United States v. Carpenter

Citation Codes

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Docket Number

No. 10–30146.

Attorney(S)

Michael R. Levine and Matthew G. McHenry, Levine & McHenry LLC, Portland,OR, for appellant Terance Scott Carpenter. S. Amanda Marshall, Kelly A. Zusman and Stephen F. Peifer, Office of the United States Attorney, Portland, OR, for appellee United States of America.

Judges

Alex Kozinski
Richard C. Tallman
Sandra Segal Ikuta

Acts

Crimes And Criminal Procedure — Sexual Exploitation And Other Abuse Of Children — Crimes — Sexual Exploitation Of Children
Crimes And Criminal Procedure — Limitations — Criminal Procedure — Offenses Against Children
Crimes And Criminal Procedure — Limitations — Criminal Procedure — Offenses Not Capital
Crimes And Criminal Procedure — Sexual Abuse — Crimes — Sexual Abuse
Crimes And Criminal Procedure — Sexual Abuse — Crimes — Sexual Abuse Of A Minor Or Ward
Crimes And Criminal Procedure — Witnesses And Evidence — Criminal Procedure — Child Victims’ And Child Witnesses’ Rights

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Smart Summary

Factual and Procedural Background

Terance Carpenter was convicted on five counts related to child pornography. The appeal arises from his conviction, with the case having been tried before the United States District Court for the District of Oregon, presided over by Senior District Judge Robert E. Jones. The prosecution rested after presenting its case-in-chief, and during trial, an issue arose concerning Carpenter's potential self-representation. Additionally, Carpenter challenged the timeliness of the indictment on two counts, arguing they were barred by the statute of limitations.

Legal Issues Presented

Whether the district court erred in failing to hold a hearing on whether Carpenter made a knowing, voluntary, and intelligent request for self-representation under Faretta v. California.
Whether the district court erred in denying Carpenter's motion to dismiss the first two counts as barred by the statute of limitations, specifically whether the extended statute of limitations for sexual abuse of a child under 18 U.S.C. § 3283 applies to the charged offenses.

Arguments of the Parties

Appellant's Arguments

Carpenter contended that the district court should have held a hearing to determine if his request for self-representation was knowing, voluntary, and intelligent, citing Faretta v. California.
He argued that his purported request to represent himself was untimely and equivocal, but nevertheless should have triggered a hearing.
Regarding the statute of limitations, Carpenter asserted that the first two counts—producing child pornography and permitting a minor to engage in sexually explicit conduct—did not involve physical contact and thus did not qualify as "sexual abuse" under the extended statute of limitations in 18 U.S.C. § 3283. Instead, he claimed the general five-year statute of limitations in 18 U.S.C. § 3282 applied, which had expired before indictment.
He relied on the definitions in 18 U.S.C. §§ 2242 and 2243, which require a "sexual act," to argue that his charges fell outside the extended limitations period.

Appellee's Arguments

The government maintained that Carpenter's request for self-representation was untimely and not unequivocal, justifying the district court's refusal to hold a Faretta hearing.
They argued that the definition of "sexual abuse" for purposes of the extended statute of limitations is found in 18 U.S.C. § 3509(a), which includes the production of child pornography and does not require physical contact.
The government cited legislative history and precedent to support the application of the extended statute of limitations under § 3283 to Carpenter's charges.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Faretta v. California, 422 U.S. 806 (1975)	Right to self-representation requires a knowing, voluntary, and intelligent waiver of counsel.	Used to assess whether Carpenter made a valid request for self-representation requiring a hearing.
United States v. Maness, 566 F.3d 894 (9th Cir. 2009)	Criteria for invoking the right to self-representation: timely, unequivocal, voluntary, and intelligent.	Applied to determine Carpenter’s request was untimely and equivocal.
United States v. Bishop, 291 F.3d 1100 (9th Cir. 2002)	Timeliness of self-representation request measured by whether made before meaningful trial proceedings.	Supported the conclusion Carpenter’s request was untimely as it came after government rested.
United States v. Schaff, 948 F.2d 501 (9th Cir. 1991)	Failure to timely assert self-representation right constitutes waiver.	District court did not err in denying Carpenter’s untimely motion to proceed pro se.
Jackson v. Ylst, 921 F.2d 882 (9th Cir. 1990)	Supports waiver of self-representation right if not timely asserted.	Referenced in context of waiver due to untimeliness.
United States v. Arlt, 41 F.3d 516 (9th Cir. 1994)	Defendant must make an explicit choice to represent himself for request to be unequivocal.	Applied to conclude Carpenter’s request was not unequivocal.
Mugalli v. Ashcroft, 258 F.3d 52 (2d Cir. 2001)	Definition of “sexual abuse” under 18 U.S.C. § 3509(a) appropriate for determining aggravated felony status.	Used to support applying § 3509(a) definition of sexual abuse in statute of limitations context.
United States v. Coutentos, 651 F.3d 809 (8th Cir. 2011)	Producing child pornography constitutes “sexual abuse of a child” under § 3283’s extended statute of limitations.	Followed in holding the extended statute of limitations applies to Carpenter’s charges.

Court's Reasoning and Analysis

The court first addressed Carpenter's claim regarding his purported request for self-representation. It applied the established criteria that such a request must be timely, unequivocal, voluntary, and intelligent. Carpenter's request was deemed untimely because it occurred after the government had rested and meaningful trial proceedings had begun. Further, the court found the request equivocal as Carpenter himself never explicitly stated he wished to represent himself; only his counsel indicated this, seemingly reflecting frustration rather than a clear invocation of the right. Carpenter's subsequent conduct, including agreeing to have counsel conduct closing arguments, reinforced that no unequivocal request was made. Consequently, the district court did not err in denying the Faretta hearing.

Regarding the statute of limitations issue, the court examined the statutory definitions and legislative history. It rejected Carpenter's narrow reading of “sexual abuse” that required physical contact, noting that 18 U.S.C. § 3509(a) provides a broad definition encompassing the employment or inducement of a child to engage in sexually explicit conduct, which includes the offenses charged. The court emphasized that this definition aligns with congressional intent to extend the statute of limitations for sexual abuse crimes against children. The court also relied on persuasive authority from the Second and Eighth Circuits, which applied the § 3509(a) definition in analogous contexts and concluded that producing child pornography is sexual abuse under § 3283. Thus, the extended statute of limitations applied to Carpenter’s first two counts, and the district court properly denied the motion to dismiss.

Holding and Implications

AFFIRMED.

The court affirmed the district court’s rulings, holding that Carpenter did not timely or unequivocally invoke his right to self-representation, and therefore no Faretta hearing was required. Additionally, the court held that the extended statute of limitations under 18 U.S.C. § 3283 applies to the offenses charged, including producing child pornography, based on the statutory definition of sexual abuse in 18 U.S.C. § 3509(a). The direct effect is that Carpenter’s convictions stand, and the extended statute of limitations applies to the relevant counts. The opinion does not establish new precedent beyond affirming established interpretations and applying existing circuit precedent.

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UNITED STATES of America, Plaintiff–Appellee, v. Terance Scott CARPENTER, Defendant–Appellant.

PER CURIAM:

Michael R. Levine and Matthew G. McHenry, Levine & McHenry LLC, Portland, OR, for appellant Terance Scott Carpenter. S. Amanda Marshall, Kelly A. Zusman and Stephen F. Peifer, Office of the United States Attorney, Portland, OR, for appellee United States of America.
Appeal from the United States District Court for the District of Oregon, Robert E. Jones, Senior District Judge, Presiding. D.C. No. 3:08–cr–00049–JO–1.
Before: ALEX KOZINSKI, Chief Judge, RICHARD C. TALLMAN and SANDRA S. IKUTA, Circuit Judges.

OPINION

PER CURIAM:

Terance Carpenter was convicted of five counts relating to child pornography. He appeals on two grounds.

1. At Carpenter's trial, the prosecution rested its case-in-chief, and a discussion ensued among Carpenter, his lawyer and the trial judge about whether Carpenter would testify. Carpenter and his lawyer spoke privately, then returned to the courtroom. The judge asked for Carpenter's decision about testifying, to which Carpenter's lawyer replied: “Your Honor, Mr. Carpenter tells me he wants to represent himself.” Carpenter argues the district court erred in not holding a hearing on whether Carpenter made a knowing, voluntary and intelligent request for self-representation under Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).

To invoke his right to self-representation, a criminal defendant must assert that right in a manner that's “timely, not for purposes of delay, unequivocal, voluntary, [and] intelligent.” United States v. Maness, 566 F.3d 894, 896 (9th Cir.2009). Carpenter's request, to the extent his counsel's statement indicated a request, was both untimely and equivocal.

“A demand for self-representation is timely if made before meaningful trial proceedings have begun.” United States v. Bishop, 291 F.3d 1100, 1114 (9th Cir.2002). A defendant's “failure to make a timely assertion of his constitutional right to self representation act[s] as a waiver of this right.” United States v. Schaff, 948 F.2d 501, 503 (9th Cir.1991); see also Jackson v. Ylst, 921 F.2d 882, 888 (9th Cir.1990). Here, the first mention that Carpenter had told counsel he wanted to represent himself came at the end of the second day of trial, after the government had presented six witnesses and rested its case-in-chief. Therefore, as in Schaff, “[t]he district court did not err in denying [Carpenter's] untimely motion to proceed in pro se.” Schaff, 948 F.2d at 503.

Moreover, Carpenter failed to make an unequivocal request. To qualify as unequivocal, “[a] defendant must make an explicit choice between exercising the right to counsel and the right to self-representation so that a court may be reasonably certain that the defendant wishes to represent himself.” United States v. Arlt, 41 F.3d 516, 519 (9th Cir.1994). Carpenter himself never stated that he wished to represent himself—only his counsel suggested that. And, in context, even his counsel appeared to be indicating merely Carpenter's frustration with him on the issue of who would testify for the defense. Regardless, Carpenter then engaged in direct dialogue with the trial judge about potential witnesses, yet never mentioned a desire to represent himself. And, the next morning, when the judge directly asked Carpenter whether he was “prepared to have [counsel] do the closing argument,” Carpenter said: “Well, yes.” In these circumstances, the district court could not have been “reasonably certain that the defendant wishe[d] to represent himself,” id., meaning that Carpenter failed to make an unequivocal request for self-representation.

2. Carpenter also argues the district court erred in denying his motion to dismiss as barred by the statute of limitations the first two counts against him. Those counts charged Carpenter with producing child pornography in violation of 18 U.S.C. § 2251(a) and permitting a minor child to engage in sexually explicit conduct in violation of 18 U.S.C. § 2251(b). Carpenter argues that, because these charges didn't involve any physical contact between him and the child, they don't fall under the extended statute of limitations for offenses involving the sexual abuse of a child found in 18 U.S.C. § 3283 and instead are subject to 18 U.S.C. § 3282's general five-year statute of limitations for non-capital offenses, which elapsed before Carpenter was indicted. He points to 18 U.S.C. § 2242, which is titled “Sexual Abuse” and requires “a sexual act,” and 18 U.S.C. § 2243, which is titled “Sexual Abuse of a Minor or Ward” and has the same requirement.

But neither of those statutes claims to define “sexual abuse.” Title 18's only definition of that term is in 18 U.S.C. § 3509(a) and states: “For purposes of this section ... the term ‘sexual abuse’ includes the employment, use, persuasion, inducement, enticement, or coercion of a child to engage in, or assist another person to engage in, sexually explicit conduct or the rape, molestation, prostitution, or other form of sexual exploitation of children, or incest with children.” That language easily encompasses what Carpenter's first two counts charged him with, and we find the definition the appropriate one to use for purposes of section 3283's extended statute of limitations.

As both parties acknowledge, subsection 3509(a) was part of the same statutory section as the first extended statute of limitations for offenses involving sexual abuse of children. Congress then re-codified the sections as part of an effort to consolidate various statutes of limitations in a single chapter, so it makes little sense to detach the statutory definition in a way that would have the opposite effect of Congress's consistent efforts to extend the statute of limitations for crimes of sexual abuse against children.

Two other circuits have looked to subsection 3509(a)'s definition in similar contexts. Mugalli v. Ashcroft, 258 F.3d 52 (2d Cir.2001), addressed the meaning of “sexual abuse of a minor” in order to determine whether Mugalli's crime qualified as an aggravated felony for purposes of immigration law. The Second Circuit found “the § 3509(a) definition ... appropriate” in defining “sexual abuse,” both because it's the definition offered in Title 18 and because it accords with common usage. Id. at 58–59.

In United States v. Coutentos, 651 F.3d 809 (8th Cir.2011), the Eighth Circuit found that producing child pornography involves “sexual abuse of a child” as used in section 3283's extended statute of limitations. The court applied subsection 3509(a)'s definition of “sexual abuse” in reaching that conclusion: “[T]he offense of producing child pornography involves the ‘sexual abuse’ of a child as that term is defined in § 3283. Accordingly, we conclude that § 3283 is the governing limitations period for the production charge.” Id. at 816–17. Just like the crimes charged in Carpenter's first and second counts, producing child pornography need not involve physical contact with the victim.

Carpenter concedes that Mugalli and especially Coutentos cut squarely against him. We join our sister circuits in looking to subsection 3509(a) for a definition of “sexual abuse” under federal law, and find it the appropriate definition to use in applying section 3283's extended statute of limitations.

AFFIRMED.
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