Summary
affirming conviction under 18 U.S.C. § 2244(b) based on defendant touching victim's groin and inner thigh
Summary of this case from United States v. ErramilliOpinion
No. 07-5561-cr.
December 8, 2008.
Appeal from the United States District Court for the Eastern District of New York (David G. Trager, Judge; Joan M. Azrack, Magistrate Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be, and it hereby is, AFFIRMED.
Appearing for Appellant: Alan Lewis, Carter Ledyard Milburn LLP (Laura Reeds, of counsel), New York, NY.
Appearing for Appellee: Shannon C. Jones, Assistant United States Attorney (Benton J. Campbell, United States Attorney, Eastern District of New York, Emily Berger, Assistant United States Attorney, of counsel), Brooklyn, NY.
PRESENT: HON. CHESTER J. STRAUB, HON. ROBERT D. SACK, HON. RICHARD C. WESLEY, Circuit Judges.
Defendant Yochanan Cohen appeals from the December 4, 2007, Judgment of Conviction of the United States District Court for the Eastern District of New York, affirming his conviction of a single count of misdemeanor Abusive Sexual Contact under 18 U.S.C. § 2244(b) after a trial before a magistrate judge. The conviction arose from an incident on a JetBlue overnight flight from Salt Lake City, Utah to New York City on April 9-10, 2004. During that flight, Cohen was seated next to a woman who was a stranger to him, whom he admits to having touched during the course of the flight. We assume the parties' familiarity with the underlying facts and procedural history of the case.
18 U.S.C. § 2244(b) states: "Whoever, in the special maritime and territorial jurisdiction of the United States . . . knowingly engages in sexual contact with another person without that other person's permission shall be fined under this title, imprisoned not more than two years, or both." "Sexual contact" is defined as "the intentional touching, either directly or through the clothing, of the genitalia, anus, groin, breast, inner thigh, or buttock of any person with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person." 18 U.S.C. § 2246(3). These provisions apply to any individual on an aircraft in the special aircraft jurisdiction of the United States. See 49 U.S.C. § 46506(1). It is beyond dispute that this statute covers the facts as alleged by the government.
Cohen challenges the sufficiency of the evidence to establish two elements of the offense: 1) that he touched any part of the woman's body that is listed in the statute, and 2) that he had knowledge that he lacked the woman's permission to do so. Cohen also argues that the term "inner thigh" is unconstitutionally vague.
"We review de novo a challenge to the sufficiency of the evidence and affirm if the evidence, when viewed in its totality and in the light most favorable to the government, would permit any rational jury to find the essential elements of the crime beyond a reasonable doubt."United States v. Yannotti, 541 F.3d 112, 120 (2d Cir. 2008) (internal quotation marks omitted).
The evidence adduced at trial was clearly sufficient for a rational trier of fact to find beyond a reasonable doubt that Cohen touched the groin and inner thigh of the woman sitting next to him, as Magistrate Judge Azrack found. See Transcript of Bench Trial, August 8, 2005 ("Aug. 8 Tr.") at 47. The woman testified that she awoke from a nap to find Cohen's hand "on [her] upper thigh," "about one inch from [her] groin area, toward the inner thigh," and that his hand was "slowly moving . . . towards [her] groin area forward toward [her] crotch." Transcript of Bench Trial, August 4, 2005 ("Aug. 4 Tr.") at 57. The woman described Cohen's hand as stopping "[a]t [her] groin area" and "at the line of [her] panties."Id. at 101-02. She testified that "when [Cohen] reached the elastic on [her] panties he was trying to move his fingers underneath the elastic." Id. at 57. Cohen also testified that he touched the woman's thigh (he stated that he did not know what was meant by the term "inner thigh") and her underwear. See id. at 157-58. We conclude that, based on this and related testimony, a rational trier of fact could find beyond a reasonable doubt that Cohen touched the woman's groin and inner thigh.
We accept, for purposes of this appeal, that the misdemeanor of Abusive Sexual Contact is a specific intent offense. The issue is therefore whether Cohen reasonably believed that he had the permission of the woman sitting next to him to touch her in the way that he did.
The woman testified that as she was trying to fall asleep, she felt Cohen's hand fall onto her leg, just above her knee, in what seemed to her to be an inadvertent manner. See id. at 55-56. Cohen testified that at this point, his hand was palm up. See id. at 164. The woman testified that she did not want to embarrass Cohen by removing his hand, so she left it there and fell asleep. She awoke later to find Cohen's hand under her skirt, about one inch from her groin. See id. at 56-57. Cohen testified that he believed that the woman was only pretending to be asleep. See id. at 154. He described touching her in increasingly intimate ways without response from her. See id. at 152-55. The magistrate judge found that "the defendant knew he did not have [her] consent." Aug. 8 Tr. at 47.
We conclude that the evidence was sufficient to warrant the magistrate judge's finding beyond a reasonable doubt. Cohen asserts that he believed "there was a touching game," Aug. 4 Tr. at 154, and that he felt "body communication," id. at 174. Yet his own version of events was that the woman sitting next to him — a total stranger — appeared to be asleep (whether or not she was sleeping or pretending to sleep) and was totally unresponsive to his touching. We think that the district court could reasonably find that no reasonable person would infer under those circumstances that he had the permission of the stranger beside him to move his hand up her thigh to her groin. The district court therefore had sufficient evidence upon which to conclude beyond a reasonable doubt, as it did, that Cohen did not think that he had the permission of the woman sitting next to him to engage in sexual contact.
Because we conclude, as did the district court judge and the magistrate judge, that Cohen touched the woman's groin as well as her inner thigh, we need not reach the issue of whether or not the term "inner thigh" is unconstitutionally vague.
For the foregoing reasons, the judgment of the District Court is hereby AFFIRMED.