Presentation on theme: "The Rules of the “Game”:"— Presentation transcript:
1 The Rules of the “Game”: Defending Sex Trafficking CasesCJA Training – May 9, 2014Baltimore, MD
2 The Relevant Statutes 18 U.S.C. § 1591(a) – sex trafficking Force, fraud, and coercionMinor victims18 U.S.C. § 1594(a) - attempt of § 1591(a) is punished the same as the completed crime18 U.S.C. § 1594(c) – conspiracy to commit sex trafficking
3 Other Related Charges§ 2423(a) - transportation of minors with the intent to engage in “criminal sexual activity”§ 2423(b) - travel with the intent to engage in “illicit sexual conduct”AD of reasonable belief that victim was > 18 , § 2423(g)§ 2422(a) - coercion or enticement of adults to travel to engage in prostitution or other criminal sexual activity§ 2422(b) – use of an interstate facility to coerce or entice a minor to engage in prostitution or other criminal sexual activity§ 2421 – transportation of any individual to engage in prostitution or other criminal sexual activity§ 1592(a) – withholding ID in relation to sex trafficking, or (c) obstructing enforcement of same§ 1952(a)(1) or (a)(3) – travel or use of interstate facility to distribute proceeds or promote or facilitate “any unlawful activity”
4 18 U.S.C. § 1591(a) (a) Whoever knowingly— (1) in or affecting interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States, recruits, entices, harbors, transports, provides, obtains, or maintains by any means a person; or(2) benefits, financially or by receiving anything of value, from participation in a venture which has engaged in an act described in violation of paragraph (1),knowing, or in reckless disregard of the fact, that means of force, threats of force, fraud, coercion described in subsection (e)(2), or any combination of such means will be used to cause the person to engage in a commercial sex act, or that the person has not attained the age of 18 years and will be caused to engage in a commercial sex act, shall be punished as provided in subsection (b).U.S. v. Afyare, 2013 WL (M.D. Tenn. 2013)(outlier decision, with multiple contrary decisions, but this decision found that § 1591(a) only applies to minors and cannot be used to charge adults).
5 “Whoever knowingly. . .”“knowingly” has been interpreted to apply to the act of transportation, enticement, etc. of a person, or to the fact of financial benefit therefrom, and not to the interstate aspect of the offense.U.S. v. Sawyer, 733 F.3d 228, (7th Cir. 2013)U.S. v. Evans, 476 F.3d 1176, 1180 (11th Cir. 2007)Cf. United States v. Darby, 37 F.3d 1059, 1067 (4th Cir. 1994) (“Numerous cases have held that criminal statutes based on the government’s interest in regulating interstate commerce do not generally require that an offender have knowledge of the interstate nexus of his actions.”), cert. denied, 514 U.S (1995).
6 Whoever “benefits” (a) Whoever knowingly— (2) benefits, financially or by receiving anything of value, from participation in a venture which has engaged in an act described in violation of paragraph (1),knowing, or in reckless disregard of the fact, that: - Means of force, threats of force, fraud, coercion will be used to cause the person to engage in a commercial sex act OR- That the person is under 18
7 Benefits financiallyLow threshold needed to establish financial benefit - U.S. v. Jennings, 280 Fed. Appx. 836, 844 (11th Cir. 2008)(gas money on one car trip and covering cost of hotel room paid for with prostitution proceeds sufficient).
8 “Benefits . . . by receiving anything of value” Construed broadly. See U.S. v. Cook, 2013 WL , *13 (W.D. Mo (pornographic images found to constitute a thing of value), co-defendant charged with receiving things of value such as cigarettes, clothing, and meatRefer to cases interpreting “thing of value” in CP cases under § 2G2.2.Note: This provision has been applied to purchasers of sex from minors, not just suppliers. See U.S. v. Jungers, 702 F.3d 1066, (8th Cir. 2013)
9 “Force, fraud or coercion” (a) Whoever knowingly—(1) in or affecting interstate or foreign commerce. . .recruits, entices, harbors, transports, provides, obtains, or maintains by any means a personknowing, or in reckless disregard of the fact, that means of force, threats of force, fraud, coercion described in subsection (e)(2), or any combination of such means will be used to cause the person to engage in a commercial sex act . . .
10 TimingThe Force, Fraud or Coercion may occur at any point during the relevant time period, as long as the defendant “knows” that FFC will be used to cause a person to engage in a commercial sex actThe government may argue that a prostitute who started working willingly for a pimp can nonetheless be later subjected to force or fraudBut see United States v. Roy, 13-PWG-0249 (jury apparently rejected this argument in its verdict)
11 Sex Trafficking of Minors (a) Whoever knowingly—(1) in or affecting interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States, recruits, entices, harbors, transports, provides, obtains, or maintains by any means a personknowing, or in reckless disregard of the fact that the person has not attained the age of 18 years and will be caused to engage in a commercial sex act
12 Knowing vs. Reckless Disregard § 1591(a) applies to defendants who act “knowingly” or “in reckless disregard of the fact” that:Force, fraud or coercion will be used to cause a person to engage in a commercial sex actORThat the victim was under 18 and will be caused to engage in a commercial sex act
13 “Knowing” that FFC will be used “Knowing” does not require absolute certainty. Past practice can be sufficient to establish knowledge for future prostitutes. See U.S. v. Todd, 627 F.3d 329, 334 (9th Cir. 2010) (“The evidence of Todd's knowledge of his own modus operandi in securing an income from prostitution by a pattern of coercion was sufficient. . .”)
14 “Knowing” that a person is < 18 12/23/2008, § 1591 was amended:1. to include reckless disregard § 1591(a)2. added “reasonable opportunity to observe” provision § 1591(c)For conduct prior to 12/23/2008, the government needs to prove that the defendant knew the person was under 18.For conduct after 12/23/2008, the government can prove guilt through (1) knowledge or (2) reckless disregard with (3) sufficient opportunity to observe. (although sufficient opportunity to observe may be enough)
15 “Knowing” that a sex act will occur The government does not have to prove that an actual commercial sex act occurred.The statute speaks in terms of knowledge that FFC “will be used to cause…” or knowledge that a person under 18 “will be caused to engage in” a commercial sex act.See, e.g., U.S. v. Willoughby, 742 F.3d 229, 241 (6th Cir, 2014); U.S. v. Garcia–Gonzalez, 714 F.3d 306, 312 (5th Cir. 2013).
16 “Reckless Disregard”“Reckless Disregard” has been defined to mean “to be aware of, but consciously and carelessly ignore, facts and circumstances clearly indicating that the person” had not yet achieved the age of majority. U.S. v. Wilson, 2010 WL , *6 (S.D. Fla. 2010).U.S. v. Tutstone, 525 Fed. Appx. 298 (6th Cir. 2013)(being told by co-defendant that a minor would be made available for commercial sex acts and then accepting money from a person who then left with minor was sufficient to establish reckless disregard to the fact that the minor would engage in a commercial sex act)A defendant may not keep himself “willfully blind” of the use of FFC or a prostitute’s age without drawing instruction. U.S. v. Lighty, 616 F.3d 321, (4th Cir. 2010)(“It is appropriate to give such an instruction when the defendant claims lack of guilty knowledge in the face of evidence supporting an inference of deliberate ignorance. A willful blindness instruction should be given only in ‘rare circumstances.’”).
17 “Reasonable opportunity to observe” § 1591(c) – “In a prosecution under subsection (a)(1) in which the defendant had a reasonable opportunity to observe the person so recruited, enticed, harbored, transported, provided, obtained or maintained, the Government need not prove that the defendant knew that the person had not attained the age of 18 years.Definition appears to be open issue. Two cases that have found sufficient opportunity to observe involved protracted involvement and sexual encounters with the victim. United States v. Robinson, 702 F.3d 22, (2nd Cir. 2012)(defendant recruited a 17-year-old victim to engage in prostitution; she testified that the defendant was her “boyfriend” and “lover” whom she had dated for two-and-a-half years); United States v. Paris, 2007 WL , at *9 (D. Conn. Oct. 24, 2007) (under 2000 version of 1591, jury found that the defendant consciously avoided knowing the victim's age based on evidence that the defendant had seen the minor's naked body when she was fourteen years of age, had sex with her at that age, and knew that she had “young friends who were still in high school” and defendant caused the victim to engage in commercial sex acts for approximately one-and-a-half years).U.S. v. Wilson, 2010 WL , *6 (S.D. Fla. 2010)(government must prove a defendant had a reasonable opportunity to observe AND acted with reckless disregard to age).But see U.S. v. Robinson, 702 F.3d 22, 32 (2nd Cir. 2012)(Under a “plain reading of § 1591(c) the only interpretation that preserves any meaning, is that the provision creates strict liability where the defendant had a reasonable opportunity to observe the victim.”)If the indictment does not allege the “reasonable opportunity to observe” prong in the indictment, consider a challenge to that language being included in the jury instructions.
18 Other Definitions “coercion” means: “threats of serious harm” OR “physical restraint”“any scheme, plan or pattern intended to cause a person to believe that failure to perform an act would result in” in the above“the abuse or threatened abuse of law or the legal process”18 U.S.C. § 1591(e)(2)“serious harm” can be physical or nonphysical (including psychological, financial, or reputational) that is “sufficiently serious, under all the surrounding circumstances, to compel a reasonable person of the same background and in the same circumstances to perform or to continue performing commercial sexual activity” 18 U.S.C. § 1591(e)(4)“commercial sex act” is “any sex act, on account of which anything of value is given to or received by any person.” 18 U.S.C. § 1591(e)(3).“venture” is “any group of two or more individuals associated in fact, whether or not a legal entity” 18 U.S.C. § 1591(e)(5)
19 Adult vs. Minor Prostitutes With adult prostitutes, the focus likely will be on their willingness to engage in commercial actsDepending on the evidence, you may have to concede Mann Act violation but can contest FFC.With minors, the focus will be on disputing their age, see U.S. v. Adan, 913 F.Supp.2d 555 (M.D. Tenn. 2012)(granting new trial based on evidence that victim was over 18 at the time of the offense); whether client knew that commercial sex acts would occur; or that defendant did not know person was a minor, or did not have a reasonable opportunity to observeEven with minors, still contest FFC because of lower MM (assuming victim is >14)
20 Types of Defendants Three Main Types: 1. The Pimp 2. The “Bottom” 3. The “Hanger on”
21 Pimps Challenges of representation, a/k/a “You’re fired!” Managing client expectations (witnesses appearing, effect of prior inconsistent statements, impact of FRE 412, plausible deniability “they were just giving massages for all I knew”)How to humanize your client in front of the jury, or judge, and preparing your client to testifyLearn the rules of the game
22 BottomsWill your client be treated as a “victim” or co-defendant, or a bit of both?Cooperation is the name of the game, but expect resistance at firstDealing with inconsistent statementsCreating distance from the pimp and sympathy for your clientProtecting your client under FRE 412
23 Hangers OnDid your client have knowledge, or act with reckless disregard?Did your client really have an opportunity to observeMinimizing the damage (e.g., § 1952)CooperationIf very marginal involvement, explore a non-prosecution agreement
24 INVESTIGATION AND DISCOVERY ISSUES Investigation into Prostitutes/WitnessesDealing with Large Volumes of DiscoveryExpert Witnesses
25 INVESTIGATION CHECKLIST Prostitute’s Criminal RecordsLook for convictions involving dishonesty (Misdemeanor solicitation charges probably will not come in, see U.S. v. Walker, 613 F.2d 1349 (5th Cir. 1980); U.S. v. Wright, 564 F.2d 785 (8th Cir. 1977), although may be room to argue if crime was committed in a way involving dishonestyRequest early production of out of state recordsLook for detectives helping prostitute with release and disposition of local chargesSocial Media Search - Backpage.com, Facebook, Tagged.com, sites advertising servicesDigital Communications – s, text messagesRecords Available Via Subpoena – Hotel, credit card recordsInterviews of Family and Friends
34 Social Media Investigation Need to get all discovery in unredacted format – make a formal demandLocations of prostitutes = criminal historyPhone numbers often remain the same - these are key - it’s how johns contact themSocial media references and allusions – the celebration of the lifeDon’t accept that the government has given you everything you need – as opposed to everything they think is importantResearch websites: backpage, escorts.xxx, escortsincollege.com, Facebook, Tagged
35 Strategies for Managing Large Volumes of Discovery Effectively Get another set of handsMake the Court aware of the difficulties involved = translate as “cost”Motion for paralegal over cap expenditureGet SMS dumps into Excel formatDon‘t accept that the government has given you everything you need – as opposed to everything they think is important
41 Protective OrdersAuthorized by FRCP 16(d)(1) for “good cause” (Advisory notes cite as reasons danger or perjury or witness intimidation)Showing requires “clearly defined and serious injury” to party seeking protection, as well as “specificity. “Broad allegations of harm, unsubstantiated by specific examples or articulated reasoning” are insufficient. U.S. v. Wecht, 484 F.3d 194, 212 (3rd Cir. 2007)Must be “narrowly tailored” to address particular harm to be protected against. U.S. v. W.R. Grace, 401 F.Supp.2d 1093 (D.Mont. 2005); U.S. v. Davis, 809 F.2d 1194 (6th Cir. 1987); U.S. v. Barbeito, 2010 WL (S.D.W.Va. 2010); U.S. v. Cerna, 2010 WL (N.D. Cal. 2010); U.S. v. Annabi, 2010 WL (S.D.N.Y. 2010).
42 Protective Orders cont’d. Aside from restrictions on giving copies of discovery to anyone outside legal team or not allowing defense team to receive private information such as addresses or SSN’s, orders may:Preclude defense from being given names of prostitutesApply to all discovery even discovery for which there is no security concern including public records and information from defendantPreclude defense from disclosing in any manner protected discovery material without court approval (which might apply to filings with the court such as motions and questions during interviews of witnesses)Preclude defendant from possessing written material with protected information learned from discovery – e.g., letter from defense counsel summarizing evidence or a defendant’s own notes taken during a discovery review session with defense counselExamples of Protective Order and Motion to Clarify and Modify Protective Order are included in training materials.
43 Expert WitnessesThe government may call an expert witness on vulnerability/coercion of sex trafficking victims and pimp/prostitute relationshipSpecific purposes:Nature of relationship and how prostitution business operatesProstitutes generally come from broken homes and unstable lives and are dependent on pimpsPimps will use promises of a better life and even affection and gifts to entice prostitutes to join themPimps use threats, violence, and intimidation against prostitutes to prevent them from leaving – “fear of flight” syndromePimps will collect all or most of proceeds and control prostitutes’ ID’s and personal belongings as means to control them and keep them from leavingProstitutes frequently will leave their pimp and and come back; this is part of the control pimps have over themProstitutes will frequently lie and say they were treated OK or may give inconsistent statements about their experience with a pimp; this is explained by the control pimps have over them
44 Expert Witnesses cont’d Examples in which the admission of testimony from “victimology” experts has been accepted:U.S. v. Anderson, 851 F.2d 384, (D.C. Cir. 1988) (interstate transportation of minors for prostitution case, held that a sociologist's expert testimony on “pimping patterns and the pimp-prostitute relationship” was relevant to (1) fact def. was a pimp rather than, as def. claimed, merely a gambler with a flashy lifestyle and penchant for travel, and whether prostitutes traveled with him quite independently, or as part of a pimp-prostitute relationship”; (2) helping jury determine the credibility of the prostitute-witnesses and explain inconsistencies in their testimonies and why they remained with him even though mistreated)U.S. v. Anderson, 560 F.3d 275 (5th Cir. 2009) (same ruling re: director of a center that provides services for runaways and high-risk adolescent victims and that specializes in serving victims of sexual exploitation)U.S. v. Taylor, 239 F.3d 994, 998 (9th Cir. 2001) (same ruling re: forensic pediatrician in sex trafficking case)U.S. v. Williams, 2007 WL (M.D. Penn. 2007) (same)U.S. v. King, 703 F.Supp.2d 1063 (D. Hawaii 2010) (same)U.S. v. Shamsud-Din, 2012 WL (N.D. Ill. 2012) (same)
45 Expert Witnesses cont’d. Challenging expert testimonyStart with FRCP 16(a)(1)(G)– Adequate notice? Rule requires “summary of testimony,” opinions, “bases and reasons for those opinions,” and qualificationsFRE 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)Qualifications of expertTestimony must consist of reliable “scientific knowledge”Testimony must be relevant (FRE 401)Specific challengesIf force, fraud or coercion is not at issue, is the testimony relevant?Argue that without appropriate clinical examinations of the prostitutes by the expert the expert cannot give an opinion regarding these particular prostitutes and the expert’s testimony is therefore not relevant.The expert is not qualified (e.g., police officer)The expert is not appropriate to the case (e.g., an expert re: labor trafficking may not have sufficient experience with prostitutes to give an opinion)The expert’s testimony does not “fit” the facts relevant to the prostitutes (e.g., the prostitutes have not been shown to have come from broken homes or their ID’s and other items were not taken from them)At least attempt to minimize to what the expert can testifyAlways object to any testimony re: explaining why prostitutes will minimize pimp’s culpability or why they might lie for pimp or why they may have given inconsistent statements as this is more appropriate for argument and treads on the jury’s roleTestimony re: effects of prostitution rings on society at large or extreme levels of violence used by pimps beyond what is necessary to show how pimps use fraud, force or coercion over prostitutes should never be allowed. U.S. v. King, 703 F.Supp.2d 1063 (D. Hawaii 2010).Not proper is testimony on the medical and mental-health effects on the prostitutes. U.S. v. Williams, 2007 WL (M.D. Pa. 2007).
46 Expert Witnesses cont’d. When you have a witness who is a “bottom,” consider calling an expert yourself on the “trauma bond” for their “bottom” client, either at trial or sentencingSamples of CVs, articles, and cross-examination outlines provided in the training materials
47 FRE 412 Prohibitions Procedures To Whom Does it Apply? Ways to Get Around the Rule
48 FRE 412 – What is Prohibited/Allowed (a) Prohibited Uses. The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct:(1) evidence offered to prove that a victim engaged in other sexual behavior; or(2) evidence offered to prove a victim’s sexual predisposition.(b) Exceptions.(1) Criminal Cases. The court may admit the following evidence in a criminal case:(A) evidence of specific instances of a victim’s sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence;(B) evidence of specific instances of a victim’s sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor; and(C) evidence whose exclusion would violate the defendant’s constitutional rights.
49 FRE 412 – Procedures for Admission (c) Procedure to Determine Admissibility.(1) Motion. If a party intends to offer evidence under Rule 412(b), the party must:(A) file a motion that specifically describes the evidence and states the purpose for which it is to be offered;(B) do so at least 14 days before trial unless the court, for good cause, sets a different time;(C) serve the motion on all parties; and(D) notify the victim or, when appropriate, the victim’s guardian or representative.(2) Hearing. Before admitting evidence under this rule, the court must conduct an in camera hearing and give the victim and parties a right to attend and be heard. Unless the court orders otherwise, the motion, related materials, and the record of the hearing must be and remain sealed.
50 FRE 412 – Defense Requirements Don’t assume its like FRE in essence, who cares?Specific requirements you should aim to meetBe aware – the burden is on defenseExclusion for failure to meet requirements does NOT violate defendants constitutional rightsU.S. v. Ramone, 218 F.3d 1229, (10th Cir.), cert. denied, 531 U.S (2000)U.S. v. Rouse, 111 F.3d 561, 569 (8th Cir), cert. denied, 522 U.S. 905 (1997)But see LaJoie v. Thompson, 217 F.3d 633 (9th Cir. 2000) (violation of defendant’s constitutional rights by exclusion under state rape shield law)14 days before trial, file a specific sealed recitation setting out evidence plus purpose/theory of admissibilityThe bases for the use of the material for impeachment purposes should be identifiedSee Behler v. Hanlon, 199 F.R.D. 553, (D. Md. 2001, Grimm, MJ)Notification of victims? – usually through USAOSealed hearing required
51 Scope of FRE 412 prohibition Applies in all cases alleging sexual misconduct (which includes sex trafficking prosecutions)Rule relates to other sexual behavior or predisposition by victimcf. FRE 404(a)(2)(B) which permits victim character evidenceSuch inquiry has been termed “harassing or irrelevant,”U.S. v. Saunders, 943 F.2d 388, 392 (4th Cir. 1991).Acts of prostitution excluded, whether prior to, or after, a relationship with a defendantU.S. v. Culver, 598 F.3d 740, (11th Cir. 2010)Other Acts of prostitution “irrelevant” when the victim is a minor, and therefore cannot consent toengage in commercial sex acts U.S. v. Elbert, 561 F.3d 771, 777 (8th Cir. 2009).U.S. v. Cephus, 684 F.3d 703, 708 (7th Cir. 2012) (see this case for some bad language)But, some courts rule evidence admissible where exclusion would violate defendant’s constitutional rights toconfrontation or due process, so be ready with these to support your defense.See Olden v. KY, 488 U.S. 227 (1988) U.S. v. Bear Stops, 997 F.2d 451, (8th Cir. 1993)“A rape shield statute cannot constitutionally be employed to deny the defendant an opportunityto introduce vital evidence, and impeaching evidence can be vital.” Sandoval v.Acevedo, 996 F.2d 145, (7th Cir. 1993); see Washington v. Texas, 388 U.S. 14, (1967).“[s]uch discretion does not, however, extend to the exclusion of crucial relevant evidencenecessary to establish a valid defense.” U.S. v. Kelly, 888 F.2d 732, 743 (11th Cir. 1989).Must establish conditional relevancy under FRE 104U.S. v. Platero, 72 F.3d 806 (10th Cir. 1995)FRE 412 applies to use of information at sentencing too. U.S. v. Law, DKC
52 Who is a “victim?”FRE 412(d) defines victim as simply including an “alleged victim.”Advisory committee notes state: “The revised rule applies in all cases involving sexual misconduct without regard to whether the alleged victim or person accused is a party to the litigation.”If you represent a cooperating “bottom,” argue that the rule applies to your client.If you represent a pimp, argue that FRE should not apply to a co-defendant. Cf. U.S. v. Sabatino, 943 F.2d 94 (1st Cir. 1991).
53 Ways to Get Around FRE 412 Exceptions within the Rule (b)(1)(A) – specific sexual behavior re source of semen or injury [phys evid]U.S. v. Begay, 937 F.2d 515, (10th Cir. 1991)(b)(1)(B) -- specific sexual behavior re consent w/ defendantthese probably are of little help in a sex trafficking case, but....(b)(1)(C) – exclusion would violate constitutional rights [confrontation/defense]
54 Other Ways to Get Around FRE 412 Prior conduct which led to association with defendant - met her while she was hookingLocations of witness over timeSubsequent conduct to impeach witness statementsSexual behavior intrinsic to the alleged sexual misconduct is not “other”Prior false claims are not sexual behavior, therefore admissibleRedmond v. Kingston, 240 F.3d 590, 592 (7th Cir. 2001)But these still must be tested under FRE 404/405/608Boggs v. Collins, 225 F.3d 728, (6th Cir. 2000), cert. denied, 532 U.S. 913 (2001)
55 Other Ways to Get Around 412, cont’d Argue that publicly disclosed information = diminished harm, since public postings are not confidential(e.g., Backpage), as the Rule speaks to the privacy interest of the victimPostings on Backpage, etc., are not sexual in nature – or they wouldn’t be posted(Backpage witness testified to that very proposition in Roy)Analogize to “reputation in controversy” under (b)(2) - victim has placed reputation in controversy by conductAdmissions against interest (i.e., inculpatory in criminal activity)Codefendant statements in furtherance of the conspiracy, admissible under FRE 801(d)(2)(E)The government sought this very kind of information from codef endant before the GJ, thereby drawing on her considerable experience with prostitutionBias or interest in the outcome of the proceeding (cooperating codefendant)Contradiction, in that she has made statements before the grand jury which are contradicted by her electronic record, texts, etc., which include 412 materialPrior inconsistent statement, made differing statements about the same subjectPrior bad acts, FRE 608, as she has engaged in prostitution both prior and subsequent
56 FRE 412 – Final Thoughts§ 1591 (e)(2) defines “coercion” as a threat of “serious harm” and § 1591 (e)(4) uses “reasonable person of similar background” standard re “serious harm”, so does this person/victim regard this as serious harm?The problem boiled to its essentials, and an idea to think about:Meritor Svgs. Bank FSB v. Vinson, 477 U.S. 57, 69 (1986)“Sexually provocative speech or dress” may be admissible in workplace harassment suit,as bearing on whether victim found particular sexual advances unwelcomeU.S. v. Cephus, 684 F.3d 703, 708 (7th Cir. 2012) the government will be sure to quote this language:“[Defendants] wanted to suggest that having already been a prostitute she would not have been deceived by Cephus and therefore her testimony that she was coerced into working for him—an element of one of the charged offenses when the prostitute is not a minor, 18 U.S.C. § 1591(a)—should be disbelieved. But the testimony sought to be elicited by the cross-examination would have been irrelevant. Even if no promises were made to Cassandra, this would not be evidence that she consented to be beaten and to receive no share of the fees paid by the johns she serviced. And even if she knew going in, from her prior experience, that Cephus probably would beat her, it was still a crime for him to do so. “
61 When we don’t like Facebook (nor does the manufacturer of Ken and Barbie dolls)
62 OTHER CRIMES OR BAD ACT EVIDENCE Government may argue evidence is “intrinsic” to charged crimeRequires other crimes be “inextricably intertwined” with charged crimeDifferent standards used:Broad standard: Admissible if other crimes complete the story, absence would create a void in the story or they are so blended or connected that they “incidentally involve, explain the circumstances surrounding, or tend to prove any element of, the charged crime.” U.S. v. Cooper, 482 F.3d 658, 663 (4th Cir. 2007).Narrow standard: Just because evidence proffered by the government has some minimal relevance or helps explain the charged crime does not mean that the evidence becomes intrinsic to the charged crime. U.S. v. Bowie, 232 F.3d 923 (D.C.Cir. 2000)Why does this matter? If evidence is “intrinsic” the government need not provide notice under Rule 16, no limiting instruction is necessary and no balancing under FRE 403 is required
63 Admissibility of other crimes evidence as intrinsic evidence Bad examplesU.S. v. Robinson, 702 F.3d 22 (2nd Cir. 2012) – Evidence of defendant’s control of other prostitutes was “instrinsic” to story of crime since defendant claimed victim was his girlfriend and did not control her activitiesU.S. v. Ventura, 2013 WL (D. Md. 2013) – Claim by defendant he was responsible for murder of other pimps relevant to “means” of and intrinsic to conspiracyGood examplesU.S. v Jackson, 2014 WL (W.D. Mich. 2014) – Analyzed as “res gestae” but applies “inextricably intertwined” standard with “severe limitations” and ruled that assault on another prostitute admissible only if prostitute in indictment witnessed it and had intimidating effectU.S. v. Afyare, 2013 WL (M.D. Tenn. 2013) - Excluding evidence of other joint criminal activity based on finding that the definition of “venture” for §1591(a)(2) limits the proof to acts involving sex trafficking.
64 TYPES OF EVIDENCE ADMISSIBLE UNDER FRE 404(b) Testimony from other prostitutes about def’s other prostitution activitiesU.S. v. Willoughby, 742 F.3d 229 (6th Cir. 2014) (relevant to show def. knew that charged prostitute “would be caused to engage in commercial sex act”)U.S. v. Jennings, 280 Fed.Appx. 836 (11th Cir. 2008) (relevant to show intent to have women commit commercial sex acts especially in view of claim defendants were merely present)
65 TYPES OF EVIDENCE ADMISSIBLE UNDER FRE 404(b) Prior convictionsU.S. v. Curtis, 481 F.3d 836 (D.C. Cir. 2007) (prior conviction for promoting prostitution of a minor)sU.S. v. Cooke, 675 F.3d 1153 (8th Cir. 2012) (sexually explicit s with another minor admissible to show intent to arrange sex with a minor)
66 REVERSE 404(b) EVIDENCE Use restricted by FRE 412 Unsuccessful attemptsU.S. v. Mack, 2014 WL (N.D. Ohio 2014) (although testimony by other prostitutes admissible to refute specific claims by victims, they cannot testify he did not coerce them)U.S. v. Cephus, 684 F.3d 703 (7th Cir. 2012) (evidence of prior prostitution irrelevant to consent to being beaten); U.S. v. Jackson, 2014 WL (W.D. Mich. 2014) (minor prostitutes’ predisposition or consent to engage in prostitution not admissible)But keep trying!
67 Negotiating Plea Agreements Exploring alternative chargesFor “bottoms” and “hangers on,” consider returning to state charges or negotiating non-prosecution agreementsConsider the full range of consequences for your client with each possible charge
68 Alternatives for Pleas If your victim is a minor over the age of 14, ask the government to drop the coercion allegations – MM drops from 15 to 10 years. 18 U.S.C. § 1591(b)(2), or for any age minor 18 U.S.C. §§ 2423(a) or 2422(b) - both 10 year MMIf your victim is an adult, and FFC is charged, seek charges to straight Mann Act violations, that carry no MM, and do not require sex offender registration. 18 U.S.C. §§ 2421, 2422If your client is a “bottom” or “hanger on”, consider 18 U.S.C. § 1594(c) (conspiracy to violate § 1591, carries a maximum life sentence but no MM), § 1592 (withholding documents to further sex trafficking, with a stat max of 5 years), or § 1952(a)(3)(use of interstate facility to further prostitution, stat max of 5 years)
69 Penalties for Alternative Pleas § 1591(a) – 15-year MM, max life, SO registry§ 2423(a) (transportation of minors with the intent to engage in “criminal sexual activity”) – 10-year MM, max life, SO registry§ 2423(b) (travel with the intent to engage in “illicit sexual conduct”, AD of reasonable belief that > 18) – 30-year max, SO registry if minor involved§ 2422(a)(coercion and enticement of adults) – 20-year max, no SO registry§ 2422(b)(coercion and enticement of minors) – 10-year MM, max life, SO registry§ 2421(transportation generally) – 10-year max, no SO registry if adult§ 1594(c) – no MM, max life, no SO registry if adult§ 1592 – 5-year max, no SO registry§ 1952(a)(3)(A) – 5-year max, SO registry may depend on underlying conduct
70 Base Offense Levels for Alternative Pleas § 1591(b)(1) – 34 (§ 2G1.3(a)(1))(minor)/ 34 ((§ 2G1.1(a)(1))(adult)§ 1591(b)(2) – 30 (§ 2G1.3(a)(2)) (minor w/o FFC)§ 2423(a)(minors) – 28 (§ 2G1.3(a)(3))§ 2423(b)(adults) – 14 (§ 2G1.3(a)(3))§ 2422(b)(minors) – 28 (§ 2G1.3(a)(3))§ 2422(a)(adults) – 14 (§ 2G1.1(a)(2))§ 2421 (minors) – 24 (§ 2G1.3(a)(4))§ 2421 (adults) – 14 (§ 2G1.1(a)(2))§ 1594(c) – Gov. position – 34 – United States v. Li, 2013 WL(D.N.Mar.Is. F2b. 21, 2013)(faulty analysis, easy to distinguish)Under a plain reading of statute and GLs, BOL = 14§ 1592 – 18 (§ 2H4.1(a)(2))§ 1952(a)(3)(A) – 14 (§ 2E1.2(a)(2)), unless underlying conduct in your plea calls for a higher cross-referenced BOL.
71 Sentencing Issues §§ 2G1.1 and 2G1.3 Chapter 3 Enhancements Use of Acquitted ConductMitigation StrategiesComparison to other cases in the district
72 § 2G1.1. Promoting a Commercial Sex Act or Prohibited Sexual Conduct with an Individual Other than a MinorBase Offense Level: 34 if the offense of conviction is 18 U.S.C. § 1591(b)(1) (force, fraud or coercion OR victim under age 14) and 14 otherwise (e.g., violation of 2421, Mann Act violation).Specific Offense Characteristic: If not convicted under § 1591(b)(1) but “offense involved fraud or coercion,” increase by 4 levels.Cross Reference: If the offense involved conduct described in 18 U.S.C. §2241(a) or (b) or 18 U.S.C. § 2242, apply § 2A3.1 (Criminal Sexual Abuse; Attempt to Commit Criminal Sexual Abuse).
73 Variable Base Offense Level: §2G1.3. Sex Trafficking of Minors, Transportation of Minors to Engage in a Commercial Sex Act, etc.Variable Base Offense Level:34 if the defendant was convicted under 18 U.S.C. § 1591(b)(1) (force, fraud or coercion)30 if the defendant was convicted under 18 U.S.C. § 1591(b)(2) (no force, fraud or coercion)28 if the defendant was convicted under 18 U.S.C. § 2422(b) or § 2423(a) (enticing or transporting minor to engage in prostitution)Otherwise, 24.
74 § 2G1.3 Specific Offense Characteristics 2 LEVEL INCREASE IF:Defendant was parent, relative, or legal guardian of minorMinor in the custody, care, or supervisory control of defendantOffense involved knowing misrepresentation of participant’s identity to persuade minor to travel, etc.Participant unduly influenced minor to engage in prohibited sexual conduct.The offense involved the use of a computer or an interactive computer service to persuade minor to travel, etc. OR solicit, etc. a person to engage in prohibited sexual conduct with minor.If the offense involved the commission of a sex act or sexual contact OR if convicted under 18 U.S.C. § 2422(b) or § 2423(a) and the offense involved a commercial sex act.8 LEVEL INCREASE IF:If convicted under 18 U.S.C. § 2422(b) or § 2423(a) and offense involved minor under age 12.
75 § 2G1.3 Cross-ReferencesIf the offense involved advertisement of minor apply § 2G2.1 if the resulting offense level is greater than under § 2G1.3If minor was killed under circumstances that would constitute murder under 18 U.S.C. § 1111, apply § 2A1.1 if the resulting offense level is greater than under § 2G1.3 under § 2G1.3If the offense involved sexual abuse (as described under 18 U.S.C. § 2241 or § 2242, apply § 2A3.1 if the resulting offense level is greater than under § 2G1.3If the offense involved interstate travel with intent to engage in a sexual act with a minor or knowingly engaging in a sexual act with a minor who had not attained the age of 12 years, § 2A3.1 shall apply, regardless of the "consent" of the minor
76 Custody, Care or Supervisory Control – § 2G1.3(b)(1) Application Note 2 —Intended to have “broad application”Includes offenses where minor was entrusted to defendant whether temporarily or permanentlyExamples: teachers, day care providers, baby-sitters, or other temporary caretakersU.S. v. Brooks, 610 F.3d 1186 (9th Cir. 2010)Does not apply to where relationship between defendant and minor arose from crime itself
77 Unduly Influenced Minor – § 2G1.3(b)(2)(B) Application Note 3(B)Question is whether a participant’s influence over the minor compromised the voluntariness of the minor’s behaviorWhere a participant is at least 10 years older than minor, there is a rebuttable presumption the increase appliesU.S. v. Willoughby, 742 F.3d 229 (6th Cir. 2014)Rejects claim that § 1591(b) takes this into account since the enhancement can involve more than force, fraud or coercion (so argue more is required)Preying on minor’s homeless and runaway status supported increaseU.S. v. Jones, 546 Fed. Appx. 946 (11th Cir. 2013)Fact that minors were previously involved in prostitution does not preclude enhancement and enhancement justified based on defendant’s use of affection, control and violence
78 Misrepresentation of Identity – § 2G1.3(b)(2)(A) Application Note 3(A)Applies only to misrepresentations made directly to a minor or to a person who exercises custody, care, or supervisory control of the minor.Example: Increase does not apply to misrepresentation to an airline representative in the course of making travel arrangements for the minorIncludes misrepresentation of a participant’s name, age, occupation, gender, or statusRequires an intent to persuade, induce, entice, coerce, or facilitate the travel of, a minor to engage in prohibited sexual conduct.Example: Use of a computer screen name, without such intent, would justiify enhancement.
79 Use of Computer – § 2G1.3(b)(3) Application Note 4Applies only to the use of a computer to communicate directly with a minor or with a person who exercises custody, care, or supervisory control of the minorIncrease does not apply to use of a computer to obtain airline tickets on the Internet for the minorBad decisionsU.S. v. Royal, 442 Fed. Appx. 794 (4th Cir. 2011) (telling prostitute to send message on MySpace to minor after defendant saw her picture and said he “wanted her” sufficient to warrant enhancement even if message not sent as computer “facilitated” crime)U.S. v. Jackson, 697 F.3d 1141 (9th Cir. 2012) (court relies on alleged inconsistency between Guideline language and application note – former does not include “communicate directly” language -- to uphold adjustment)
80 Sex Act, CSA - § 2G1.3(b)(4)Requires commission of a sex act or sexual contact OR if defendant convicted under § 2422(b) or § 2423(a) (enticing or transporting minor to engage in prostitution), a commercial sex act (CSA)Since a sex act or sexual contact is not required for a violation of § 1591 – it just requires certain actions by participants knowing that the victim “will be caused” to engage in a CSA – this enhancement is not assumed in the Guideline offense level. See U.S. v. Willoughby, 742 F.3d 229 (6th Cir. 2014) and cases cited in opinion.
81 Vulnerable Victim – § 3A1.1(b)(1) Application Note 2Can apply to victim not included in charged offense (see relevant conduct provisions of §1B1.3)Requires that victim be “unusually vulnerable”Where age is incorporated in offense guideline, (e.g., for violations of sections 1591(b), 2422(b), 2423), enhancement does not apply merely because of victim’s ageOther circumstances justifying enhancementU.S. v. Scott, 529 F.3d 1290 (10 Cir. 2008) – Victim was small and frail and unusually naïve and immature for her ageU.S. v. Williams, 291 F.3d 1180 (9th Cir. 2002) – Victim was psychologically vulnerableHowever, knowledge of vulnerability is requiredUS v. Scott -- Evidence did not show defendant was aware of victim’s drug usage or mental illness
82 Vulnerable Victim – § 3A1.1(b)(1) Disagreement re: whether homelessness, drug usage alone sufficient for enhancementBAD:U.S. v. Willoughby, 742 F.3d 229 (6th Cir. 2014) – Victim was homeless runaway with history of abuse and neglectU.S. v. Royal, 442 Fed. Appx. 794 (4th Cir. 2011) – Defendant took advantage of victims’ drug dependenceU.S. v. Evans, 272 F.3d 1069 (8th Cir. 2001) – SameU.S. v. Amedeo, 370 F.3d 1305 (11th Cir. 2004) SameGOOD:U.S. v. Scott -- Unstable personal life or victim’s runaway status not sufficient as such factors are “sufficiently common” among prostitutesU.S. v. Williams – Victim’s runaway status and drug use not sufficientU.S. v. Sabatino; 943 F.3d 94, 103 (1st Cir. 1991) – reversing enhancement based on insufficient evidence distinguishing victims from “the typical individuals who would fall prey to a Mann Act violator.”)Also, in § 1591 cases, point out that Application Note 2, in defining “coercion” for purposes of the § 2G1.3(b)(1) enhancement, states that impairment by drugs or alcohol does not justify the enhancement when the drug or alcohol was voluntarily taken
83 Restraint of Victim – § 3A1.3 § 1B1.1, Application Note 1(K)"Physically restrained" means the forcible restraint of the victim such as by being tied, bound, or locked upExample: U.S. v. Townsend, 521 Fed. Appx. 904 (11th Cir. 2013)Rejects claim that enhancement is intrinsic to § 1591(a) offenseRules that examples in § 1B1.1 definition are not exclusiveFinds sufficient evidence that defendant forced victims to engage in sex with him and each other by pinning them down, pulling their hair and forcing their heads downBut restraint must “add to basic crime”U.S. v Mikalajunas, 936 F.3d 153 (4th Cir. 1991) – The Guidelines did not intend an enhancement for something other than a brief holding as part of a stabbing
84 Aggravated Role – § 3B1.1Does not apply to a defendant’s supervision over prostitutesApplication Note 1 -- A "participant" is a person who is criminally responsible for the offenseProstitutes are “victims” under § 1591 et seq.Accord: U.S. v. Jarrett, 956 F.3d 864 (8th Cir. 1992)But see –U.S. v. Tavares, 705 F.3d 4 (1st Cir. 2013) – Prostitutes who received immunity could be considered “participants”U.S. v. Smith, 719 F.3d 1120 (9th Cir. 2013) – Use of bottom justified role enhancement even if she was not guilty of same offense as defendant
85 Each victim will be counted as a separate offense under § 3D1.1 Multiple Victims – § 3D1.1Each victim will be counted as a separate offense under § 3D1.1§ 2G1.1(d)Under Application Note 5, this also applies to victims not contained in a count of conviction§ 2G1.3(d)Under Application Note 6, this also applies to victims not contained in a count of conviction
86 Use of Acquitted Conduct SIXTH AMENDMENT ATTACKChallenge viability of U.S. v. Watts, 519 U.S. 148 (1997) in light of U.S. v. Booker, 543 U.S. 220 (2005)Support –U.S. v. Pimenthal, 367 F.Supp.2d 143 (D.Mass. 2005)U.S. v. Coleman, 370 F.Supp.2d 661 (S.D. Ohio 2005)U.S. v. Gray, 362 F.Supp.2d 714 (S.D. W.Va. 2005)But see --U.S. v. Grubbs, 585 F.3d 793 (4th Cir. 2009) (rejecting Sixth Amendment concerns)
87 Use of Acquitted Conduct DUE PROCESS ARGUMENTArgue heightened standard of proof – BRD – requiredSupport –U.S. v. Faust, 456 F.3d 1342 (11th Cir. 2006)U.S. v. Pimenthal, 367 F.Supp.2d 143 (D.Mass. 2005)U.S. v. Coleman, 370 F.Supp.2d 661 (S.D. Ohio 2005)U.S. v. Kelley, 355 F.Supp.2d 1031 (D. Neb. 2005)U.S. v. Huerta-Rodriguez, 355 F.Supp.2d 1019 (D. Neb. 2005)But see –U.S. v. Grubbs, 585 F.3d 793 (4th Cir. 2009) (rejecting claim that “clear and convincing” standard should apply to uncharged as conduct)Also argue that court should defer to jury verdictU.S. v. Semrau, 2011 WL 9258 (W.D. Tenn. 2011)U.S. v. Carvajal, 2005 WL (S.D. N.Y. 2005)
88 Mitigation Strategies for Pimps Means of entry into the business may be mitigating, e.g., if exposed as a child, or eased in by associationOther means of income, or other indications that this was not a primary way of life for your clientCompare sentences – comparable state offenses and other federal sentences (try WL searches for “sex trafficking” & “sentence” and a number)Research DOJ press releases for other cases in which lower sentences were given for comparable or worse conductStandard Mitigation
89 Mitigation Strategies for “Bottoms” Put conduct within the context of her own victimization, if possible, and that work as bottom was part of that victimization Explain that choice does not always equal “free choice” and how your client became a victim Explain the “trauma bond” between a pimp and a bottom – Stockholm syndrome Develop a full social history on your client – there will be plenty of mitigation here – guaranteed Consider retaining one or more experts: 1. Sex trafficking expert to explain the dynamic 2. Social worker for social history/trauma narrative 3. MH expert for possible diagnoses, including PTSD Get them into counseling and treatment
90 Comparison of Sex Trafficking Cases Chart of all cases shows some interesting patterns:1. Charges began in 2007, picked up 20092. Superseding indictments appear to be the norm3. The first lawyer (and sometimes the second one) usually gets fired4. Cases involving minor victims typically plead, cases with adults are more likely to go to trial5. There is usually, but not always, a substantial “trial penalty.”
91 List of Training Materials Powerpoint presentationSample Pleadings: motions to sever, motions to disclose (404(b) and 609 materials, witnesses, various motions to suppress), motions in limine, sentencing memo excerpt, protective orderMaterials on expert witnesses (expert notice, CVs of commonly-used government experts, cross-examination outline, articles)Sample jury instructions and proposed voir direSamples from social media investigationsChart of Sex Trafficking Cases in D. MDList of commonly used terms