Tuesday, June 26, 2012

11th Circuit decides whether the "act of masturbating while sitting beside another person ... satisf[ies] the 'with another person' requirement of the statute."

It does not.  The Federal Public Defender's office deserves a hand for this win.

The facts of USA v. Randolph Scott:

In a one-count information, the government charged Scott with “knowingly
attempt[ing] to commit an unnatural and lascivious act with another person, that is,
masturbating while attempting to touch another person . . . .” Scott pleaded not
guilty and the parties consented to a bench trial before a magistrate judge. At trial,
the government called Lauren Wyscaver as its only witness. She testified that she
was sitting in a chair in the waiting room of Miami Veterans Affairs Hospital
when Scott approached her and asked if he could sit in the chair next to her. She
agreed, and the two began talking about their respective military service, why they
were at the hospital, and the weather. There were four or five other people in the
waiting room, which had approximately 20 chairs.

According to Wyscaver, within the first few minutes of their conversation,
Scott “tried to touch [her] ankle, but [she] pulled away.” Wyscaver became
uncomfortable and started to ignore Scott, but he continued talking to her. Scott

told Wyscaver that he thought she was pretty and offered to pay her to give him
her phone number. Wyscaver testified that Scott then, as “nonchalantly as you can
do it,” reached down into his pants and started masturbating. “Once he did that,”
she said, “I sat up and I walked into the nurse’s triage room because I was
frightened.” Wyscaver eventually reported Scott’s conduct to a security guard.
Based on that evidence, the magistrate judge concluded that Scott had
attempted to “masturbat[e] or fondl[e] himself with another person who is”
Wyscaver. For that reason, the magistrate judge ruled that Scott had violated the
Assimilative Crimes Act by attempting to commit an “unnatural and lascivious act
with another person” in violation of Fla. Stat. Ann. § 800.02. The magistrate
judge sentenced Scott to 68 days in prison, followed by one year of probation.
The district court affirmed his conviction and sentence, and Scott now appeals
only his conviction.

So what did the court decide:

The government argues that Scott was masturbating “with” Wyscaver
because “he was sexually attracted to her” and because he stared at her while
masturbating. But the “with another person” element of section 800.02 is not
satisfied simply because a defendant is sexually aroused or erotically inspired by
another person. If mere arousal or inspiration were enough, Conforti would have
come out the other way. Nor does the fact that a defendant stares at another

person while committing an act mean that the defendant committed that act with
another person.
Even viewing the evidence in the light most favorable to the verdict, there is
insufficient evidence to support the conclusion that Scott “knowingly attempt[ed]
to commit an unnatural and lascivious act with another person, that is,
masturbating while attempting to touch another person,” which is what the
information alleged. A reasonable factfinder could not have found that Scott was
masturbating “with another person” within the meaning of section 800.02.

Well, there you go -- staring at another person doesn't mean you committed an act with that person.

Putting aside all of the funny one-liners, can someone please explain to me why the feds brought this case in the first place, which is unlike the ICE chief, Anthony V. Mangione who is apparently set to plead guilty.



Brad Patrick said...

VA = federal property = federal jurisdiction.

Rumpole said...

After all this time I learn it's "unnatural"?????

Anonymous said...

Can't you read Marcus ? That's why it was in fed ct. Duh.

David Oscar Markus said...

Brad-- my point wasn't that the Feds lacked jurisdiction, but that they should exercise their discretion to not bring a case like this.

Anonymous said...

You'd think that spanking the monkey in the middle of the VA hospital would be against *some* crime and worthy of a few days in the federal clinker, even if not violative of that particular Florida statute.

Anonymous said...

Who the hail is Brad Patrick?

Anonymous said...

If your daughter was assaulted like that I am sure you would feel differently. They shouldn't overcharge though as they did here.

Anonymous said...


Got to give the hat tip to Caruso, et al., for pursuing and obtaining Fla Bar ethics opinion confirming that which everybody already knew - NOT ETHICAL for a prosecutor to offer a plea agreement containing a 2255 waiver.

Will be interesting to see if the office still attempts to forge ahead with them in light of this:

"The Committee concludes that a criminal defense lawyer has a personal conflict of interest when advising a client regarding waiving the right to later collateral proceedings regarding ineffective assistance of counsel. The lawyer has a personal interest in not having the lawyer’s own representation of the client determined to be ineffective under constitutional standards. This conflict is not one that the client should be asked to waive as noted in the comment to Rule 4-1.7, which states: “when a disinterested lawyer would conclude that the client should not agree to the representation under the circumstances, the lawyer involved cannot properly ask for such agreement or provide representation on the basis of the client's consent.” A disinterested lawyer would be unlikely to reach the conclusion that the criminal defense lawyer could give objective advice about that lawyer’s own performance.

Regarding the prosecutor’s conduct in offering the plea agreement, the committee agrees with those states that find that the conduct is impermissible as both prejudicial to the administration of justice and assisting the criminal defense lawyer in violating the Rules of Professional Conduct under Rule 4-8.4(d) and 4-8.4(a), Rules Regulating The Florida Bar. The Committee believes that the vast majority of prosecutors act in good faith and would not intentionally commit misconduct. However, some prosecutorial misconduct can occur unintentionally and, in the rare instance, even intentionally. Prosecutorial misconduct may be known only to the prosecutor in question, e.g., when the prosecutor has failed to disclose exculpatory information. The Committee’s opinion is that it is prejudicial to the administration of justice for a prosecutor to require the criminal defendant to waive claims of prosecutorial misconduct when the prosecutor is in the best position, and indeed may be the only person, to be aware that misconduct has taken place."