standard here.

[00:18:01] Speaker 01:
Maybe that bar is too high, but no matter.

[00:18:04] Speaker 01:
The evidence here is sufficient to satisfy either standard.

[00:18:07] Speaker 01:
We'll affirm.

[00:18:08] Speaker 01:
This court could do the same thing here.

[00:18:11] Speaker 01:
I really can't explain why it's not clearer, especially when in 2023 Congress amended 2423B and said we're stamping out the last iteration of purpose here because intent means intent.

[00:18:24] Speaker 01:
It doesn't mean motivating significant... You're talking about the 2023 amendment.

[00:18:28] Speaker 01:
I am, Your Honor.

[00:18:29] Speaker 04:
But in the preamble to that... Which suggests that if we follow your lead, there's no reason to straighten it out because effectively the 2023 statute has done that.

[00:18:42] Speaker 01:
2023 amended 2423B, the companion, not the statute that Mr. Thompson was charged under here.

[00:18:49] Speaker 01:
2423A has looked like this, as you've noted, for 75 years.

[00:18:53] Speaker 01:
Purpose hasn't been in the statute.

[00:18:55] Speaker 01:
Just when Congress brought the next provision into line, they explained, we don't like this.

[00:19:00] Speaker 01:
I was going to make the trip anyway defense.

[00:19:03] Speaker 01:
So they've eradicated it there, but it hasn't existed under A for a long time.

[00:19:09] Speaker 01:
Lacey and Meacham, I view them as not really on point in terms of their discussing a different rule, not how do we interpret the word intent.

[00:19:16] Speaker 01:
But even if we need some sort of compelling, motivating, a significant purpose, the evidence would be sufficient here.

[00:19:25] Speaker 01:
The jury heard that Garen Thompson took his daughter to Texas and spent the whole evening abusing her until she asked if she could please go to sleep.

[00:19:34] Speaker 01:
We heard that as soon as he got home,

[00:19:37] Speaker 01:
He sat down with her and said, don't tell mom, this is between you and me.

[00:19:41] Speaker 01:
This was not an afterthought or the first time that he had ever done this.

[00:19:45] Speaker 01:
He had been abusing the children in his household for 20 years when he had them alone.

[00:19:51] Speaker 01:
We also know that he had a habit and practice of, he was interested in his daughter's sexuality around the house.

[00:19:58] Speaker 01:
He hid cameras at specific times and locations when he knew he could catch his daughter's undressing.

[00:20:04] Speaker 01:
Then he removed the cameras.

[00:20:06] Speaker 01:
saved the files to his computer, and extracted the images that pleased him most.

[00:20:10] Speaker 01:
The search history on his computer demonstrated that he had an interest in father-daughter incest.

[00:20:16] Speaker 01:
Any reasonable juror could look at all of those facts and make the reasonable inferences and conclude that Mr. Thompson may have had a plan, pre-existing plan, to take his daughter to a gymnastics tournament when events unfolded such that his wife would not be able to come along the way she always did.

[00:20:35] Speaker 01:
A reasonable jury could believe that Thompson amended that plan and added one more agenda item.

[00:20:41] Speaker 01:
He would take his daughter to Texas, and then while he had her there, far, far away from her mom and four other sisters, he would abuse her in the hotel.

[00:20:50] Speaker 01:
This jury did believe that, and this court should affirm.

[00:20:53] Speaker 01:
Now, Judge Murphy noted that defense is basically arguing for a but-for standard here.

[00:21:00] Speaker 01:
He's still arguing, I would have made the trip anyway.

[00:21:03] Speaker 01:
Even if that were the standard, a jury could question that motivation.

[00:21:07] Speaker 01:
He didn't have to make the trip.

[00:21:09] Speaker 01:
Holly Thompson was, as she described it, bedridden.

[00:21:13] Speaker 01:
She was so sick, she was either in bed or in a chair all day.

[00:21:17] Speaker 01:
And the very next day, she was scheduled to go in for a colonoscopy, which, if you had experience with that, that takes a person out of commission for a while.

[00:21:25] Speaker 01:
Don't go there.

[00:21:26] Speaker 01:
Garen Thompson could have decided, wow, honey,

[00:21:30] Speaker 01:
I guess we'll just skip this meet and I'll stay home to take care of you."

[00:21:33] Speaker 01:
But in fact, he made the choice, did not seem to hesitate, to take his daughter and leave his wife.

[00:21:40] Speaker 01:
And taking his daughter on the trip was part of the abuse.

[00:21:43] Speaker 01:
They were in a busy household.

[00:21:46] Speaker 01:
There were two adults, there were five older daughters, and Thompson needed to get A.T.

[00:21:52] Speaker 01:
away from the rest of them if he was going to abuse her.

[00:21:54] Speaker 01:
So yes, a reasonable jury could believe that he left the house in Cantusa

[00:21:59] Speaker 01:
with that motive and purpose in mind.

[00:22:09] Speaker 01:
If there's no further questions on that, I'd like to move on to Indian status.

[00:22:17] Speaker 01:
As this Court noted in Walker, family members are competent to testify to a defendant's Indian or non-Indian status.

[00:22:25] Speaker 01:
And as this Court has noted in Ortner and elsewhere,

[00:22:28] Speaker 01:
A family member's testimony carries more weight than an outsider would.

[00:22:33] Speaker 01:
Here, the jury heard sufficient evidence to conclude that Garen Thompson is not an Indian.

[00:22:41] Speaker 01:
His wife of 12 years, Holly Thompson, she has known this man for over a decade, testified quite clearly he's not enrolled in any tribe and no, he's not an Indian.

[00:22:53] Speaker 01:
His daughter, S.T., who was 12 years old at trial, who is herself an enrolled Indian, she testified that she was enrolled because she got her Indian blood from her mother.

[00:23:06] Speaker 01:
She did not say that she got her Indian blood from her father, Garen, and a reasonable inference from that is that she didn't get her Indian blood from Garen because he's not Indian and doesn't have any Indian blood.

[00:23:17] Speaker 01:
In fact, S.T.

[00:23:18] Speaker 01:
testified just a few sentences later, no, my dad is not an Indian.

[00:23:22] Speaker 01:
So two individuals who've known Mr. Thompson for 12 years, who know what it is to be an Indian and to be enrolled, testify he's not an Indian and he's not enrolled.

[00:23:34] Speaker 01:
Garen Thompson did not cross-examine them or question their credibility, and not in any way to shift the burden to him on this point, but just to point out that we examine the evidence the jury had, and here there was sufficient evidence, and it was uncontroverted.

[00:23:51] Speaker 01:
Now, yes.

[00:23:53] Speaker 01:
In this circuit, the government has the burden to prove the negative on non-Indian status.

[00:23:59] Speaker 01:
But as with proving any other element of guilt, the government is not required to conclusively eliminate every other possible interpretation or outcome.

[00:24:09] Speaker 01:
Here, the government gave the jury sufficient testimony from two family members showing that Yaron Thompson is not an Indian.

[00:24:16] Speaker 01:
Yes, Your Honor.

[00:24:18] Speaker 04:
I thought you said that ST had known

[00:24:23] Speaker 04:
For eight years, she'd known this.

[00:24:27] Speaker 04:
She'd known it for 18 years.

[00:24:29] Speaker 01:
Well, S.T.

[00:24:30] Speaker 01:
was 12 years old at the time of trial.

[00:24:32] Speaker 01:
And she was the daughter of Garen and... Oh, she's 18 now?

[00:24:36] Speaker 01:
Yes.

[00:24:37] Speaker 01:
Okay.

[00:24:37] Speaker 01:
Yes.

[00:24:39] Speaker 04:
She was the daughter of... My little chart didn't have a footnote saying that.

[00:24:42] Speaker 01:
I apologize, Your Honor.

[00:24:44] Speaker 01:
No, it's my chart.

[00:24:45] Speaker 01:
She was the daughter of Garen and his ex-wife.

[00:24:49] Speaker 01:
Shannon Knight.

[00:24:50] Speaker 01:
Yes.

[00:24:51] Speaker 01:
So that's why she testified, I'm enrolled.

[00:24:54] Speaker 01:
I got my blood from my mother.

[00:24:56] Speaker 01:
Yes.

[00:24:56] Speaker 01:
Don't get diverted.

[00:24:59] Speaker 01:
So we have more here than just an assertion from, say, a law enforcement officer.

[00:25:04] Speaker 01:
I checked with five tribes.

[00:25:05] Speaker 01:
He's not enrolled in any of them.

[00:25:07] Speaker 01:
What we have here is family members saying he's not enrolled with any federally recognized tribe.

[00:25:12] Speaker 01:
And he's not an Indian.

[00:25:14] Speaker 01:
The typical indication of Indian status would be known to a family member.

[00:25:19] Speaker 01:
And it was a reasonable inference

[00:25:21] Speaker 01:
Holly and ST testified that Garen Thompson wasn't an Indian because there was no indication that he is.

[00:25:28] Speaker 03:
What would be an indication?

[00:25:30] Speaker 03:
Benefits or something else?

[00:25:32] Speaker 01:
There are several, Your Honor.

[00:25:33] Speaker 01:
Enrollment, other recognition, health care, other tribal benefits, social participation in tribal life.

[00:25:41] Speaker 01:
Again, the government's duty here, the appellant has cited no case saying that improving the negative, the government has to

[00:25:48] Speaker 01:
Eliminate every possible indicator of Indian status, but here two people who know him well felt comfortable saying that there was not If there are no further questions Thank you very much for your time.

[00:26:07] Speaker 03:
Thank you Counsel you did it use all your time, but I'm going to give you two minutes for rebuttal oh Yes

[00:26:16] Speaker 03:
If you want, you don't have to use it.

[00:26:19] Speaker 03:
All right, very well.

[00:26:22] Speaker 02:
I think we're good.

[00:26:29] Speaker 03:
And thank you both for your arguments.

[00:26:31] Speaker 03:
The case is submitted and counsel are excused.

[00:26:34] Speaker 03:
We have one