                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        MAR 1 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    16-30177

                Plaintiff-Appellee,             D.C. No. 14-CR-00161-WFN

 v.
                                                MEMORANDUM*
CRAIG ALLEN MORGENSTERN,

                Defendant-Appellant.

                 Appeal from the United States District Court
                    for the Eastern District of Washington
             Wm. Fremming Nielsen, Senior District Judge, Presiding

                           Submitted February 5, 2018**
                              Seattle, Washington

Before: GOULD and PAEZ, Circuit Judges, and MCSHANE,*** District Judge.

      Appellant Craig Allen Morgenstern raises several challenges to his

convictions for Aggravated Sexual Assault, Production of Child Pornography, and



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2)(C).
      ***
              The Honorable Michael J. McShane, United States District Judge for
the District of Oregon, sitting by designation.
Transportation with Intent to Engage in Sexual Contact with a Child. We have

jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742. We affirm.

      Morgenstern’s first assignment of error is that there was insufficient

evidence to support his convictions for Aggravated Sexual Abuse of a Child. “In

reviewing a challenge to the sufficiency of the evidence to support a verdict in a

criminal case, we ask ‘whether, after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.’” United States v.

Lukashov, 694 F.3d 1107, 1118 (9th Cir. 2012) (quoting Jackson v. Virginia, 443

U.S. 307, 319 (1979)).

      A violation of 18 U.S.C. §2241(c), Aggravated Sexual Abuse of a Child,

occurs when a person engages in a “sexual act” with a person under the age of 16.

“Sexual act” is defined as contact between the mouth and penis, or “the intentional

touching, not through the clothing, of the genitalia of another person who has not

attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or

arouse or gratify the sexual desire of any person.” 18 U.S.C. §§ 2246(2)(B), (D).

      The overwhelming evidence of “sexual acts” presented at trial was sufficient

evidence for a trier of fact to find beyond a reasonable doubt that Morgenstern

committed Aggravated Sexual Abuse of a Child. See Lukashov, 694 F.3d at 1118–

19. The jury was properly instructed as to the definition of “sexual acts” and any


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argument that they may have confused that definition with the standard for

“sexually explicit conduct” required for conviction of the Production of Child

Pornography counts is not supported by the record.

      Morgenstern’s second assignment of error is that there was insufficient

evidence of sedation to support his convictions for Aggravated Sexual Assault. In

addition to expert testimony, evidence presented at trial showed that the victims

appeared to be asleep during the abuse. Person A was not aware the abuse

occurred until investigators showed him pictures of Morgenstern abusing him.

There was evidence that Morgenstern placed sedatives in the hot chocolate he gave

some of the victims. Morgenstern provided some boys with pills and liquor at a

hotel room. Images showed three seemingly unconscious boys being abused in the

same hotel room. A rational jury could have concluded beyond a reasonable doubt

that the victims in each relevant count were sedated.

      Morgenstern’s third assignment of error is that there was insufficient

evidence to prove venue in the Eastern District of Washington for the eight counts

of Aggravated Sexual Assault. The district court’s venue determination is

reviewed de novo. See United States v. Gonzalez, 683 F.3d 1221, 1224 (9th Cir.

2012). The government must establish proper venue by a preponderance of the

evidence. See id.




                                         3
        Aggravated Sexual Abuse of a Child is a continuing offense. See Lukashov,

694 F.3d at 1121. “[V]enue for a continuing offense is proper if an ‘essential

conduct element’ of the offense begins in, continues into, or is completed in the

charging district.” Id. at 1120–21 (quoting 18 U.S.C. § 3237(a) and United States

v. Rodriguez-Moreno, 526 U.S. 275, 280 (1999)). The essential conduct elements

of aggravated sexual abuse are: “(1) crossing a state line, (2) with intent to engage

in a sexual act with a child, and (3) engaging in or attempting to engage in a sexual

act with a child.” Id. at 1121.

        A rational jury could reasonably infer that Morgenstern travelled from

Washington to Mississippi—bringing cameras, tripods, and video games he did not

play—with a motivating purpose of sexually abusing Person A. Morgenstern’s

argument that he travelled to Mississippi for work “ignores the human ability and

propensity to act in light of multiple motives and purposes.” Id. at 1118.

Similarly, a rational jury could conclude Morgenstern travelled to an amusement

park in Idaho with a motivating purpose of abusing the three brothers in a hotel

room.

        Morgenstern’s fourth assignment of error is that the trial court erred by

failing to exclude the victims’ parents from the courtroom during the trial. As

crime victims, however, the parents had “[t]he right not to be excluded from any

such public court proceeding, unless the court, after receiving clear and convincing


                                           4
evidence, determines that testimony by the victim would be materially altered if

the victim heard other testimony at that proceeding.” 18 U.S.C. § 3771(a)(3); In re

Mikhel, 453 F.3d 1137, 1139 (9th Cir. 2006) (per curiam).

      The parents’ testimony at trial consisted of establishing the ages of their

children and describing each family’s general relationship with Morgenstern.

Neither parent testified to witnessing any abuse. The government’s case rested

largely on photographic and video evidence taken from Morgenstern’s hard drives.

Considering the evidence against Morgenstern and each parent’s actual testimony,

there is no evidence either parent materially altered testimony by remaining in the

courtroom during the trial.

      Finally, Morgenstern argues that a sleeping juror and inadequate

deliberations deprived him of a fair trial. We review for abuse of discretion the

district court’s denial of a motion for a new trial due to juror misconduct. United

States v. Murphy, 483 F.3d 639, 642 (9th Cir. 2007).

      The jury was presented with an overwhelming amount of digital evidence

that depicted Morgenstern performing sexual acts on the victims. No defense was

presented at trial. Morgenstern was not denied a fair trial based on the length of

the jurors’ deliberations.

      At a hearing on Morgenstern’s motion for a new trial, the trial judge

concluded there was no evidence a specific juror fell asleep and, even if he did, it


                                          5
was for a brief moment. We agree with the district court that under the

circumstances, Morgenstern was not deprived of a fair trial. “[T]he presence of a

sleeping juror during trial does not, per se, deprive a defendant of a fair trial.”

United States v. Olano, 62 F.3d 1180, 1189 (9th Cir. 1995) (Olano II). Rather, a

defendant asserting that a sleeping or absent juror deprived him of a fair trial must

demonstrate actual prejudice. See id. at 1189–90 (discussing United States v.

Springfield, 829 F.2d 860 (9th Cir. 1987), abrogated on other grounds by United

States v. Benally, 843 F.3d 350, 353–54 (9th Cir. 2016)).

      Considering the overwhelming evidence of Morgenstern’s guilt, and the fact

that the evidence presented while the juror was allegedly sleeping was not helpful

to Morgenstern’s defense, Morgenstern cannot demonstrate prejudice.1 See

Springfield, 829 F.2d at 864.

      AFFIRMED.




1
  While the juror was allegedly sleeping, the prosecution’s expert anesthesiologist
testified about sedative effects of drugs like benzodiazepine.

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