USA v. Omar Weise

Filing

Opinion issued by court as to Appellant Omar Weise. Decision: Affirmed. Opinion type: Non-Published. Opinion method: Per Curiam.

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[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 13-14467
Non-Argument Calendar
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D.C. Docket No. 1:13-cr-20092-KMM-1
UNITED STATES OF AMERICA,

Plaintiff-Appellee,
versus
OMAR WEISE,
a.k.a. Michael Andrew Clarke,
a.k.a. Angel Navarro,

Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(April 6, 2015)

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Before MARTIN, JILL PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:
Omar Weise appeals from his conviction and sentence of 360 months’
imprisonment for engaging in sex trafficking of minors. Mr. Weise argues that the
evidence presented at trial was insufficient to sustain his conviction, prosecutorial
misconduct deprived him of a fair trial, and the district court committed errors at
sentencing that led to miscalculation of his guideline range. After careful review,
we affirm both his conviction and sentence.
I.
Mr. Weise went to trial on an indictment alleging two counts of sex
trafficking of a minor by force, fraud, or coercion, in violation of 18 U.S.C.
§ 1591(a)(1), (b)(1). The counts corresponded to two minors, S.L. and A.R.E.,
who worked as dancers and prostitutes for Mr. Weise. S.L., A.R.E., and other sex
workers affiliated with Mr. Weise testified at trial that Mr. Weise could be violent
at times, but each witness insisted that the violence was limited to personal
disagreements unrelated to dancing or prostitution. The most graphic account of
Mr. Weise’s violence involved S.L.: the jury heard about an occasion on which
Mr. Weise punched her hard enough to break her jaw and send her to the hospital.
The jury ultimately convicted Mr. Weise of the count relating to S.L. based on its
findings that Mr. Weise knew or recklessly disregarded her age and that he knew
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or recklessly disregarded that she was coerced into engaging in commercial sex
acts. As a result of the jury’s finding with regard to coercion, Mr. Weise was
subject to an enhanced mandatory minimum penalty pursuant to subsection (b)(1)
of the statute.1
The jury found Mr. Weise not guilty of the second count relating to A.R.E.
At sentencing, however, the district court found that the government had proven
the conduct involving A.R.E. by a preponderance of the evidence. Accordingly,
the court took that conduct into consideration in calculating his guideline range,
classifying it as a separate offense group pursuant to § 2G1.3(d) and Part D of
Chapter Three of the Sentencing Guidelines. On the basis of the two groups of
offenses, the district court calculated a guideline range of 360 months’ to life
imprisonment and imposed a sentence of 360 months’ imprisonment. This appeal
followed.
II.
Mr. Weise first contends that the evidence presented at trial was insufficient
to sustain his conviction. “We review de novo the sufficiency of the evidence
presented at trial, and we will not disturb a guilty verdict unless, given the
evidence in the record, no trier of fact could have found guilt beyond a reasonable
1

Subsection (b)(1) provides for a fifteen-year mandatory minimum penalty when the
victim is below the age of 14 or the defendant effects the offense through force, fraud, or
coercion. For all other violations of the statute, subsection (b)(2) provides for a ten-year
mandatory minimum instead. See 18 U.S.C. § 1591(b).
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doubt.” United States v. Mozie, 752 F.3d 1271, 1285 (11th Cir. 2014) (internal
quotation marks omitted). “In reviewing the sufficiency of the evidence, we look
at the record in the light most favorable to the verdict and draw all reasonable
inferences and resolve all questions of credibility in its favor.” Id. (internal
quotation marks omitted). For a conviction under 18 U.S.C. § 1591 to stand, the
evidence must show that (1) the defendant knowingly recruited, enticed, harbored,
transported, provided, obtained, or maintained a person; (2) the defendant knew, or
recklessly disregarded the fact, either that the person was a minor and would be
caused to engage in a commercial sex act or that means of force, threats of force,
fraud, or coercion would cause the person to engage in a commercial sex act; and
(3) the defendant’s acts were in or affected interstate or foreign commerce.
18 U.S.C. § 1591(a); see Mozie, 752 F.3d at 1286. Here, to sustain the application
of subsection (b)(1)—which provides for a higher mandatory minimum than
subsection (b)(2) and triggers a higher base offense level at sentencing—the
evidence must show that the offense was “effected by means of force, threats of
force, fraud, or coercion.” 18 U.S.C. § 1591(b)(1). Mr. Weise argues that the
evidence is insufficient to establish two of the above elements: (1) that his
arrangement with S.L. relied on force, fraud, or coercion and (2) that his actions
were in or affected interstate or foreign commerce.

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First, we reject Mr. Weise’s argument that his relationship to S.L. was free
of coercion as a matter of law. The statute defines “coercion” to include “any
scheme, plan, or pattern intended to cause a person to believe that failure to
perform an act would result in serious harm to . . . any person.” Id.
§ 1591(e)(2)(B). “Serious harm” is then defined as
any harm, whether physical or nonphysical, including psychological,
financial, or reputational harm, 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 in order to avoid
incurring that harm.
Id. § 1591(e)(4). In the light of this definition, the record supports the conclusion
that S.L. reasonably believed that continuing to engage in sex work for Mr. Weise
was necessary to avoid serious harm. S.L. testified that after spending a night
sleeping on the beach, she realized that she “needed” Mr. Weise and “didn’t have
[anywhere] else to go.” Doc. 43 at 173. When the government asked her why she
did not return to Mr. Weise that night, she testified, “Because I didn’t get
money . . . .” Id. She suggested that Mr. Weise deliberately avoided obtaining
false identification for her, which would have given her more independence in
finding work, so that she would remain dependent on him. And, although multiple
witnesses testified that Mr. Weise did not rely on physical violence to manage sex
workers, the occasion on which he broke S.L.’s jaw demonstrates otherwise. S.L
testified that Mr. Weise hit her because “he didn’t want” S.L. “to fight” with
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another worker. Id. at 163. A reasonable interpretation of this testimony is that
Mr. Weise hit her as punishment for behavior he found unacceptable, rather than to
break up a fight. In sum, a reasonable jury could have concluded that S.L.
potentially faced a variety of harms—physical, financial, and psychological—
whenever she failed to conduct herself in accordance with Mr. Weise’s wishes.
Second, the record supported the jury’s finding that Mr. Weise’s actions
were in or affected interstate or foreign commerce. This Court has declared that
intrastate sex trafficking of minors inherently affects interstate commerce. United
States v. Evans, 476 F.3d 1176, 1179 (11th Cir. 2007) (“[The defendant’s]
enticement of [a minor] to commit prostitution, even though his actions occurred
solely in Florida, had the capacity when considered in the aggregate with similar
conduct by others, to frustrate Congress’s broader regulation of interstate and
foreign economic activity.”). This finding has further support when a pimp makes
use of goods and services in or affecting interstate commerce, such as phones and
hotels, as Mr. Weise did here. Id. at 1179-80; see United States v. Pipkins, 378
F.3d 1281, 1295 (11th Cir. 2004), vacated on other grounds, 544 U.S. 902 (2005),
and reinstated, 412 F.3d 1251 (11th Cir. 2005). Accordingly, we hold that the
evidence is sufficient to sustain Mr. Weise’s conviction.
III.

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Mr. Weise argues next that the government engaged in misconduct that
deprived him of a fair trial. He identifies two sources of error: first, the
government’s lines of questioning that he claims improperly asserted facts not in
evidence and, second, the government’s closing arguments that Mr. Weise argues
were unsupported by the record. At trial, Mr. Weise objected only to two lines of
questioning. We review those allegations of prosecutorial misconduct de novo.
United States v. Epps, 613 F.3d 1093, 1100 (11th Cir. 2010). To merit reversal,
“(1) the remarks must be improper, and (2) the remarks must prejudicially affect
the substantial rights of the defendant.” Id. (internal quotation mark omitted).
Because Mr. Weise failed to object below to any other line of questions or
statements he now challenges, including a third line of questioning and certain
statements from closing argument, we review each of those new challenges for
plain error. United States v. Flanders, 752 F.3d 1317, 1332-33 (11th Cir. 2014).
Thus, we will reverse on the basis of those questions or statements only if “(1) an
error occurred; (2) the error was plain; (3) it affected his substantial rights; and (4)
it seriously affected the fairness of the judicial proceedings.” Id. at 1333.
At trial, Mr. Weise objected to two lines of questioning in which the
government was attempting to impeach its own witness, Alexandrea Snapp. After
she testified that Mr. Weise was not generally violent, the government sought to
show that she had told members of the prosecution team before trial that Mr. Weise
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frequently employed violence to manage sex workers. The first exchange to which
Mr. Weise objected took place on redirect examination of Ms. Snapp. The
government insisted, in question form, that Ms. Snapp had told the government
that Mr. Weise “beat [her] all the time” and “was very frequently abusive of both
[Ms. Snapp] and all the other girls working for him.” Doc. 43 at 124-25. After
Ms. Snapp denied making those statements, the government sought to impeach her
testimony with extrinsic evidence in another exchange, to which Mr. Weise also
objected: Agent Amanda Detterline testified that Ms. Snapp had in fact said before
“that she was beaten all the time by [Mr. Weise]” and that “[b]ecause she herself
had been beaten multiple times by Omar Weise,” she was able to discern that Mr.
Weise had beaten S.L. when she saw S.L.’s injuries. Doc. 44 at 105-06. Mr.
Weise characterizes the government’s lines of questioning as misconduct because,
in his view, they had a testimonial character and communicated to the jury facts
not in evidence. For the same reason, Mr. Weise newly asserts on appeal that a
third line of questioning, which implied Ms. Snapp had previously told the
prosecution that S.L. appeared to be over 18, was also error.
We find no merit in Mr. Weise’s characterization of these exchanges. The
exchanges reflect textbook use of prior inconsistent statements to impeach a
witness. United States v. Sisto, 534 F.2d 616, 622 (5th Cir. 1976) (“[I]f on crossexamination the witness has denied making the statement, or has failed to
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remember it, the making of the statement may be proved by another witness.”). If
Mr. Weise’s aim on appeal is to lodge an evidentiary challenge to Agent
Detterline’s testimony, then his briefs fail to explain why the effect of the
testimony was other than to impeach Ms. Snapp or why the district court’s later
limiting instructions were insufficient to cure any problem.
For the first time on appeal, Mr. Weise also argues that several statements
made by the government in closing argument constitute misconduct: (1) that after
failing to obtain money from a date, S.L. chose to sleep on the beach instead of
returning to Mr. Weise because “she was afraid of what his reaction would be”; (2)
that the jury had heard Ms. Snapp “talk about the times in which the defendant hit
her”; and (3) that Mr. Weise had “[n]o problem with adult prostitutes” giving out
his name but made sure that underage girls did not use his name, so that he would
stay out of trouble. Doc. 44 at 140, 184. Mr. Weise argues that these statements
prejudiced his substantial rights because they misstated the evidence or drew
unreasonable inferences therefrom.
We disagree. “The purpose of closing argument is to assist the jury in
analyzing the evidence, and although a prosecutor may not exceed the evidence
presented at trial during her closing argument, she may state conclusions drawn
from the trial evidence.” United States v. Reeves, 742 F.3d 487, 505 (11th Cir.
2014). Here, the prosecutor’s statements do not constitute plain error, even if one
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of them could have strayed toward an unreasonable inference. The first statement
is permissible because, for reasons articulated in Part II, a reasonable jury could
infer that S.L. was afraid to return to Mr. Weise after the date in question. The
second statement is merely a reference to the fact that Mr. Weise hit Ms. Snapp on
multiple occasions, which is a restatement of Ms. Snapp’s own testimony that
requires no additional inferences. Doc. 43 at 83-84. The third statement presents a
closer issue, as the government did not offer any evidence that Mr. Weise had no
objection to adult prostitutes using his name. Assuming arguendo that this
statement was improper, however, any error, even if plain, did not affect Mr.
Weise’s substantial rights. The purpose of the third statement was to show that
Mr. Weise knew that his two victims were underage. However, this finding was
not essential to Mr. Weise’s conviction. The statute of conviction requires only
that Mr. Weise at least recklessly disregarded the fact of S.L.’s age or the coercive
nature of his relationship with S.L.2 See 18 U.S.C. § 1591(a). The jury found that
he had the requisite mental state with regard to both elements. Doc. 33. Therefore,

2

We note also that “[i]n 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.” 18 U.S.C. § 1591(c).
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none of the government’s statements at closing argument constitutes reversible
error.3
IV.
Mr. Weise challenges the district court’s calculation of his sentencing
guideline range on three grounds: (1) the district court considered acquitted
conduct involving A.R.E. despite insufficient evidence of Mr. Weise’s guilt, (2) it
was erroneous double counting for the district court to impose a two-level
enhancement under § 2G1.3(b)(4)(A) for each victim, and (3) it was error to
impose a two-level enhancement under § 2G1.3(b)(2)(B) for each victim because
Mr. Weise did not “unduly influence” either victim to engage in sex work. We
review a district court’s findings of facts at sentencing for clear error, and we
review the district court’s application of the guidelines to those facts de novo.
United States v. Mandhai, 375 F.3d 1243, 1247 (11th Cir. 2004). Where we find
error, we deem it harmless if “the error did not affect the substantial rights of the
parties.” United States v. Hernandez, 160 F.3d 661, 670 (11th Cir. 1998) (citing
28 U.S.C. § 2111).
While two of Mr. Weise’s claims with respect to A.R.E. present closer
issues than those regarding S.L., any error in the district court’s consideration of

3

We need not address Mr. Weise’s claim of cumulative error. “If there are no errors or a
single error, there can be no cumulative error.” United States v. Waldon, 363 F.3d 1103, 1110
(11th Cir. 2004) (quoting United States v. Allen, 269 F.3d 842, 847 (7th Cir. 2001)).
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conduct related to A.R.E. was harmless. We begin by showing that there was no
error in the district court’s calculation of an offense level for conduct involving
S.L. Then, we demonstrate that even if we accepted arguendo that Mr. Weise did
not coerce or unduly influence A.R.E. into engaging in commercial sex acts, his
guideline range would remain the same.
A.
First, we reject Mr. Weise’s argument that the district court’s application of
guideline § 2G1.3(b)(4)(A) resulted in double counting. “Impermissible double
counting occurs only when one part of the Guidelines is applied to increase a
defendant's punishment on account of a kind of harm that has already been fully
accounted for by application of another part of the Guidelines.” United States v.
Matos-Rodriguez, 188 F.3d 1300, 1309 (11th Cir. 1999) (internal quotation marks
omitted). Mr. Weise argues that his underlying offense already contemplates “the
commission of a sex act or sexual contact,” which is the entire basis for the
enhancement. See U.S.S.G. § 2G1.3(b)(4)(A) (2012). However, the underlying
offense requires only that force “will be used” to cause a commercial sex act or
that a minor “will be caused” to engage in such an act. 18 U.S.C. § 1591. To
preserve the meaning of the future-tense verbs in the statute, this Court must read
the statute to mean that completion of a victim’s sex act is not necessary to a
conviction. United States v. Willoughby, 742 F.3d 229, 241 (6th Cir. 2014) (noting
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agreement with every circuit to address the issue). This reading recognizes the
completion of a sex act as a harm distinct from the process of exploitation that
leads up to such an act. Mr. Weise does not contest that both S.L. and A.R.E.
engaged in commercial sex acts while affiliated with him. For these reasons, an
enhancement under this subsection was appropriate as to either victim.
Second, we find that the enhancement for “unduly influenc[ing]” a minor
under § 2G1.3(b)(2)(B) was appropriate as to S.L. The guidelines provide that this
Court should consider whether Mr. Weise’s influence over S.L. “compromised the
voluntariness” of S.L.’s behavior. U.S.S.G. § 2G1.3 cmt. 3B (2012). Absent
conflicting evidence, the Guidelines allow us to presume “some degree of undue
influence” on the basis that S.L. is at least ten years younger than Mr. Weise. See
id. Given the substantial evidence of coercion recited above in Part II, we find no
clear error in the district court’s imposition of this enhancement with respect to
conduct involving S.L.
B.
We now turn to Mr. Weise’s argument that the district court lacked
sufficient evidence to consider acquitted conduct involving A.R.E. at sentencing.
This argument has two parts: Mr. Weise contends both that he did not know
A.R.E. was a minor and that he did not force her to engage in sex acts. In the light
of the guideline calculations that necessarily result from our conclusions thus far,
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we need only address the first contention. Although A.R.E. had fake identification
and others might have thought that she appeared older, A.R.E. testified that she
told Mr. Weise that she was 17 while working for him. At sentencing, the district
court determined on the basis of the trial record that A.R.E. appeared to be
disinterested in the outcome of the case and that her testimony supported a finding
that Mr. Weise was responsible for a second violation of 18 U.S.C. § 1591 for
sentencing purposes. We are bound by this credibility determination. See United
States v. Ramirez-Chilel, 289 F.3d 744, 749 (11th Cir. 2002). Thus, we find no
clear error in the district court’s finding, by a preponderance of the evidence, that
Mr. Weise could be held responsible for a second violation.
Keeping in mind that the district court did not err in calculating an offense
level for conduct involving S.L. or in imposing an enhancement under
§ 2G1.3(b)(4)(A) for conduct involving A.R.E., we conclude that any remaining
error is harmless. We need not reach the closer questions of whether Mr. Weise
coerced A.R.E. into engaging in commercial sex acts (aggravating the base offense
level for his second violation) or whether he unduly influenced her to do the same
(triggering the relevant enhancement). Even if we decided both of those questions
in Mr. Weise’s favor, his guideline range would remain unchanged given our

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analysis to this point.4 At worst, any error has no effect on Mr. Weise’s substantial
rights and is therefore harmless.
V.
For the foregoing reasons, Mr. Weise’s conviction and sentence are
AFFIRMED.

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As we found no error in the calculation of an offense level for conduct involving S.L.,
the offense level for “Group One” remains at 38. “Group Two,” which relates only to A.R.E.,
would have a base offense level of 30 (as is required when the defendant knew the victim was a
minor but did not coerce her). The enhancement for completion of a sex act would still add two
levels, and the enhancement for use of a computer—which Mr. Weise does not challenge on
appeal—would add two more. Because the resulting offense level of 34 for Group Two would
only be four levels below the offense level for Group One, the units calculation required under
§ 3D1.4 would add two more levels to the higher of the two base offense levels, bringing the
final adjusted offense level to 40. Given a criminal history category of III, the correct guideline
range would be 360 months’ to life imprisonment, which is the same range the district court
used.
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