No Presumption from 18 U.S.C. § 1591(c): Second Circuit Confirms “Reasonable Opportunity to Observe” as a Standalone Path; Confrontation/Rule 15 Claim Resolved by Harmless Error in United States v. Paschal (Summary Order)

Court: United States Court of Appeals for the Second Circuit

Decision Date: November 3, 2025

Disposition: Affirmed (Summary Order; non-precedential)

Introduction

This appeal arises from a federal sex-trafficking prosecution in the Southern District of New York against Michael Paschal, who was convicted by a jury of four counts stemming from the trafficking of a 17-year-old between July and December 2020. The charges included conspiracy to commit sex trafficking (18 U.S.C. § 1594(c)), sex trafficking of a minor (18 U.S.C. § 1591(a), (b)(2)), transportation of a minor for the purpose of prostitution (18 U.S.C. § 2423(a), (e)), and coercion and enticement to travel to engage in prostitution (18 U.S.C. § 2422(a)). He received four concurrent 132-month terms of imprisonment and five years of supervised release.

On appeal, Paschal advanced two principal arguments:

Confrontation Clause/Rule 15 depositions: He challenged the admission—via Rule 15 deposition treatment—of testimony by a Homeland Security Investigations agent who was overseas during trial. He argued that the agent was not truly “unavailable” and that reading in the testimony violated the Sixth Amendment’s Confrontation Clause.
Section 1591(c) instruction: He contended that the jury instruction employing 18 U.S.C. § 1591(c)’s “reasonable opportunity to observe” language operated as a “mandatory presumption” of knowledge of age, violating due process under Tot v. United States.

The Second Circuit—while issuing a non-precedential summary order—rejected both paths to reversal: it deemed any Confrontation-related error harmless beyond a reasonable doubt and found no error in the instruction applying § 1591(c), which the court characterized not as a presumption but as a “freestanding alternative” to the mens rea otherwise required under § 1591(a).

Summary of the Opinion

Confrontation/Rule 15: Without resolving whether the district court erred in deeming the agent “unavailable” or in admitting his suppression-hearing testimony at trial, the court held that any error was harmless beyond a reasonable doubt. The Government had presented overwhelming independent evidence that Paschal knew the victim was under 18.
18 U.S.C. § 1591(c): The court rejected Paschal’s constitutional challenge to the jury instruction. It clarified that § 1591(c) does not create a presumption of knowledge; instead, it provides an alternative path to conviction where the defendant had a “reasonable opportunity to observe” the victim, relieving the Government of proving knowledge or reckless disregard of age. Review was for plain error (the challenge was not raised below), and the court found none.
Result: The judgment of conviction was affirmed in full; other arguments were found unpersuasive.

Detailed Analysis

I. Precedents Cited and Their Influence

Rule 15 Depositions and Unavailability: The court referenced United States v. Johnpoll, 739 F.2d 702, 709 (2d Cir. 1984), which explains that depositions under Federal Rule of Criminal Procedure 15 may be taken if the witness’s testimony is material and the witness is unavailable for trial. Here, the Government sought to treat suppression-hearing testimony as a Rule 15 deposition because the agent had prearranged overseas travel. The district court preliminarily agreed. Although the Second Circuit did not decide if unavailability was properly found, Johnpoll framed the standard the district court applied.
Harmless-Error Framework: The court applied Fed. R. Crim. P. 52(a)’s harmless error rule, citing United States v. Johnson, 117 F.4th 28, 40–41 (2d Cir. 2024). It also cited United States v. McClain, 377 F.3d 219, 222 (2d Cir. 2004), which applies harmless-error review to Confrontation Clause violations, and the Supreme Court’s Neder v. United States, 527 U.S. 1, 19 (1999), which sets the standard for constitutional harmless error: whether the court can conclude beyond a reasonable doubt that the verdict would have been the same without the error.
Plain Error Review for Unpreserved Claims: Because Paschal did not raise the constitutional challenge to § 1591(c) below, the Second Circuit reviewed for plain error under Fed. R. Crim. P. 52(b) and cited United States v. Donziger, 38 F.4th 290, 302–03 (2d Cir. 2022).
Presumptions and Due Process: Paschal’s reliance on Tot v. United States, 319 U.S. 463 (1943), for the “rational connection” requirement between a proved fact and a presumed fact was addressed by the court’s threshold determination that § 1591(c) is not a presumption at all.
Interpretation of § 1591(c): The court leaned on its prior interpretation in United States v. Robinson, 702 F.3d 22, 31 (2d Cir. 2012), holding that § 1591(c) provides a “freestanding alternative” to prove the age element when the defendant had a reasonable opportunity to observe the victim. It further cited United States v. Concepcion, 139 F.4th 242, 247 (2d Cir. 2025), reinforcing that reading.

II. The Court’s Legal Reasoning

A. Confrontation Clause and Rule 15: Harmless Error Controls

Paschal argued that Special Agent Kevin Kuntz’s testimony—admitted via a Rule 15 route because the agent was overseas—should not have been read to the jury and that doing so violated the Confrontation Clause. He maintained that the Government could have served a subpoena or sought a short adjournment to secure live testimony. The Second Circuit assumed arguendo that error may have occurred but declined to decide the issue because any error was harmless beyond a reasonable doubt under Neder.

The court emphasized the Government’s “overwhelming” proof that Paschal knew the victim was under 18, independent of the agent’s testimony, including:

The victim’s testimony that she told Paschal she was 17 shortly after they met, and that he instructed her to lie about her age to customers.
A recorded video on the day of the December 2020 search of Paschal’s home in which the victim stated she had informed Paschal of her age when they first met.
A child services caseworker’s testimony that she told Paschal she was assigned to the case because the victim was a minor.
The caseworker’s testimony that Paschal said he learned the victim was a minor shortly after meeting her, corroborated by contemporaneous notes.
Text messages between Paschal and the victim while she was hospitalized, showing Paschal’s understanding of her minor status, including references to “underaged girls,” guardianship, and the need for “mommy’s permission” for release.
The victim’s text stating she could not be discharged “without somebody over 18,” which directly communicated her minor status to Paschal.

Given this independent record, the court concluded beyond a reasonable doubt that any erroneously admitted testimony did not affect the verdict. Under Rule 52(a) and Johnson, reviewing courts must disregard harmless errors, including those of constitutional dimension per McClain and Neder.

B. Section 1591(c): No Presumption; A Standalone Route to Conviction

Paschal argued that the § 1591(c) instruction functioned as a mandatory presumption of knowledge of age, violating due process under Tot. The Second Circuit rejected this framing. The statute provides that “in a prosecution under [§ 1591(a)] in which the defendant had a reasonable opportunity to observe the [victim] … the Government need not prove” knowledge or reckless disregard of age. The court reaffirmed its prior holding in Robinson—and cited Concepcion—that § 1591(c) is not a presumption and does not shift the burden to the defendant; instead, it is a substantive alternative to the mens rea requirement as to age when the defendant had a “reasonable opportunity to observe” the victim.

Because Paschal did not raise the constitutional challenge in the district court, plain error review applied, and the panel found no error at all—much less a clear or obvious one. The instruction tracked the statutory text and settled Second Circuit interpretation.

III. Impact and Practical Implications

Although this is a summary order without precedential effect under the Second Circuit’s Local Rule 32.1.1, it offers several practical and doctrinal signals:

Harmless-Error Robustness in Confrontation Contexts: Even where there are colorable arguments about witness “unavailability” and the propriety of reading deposition or prior testimony to the jury, strong independent evidence can render any Confrontation Clause error harmless beyond a reasonable doubt. Prosecutors should build a record of age knowledge through multiple sources (victim testimony, caseworker testimony and notes, contemporaneous communications) to buttress harmlessness. Defense counsel should consider the strategic need to blunt the “overwhelming evidence” predicate for harmlessness by challenging each strand of proof in real time and preserving all objections.
Section 1591(c) Remains a Standalone Age Route: The panel reiterates the Second Circuit’s view that § 1591(c) does not create a presumption and does not shift burdens; it creates a conditional strict-liability pathway on the victim’s age upon proof of a “reasonable opportunity to observe.” Jury instructions tracking this structure remain on solid footing. Defense challenges that § 1591(c) is unconstitutional as a presumption will continue to face headwinds in this circuit, especially if unpreserved.
Preservation Matters: The court’s plain-error approach underscores the importance of raising constitutional challenges to jury instructions at trial. Failure to do so narrows appellate avenues and makes reversal unlikely unless the error is obvious, outcome-determinative, and undermines the fairness, integrity, or public reputation of judicial proceedings.
Unavailability Under Rule 15—Open Questions: The panel did not reach whether scheduling an overseas trip suffices to render a witness “unavailable” or whether a short adjournment or subpoena would negate unavailability. That question remains fact-intensive and unresolved here. Litigants should create robust factual records addressing diligent efforts to secure live testimony, the feasibility and burdens of delay, and the materiality of the witness’s presence.

Complex Concepts Simplified

Confrontation Clause: The Sixth Amendment guarantees a defendant’s right to confront (i.e., face and cross-examine) witnesses against him. If testimony is introduced without live confrontation, the Government must typically show (1) the witness is “unavailable” and (2) the defendant had a prior adequate opportunity to cross-examine. Even if a court errs, a conviction may still be affirmed if the error is harmless beyond a reasonable doubt.
Rule 15 Depositions: Federal Rule of Criminal Procedure 15 allows depositions to preserve testimony for trial when a witness’s testimony is material and the witness is unavailable to appear. “Unavailability” is a practical standard, focusing on whether the witness cannot be brought to court despite reasonable efforts. Courts scrutinize the Government’s diligence and alternatives (e.g., subpoenas, continuances) and the prejudice to the defendant.
Harmless Error (Rule 52(a)): Not all trial errors require reversal. Under Rule 52(a) and Neder, constitutional errors are harmless if the court concludes beyond a reasonable doubt that the verdict would have been the same absent the error. The more powerful the independent proof, the more likely harmlessness will be found.
Plain Error (Rule 52(b)): When a party fails to object at trial, appellate review is limited. The appellant must show (1) an error, (2) that is clear or obvious, (3) affecting substantial rights (usually meaning it affected the outcome), and (4) seriously affecting the fairness, integrity, or public reputation of judicial proceedings.
Mandatory Presumption vs. Alternative Element/Route: A mandatory presumption tells the jury it must infer an element from another fact, which can violate due process if the inference is not rational (see Tot). By contrast, an “alternative route” or “freestanding alternative” is statutory design that defines another way to satisfy an element. Section 1591(c) is the latter: if the defendant had a reasonable opportunity to observe the victim, the Government need not prove knowledge or reckless disregard of age. This is not a presumption or burden-shift; it is an alternative statutory pathway conditioned on a factual predicate.
“Reasonable Opportunity to Observe” (18 U.S.C. § 1591(c)): This phrase captures circumstances in which the defendant personally interacted with, saw, or otherwise had sufficient opportunity to assess the victim’s apparent age. When proven, it obviates the need to establish the defendant’s knowledge or reckless disregard regarding the victim’s minority status. The underlying trafficking acts still require proof of the other elements of § 1591(a); only the age-knowledge component is satisfied through this alternative.

Conclusion

In United States v. Paschal, the Second Circuit affirmed convictions for sex trafficking and related offenses, holding that any Confrontation/Rule 15 error was harmless and that the § 1591(c) instruction properly reflected binding circuit interpretation: § 1591(c) is not a mandatory presumption but a freestanding alternative to proving knowledge or reckless disregard of the victim’s age. Although a non-precedential summary order, the decision is instructive on two fronts:

Harmless error can be dispositive in Confrontation Clause challenges where the Government marshals multiple independent proofs of a defendant’s knowledge of a victim’s minority status.
Section 1591(c) remains firmly understood within the Second Circuit as a statutory mechanism that relieves the prosecution from proving age-knowledge when the defendant had a reasonable opportunity to observe the victim, consistent with Robinson and Concepcion.

Defense counsel should preserve constitutional objections to jury instructions to avoid plain-error constraints and should comprehensively challenge the factual foundation for “reasonable opportunity to observe.” Prosecutors should anticipate Confrontation and unavailability challenges by documenting diligent efforts to secure live testimony and by amassing redundant, corroborative evidence of age knowledge. Even as a summary order, Paschal signals the court’s continued commitment to the established reading of § 1591(c) and a pragmatic, evidence-driven application of harmless-error review in Confrontation contexts.