FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

MICHAEL JOSEPH PEPE, 

Defendant-Appellant.

No. 22-50024 

D.C. No. 

2:07-cr-00168-

DSF-1 

OPINION

Appeal from the United States District Court

for the Central District of California

Dale S. Fischer, District Judge, Presiding

Argued and Submitted June 27, 2023

Pasadena, California

Filed August 28, 2023

Before: N. Randy Smith, Kenneth K. Lee, and Lawrence 

VanDyke, Circuit Judges.

Opinion by Judge VanDyke
2 USA V. PEPE

SUMMARY*

Criminal Law

The panel affirmed Michael Pepe’s jury conviction on 

two counts of violating 18 U.S.C. § 2423(b) by traveling in 

foreign commerce with the purpose of committing illicit 

sexual acts and two counts of violating 18 U.S.C. § 2241(c) 

by crossing a state line to sexually abuse a child under 12 

and then so doing. 

Pepe contended that no rational finder of fact could have 

found beyond a reasonable doubt that he violated §§ 2423(b) 

and 2241(c). He argued that the Supreme Court in 

Mortensen v. United States, 322 U.S. 369 (1944), ruled 

categorically that a jury cannot rationally find that a 

defendant who leaves his home for an innocent purpose on a 

round trip returns for a criminal purpose. Declining Pepe’s 

invitation to expand Mortensen beyond its rationale and 

facts, the panel wrote that Mortensen does not remove from 

the jury’s province its ability to rationally find that a person 

embarked on a trip with an innocent purpose but returned 

home with a motivating purpose of illicit conduct. The panel 

held that a jury could rationally find that the sexual abuse of 

children was one of Pepe’s primary motivations for returning 

from the United States to Cambodia, which is sufficient to 

uphold his convictions under § 2423(b) (Counts 1 and 

2). Noting that § 2241(c) (Counts 3 and 4) requires the jury 

to find a slightly more specific motivating purpose, the panel 

held that a rational trier of fact could have found that Pepe’s 

* This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
USA V. PEPE 3 

charged victims were, in fact, under 12, and that Pepe 

crossed state lines with a motivating purpose of sexually 

abusing girls under 12. 

Because Mortensen does not preclude the government’s 

theory of the case, and Ninth Circuit precedent clearly 

establishes that a defendant can have mixed motives for 

traveling, the panel held that the district court did not err in 

declining to instruct the jury on Pepe’s innocent round trip 

theory of defense. 

The panel also held that the district court did not err in 

its instructions to the jury on the requisite mens rea. The 

panel wrote that Congress’s 2018 amendment of § 2423(b) 

is not clearly irreconcilable with this court’s precedent 

upholding a “motivating purpose” as sufficient for 

conviction, the district court did not abuse its discretion in 

declining Pepe’s request to add a requirement that the 

government prove that the criminal sexual activity was “not 

merely incidental,” and the district court properly declined 

to instruct the jury that the improper conduct must be a butfor cause of the travel.

COUNSEL

James H. Locklin (argued), Deputy Federal Public Defender; 

Cuauhtemoc Ortega, Federal Public Defender; Federal 

Public Defender’s Office, Los Angeles, California; for 

Defendant-Appellant. 

Elana Shavit Artson (argued), Stephanie S. Christensen, and 

Damaris Diaz, Assistant United States Attorneys; Bram M. 

Alden, Assistant United States Attorney, Criminal Appeals 
4 USA V. PEPE

Section Chief; E. Martin Estrada, United States Attorney; 

United States Attorney’s Office, Los Angeles, California; 

for Plaintiff-Appellee.

OPINION

VANDYKE, Circuit Judge:

Michael Pepe moved from the United States to 

Cambodia in the spring of 2003. Between June 2005 and 

June 2006, he sexually abused young girls, eight of whom 

eventually testified against him at trial. The government 

presented evidence at trial from which a jury could infer that 

one of Pepe’s primary activities in Cambodia was molesting 

children. A jury convicted Pepe of two counts of violating 

18 U.S.C. § 2423(b) by traveling in foreign commerce with 

the purpose of committing illicit sexual acts and two counts 

of violating 18 U.S.C. § 2241(c) by crossing a state line with 

intent to sexually abuse a child under 12 and then so doing. 

Pepe appeals the sufficiency of the evidence for each of these 

convictions, as well as the district court’s instructions to the 

jury. Because the evidence was sufficient for the jury to 

rationally find beyond a reasonable doubt that Pepe was 

guilty on all counts and the district court did not err or abuse 

its discretion in instructing the jury, we affirm.
USA V. PEPE 5

BACKGROUND

I. Factual Background1

Pepe is a citizen of the United States. In March 2003, 

when he was nearly fifty, Pepe moved to Phnom Penh, 

Cambodia. Pepe told his sister that Cambodia “was a very 

dysfunctional country” and that “it was like the wild, wild 

west there; ... there weren’t any rules.” “He was not very 

complimentary about [the Cambodian people]. He thought 

that they were a lower class of citizen, that all the police were 

corrupt, and that all the ordinary people were peasants who 

lived in huts with dirt floors.”

Sometime after Pepe arrived in Cambodia but before 

May 2004, Pepe hired a woman known as Basang as a 

prostitute.2 Basang later procured children for Pepe to 

sexually abuse and taught at least some of the children how 

to behave when being abused by Pepe. Soon after his May 

2005 travel, Pepe received a letter from a pen pal called 

“Mack,” thanking Pepe for loaning Mack money. Pepe 

would later thank Mack for sending Pepe an “email with 

pictures,” an email that “help[ed Pepe] make up [his] mind 

to continue to stay ... longer.”

1 Because Pepe appeals the sufficiency of the evidence after his 

conviction by a jury, we consider the facts in the light most favorable to 

the government. See Jackson v. Virginia, 443 U.S. 307, 318–19 (1979);

United States v. Nevils, 598 F.3d 1158, 1164 (9th Cir. 2010) (en banc).

2 Although the date of their first meeting is unclear, Basang knew, at the 

time of her deposition, about Pepe’s living arrangements prior to his May 

2004 move. A jury could rationally infer from her knowledge of his preMay 2004 living arrangements and the fact that Pepe hired her as a 

prostitute that Basang had visited Pepe’s house before his move in May 

2004.
6 USA V. PEPE

On May 26, 2005, Pepe returned to his Cambodian 

residence from a trip to the United States. Two weeks later, 

Basang brought N.P., a young Cambodian girl, to Pepe’s 

house where Pepe raped her and, over the span of at least 13 

days, took 67 photos of her, including nude photos.3 N.P. 

was the first of eight girls whom Pepe sexually abused and 

who ultimately testified at his trial.

On or before August 6, 2005, Basang brought K.S. to 

Pepe’s house. Photos were taken of K.S. at Pepe’s house 

with Pepe’s camera on August 6, 2005. Pepe admitted to 

taking nude photos of two of Basang’s “nieces” and 

acknowledges in his briefing that K.S. was one of Basang’s 

nieces. K.S. testified that she stayed in Pepe’s house for 

“several months.” Pepe raped K.S., leading her to be 

hospitalized for a week.

On September 3, 2005, Pepe returned to Cambodia from 

a trip to the United States. In late October or early 

November, Basang brought L.K. to Pepe’s house, where she 

remained for “[a]bout eight months” until the Cambodian 

police searched the home in June 2006. Pepe took photos of 

L.K. and, between November 2005 and June 2006, his 

camera captured 493 photos of L.K. Pepe persisted in 

“raping [L.K.] the entire time that [she] lived at his house.” 

L.K. testified that Pepe raped her once a week, “sometime[s] 

every day or once every two weeks.”

Pepe’s photos of S.R., yet another girl, date from as early 

as November 26, 2005, although, as is true for perhaps all of 

the girls, the evidence does not precisely establish the date 

3 The jury found, and Pepe does not dispute for purposes of this appeal, 

that he sexually abused the young girls. The details of Pepe’s abuse are 

disturbing, and are discussed in this opinion only as necessary.
USA V. PEPE 7

when S.R. arrived at Pepe’s house. S.R. testified that Pepe 

sexually abused her every night he was home during her time 

at his house. Pepe took photos of S.R. and the government 

found at least 315 photos of her taken from his camera. 

S.R.’s sister, S.S., arrived at Pepe’s house by, at latest, 

December 4, 2005, the date of the first photo of her on Pepe’s 

camera. The government recovered 278 photos of S.S. from 

Pepe’s camera. S.S. testified that Pepe sexually abused her

“frequently.” Meanwhile, Basang taught S.S. to perform 

sexual acts with Pepe. Photos of S.S. and S.R. were taken at 

Pepe’s house as late as June 11, 2006. 

T.C. spent nearly a month at Pepe’s house, and although 

the dates of her arrival and departure are unclear, photos of 

T.C. taken at Pepe’s house span from February 14, 2006, to 

February 28, 2006. While T.C. was at his house, Pepe raped 

her four times. 

N.T.D. arrived at Pepe’s house during the Vietnamese 

lunar new year. N.T.D. testified that Pepe raped N.T.D. “[a]t 

least one time a day” during her time at Pepe’s house, which 

was “[a]bout a week.” She also testified that Pepe brought 

in another girl—unidentified here—and sexually abused her. 

At least a dozen photos of N.T.D. were taken at Pepe’s house 

on April 17, 2006.

I.T. could not recall when Basang brought her to Pepe’s 

house, but photos of I.T. were taken with Pepe’s camera

between April 21, 2006, and May 20, 2006. Pepe raped I.T. 

multiple times. Basang eventually took I.T. back home. 

When she returned home, I.T. told her grandmother about 

pain she was suffering and I.T. later led “the police to 

[Pepe’s] house.”

The Cambodian police, along with a United States agent 

observer, arrested Pepe in June 2006. When searching 
8 USA V. PEPE

Pepe’s home, the police found condoms, drugs, KY jelly, 

baby oil, rope, and “strips of cloth that were tied together.” 

The drugs included Viagra and drugs that, according to an 

expert, could be used to sedate a child. The police also found 

a bedroom close to Pepe’s bedroom that had stuffed animals, 

children’s bedding, and children’s clothes. In the space 

between the children’s room and Pepe’s room, there was a 

massage table and photos of Pepe’s victims. The police 

found digital storage devices that contained more than a 

thousand photos, including the photos of the victims 

discussed above. Among other items, the police also found 

cuttings of newspaper articles discussing pedophiles in 

Cambodia. Soon after the police searched Pepe’s house and 

arrested him, Dr. Laura Watson, who at that time “work[ed] 

at an International Clinic in Phnom Penh, Cambodia,”

examined some of Pepe’s victims on June 20, 2006. She

then reexamined those same victims, as well as several 

additional victims she hadn’t examined before, a year later 

in June 2007.

II. Procedural Background

Pepe was initially tried and convicted of violating 18 

U.S.C. § 2423(c). That conviction was vacated on appeal. 

See United States v. Pepe, 895 F.3d 679, 682 (9th Cir. 2018). 

On remand, a grand jury charged Pepe with two counts of 

violating § 2423(b) and two counts of violating § 2241(c). 

Counts 1 and 2, arising under § 2423(b), charged Pepe with 

knowingly traveling in foreign commerce “for the purpose 

of engaging in illicit sexual conduct.” The two counts 

differed from each other only in the dates of the charged 

travel: Count 1 related to travel in May 2005, and Count 2 

related to travel in September 2005.
USA V. PEPE 9

Counts 3 and 4 charged Pepe with violating § 2241(c). 

Count 3 charged Pepe with knowingly crossing a state line 

in May 2005 “with the intent to engage in a sexual act ... 

with a person who had not attained the age of 12 years, and 

engag[ing] in a sexual act ... with K.S., who had not attained 

the age of 12 years” when Pepe “engaged in a sexual act with 

her.” Count 4 differed only in the time of the travel (August–

September 2005) and the victims, which were S.S., S.R., and 

I.T., “each of whom had not attained the age of 12 years at 

the time that defendant [Pepe] engaged in a sexual act with 

that person.”4

At the end of the trial, over Pepe’s objections to the 

instructions’ phrasing, the court instructed the jury regarding 

the two statutes’ mens rea requirements. Pepe also requested

that the court instruct the jury on his theory of defense—

namely, that he could not have a criminal intent in returning 

to Cambodia if his return trip was part of a round trip journey 

with an “innocent” beginning (i.e., the outgoing leg of the 

trip was taken for a purpose unrelated to his illicit sexual 

activity). The court declined to give that instruction and the 

court later, after the jury returned its guilty verdict, denied 

Pepe’s post-trial motion for acquittal. Pepe now appeals the 

district court’s order denying his motion for acquittal, the 

district court’s jury instructions, and the jury verdict.

DISCUSSION

Pepe contends that there was insufficient evidence for his 

convictions under 18 U.S.C. §§ 2423(b) and 2241(c) on the 

theory that no rational factfinder could have found beyond a 

4 The government’s theory, as stated in the indictment, was that Pepe 

“knowingly crossed a California state line while traveling from New 

Mexico to Cambodia through Los Angeles, California.”
10 USA V. PEPE

reasonable doubt that he traveled to Cambodia with the 

intent to sexually abuse children. Although Pepe supplies 

reasons that a factfinder could have found in his favor, he 

falls short of showing that no reasonable factfinder could 

have found he had the requisite intent. Pepe also contends 

that the district court erred in instructing the jury but fails to 

show any error or abuse of discretion. We affirm Pepe’s 

conviction and the district court’s order denying acquittal.

I. A Rational Trier of Fact Could Have Found Beyond 

a Reasonable Doubt that Pepe Committed the 

Charged Crimes.

Pepe challenges the sufficiency of the evidence, “which 

requires a court of appeals to determine 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. Nevils, 598 F.3d 1158, 1163–64 (9th Cir. 

2010) (en banc) (quoting Jackson v. Virginia, 443 U.S. 307, 

319 (1979)). The “reviewing court may not ask whether a 

finder of fact could have construed the evidence produced at 

trial to support acquittal.” Id. at 1164. 

A person violates § 2423(b), as it was written at the time 

of Pepe’s conduct, when that person “travels in foreign 

commerce[] for the purpose of engaging in any illicit sexual 

conduct with another person.” 18 U.S.C. § 2423(b) 

(effective April 30, 2003). According to Ninth Circuit 

precedent, a person violates § 2241(c), as it was written at 

the time of Pepe’s conduct, when that person “crosses a State 

line with intent to engage in a sexual act with a person who 

has not attained the age of 12 years” and “knowingly 

engages in a sexual act with another person who has not 

attained the age of 12 years.” 18 U.S.C. § 2241(c) (effective 
USA V. PEPE 11

October 30, 1998); see United States v. Lukashov, 694 F.3d 

1107, 1121 (9th Cir. 2012) (construing these two clauses as 

elements of a conviction instead of independent means of 

violating the statute).

For both statutes, the government must prove that the 

improper purpose was a “dominant, significant, or 

motivating purpose” of the defendant’s travel. Lukashov, 

694 F.3d at 1118–19 (discussing § 2241(c)); United States v. 

Lindsay, 931 F.3d 852, 864 (9th Cir. 2019) (discussing 

§ 2423(b)); see also United States v. Flucas, 22 F.4th 1149, 

1156–57 (9th Cir.) (noting that although the court in Lindsay 

reviewed the district court for plain error, the court “found 

none”), cert. denied, 143 S. Ct. 320 (2022). The government 

need not prove that the improper purpose was a “but-for” 

cause of the travel. See Lindsay, 931 F.3d at 864. Instead, 

the improper purpose can be one of several reasons that the 

defendant traveled. See id. (noting the “human ability and 

propensity to act in light of multiple motives and purposes” 

(quoting Lukashov, 694 F.3d at 1118)).

Pepe contends that no rational finder of fact could have 

found beyond a reasonable doubt that he violated 18 U.S.C. 

§§ 2423(b) and 2241(c). He first argues that the Supreme 

Court in Mortensen v. United States ruled categorically that

a jury cannot rationally find that a defendant who leaves his 

home for an innocent purpose on a round trip returns for a 

criminal purpose. 322 U.S. 369 (1944). He then proceeds 

to argue that, even if Mortensen did not reach so far, no 

rational factfinder could have found in this case that he 

traveled back to Cambodia with the purpose of engaging in 

illicit sexual acts, that he traveled back to Cambodia with the 

purpose of sexually abusing children under 12, or that his 

victims were, in fact, under 12. Pepe’s arguments fail. He
12 USA V. PEPE

overreads Mortensen, and the evidence is sufficient to 

sustain each of Pepe’s convictions.

A. Mortensen v. United States Does Not Disturb the 

Ordinary Rule of Deferring to the Jury’s 

Rational Findings. 

Pepe’s first and central argument is that the Supreme 

Court’s decision in Mortensen v. United States holds that a 

rational jury cannot find that a defendant who leaves his 

residence on a round trip for an innocent purpose returns for 

a criminal purpose. 322 U.S. at 369. Given that categorical 

reading of Mortensen, Pepe thus contends that the jury here 

could not rationally find him guilty because there is no 

dispute that Pepe’s two trips to the United States were for 

innocent purposes. But the Court in Mortensen did not 

purport to work such a departure from the bedrock principle 

that courts defer to the rational findings of the jury when 

reviewing the sufficiency of the evidence. See Abrams v. 

United States, 250 U.S. 616, 619 (1919). The Court instead 

issued a narrow decision that determined, “under the 

circumstances of [that] case,” that the evidence was not 

sufficient for a jury to find that the defendants transported 

two prostitutes interstate for an illicit purpose. Mortensen, 

322 U.S. at 375.

In Mortensen, the Supreme Court reversed the 

conviction of a married couple who “operated a house of 

prostitution” in Nebraska and took two of their employee 

prostitutes on a vacation with them to Utah. Id. at 372. A 

jury had convicted the couple of violating section 2 of the 

Mann Act, which prohibits a person from knowingly 

transporting in interstate commerce “any woman or girl for 

the purpose of prostitution or debauchery, or for any other 

immoral purpose.” Id. at 373–74 (quoting Mann Act, ch. 
USA V. PEPE 13

395, § 2, 36 Stat. 825 (1910)). The Court explained that for 

the jury to rationally find the Mortensens were guilty, “[a]n 

intention that the women or girls shall engage in the 

[unlawful conduct] ... must be found to exist before the 

conclusion of the interstate journey and must be the 

dominant motive for such interstate movement.” Id. at 374.

The Court ruled that in the unique circumstances of that 

case, a rational jury could not have found such an intention 

beyond a reasonable doubt. Id. The Mortensens had 

undertaken to give their two employee prostitutes a vacation, 

an innocent purpose for their travel to Utah. See id. at 375. 

Although the women “resumed their immoral practices after 

their return to [Nebraska],” that fact, “standing alone, [did 

not] operate to inject a retroactive illegal purpose into the 

return trip to [Nebraska].” Id. Critical to the Court’s 

reasoning was that, “under the circumstances of [that] case,” 

there was an “integral relation” between the return journey 

and the “innocent round trip as a whole” that precluded 

severing the purpose of the outbound journey from the return 

journey. Id. (emphasis added). The Court thus concluded

that, because the Mortensens had an innocent purpose for 

bringing the prostitutes to Utah, they could not have had an 

illicit purpose in returning the prostitutes to Nebraska. See 

id. at 375–76.

The Court repeatedly emphasized the fact-bound nature 

of its decision. See, e.g., id. at 374 (stating that the Court’s 

“examination of the record in this case” indicated that the 

conviction could not be upheld); id. at 375 (explaining the 

conviction could not be upheld “under the evidence 

adduced”). And the critical circumstances in Mortensen, 

those that gave rise to the “integral relation” between the 

outbound journey and return journey, are not present in this 

case. Specifically, the Mortensens had been charged with 
14 USA V. PEPE

transporting other people with illicit intent; Pepe was 

convicted of traveling—or transporting himself—with illicit 

intent. Accordingly, because the relevant inquiry in 

Mortensen was into the defendants’ motives for transporting 

someone else, the “return journey” could not be “considered 

apart from its integral relation with the innocent round trip 

as a whole.” Id. (emphasis added). After all, a person who 

undertakes responsibility for another’s round trip 

transportation on a vacation is likely to have the same motive 

for taking that other person to the vacation destination as his 

motive for taking that other person home—namely, that the 

person desires the other person to take the vacation. Cf., e.g., 

id. at 372 (noting that the Mortensens took their employees 

on a vacation at the employees’ request). There is thus an 

“integral relation” between the provider of transportation’s 

motive in providing the outbound transportation and that 

provider’s motivation in providing the return transportation. 

Id. at 375.

But in this case, Pepe did not transport anyone else. He 

transported himself. A person’s motives for embarking on 

his own round trip are not so tied to his motives for his return 

trip that a jury could not rationally find that one of the 

person’s motivating purposes for returning is to resume 

illegal activity. As many would recognize from common 

experience, a person coming to the close of his vacation may 

depart for home because of some mix of family obligations, 

work, and hobbies—purposes that necessarily differ from 

those that prompted the traveler to embark on his trip. The 

facts that gave rise to the “integral relation” between the 

outbound and return journeys in Mortensen are thus not 

present in Pepe’s case.

Pepe reads Mortensen to preclude a jury from rationally 

finding a person guilty of returning home with an illicit 
USA V. PEPE 15

purpose when that person undertook the outbound travel for 

an innocent purpose. He thus invites us to extend Mortensen 

beyond its facts and rationale. But the Court in Mortensen 

went out of its way to confine its reasoning to the facts of 

that case, explaining that it “would normally be precluded 

from reviewing or disturbing the inferences of fact drawn 

from the evidence by the jury,” id. at 374; see also, e.g., id.

(noting the “examination of the record in this case” shows 

“a complete lack of relevant evidence” (emphasis added)). 

We take the Court at its word. Pepe’s proposed reading of 

Mortensen would also be in tension with our own precedent, 

which establishes that Mortensen does not preclude a jury 

from finding that a person traveled with more than one 

motive, see Flucas, 22 F.4th at 1160 (interpreting Mortensen 

as “requiring that criminal sexual activity be one of the 

several motives or purposes” (approvingly quoting United 

States v. Ellis, 935 F.2d 385, 389–90 (1st Cir. 1991))), and 

which rejects the proposition that a jury must find that a 

motivation to commit illicit sexual acts were a “but-for” 

cause of the travel, see Lindsay, 931 F.3d at 864.

We thus decline Pepe’s invitation to expand Mortensen 

beyond its rationale and facts. Mortensen does not remove 

from the jury’s province its ability to rationally find that a 

person embarked on a trip with an innocent purpose but 

returned home with a motivating purpose of illicit conduct.5 

5 Even if we were to construe Mortensen as establishing a categorical 

legal rule about the scope of liability for someone transporting someone 

else with unlawful intent, that categorical rule would not apply to Pepe. 

That categorical rule would work only to preclude a finding of unlawful 

intent when a defendant transports another person somewhere for an 

innocent purpose and then returns that same person to the place of origin. 

See Mortensen, 322 U.S. at 374 (summarizing the issue in the case as 

whether the defendants could be found guilty of “transport[ing] the girls 
16 USA V. PEPE

Neither Mortensen, nor the cases Pepe cites that discuss or 

build on Mortensen, reach that far. See Twitchell v. United 

States, 330 F.2d 759, 761 (9th Cir. 1964); Langford v. United 

States, 178 F.2d 48, 51–52 (9th Cir. 1949).6

B. A Jury Could Rationally Find that the Sexual 

Abuse of Children Was One of Pepe’s Primary 

Motivations for Returning to Cambodia.

As relevant to each of Pepe’s convictions, a jury could 

have rationally found that one of Pepe’s primary motivations 

for returning to Cambodia was to sexually abuse young girls. 

Pepe had longstanding relationships with two people who 

helped or encouraged him to abuse children, he had a house 

set up to facilitate the sex abuse, and he remained in 

Cambodia—a country he knew had a poor reputation for 

stopping child sex abuse—despite speaking ill of the country

generally.

A jury could rationally find from her knowledge of 

Pepe’s pre-May 2004 living arrangements that Basang, 

in interstate commerce ‘for the purpose of prostitution or debauchery’ 

within the meaning of the Mann Act”).

6 Pepe also relies on the Supreme Court’s summary decisions following 

and invoking Mortensen. Becker v. United States, 348 U.S. 957 (1955) 

(mem.); Oriolo v. United States, 324 U.S. 824 (1945) (mem.). Although 

Pepe is correct that Supreme Court summary decisions are binding, their

“precedential effect ... extends no further than the precise issues 

presented and necessarily decided by those actions.” Green v. City of 

Tucson, 340 F.3d 891, 902 (9th Cir. 2003) (quoting Anderson v. 

Celebrezze, 460 U.S. 780, 784–85 n.5 (1983)). Given the fact-bound 

nature of the Mortensen decision, the “precise issues presented and 

necessarily decided by those actions” would be just as fact-bound. Id. 

Relying on these summary affirmances would require us to improperly 

speculate about why the Court deemed Mortensen applicable to those 

cases.
USA V. PEPE 17

Pepe’s child broker, and Pepe knew each other for 

approximately a year before he returned from the United 

States to Cambodia in May 2005 with the charged purpose 

of abusing children. And Basang not only procured children 

for Pepe to sexually abuse, she trained the children how to 

behave during the abuse. A jury could also find that prior to 

Pepe’s May 2005 travel, Pepe also knew a man named Mack

who was involved in child sexual abuse. The government 

introduced a letter from Mack to Pepe dated June 7, 2005—

just a couple of weeks after Pepe returned to Cambodia on 

May 26, 2005—thanking Pepe for lending Mack money. 

The jury could also infer from multiple calendar entries in 

August and October 2005 relating to Mack that the two had 

an ongoing friendship. In one email, Pepe thanked Mack for 

sending him “pictures” that “help[ed] [Pepe] to make up 

[his] mind to continue to stay [in Cambodia] longer.” The 

next sentence in the email, in which Pepe told Mack that 

“[t]he sweet things I have with me have the most perfect little 

bodies and attitudes,” strongly suggests that the photos Mack 

sent Pepe were child pornography.

The government also presented evidence that, when 

Pepe’s house was raided in June 2006, it was substantially 

dedicated to abusing children. He had a room furnished and 

decorated specifically for children. Near this room was a 

massage table where he sexually abused his victims. The 

same raid revealed substantial sex paraphernalia and cuttings 

of newspaper articles regarding pedophiles. And the 

government introduced evidence that Pepe had developed 

rules for how his child victims were to behave when living 

in the house and that he had written out a “menu” of his 

sexual preferences. The government further introduced 

evidence of more than a thousand photos of children taken 

on Pepe’s camera, including nude photos. And the 
18 USA V. PEPE

government introduced evidence of how the photos were 

carefully organized on Pepe’s hard drive and in labeled CDs.

The jury could also rationally infer that Pepe specifically 

chose to return to Cambodia after his visits to the United 

States because it would allow him to continue to sexually 

abuse children. A tourist map for Phnom Penh, Cambodia, 

obtained from Pepe’s house warned in the English language, 

“Sex with children is a crime.” The jury could rationally 

infer from that tourist map warning that English-speaking 

tourists coming to Cambodia to have sex with children was 

unfortunately common. Basang and one of Pepe’s child 

victims testified to the ubiquity of child sex slavery in 

Cambodia. Pepe himself acknowledged the prevalence of 

the “sex industry in Cambodia,” and noted it was 

“particularly true as regards to younger people.”

Not only could a jury rationally infer that Pepe was 

aware that returning to Cambodia would allow him to 

continue sexually abusing children, but a jury could 

rationally infer that it was a primary reason for his return. 

Pepe told his sister that Cambodia “was a very dysfunctional 

country” and that “it was like the wild, wild west there; ... 

there weren’t any rules.” As for the people, his sister 

testified that “[h]e was not very complimentary about them. 

He thought that they were a lower class of citizen, that all the 

police were corrupt, and that all the ordinary people were 

peasants who lived in huts with dirt floors.” Pepe contends 

that the jury should not have credited such testimony, 

coming from his estranged sister, that he criticized the 

Cambodian culture and people. But the jury was entitled to 

find her credible. See Nevils, 598 F.3d at 1170. 

Pepe disagrees with this characterization of his life in 

Cambodia, contending that “the evidence established that he 
USA V. PEPE 19

engaged in a variety of activities completely unrelated to 

sex.” There is evidence that Pepe did not solely engage in 

child sex abuse during his time in Cambodia. But he does 

not point to evidence of activities so substantial that the jury 

was required to find that the sexual abuse of children was 

only a small part of his life. See id. at 1169 (requiring the 

defendant to “point[] to evidence so supportive of innocence 

that no rational trier of fact could find guilt beyond a 

reasonable doubt”). The jury could rationally find that one 

of Pepe’s primary motivations for returning to Cambodia 

was sexually abusing young girls, a finding directly relevant 

to the sufficiency of the evidence for each of his charged 

offenses.

C. Counts 1 and 2: Sufficient Evidence Supports 

Pepe’s Convictions Under 18 U.S.C. § 2423(b).

The United States charged Pepe in Counts 1 and 2 with 

violating § 2423(b) by traveling in foreign commerce with 

the purpose of engaging in illicit sexual conduct. Pepe 

contends that the jury could not have rationally found that 

his purpose in traveling back to Cambodia in either May or 

September 2005 was to sexually abuse children. He is 

incorrect.

1. Sufficient Evidence Supports the Conviction 

on Count 1.

The evidence was sufficient for a rational jury to find 

Pepe was guilty of traveling in foreign commerce on May 25 

and 26, 2005, with the purpose of committing illicit sexual 

acts, as charged in Count 1. Along with the evidence 

discussed above demonstrating the pervasive role child sex 

abuse played in Pepe’s life in Cambodia, the government 

presented evidence indicating that Pepe flew back to 

Cambodia after a trip to the United States on May 26, 2005, 
20 USA V. PEPE

and that, two weeks later, on June 9, 2005, he was sexually 

abusing N.P. Metadata on Pepe’s camera reveals photos 

were taken of N.P. until June 22, 2005. This is “relevant 

evidence from which the jury could properly find or infer, 

beyond a reasonable doubt, that the accused is guilty” of 

traveling to Cambodia in May 2005 with a motivating 

purpose of engaging in illicit sexual acts. Id. at 1165 

(quoting United States v. Nelson, 419 F.2d 1237, 1242 (9th 

Cir. 1969)).

Pepe disagrees, contending that the lack of evidence of 

Pepe sexually abusing a child before his May 2005 travel 

means a jury could not rationally find that a motivating 

purpose of his return to Cambodia was to sexually abuse 

children. But a jury could rationally rely on evidence of 

what Pepe did after he returned to Cambodia to discern 

whether one of his motivating purposes for returning was to 

engage in that conduct. See United States v. Green, 554 F.2d 

372, 375 (9th Cir. 1977) (upholding the jury’s finding that a 

trip was “for the purpose of prostitution” and noting 

approvingly the parties’ concession that intent may be 

proved by “the conduct of the parties both before and within 

a reasonable time after the transportation”). The jury was 

especially within its discretion to make such a finding given 

the other evidence of Pepe’s activities in Cambodia. See 

United States v. Ware, 416 F.3d 1118, 1121 (9th Cir. 2005) 

(noting that the court reviews the sufficiency of the evidence 

“by considering the totality of the trial evidence”). 

Sufficient evidence supports the jury’s conviction on Count 

1.
USA V. PEPE 21

2. Sufficient Evidence Supports the Conviction 

on Count 2.

Sufficient evidence supports the jury’s finding that Pepe 

was guilty of traveling in foreign commerce in September 

2005, with the purpose of committing illicit sexual acts, as 

charged in Count 2. Along with the evidence discussed 

above, demonstrating at a general level the pervasive role 

child sex abuse played in Pepe’s life in Cambodia, the 

government presented specific evidence of Pepe’s acts of 

sexual abuse leading up to and following his September 

2005 travel. 

As noted above, the metadata recovered from Pepe’s 

camera reveals photos taken of N.P. for at least two weeks 

in June. Pepe’s August 2005 calendar included a “Party with 

Mack,” Pepe’s pedophile pen pal, and “Mack’s birthday.” 

K.S., one of Pepe’s victims, lived in his house for “several 

months,” and Pepe’s camera took photos of her on August 6, 

2005. The jury could rationally infer that the “several 

months” that K.S. stayed at Pepe’s house overlapped with 

August 6, 2005. And whether those months preceded 

August 6 or followed it, the timeline strongly suggests that 

child sexual abuse was a routine fixture of Pepe’s life at the 

time of his early September travel. 

The government also presented evidence indicating that 

Pepe returned from the United States to Cambodia on 

September 3, 2005, and that, in early November 2005, began 

sexually abusing additional victims, starting with L.K. The 

government further introduced evidence from which a jury 

could rationally find that Pepe sexually abused S.R. starting 

in late November 2005, abused S.S. starting in early 

December 2005, abused T.C. in February 2006, abused 
22 USA V. PEPE

N.T.D. in April 2006, and abused I.T. between April 21, 

2006, and May 20, 2006.

This is “relevant evidence from which the jury could 

properly find or infer, beyond a reasonable doubt, that the 

accused is guilty” of traveling to Cambodia in September

with a motivating purpose of illicit sexual acts. Nevils, 598 

F.3d at 1165 (quotation omitted).

D. Counts 3 and 4: A Rational Trier of Fact Could 

Have Found that Pepe Violated 18 U.S.C. 

§ 2241(c).

As established above, a jury could rationally find that a 

motivating purpose for Pepe’s return trips to Cambodia was 

to engage in illicit sexual acts. That is sufficient to uphold 

his convictions under § 2423(b). Section 2241(c) requires 

the jury to find a slightly more specific motivating purpose: 

that one of Pepe’s motivating purposes in crossing state lines 

while returning to Cambodia was to sexually abuse children 

under the age of 12. Section 2241(c) also requires that Pepe

have sexually abused girls who were, in fact, under 12. To 

take those questions in reverse order, the evidence is 

sufficient for a rational jury to find both that the charged 

victims were under 12 and that Pepe traveled with a 

motivating purpose of abusing children under 12.

1. A Rational Finder of Fact Could Have 

Found that Pepe’s Charged Victims Were, 

in Fact, Under 12.

To convict under § 2241(c), Ninth Circuit precedent 

requires that the government prove that the defendant 

sexually abused a person who was, in fact, under 12. See 

Lukashov, 694 F.3d at 1121. Count 3 charged Pepe with 

sexually abusing K.S. and Count 4 charged Pepe with 
USA V. PEPE 23

sexually abusing I.T., S.S., and S.R., all of whom were under 

the age of 12. The jury found that Pepe was guilty of both 

counts. Testimony from the victims, records, and the 

testimony of Dr. Watson—who examined at least some of 

the victims in June of 2006 and 2007—all support the jury’s 

findings.

a. K.S.

K.S. testified that Pepe raped her while she was at his 

house for “several months,” months overlapping with 

August 6, 2005. The government introduced photos of K.S. 

taken on that date into evidence, and she appears to be a 

young child. K.S. testified that although she “did not 

[originally] know [her] birth date, ... [an] organization[] 

found [her] family book and that’s when they found out that 

[she] was born” in August 1994. The family book was also 

entered into evidence. This is sufficient evidence from 

which a jury could rationally find that K.S. was under 12 

years of age when she was at Pepe’s home, the place where 

she was sexually abused.

Pepe’s arguments to the contrary are unavailing. Pepe 

points out that K.S. had told U.S. agents in September 2006 

that she was 13—which would have placed her birthday in 

1993, not 1994. But she testified that she “kind of guessed” 

when she gave her age to the agents. Pepe claims that K.S. 

told an examining physician that she had a 1993 birthdate, 

but that allegation conflicts with the family book and K.S.’s 

later testimony that her birthday was in August 1994, and the 

jury was entitled to rationally resolve the conflict in favor of 

the government.

Pepe also challenges the reliability of the family book

because K.S. could not interpret it and because a U.S. official

stated that its “accuracy is unknown.” Given that K.S. also 
24 USA V. PEPE

testified that she was not literate in Khmer and the family 

book was in Khmer, her inability to interpret the book does 

not undermine its reliability. True, a U.S. agent applying for 

a visa on behalf of K.S. before her family book was located 

noted that if the book exists and were obtained, its “accuracy 

is unknown.” But the jury need not view this statement as 

evidence that the family book was inaccurate—instead, the 

jury was entitled to interpret this statement as meaning only 

that the officer did not know whether the family book would 

be accurate if found, just as any cautious person might 

disclaim knowledge of the accuracy of a document that they 

do not possess. See Nevils, 598 F.3d at 1164 (noting that a 

reviewing court “must presume—even if it does not 

affirmatively appear in the record—that the trier of fact 

resolved any [conflicting inferences] in favor of the 

prosecution” (quotation omitted)). Pepe also points to a U.S. 

prosecutor’s 2013 declaration stating that K.S. “was 

approximately 11 to 12 years old” “[a]t the time of the crimes 

charged.” Of course, that is not necessarily inconsistent with 

K.S. being under 12 years old when sexually abused. The 

government presented the jury with sufficient evidence for it 

to rationally find that K.S. was under 12 at the time Pepe 

abused her.

b. S.R. and S.S.

Testimony and metadata from Pepe’s camera indicate 

that Pepe sexually abused S.R. and S.S. in December 2005. 

The government introduced family books indicating that 

S.R. and S.S. were 9 and 10 years of age in December 2005. 

The two girls testified to the same. Pepe contends that this 

evidence is insufficient because the family book and the 

girls’ testimony give different specific dates of birth. But 

that inconsistency is immaterial. The family book and the 

testimony agree that the two girls were 9 and 10 at the time 
USA V. PEPE 25

they were abused. The jury could rationally find based on 

these two sources of evidence that S.R. and S.S. were under 

12 years of age when Pepe molested them.

c. I.T.

Testimony and metadata from Pepe’s camera indicate 

that Pepe sexually abused I.T. between April 21, 2006, and 

May 20, 2006. I.T. testified that she was born in the last

quarter of the 1994 calendar year, which would have made 

her 11 when Pepe raped her. Consistent with this birthday, 

I.T. testified at Pepe’s trial in August 2021 that she was 26 

years old. Further, Dr. Watson testified that in June 2006, 

I.T. had not yet begun menstruating and had only begun the 

“very, very early stages of puberty.” A year later, in June 

2007, Dr. Watson examined I.T. a second time and I.T. still 

had not had her first period and she had not “advanced 

through puberty”—“there weren’t any changes.” The jury 

could thus infer from both Dr. Watson’s and I.T.’s testimony

that I.T. was under 12 years of age when Pepe abused her.

Pepe argues that a jury could not rationally find that I.T. 

was under 12 when Pepe abused her because, prior to 

testifying that she was born in a month falling in the last 

quarter of 1994, she had testified that she was born early in 

the 1994 calendar year. But given the presumption that the 

jury resolved any conflicts in the evidence in favor of the 

government, sufficient evidence supports the jury’s finding 

that I.T. was under 12 at the time of the abuse. See Nevils, 

598 F.3d at 1164 (citation omitted).

Pepe further argues there was insufficient evidence of 

I.T.’s age because Dr. Watson noted in her June 2006 report 

that I.T. was 12 and that I.T.’s “pubertal stage [was] 

consistent with stated age of 12.” But Dr. Watson explained 

in her testimony that the note of I.T.’s age was based, not on 
26 USA V. PEPE

a precise birthdate, but on the Zodiac year of I.T.’s birth. 

And because the Zodiac year begins on April 13, if I.T. was 

born later in the year—such as the birthday I.T. testified to—

then she would have been only 11 at the time of the 

examination. As for the report’s note that I.T.’s “pubertal 

stage” was consistent with the age of 12, Dr. Watson 

confirmed in her testimony that “when [she was] examining 

[the victims],” she was not “trying to determine their precise 

age.” The jury had sufficient evidence to rationally find that 

the charged victims were under 12 at the time of abuse.

2. A Rational Trier of Fact Could Have Found 

that Pepe Crossed State Lines with a 

Motivating Purpose of Sexually Abusing 

Girls Under 12.

Finally, to convict Pepe of violating § 2241(c), the jury 

must have found that a motivating purpose of his travel in 

May and September of 2005 was to sexually abuse children 

under the age of 12. See Lukashov, 694 F.3d at 1121. As 

discussed above, the government presented sufficient 

evidence for a jury to find that Pepe traveled with a 

motivating purpose of sexually abusing children. 

Combining that evidence with additional evidence

indicating that Pepe particularly preferred prepubescent 

girls, a jury could rationally find beyond a reasonable doubt 

that Pepe traveled in May and September 2005 with a 

motivating purpose of sexually abusing girls under the age 

of 12. 

The evidence shows that Pepe preferred prepubescent 

girls. Pepe handwrote a “Cambo Menu,” presumably 

meaning “Cambodian Menu.” That “menu” included 

phrases such as “shy little bbs girls bald p[***]y,” “pedo 

nudes,” “10 yo lolita kid pedo,” “8–12 years lolitas sex pix,” 
USA V. PEPE 27

“preteen c[**]t,” and “cartoons 3d pedo.” The government 

also presented evidence that Pepe furnished a room with 

décor specifically suited for young girls. As discussed 

above, many of Pepe’s victims were under 12. And a jury 

could rationally infer that the youth of these victims was not 

an accident. S.R., who was nine when she was at Pepe’s 

house, explained that she had been “talked to” and she “was 

going to lose [her] virginity” a year later and her sister was 

going to “lose [her] virginity ... in the next three months.” 

It was S.R.’s understanding that Pepe “was waiting” because 

she “was too little.” A jury could rationally infer that Pepe 

wanted to rape young girls at the earliest opportunity that 

their physiology would allow.

Pepe argues that the jury could not rationally find that he 

intended to sexually abuse girls younger than 12 years old 

because some of the girls that he molested following his 

return trips were 12 years or older. As for his May return 

trip, Pepe notes that N.P. was over 12 but cites evidence 

indicating only that N.P. might have been younger than 16. 

Regardless, the government introduced photos of N.P., taken 

during the time of the abuse following his May 2005 trip, 

and she looked very young. Further, as discussed above, a 

jury could rationally find that K.S., whom Pepe abused in the 

months following his May 2005 trip, was under 12. As for 

his September return trip, Pepe abused multiple girls 

following his trip who the jury could rationally find were 

under 12 at the time of abuse. This argument fails.

Pepe also argues that his sexual involvement with two 

adult women shows that he merely “liked skinny girls” and 

wasn’t specifically targeting girls under the age of 12. Not 

so. Even if it is true that Pepe “liked skinny girls,” that is 

obviously not inconsistent with the jury rationally finding 
28 USA V. PEPE

that he specifically targeted young girls because, among 

other things, they satisfied his “skinny” fetish. 

The jury could rationally find beyond a reasonable doubt 

that when Pepe traveled in May and September of 2005, he 

did so with at least one motivating purpose of sexually 

abusing children under 12.

II. Pepe Fails to Show Abuse of Discretion or Error in 

the District Court’s Jury Instructions.

Pepe argues that the district court erred in not instructing 

the jury on his innocent round trip theory of defense and that 

the district court erred in its instructions to the jury on the 

requisite mens rea. The court reviews “the formulation of 

jury instructions for abuse of discretion, but review[s] de 

novo whether those instructions correctly state the elements 

of the offense and adequately cover the defendant’s theory 

of the case.” United States v. Koziol, 993 F.3d 1160, 1179

(9th Cir. 2021) (quoting United States v. Liew, 856 F.3d 585, 

595–96 (9th Cir. 2017)). Neither of Pepe’s challenges 

succeed.

A. The District Court Did Not Abuse Its Discretion 

or Err in Declining to Give Pepe’s Requested 

Defense Theory Instruction.

Pepe requested that the district court give the following 

instruction to the jury:

One who takes an innocent round trip—that 

is, leaves his residence to travel elsewhere for 

purposes unrelated to criminal sexual activity 

and then returns to his residence—does not 

travel with the purpose of engaging in illicit 

sexual conduct (as required for Counts 1 and 
USA V. PEPE 29

2) or the intent to engage in a sexual act with 

a person who was under the age of twelve 

years (as required for Counts 3 and 4), even 

if such conduct occurred at that residence 

before the trip and resumed after the trip.

Pepe offered three alternative instructions that were 

substantially the same. The district court declined to give 

any of those instructions.

Pepe argues that the refusal to give the requested 

instruction to the jury was error. But Pepe’s requested 

instruction would have instructed the jury that an innocent 

travel purpose precludes him from also having an illicit 

motive. Because Mortensen does not preclude the 

government’s theory in this case, and Ninth Circuit 

precedent clearly establishes that a defendant can have 

mixed motives for traveling, see Flucas, 22 F.4th at 1155 

(citation omitted), Pepe’s requested instruction conflicted

with the law and the district court did not err in declining to 

give it. See United States v. Thomas, 612 F.3d 1107, 1120 

(9th Cir. 2010).

B. The District Court Did Not Err or Abuse Its 

Discretion in Instructing the Jury on Mens Rea.

Over Pepe’s objection, the district court gave the 

following instruction on the mens rea requirement 

for § 2423(b):

The government does not have to prove that 

defendant traveled in foreign commerce for 

the sole and exclusive purpose of engaging in 

illicit sexual conduct. A person may have 

different purposes or motives for travel and 
30 USA V. PEPE

each may prompt in varying degrees the act 

of making the journey. For Counts One and 

Two, the government must prove beyond a 

reasonable doubt that a dominant, significant, 

or motivating purpose of defendant’s travel 

in foreign commerce was to engage in illicit 

sexual conduct.

The court gave a materially identical instruction on the 

intent requirement for § 2241(c), replacing “traveled in 

foreign commerce” for “crossed a state line” and “illicit 

sexual conduct” for “a sexual act with a person who was 

under the age of twelve years.” Pepe raises three issues with 

the instruction, but he fails to show that the instruction was 

an error or abuse of discretion.

First, Pepe argues that the instruction should have 

required the jury to find that his “sole or dominant purpose” 

for returning to Cambodia was to engage in illicit sexual 

activities, instead of requiring the jury to find that such a 

purpose was the “dominant, significant, or motivating 

purpose” of his travel. But we have approved jury

instructions on the intent elements of § 2241(c) and 

§ 2423(b) that instruct the jury that the government must 

prove “beyond a reasonable doubt that a dominant, 

significant, or motivating purpose” of the defendant’s travel 

was engaging in illicit sexual acts. Lukashov, 694 F.3d at 

1118–19 (emphasis added) (§ 2241(c)); see also Lindsay, 

931 F.3d at 864 (§ 2423(b)).

Pepe argues that the instruction was at least wrong as to 

the intent requirement for § 2423(b) because Congress later 

amended § 2423(b) to specifically add “motivating” before 

“purpose,” implying a “motivating purpose” was insufficient 

under the former version. Because we have approved 
USA V. PEPE 31

“motivating purpose” as an instruction for § 2423(b)’s mens 

rea requirement for the pre-2018 version of the statute (the 

version Pepe was convicted of violating), see Lindsay, 931 

F.3d at 864; Flucas, 22 F.4th at 1156–57, Pepe would need 

to show that our prior precedent is “clearly irreconcilable” 

with the amendment, Miller v. Gammie, 335 F.3d 889, 893 

(9th Cir. 2003) (en banc); see Pepe, 895 F.3d at 688 

(preferring to read an amendment to “clarify[]” rather than 

change a statute’s “scope” when “possible”). He has not 

done so. 

Although we often presume that, “when Congress acts to 

amend a statute, ... it intends its amendment to have real and 

substantial effect,” Pierce County v. Guillen, 537 U.S. 129, 

145 (2003) (cleaned up), “[t]he mere fact of an amendment 

itself does not [always] indicate that the legislature intended 

to change a law,” Callejas v. McMahon, 750 F.2d 729, 731 

(9th Cir. 1985). After all, Congress may instead intend to 

clarify a “dispute or ambiguity, such as a split in the 

circuits.” Id. (quoting Brown v. Marquette Sav. & Loan 

Ass’n, 686 F.2d 608, 615 (7th Cir. 1982)). Congress’s 

amendment of this statute is not clearly irreconcilable with 

our precedent upholding a “motivating purpose” as 

sufficient under § 2423(b) because Congress may have 

intended to clarify and confirm what had always been true—

that a “motivating purpose” is sufficient for conviction. See

Lindsay, 931 F.3d at 864; Flucas, 22 F.4th at 1156–57.

Second, Pepe challenges the formulation of the 

instruction, contending that at the end of the instruction, the 

district court should have restated the standard as requiring, 

“[i]n other words, the government must prove that the 

criminal sexual activity was not merely incidental.” But a 

jury so instructed may have incorrectly equated “not merely 

incidental” with “a motivating purpose” and concluded that, 
32 USA V. PEPE

so long as the illicit sexual acts played any more than a 

“merely incidental” role in Pepe’s actions, Pepe was guilty. 

See United States v. Smith, 831 F.3d 1207, 1219 (9th Cir. 

2016) (“‘Incidental’ has a flavor that suggests that the 

standard is very low, even if that is not true as a definitional 

matter.”). So the district court did not abuse its discretion in 

declining Pepe’s requested addition to the instruction. 

Pepe argues that a jury could think, without his requested 

addition, that a “merely incidental” result of a trip is 

sufficient to find that a “dominant, significant, or motivating 

purpose” of Pepe’s travel was illicit sexual conduct. But the 

“meanings [of these terms] are within the comprehension of 

the average juror.” United States v. Dixon, 201 F.3d 1223, 

1231 (9th Cir. 2000). Pepe also argues that Flucas’s 

approval of the inclusion of “motivating purpose” in the 

instruction depended on the additional inclusion of “not 

merely incidental” to the travel. Although Flucas noted 

approvingly the inclusion of “not merely incidental,” it did 

not hold that a district court would abuse its discretion by 

omitting it. See Flucas, 22 F.4th at 1159–60. More to the 

point, Lindsay approved the district court’s instruction to the 

jury that the government must prove that “a dominant, 

significant, or motivating purpose” of the defendant’s travel 

was illicit sexual conduct without any indication in its 

opinion that the district court gave the merely incidental 

instruction. See 931 F.3d at 858, 864. 

Pepe further argues that the district court could have 

satisfied both parties’ concerns by modifying the instruction 

to tell the jury that “the government must prove that the 

[illicit sexual conduct/engaging in a sexual act with a person 

under twelve] was substantially more than merely 

incidental.” But that could have confused the jury as they 

tried to determine whether “substantially more than merely 
USA V. PEPE 33

incidental” requires finding illicit sexual conduct was more 

than a “dominant, significant, or a motivating purpose.” The 

district court did not abuse its discretion in declining to add 

a clarification that could have left the jury confused.

Third, Pepe contends that the district court abused its 

discretion in not instructing the jury that “[o]ne does not 

have the requisite purpose/intent if the travel/crossing a state

line would have still taken place even had a sex motive not 

been present.” Pepe thus wanted the court to instruct the jury 

that the improper conduct must be a but-for cause of the 

travel. This court, however, has already established that a 

purpose can be “dominant, significant, or motivating” 

without necessarily being a “but-for” cause of an action. 

Lindsay, 931 F.3d at 864; Lukashov, 694 F.3d at 1118–19. 

Pepe fails to show error or abuse of discretion in how the 

court instructed the jury.

CONCLUSION

Sexually abusing children was one of Pepe’s primary 

activities during his time in Cambodia. A jury convicted him 

of traveling in foreign commerce and crossing state lines 

with a motivating purpose of sexually abusing those 

children. And also for, in fact, sexually abusing them. The 

most Pepe shows in this appeal is that a jury could have 

rationally found that he did not commit these crimes. But 

that is not the standard. A rational jury could have found 

beyond a reasonable doubt that Pepe committed the charged 

crimes and the district court neither erred nor abused its 

discretion in instructing the jury.

AFFIRMED.