USA v. Jayavarman

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
UNITED STATES OF AMERICA,
Plaintiff,
vs.
JASON JAYAVARMAN,
Defendant.
Case No. 3:13-cr-00097-SLG
ORDER RE PENDING MOTIONS
Before the Court is Defendant Jason Jayavarman’s Motion for a New Trial at
Docket 264 and Motion to Set Aside Count 1B Conviction and to Dismiss and to Bar
Further Prosecution at Docket 265. 	The Government responded to both motions at
Docket 280.
BACKGROUND
On March 23, 2015, a jury found Mr. Jayavarman guilty on Count 1B for attempted
sexual exploitation of a child, in violation of 18 U.S.C. § 2251(c) and (e), and Count 2B
for attempting to aid and abet another person’s travel with intent to engage in illicit sexual
conduct, in violation of 18 U.S.C. § 2423(b) and (e).1 	On March 29, 2016, the Court
entered a final judgment, sentencing Mr. Jayavarman to “216 months on Counts 1[B] and
2[B] of the Superseding Indictment,” to be served concurrently, followed by a lifetime of
1 Docket 130 (Jury Verdict).
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supervised release.2
Mr. Jayavarman appealed the final judgment to the Ninth Circuit.3 On appeal, Mr.
Jayavarman asserted that Count 2B should be vacated because 18 U.S.C. § 2423 does
not include attempt to aid and abet. 	The Government conceded this point. 	The Ninth
Circuit accepted this concession and vacated Mr. Jayavarman’s conviction and sentence
as to Count 2B.4
Mr. Jayavarman also raised a number of challenges as to Count 1B on appeal. He
argued an attempted violation of § 2251(c) requires the victim to actually be a minor and
that a conviction based on his belief that the victim was a minor violated the Foreign
Commerce Clause and the First Amendment.5 	He further asserted that there was
insufficient evidence to establish that he believed the victim was a minor and that the
record was inconclusive as to whether the district court had fully reviewed certain exhibits
before admitting them into evidence. Lastly, he maintained that the district court erred in
finding that he did not need an interpreter. 	The Circuit considered but rejected each of
these arguments. It affirmed the conviction on Count 1B and concluded: “[i]n addition to
vacating Jayavarman’s conviction and sentence as to Count 2B, we also vacate his
sentence as to Count 1B and remand for resentencing because Jayavarman’s sentence
2 Docket 241 (J.) at 2–3.
3 United States v. Jayavarman, 871 F.3d 1050 (9th Cir. 2017). 	The mandate was issued on
December 21, 2017. Docket 256 (Mandate).
4 Id. at 1056.
5 Id.
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as to Count 1B was likely affected by his conviction as to Count 2B.”6
On remand to this Court, Mr. Jayavarman moves for a new trial at Docket 264,
arguing the evidence presented to the jury as to Count 2B was so prejudicial to him that
a new trial is necessary as to Count 1B. He also asserts that his 1B conviction should be
set aside for several reasons listed below.
DISCUSSION
1. Motion for a New Trial
Mr. Jayavarman asserts in his Motion for a New Trial that “[h]ighly inflammatory
evidence was admitted at trial as to Count 2, which was not relevant to Count 1 and/or
should be excluded under Evidence Rule 403.”7 	The Government responds that this
Court’s authority on remand does not extend to ordering a new trial on Count 1B because
the Ninth Circuit has affirmed the conviction on Count 1B and remanded that count only
for resentencing.8
“It is well-settled that the mandate of an appellate court ‘is controlling as to matters
within its compass.’”9 	“[U]pon receiving the mandate of an appellate court, [the district
court] cannot vary it or examine it for any other purpose than execution.”10 	“A district
6 Id. at 1066.
7 Docket 264 at 3.
8 Docket 280 at 12.
9 United States v. Colvin, 204 F.3d 1221, 1226 (9th Cir. 2000) (quoting Nguyen v. United States,
792 F.2d 1500, 1502 (9th Cir. 1986)).
10 United States v. Cote, 51 F.3d 178, 181 (9th Cir. 1995) (citing In re Sanford Fork & Tool Co.,
160 U.S. 247, 255 (1895)).
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court is limited by [the appellate court’s] remand when the scope of the remand is clear.”11
In this case, the Ninth Circuit held as follows:
In addition to vacating Jayavarman's conviction and sentence as to Count
2B, 	we 	also 	vacate 	his 	sentence 	as 	to 	Count 	1B 	and 	remand 	for
resentencing because Jayavarman's sentence as to Count 1B was likely
affected by his conviction as to Count 2B.
. . .
Though the district court formally imposed a separate sentence for each of
Jayavarman's two counts of conviction, it appears that it viewed the total
length of imprisonment as a package for both convictions. At sentencing,
Jayavarman argued that he should not be given the same sentence for each
count. When the district court solicited the probation officer's view, the
probation officer said: “Well Your Honor, I mean, I look at the cases, you
know, in their totality, and typically, I don't separate out each count and do
it that way.” The district court then stated: “I did consider both of the offenses
together 	in 	imposing the 	sentence.... 	I 	did 	do 	the 	sentencing rather
holistically in reaching that figure, and I will maintain that as concurrent on
the 216.” The district court also said: “I was viewing the two crimes jointly
as the basis for the Court's finding.” Accordingly, we vacate both of
Jayavarman's 	sentences 	even 	though 	we 	vacate 	only 	one 	of 	his
convictions.
We affirm Jayavarman's conviction as to Count 1B for attempt to produce
and transport a sexually explicit visual depiction of a minor. We vacate
Jayavarman's conviction as to Count 2B for attempt to aid and abet travel
with intent to engage in illicit sexual conduct. We vacate his sentence as to
both counts and remand for resentencing.12
The scope of the mandate from the Circuit is a “remand for resentencing.”
Therefore, 	in 	accordance 	with 	the 	rule 	of 	mandate, 	this 	Court 	cannot 	grant 	Mr.
Jayavarman a new trial as to Count 1B and the motion for a new trial must be denied.13
11 Hall v. City of Los Angeles, 697 F.3d 1059, 1067 (9th Cir. 2012).
12 United States v. Jayavarman, 871 F.3d 1050, 1066–67 (9th Cir. 2017) (internal citations
omitted).
13 In Mr. Jayavarman’s opening brief on appeal, he did not request a new trial on Count 1B.
Rather, he stated “Defendant is not appealing the Imposition of Sentence, except to the extent it
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2. Motion to Set Aside Count 1B Conviction
Mr. Jayavarman moves to set aside his Count 1B conviction and to “dismiss any
proceedings against him, i.e. to not only preclude a mandatory minimum sentence to be
imposed, but to preclude any such minimum sentence or otherwise being imposed given
the facts and circumstances of this case.”14 	This Court had previously found that the
mandatory minimum sentence of 15 years applied to Count 1B.15 	Mr. Jayavarman
requests the Court to rule that the mandatory minimum sentence: “1) In any event does
not apply to this case; 2) If called for is cruel and [un]usual punishment; 3) That the
mandatory minimum does not apply given the rational reading of the statute; and 4) That
the mandatory minimum and any part of the statute if applied to the [f]acts of this case
are unconstitutional; 5) and that actual further prosecution of Mr. Jayavarman in facts of
this case are banned, in particular given the fact that if the statute is so applied, doing so
illustrates that the statute is thus overbroad and/or vague, and thus unconstitutional and
is Defendant’s position that if this Court reverses as to either Count, but maintains the conviction
as to the other Count, a new sentencing proceeding must occur.” Appellant’s Opening Brief at
56, United States v. Jayavarman, 871 F.3d 1050 (9th Cir. 2017), 2016 WL 4506243, at *56.
After the Ninth Circuit issued its opinion, Mr. Jayavarman argued to that court that he “is entitled
to a new trial.” Docket 265-1 (Petition for Rehearing). However, the panel subsequently denied
Mr. Jayavarman petition for rehearing. Order, Case No. 16-30082 (No. 44).
Mr. Jayavarman also argues that “the Court must assess the degree of similarity of the dismissed
count and the count of conviction upheld on appeal.” Docket 264 at 7. In the Second Circuit case
he cites for that proposition, the Circuit Court had vacated one count of the conviction and
instructed the district court to dismiss that count on remand. The Circuit Court also vacated the
remaining counts, but, unlike Mr. Jayavarman’s case, it remanded those counts “for a new trial
should the government choose to proceed further on those counts.” United States v. Rooney, 37
F.3d 847, 857 (2nd Cir. 1994). Here, the Ninth Circuit did not remand Count 1B for a new trial;
rather, it affirmed the conviction on Count 1B and remanded that count solely for resentencing.
14 Docket 265 at 1.
15 Docket 242 (Statement of Reasons) at 1; see also Docket 233 (PSR) at 1.
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the charges must be stricken, and Count 1B conviction set aside, and further prosecution
banned.”16 	However, the rule of mandate precludes this Court from setting aside Mr.
Jayavarman’s conviction on Count 1B. The Ninth Circuit’s mandate in this case directs
the Court to resentence Mr. Jayavarman on Count 1B. 	Accordingly, Mr. Jayavarman’s
motion to set aside his conviction on that count must be denied.
CONCLUSION
In light of the foregoing, IT IS ORDERED that Defendant Jason Jayavarman’s
Motion for a New Trial at Docket 264 and Motion to Set Aside Count 1B Conviction and
to Dismiss and to Bar Further Prosecution at Docket 265 are DENIED.
DATED this 12th day of April, 2018 at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE
16 Docket 265 at 4.
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