US v. Kevin Fuerte
Filing
PUBLISHED AUTHORED OPINION filed. Originating case number: 1:10-cr-00770-WDQ. [999642198]. [13-4755, 13-4931]
Appeal: 13-4755
Doc: 116
Filed: 08/18/2015
Pg: 1 of 33
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 13-4755
UNITED STATES OF AMERICA,
Plaintiff − Appellee,
v.
KEVIN GARCIA FUERTES, a/k/a Kerlin Esquivel−Fuentes, a/k/a
Flaco,
Defendant − Appellant.
No. 13-4931
UNITED STATES OF AMERICA,
Plaintiff − Appellee,
v.
GERMAN DE JESUS VENTURA, a/k/a Chino, a/k/a Chalo, a/k/a
Pancho, a/k/a Chaco, a/k/a Oscar,
Defendant − Appellant.
Appeals from the United States District Court for the District
of Maryland, at Baltimore.
William D. Quarles, Jr., District
Judge. (1:10−cr−00770−WDQ−2; 1:10−cr−00770−WDQ−1)
Argued:
May 13, 2015
Decided:
August 18, 2015
Appeal: 13-4755
Doc: 116
Before KING and
Circuit Judge.
Filed: 08/18/2015
KEENAN,
Circuit
Pg: 2 of 33
Judges,
and
DAVIS,
Senior
No. 13-4755 affirmed; No. 13-4931 affirmed in part and vacated
and remanded in part by published opinion.
Senior Judge Davis
wrote the opinion, in which Judge King and Judge Keenan joined.
ARGUED: Nicholas J. Vitek, VITEK LAW LLC, Baltimore, Maryland;
Michael Daniel Montemarano, MICHAEL D. MONTEMARANO, P.A.,
Columbia, Maryland, for Appellants. Sujit Raman, OFFICE OF THE
UNITED STATES ATTORNEY, Greenbelt, Maryland, for Appellee.
ON
BRIEF: Rod J. Rosenstein, United States Attorney, P. Michael
Cunningham, Rachel M. Yasser, Assistant United States Attorneys,
OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for
Appellee.
2
Appeal: 13-4755
Doc: 116
Filed: 08/18/2015
Pg: 3 of 33
DAVIS, Senior Circuit Judge:
These appeals arise from the prosecution of two members of
an enterprise engaged in interstate prostitution.
Following a
two-week trial, a jury convicted Appellants Kevin Garcia Fuertes
(“Fuertes”)
conspiracy
and
to
trafficking
German
commit,
and
de
and
related
Jesus
Ventura
commission
offenses.
of,
On
(“Ventura”)
a
number
appeal,
of
of
sex
Fuertes
and
Ventura make four assertions of error, two individually and two
jointly, regarding evidentiary rulings, jury instructions, and
the sufficiency of the evidence.
For the reasons stated below,
we affirm the Fuertes judgment in No. 13-4755.
In Ventura’s
appeal, No. 13-4931, applying plain error review, we conclude
that the conviction under 18 U.S.C. § 924(c) for possession and
use
of
a
firearm
in
relation
to
a
crime
of
violence
was
erroneous because, we hold, sex trafficking by force, fraud, or
coercion,
in
violation
of
18
U.S.C.
categorically a crime of violence.
§
1591(a),
is
not
Accordingly, we vacate the
conviction on Count Seven and remand for entry of judgment of
acquittal
on
that
count
but
we
otherwise
affirm
the
Ventura
judgment.
I.
A.
The trial evidence was amply sufficient to permit the jury
to find the following facts.
3
Appeal: 13-4755
Doc: 116
By
Filed: 08/18/2015
early
Hispanic
2008,
community
Ventura
in
Pg: 4 of 33
was
operating
Annapolis,
brothels
Maryland.
in
Fuertes
the
helped
Ventura run the brothels, as well as advertise the prostitution
business.
Ventura
To maintain control over the sex trade, Fuertes and
threatened
perceived
competitors
with
violence.
For
example, in March 2008, Ventura told Alberto Hernandez Campos
(“Campos”) about trouble he was having with another Annapolisarea
pimp,
(“Ramirez”).
Ricardo
Humberto
“el
Pelon”
Rivas
Ramirez
Then, to emphasize the seriousness of the matter,
Fuertes showed Campos a handgun. 1
Following this encounter, on September 13, 2008, Ramirez
was murdered.
Investigators learned that Ramirez had received
threatening phone calls from two different phone numbers (one
phone number ending in 5015, the other in 1397) some time prior
to his murder.
Police sought subscriber information for the two
phone
and
numbers,
entered
them
into
a
database
for
future
investigative purposes.
On September 24, 2008, Fuertes was arrested following an
unrelated
traffic
violation.
When
he
provided
booking
information, Fuertes gave a phone number that matched the 5015
1
Ventura’s operation also adversely affected individuals
who happened simply to live in close proximity to the brothels.
One family began receiving threatening phone calls and had their
home and car vandalized after offering assistance to one of
Ventura’s prostitutes.
4
Appeal: 13-4755
Doc: 116
Filed: 08/18/2015
Pg: 5 of 33
number from which Ramirez had received threatening phone calls.
Fuertes was arrested again the next day, this time on an open
warrant.
At
the
time
of
this
arrest,
Fuertes
had
in
his
possession a cellular phone with the 5015 number, as well as
business cards advertising prostitution services.
After
his
September
25
arrest,
Fuertes
consented
to
a
search of his home in Annapolis, where officers found evidence
that the residence was being used as a brothel.
In the living
room, investigators found a cellular phone, which an occupant of
the
house
permitted
contained
the
1397
threatening calls.
them
number
to
examine.
from
which
The
contacts
Ramirez
had
list
received
Police also located a physical address book,
which listed two phone numbers for “Pancho”: the 1397 number, as
well
as
another
warrant,
police
number
learned
ending
that
in
0903.
Ventura
After
was
listed
subscriber for the phone number ending in 0903.
the
investigation
eventually
identified
obtaining
as
a
the
Witnesses in
Ventura
by
the
aliases/nicknames of “Pancho” and “Chino,” among others.
Suspecting that Ventura and Fuertes were responsible for
Ramirez’s
activities.
murder,
investigators
continued
to
monitor
their
Agents learned that Ventura operated brothels at
several locations in Annapolis, as well as in Easton, Maryland
and Portsmouth, Virginia.
Ventura arranged for prostitutes to
work in the brothels from Monday through Sunday.
5
Typically, the
Appeal: 13-4755
Doc: 116
Filed: 08/18/2015
Pg: 6 of 33
women communicated with Ventura by phone, then traveled by bus
to
Washington,
D.C.,
where
they
met
Ventura,
or
one
of
his
employees, and drove to the brothel where they worked for the
week.
The
prostitutes
provided
fifteen
minutes
of
sex
for
thirty dollars, and were paid half of the gross receipts, less
expenses for food, hygiene products, and other expenses of the
trade.
One woman, Margarita Santiago Laona, testified that she
spoke with Ventura by telephone while she was in New Jersey, and
then traveled by bus to Washington, D.C., where he met her and
took her to a nearby brothel.
Rebeca Duenas Franco (“Duenas”), another woman employed by
Ventura, had a particularly violent history with him.
On the
one hand, he helped extricate her from the control of another
pimp.
He
also
had
a
relationship
with
Duenas—indeed,
she
believes he is the father of her son—and provided her with a
place to live.
On the other hand, Ventura compelled Duenas to
engage in prostitution by violence and threats of violence, and
held
her
against
her
will.
Ventura
reintroduced
Duenas
to
prostitution by giving her a box of condoms, telling her to “go
to work,” and beating her “several times” when she resisted.
J.A. 1186.
On one occasion, when Duenas refused to have sex
with an African-American client, Ventura beat her with a belt.
On another occasion, when Duenas refused to perform a sex act
6
Appeal: 13-4755
with
Doc: 116
an
Filed: 08/18/2015
object,
Ventura
pushed
Pg: 7 of 33
her
down
onto
ground. 2
rocky
Ventura also discharged a gun in her presence.
Unlike other
women working for Ventura, Duenas did not receive any money from
her services as a prostitute.
At
trial,
competitor
Duenas
pimps,
testified
including
that
Ramirez,
and
Ventura
that
threatened
she
Ventura and Fuertes celebrating Ramirez’s murder.
witnessed
Duenas also
recounted an incident when Ventura assaulted a male employee who
threatened
to
go
to
the
police.
During
another
incident,
Ventura beat a prostitute who he believed had sent people to rob
one of his brothels.
when
Ventura
beat
According to Duenas, Fuertes was present
the
prostitute,
as
well
as
at
least
one
occasion when Ventura beat her. 3
On
March
25,
2009,
police
again
arrested
Fuertes
at
an
apartment in Annapolis, and found evidence that the residence
was being used as a brothel.
found
Duenas
and
another
During a protective sweep, police
woman
hiding
in
a
bedroom
closet.
2
During the trial, Dr. Mary-Theresa Baker, a physician of
twenty-five years and then-director of the Baltimore Child Abuse
Center, testified about her forensic medical examination of
Duenas. Dr. Baker testified that Duenas’ explanations as to how
she received certain injuries were generally consistent with her
own observations during the examination.
3
On direct examination, Duenas indicated that Fuertes was
at the house when Ventura beat her with a belt.
But, on
redirect, she clarified that Fuertes had in fact witnessed the
beating.
7
Appeal: 13-4755
Doc: 116
Filed: 08/18/2015
Pg: 8 of 33
Meanwhile, a search of Fuertes revealed $696 in cash, a wallet
with miscellaneous papers, including a piece of paper listing
the 0903 phone number associated with Ventura, and a cellphone.
Following his 2009 arrest, Fuertes relocated to Virginia because
he
had
been
entered
into
deportation
proceedings
by
the
Department of Homeland Security.
On September 24, 2009, police arrested Ventura in Annapolis
on an open warrant from the District of Columbia.
A search of
Ventura revealed $859 in cash and documents detailing how many
customers
Ventura
each
also
prostitute
had
his
had
Maryland
serviced
in
the
driver’s
past
license,
a
week.
Mexican
license that featured his picture but a different name, and two
cell phones.
Despite having two cell phones on his person,
Ventura told the police that he did not have a phone number.
He
claimed that he had found one cell phone at the mall, and that
he was borrowing the other from a taxicab driver whose name he
did not know.
A later search revealed that one of the phones
had the 0903 number.
Months
later,
on
February
17,
2010,
Annapolis
responded to a 911 call for a possible robbery.
police
The call came
from a phone number which, police eventually learned, was the
number Ventura used after his 2009 arrest.
The police located
the site of the robbery, which turned out to be another brothel
operated
by
Ventura.
Maximilliano
8
Zelaya
Repalo,
a
former
Appeal: 13-4755
Doc: 116
Filed: 08/18/2015
Pg: 9 of 33
employee of Ventura, testified at trial that he committed the
robbery
because
he
had
not
been
paid
for
his
work
at
the
brothel.
In May 2010, police discovered that Ventura was operating
another brothel in Easton.
On July 7, 2010, they executed a
search warrant at the brothel and arrested two individuals who
were
working
there.
Law
enforcement
continued
its
investigation, and on August 2, 2010, learned that Ventura was
transporting
a
prostitute
from
Maryland
to
a
brothel
in
Portsmouth.
Back
in
Annapolis,
on
November
3,
2010,
several
men
believed to be operating at Ventura’s behest seriously assaulted
competitor-pimp
Hector
Fabian
Avila.
Law
enforcement,
therefore, decided to bring its investigation to a close, and on
November 15, 2010, arrested Ventura in his home.
Fuertes was
also charged but was not arrested at that time.
B.
On
November
superseding
29,
2011,
indictment,
a
federal
charging
grand
Fuertes
jury
and
returned
Ventura
a
with
conspiracy to transport an individual in interstate commerce for
the purpose of prostitution, in violation of 18 U.S.C. § 371
(Count
One);
transportation
of
individuals
in
interstate
commerce for the purpose of prostitution, in violation of 18
U.S.C. § 2421 (Count Two); and sex trafficking by force, fraud,
9
Appeal: 13-4755
Doc: 116
Filed: 08/18/2015
Pg: 10 of 33
or coercion, in violation of 18 U.S.C. § 1591(a) (Count Six).
Ventura was also separately charged with coercing or enticing an
individual to travel in interstate commerce for the purpose of
prostitution, in violation of 18 U.S.C. § 2422(a) (Count Three);
transportation
purpose
of
of
individuals
prostitution,
in
in
interstate
violation
of
commerce
18
U.S.C.
for
§
the
2421
(Counts Four and Five); and possession and use of a firearm in
relation
to
a
crime
of
violence—namely,
sex
trafficking
by
force, fraud, or coercion—in violation of 18 U.S.C. § 924(c)
(Count Seven).
After
the
district
court
denied
most
of
motions, Fuertes and Ventura proceeded to trial.
their
pretrial
The jury found
Ventura guilty of all counts and Fuertes guilty of Count One and
that part of Count Six based on events occurring subsequent to
December 24, 2008.
The
district
court
It found Fuertes not guilty of Count Two.
denied
Fuertes
and
Ventura’s
post-trial
motions for judgment of acquittal or a new trial, and sentenced
Ventura to 420 months’ imprisonment and Fuertes to 235 months’
imprisonment.
These timely appeals followed.
II.
A.
Fuertes and Ventura contend that the district court erred
in admitting evidence of violent acts and threats of violence
against competitor pimps because: (1) such evidence was offered
10
Appeal: 13-4755
Doc: 116
Filed: 08/18/2015
Pg: 11 of 33
for no purpose other than to establish their bad character; (2)
the evidence was not relevant, as it did not make it more likely
that they actually committed the sex trafficking offenses for
which
they
were
charged;
and
(3)
even
if
the
evidence
was
relevant, its probative value was far outweighed by the danger
of unfair prejudice.
We disagree.
Rule 404(b) of the Federal Rules of Evidence “prohibits
evidence of ‘other crimes, wrongs, or acts’ solely to prove a
defendant’s bad character, but ‘[s]uch evidence . . . may be
admissible
for
other
purposes,
such
as
proof
of
motive,
opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.’”
United States v. Byers, 649
F.3d 197, 206 (4th Cir. 2011) (quoting United States v. Basham,
561 F.3d 302, 326 (4th Cir. 2009)).
“admitting
all
evidence
of
other
The rule is “inclusive,”
crimes
or
acts
which tends to prove only criminal disposition.”
v.
Young,
248
F.3d
260,
quotation marks omitted).
271–72
(4th
Cir.
except
that
United States
2001)
(internal
To be admissible under Rule 404(b),
the proffered “bad acts” evidence must be “relevant to an issue
other than character,” “necessary to prove an element of the
crime charged,” “reliable,” and its “probative value must not be
substantially
outweighed
by
its
prejudicial
nature.”
United
States v. Rooks, 596 F.3d 204, 211 (4th Cir. 2010) (quoting
United States v. Queen, 132 F.3d 991, 995 (4th Cir. 1997)).
11
The
Appeal: 13-4755
Doc: 116
Filed: 08/18/2015
Pg: 12 of 33
district court’s decision to admit the evidence is reviewed for
abuse of discretion.
United States v. Forrest, 429 F.3d 73, 79
(4th Cir. 2005).
Applying the above standard, the district court did not
abuse its discretion in admitting evidence of violent acts and
threats of violence against competitor pimps.
relevant
to
Fuertes
and
Ventura’s
The evidence was
familiarity
with
the
prostitution business, as well as their intent to participate in
that business.
In other words, Fuertes and Ventura’s attempts
to
or
intimidate
trafficking
eliminate
business
others
constituted
involved
evidence
in
sex
their
of
the
own
participation in that very business, and that they knowingly
conspired with each other to do so.
Ventura
intimidated
prostitute
tended
a
to
family
that
establish
Likewise, evidence that
had
attempted
Ventura’s
to
connection
help
to
a
the
prostitute, the brothel at which she worked, the prostitution
business generally, and the underlying conspiracy out of which
the business thrived.
Central to Appellants’ assertion of error is their argument
that
evidence
of
their
violent
acts
and
threats
was
“unnecessary” to prove any element of the Count One conspiracy
charge.
This
argument
district
court,
to
is
find
misplaced.
Fuertes
and
As
explained
Ventura
by
the
guilty
of
conspiracy, the jury had to find at least one overt act was
12
Appeal: 13-4755
Doc: 116
Filed: 08/18/2015
Pg: 13 of 33
committed in furtherance of the charged conspiracy.
the
overt
acts
charged
in
the
superseding
And among
indictment
were
violent acts and threats of violence against competitors.
In
particular, Count One alleged that, as part of the conspiracy,
Fuertes and Ventura “threatened to use and used violence against
those also engaged in prostitution activities within Maryland.”
J.A. 38–39.
Count One further alleged that, as part of the
conspiracy, Ventura “claimed responsibility for the murder of
multiple
competitor
pimps
in
order
to
intimidate
pimps and his own employees and female prostitutes.”
competitor
J.A. 39.
Finally, although the above-described evidence of violent
acts and threats may have been highly incriminating, Fuertes and
Ventura proffer no convincing reason why it was unreliable (and
thus lacking in probative force) or unfair.
In light of the
substantial evidence that Fuertes and Ventura forced Duenas—a
young woman illegally present in the country with no English
skills and a third-grade education—into prostitution, there was
no “genuine risk” that the jury would be excited to “irrational
behavior” over threats of violence and acts of violence against
less sympathetic competitor pimps.
F.3d 305, 312 (4th Cir. 2004).
United States v. Hodge, 354
The evidence of threats and acts
of violence was no more “sensational or disturbing” than the sex
trafficking crimes with which Fuertes and Ventura were charged.
See Byers,
649
F.3d
at
210
(“Generally
13
speaking,
‘bad
acts’
Appeal: 13-4755
Doc: 116
Filed: 08/18/2015
Pg: 14 of 33
evidence, admissible under Rule 404, is not barred by Rule 403
where
such
sensational
evidence
or
‘did
disturbing
not
than
involve
the
conduct
crimes
with
any
more
which
[the
defendant] was charged.’” (quoting United States v. Boyd, 53
F.3d 631, 637 (4th Cir. 1995)).
Thus, in sum, the district
court’s decision to admit the evidence of violence and threats
of
violence
against
competitor
pimps
was
neither
legally
erroneous nor an abuse of discretion. 4
4
In finding no reversible error in the district court’s
admission of the evidence, we need not delve into the
intrinsic/extrinsic inquiry advocated by the government at oral
argument. The government asserted during argument that, because
violent acts and threats of violence were charged as overt acts
in the superseding indictment, they were “intrinsic” to the
Count One conspiracy charge and for that reason alone were
admissible.
When questioned about what, if any, judicially
enforceable limitation existed on the government’s ability to
include overt acts in a proposed indictment, the government
pointed to the Grand Jury Clause of the Constitution’s Fifth
Amendment, while defense counsel pointed to the Due Process
Clause of that same amendment.
As an overt act in furtherance
of a conspiracy under 18 U.S.C. § 371 need not be alleged in an
indictment, see United States v. Janati, 374 F.3d 263, 270 (4th
Cir. 2004), it would be a strange rule of law that authorized a
district court to exclude such evidence upon objection at trial
only if it were not included in an indictment and thereby
“approved” by the grand jury.
At all events, the intrinsic/extrinsic inquiry has ventured
far from where it began. See Milton Hirsch, “This New-Born Babe
an Infant Hercules”: The Doctrine of “Inextricably Intertwined”
Evidence in Florida’s Drug Wars, 25 Nova L. Rev. 279, 280 (2000)
(“[U]ntil about the year 1980, no one thought that evidence of
uncharged crimes could be rendered admissible by the simple
expedient of describing it as ‘inextricably intertwined’ with
evidence of the crime or crimes actually pleaded in the
indictment.”).
As pointed out by the D.C. Circuit, “it cannot
be that all evidence tending to prove the crime is part of the
(Continued)
14
Appeal: 13-4755
Doc: 116
Filed: 08/18/2015
Pg: 15 of 33
B.
Fuertes and Ventura argue that the district court erred in
permitting Dr. Baker to testify because: (1) her training and
experience were almost entirely with juveniles; and (2) she did
not provide an expert opinion but instead simply attempted to
bolster
Duenas’
latter’s injuries.
credibility
concerning
the
source
of
the
They are incorrect.
Rule 702 of the Federal Rules of Evidence provides that
“[a] witness who is qualified as an expert by knowledge, skill,
crime.
If that were so, Rule 404(b) would be a nullity.”
United States v. Bowie, 232 F.3d 923, 929 (D.C. Cir. 2000).
Yet, by characterizing evidence as “intrinsic,” federal courts,
including this one, have allowed prosecutors to introduce
evidence of uncharged bad acts free from Rule 404(b)’s
protections, including limiting jury instructions and advanced
notice of the government’s intent to introduce the evidence.
Fortunately, some courts have begun to recognize the harm caused
by granting federal prosecutors such unmitigated leeway.
See
United States v. Gorman, 613 F.3d 711, 719 (7th Cir. 2010)
(abandoning the “inextricable intertwinement doctrine” because
it “has outlived its usefulness” and “become overused, vague,
and quite unhelpful”); United States v. Green, 617 F.3d 233, 248
(3d Cir. 2010) (“[T]he inextricably intertwined test is vague,
overbroad, and prone to abuse, and we cannot ignore the danger
it poses to the vitality of Rule 404(b).”); Bowie, 232 F.3d at
927
(“[I]t
is
hard
to
see
what
function
this
[intrinsic/extrinsic] interpretation of Rule 404(b) performs.”);
see also United States v. Irving, 665 F.3d 1184, 1215 (10th Cir.
2011)
(Hartz,
J.,
concurring)
(stating
that
“the
intrinsic/extrinsic dichotomy serves no useful function and
consumes unnecessary attorney and judicial time and effort,” and
that “the distinction between intrinsic and extrinsic evidence
is unclear and confusing, and can lead to substituting
conclusions for analysis”).
15
Appeal: 13-4755
Doc: 116
Filed: 08/18/2015
Pg: 16 of 33
experience, training, or education may testify in the form of an
opinion or otherwise if”:
(a) the expert’s scientific, technical, or other
specialized knowledge will help the trier of fact to
understand the evidence or to determine a fact in
issue;
(b) the
data;
testimony
is
based
on
(c)
the
testimony
is
the
principles and methods; and
sufficient
product
facts
of
or
reliable
(d) the expert has reliably applied the principles and
methods to the facts of the case.
Fed. R. Evid. 702.
Where, as here, the expert testimony is of a
scientific nature, the district court serves, in essence, as
gatekeeper,
admitting
the
relevant, but reliable.’”
265
(4th
Cir.
2003)
testimony
where
it
“‘is
not
only
United States v. Crisp, 324 F.3d 261,
(quoting
Daubert
v.
Merrell
Dow
Pharm.,
Inc., 509 U.S. 579, 589 (1993)).
The district court must exclude “expert testimony related
to matters which are obviously . . . within the common knowledge
of jurors.”
United States v. Lespier, 725 F.3d 437, 449 (4th
Cir. 2013) (internal quotation marks omitted).
Thus, absent
“unusual circumstances,” the district court must exclude expert
testimony on issues of witness credibility.
Id.
The district
court’s decision to admit expert testimony is reviewed for abuse
of discretion.
See United States v. Johnson, 617 F.3d 286, 292
(4th Cir. 2010).
16
Appeal: 13-4755
Doc: 116
Filed: 08/18/2015
Pg: 17 of 33
Applying the above standard, the district court did not
abuse
its
discretion
knowledge,
skill,
in
permitting
experience,
Dr.
Baker,
training,
and
who
had
ample
education
with
regard to cutaneous findings of abuse, to testify as an expert.
A
physician
director
of
for
twenty-five
the
Baltimore
years,
Child
Dr.
Baker
Abuse
served
Center,
as
the
where
she
performed complete medical examinations and collected forensic
evidence for alleged cases of child abuse in Baltimore City.
Dr. Baker explained that, during a forensic examination, she
focuses particularly on cutaneous findings (the most common type
of child abuse findings), and that when she discovers an injury
to the skin, she can draw certain conclusions about the possible
source or cause of the injury.
Dr. Baker further testified that
she had examined more than 3,000 individuals where there was a
concern
of
possible
past
injury,
and
trained
pediatric
residents, nurse examiners, and staff doctors on how to perform
forensic examinations.
Finally, Dr. Baker testified that she
had been qualified to testify as an expert in over two dozen
cases, including cases in the District of Maryland.
Fuertes
Baker’s
and
Ventura
“experience
was
take
issue
almost
with
entirely
the
with
fact
that
Dr.
juveniles,”
and
that her “training and experience were not in the formation and
treatment of adult scars.”
Defs.’ Br. at 47.
But, as explained
by Dr. Baker, “[o]ther than the extreme,” such as “very old
17
Appeal: 13-4755
Doc: 116
Filed: 08/18/2015
Pg: 18 of 33
people [who] have fragile skin” and “very young children [who]
are particularly prone [to] . . . things that can be mistaken
for abuse,” there is no distinction between adults and children
when it comes to cutaneous findings.
J.A. 1388.
Fuertes
Dr.
and
Ventura’s
objection
to
Baker’s
In any event,
training
and
experience goes to the weight, not the admissibility, of her
testimony, and counsel had the opportunity to cross-examine her
on these issues.
See Kopf v. Skyrm, 993 F.2d 374, 377 (4th Cir.
1993) (“The witness’ qualifications to render an expert opinion
are [] liberally judged by Rule 702.”).
Likewise, Fuertes and
Ventura’s critique that Dr. Baker could not testify about when
Duenas sustained her injuries was appropriate fodder for crossexamination.
The
fact
that
Dr.
Baker
could
not
reach
a
conclusion as to when Duenas was injured did not render the rest
of her testimony unhelpful or inadmissible.
Turning to Fuertes and Ventura’s argument that Dr. Baker
merely provided an opinion as to whether Duenas was telling the
truth, this argument must be rejected.
Dr. Baker neither opined
on Duenas’ credibility, nor offered an opinion as to who caused
her injuries.
Cf. Scott v. Sears, Roebuck & Co., 789 F.2d 1052,
1054–56 (4th Cir. 1986) (determining that the district court
erred
in
admitting
expert
testimony
on
“human
factors”).
Rather, Dr. Baker’s testimony was offered to assist the jury in
determining whether there were signs and markings that Duenas
18
Appeal: 13-4755
Doc: 116
Filed: 08/18/2015
had been physically injured.
Pg: 19 of 33
While Dr. Baker’s testimony tended
to corroborate Duenas’ account of how she sustained her injuries
(i.e., being hit with a belt or being pushed down onto rocky
ground),
the
mere
fact
that
expert
testimony
tends
to
corroborate the testimony of another witness is not grounds for
exclusion;
opinion
indeed,
evidence
it
is
surely
proffered
is
in
some
by
the
case
litigants
fashion
that
is
most
paired
supported
by
expert
with
the
lay
evidence
that
expert
opinion.
E.g., United States v. Gonzales–Flores, 701 F.3d 112,
115 (4th Cir. 2012) (testimony of confidential informant in drug
trafficking prosecution corroborated by forensic expert); Barbe
v.
McBride,
521
F.3d
443,
461
(4th
Cir.
2008)
(“[T]he
prosecution utilized its expert evidence to corroborate J.M.’s
trial testimony and thus buttress the allegation that Barbe had
indeed
sexually
decision
to
abused
admit
Dr.
her.”).
Baker’s
Thus,
expert
the
district
opinion
court’s
testimony
was
neither erroneous nor an abuse of discretion.
C.
Ventura asserts that the district court erred in denying
his
motion
for
judgment
of
acquittal
with
respect
to
Count
Seven, possession and use of a firearm in relation to a crime of
violence, in violation of 18 U.S.C. § 924(c).
He claims that
sex trafficking by force, fraud, or coercion, in violation of 18
U.S.C. § 1591(a), which served as the predicate offense for his
19
Appeal: 13-4755
Doc: 116
Filed: 08/18/2015
Pg: 20 of 33
§ 924(c) conviction, is not categorically a crime of violence.
We agree.
1.
As a preliminary matter, we must determine which standard
of
review
applies.
Ventura
asserts
that
de
novo
review
is
appropriate in light of his general Rule 29 motion for judgment
of acquittal.
See United States v. Green, 599 F.3d 360, 367
(4th Cir. 2010) (stating that the court reviews de novo the
district court’s denial of a motion for judgment of acquittal
pursuant to Rule 29 of the Federal Rules of Criminal Procedure).
He
argues
acquittal
that
is
a
“broadly
“sufficient
stated”
to
motion
preserve
the
for
judgment
full
range
of
of
challenges, whether stated or unstated, to the sufficiency of
the evidence.”
United States v. Hammoude, 51 F.3d 288, 291
(D.C. Cir. 1995).
And, here, because sex trafficking by force,
fraud, or coercion can never satisfy § 924(c)(3)’s definition of
a crime of violence, there is insufficient evidence to support
his conviction on Count Seven.
The government, however, points out, correctly we think,
that Ventura’s objection is not about factual or evidentiary
sufficiency; rather, his argument is a purely legal one.
explained
by
the
government,
Ventura
takes
issue
with
As
the
district court’s instruction to the jury regarding Count Seven—
in particular, its instruction that sex trafficking by force,
20
Appeal: 13-4755
Doc: 116
Filed: 08/18/2015
Pg: 21 of 33
fraud, or coercion is categorically a crime of violence.
And,
because Ventura neither objected to the instruction nor argued
that Count Seven is not categorically a crime of violence, his
claim may be reviewed only for plain error.
See, e.g., United
States v. Tillery, 702 F.3d 170, 175 (4th Cir. 2012) (“Because
[the
defendant]
did
not
object
to
the
jury
instructions
at
trial, we review the instructions for plain error.”).
The government’s analysis is the correct one.
motion
for
judgment
of
acquittal,
which
dealt
Ventura’s
only
with
the
sufficiency of the evidence, did not preserve a purely legal
challenge
to
the
jury
instruction
regarding
Count
Seven.
Accordingly, to prevail on appeal, Ventura must show: (1) there
was an error; (2) the error was “clear or obvious, rather than
subject to reasonable dispute;” (3) “the error affected [his]
substantial rights, which in the ordinary case means it affected
the outcome of the district court proceedings;” and (4) “the
error
seriously
affect[ed]
the
fairness,
reputation of judicial proceedings.”
integrity
or
public
United States v. Marcus,
560 U.S. 258, 262 (2010) (internal quotation marks omitted).
2.
To
sustain
a
conviction
under
18
U.S.C.
§
924(c),
the
government must prove that the defendant (1) used or carried a
firearm and (2) did so during and in relation to a “crime of
violence.”
Section 924(c)(3) defines a “crime of violence” as
21
Appeal: 13-4755
Doc: 116
Filed: 08/18/2015
Pg: 22 of 33
“an offense that is a felony and—(A) has as an element the use,
attempted use, or threatened use of physical force against the
person
or
involves
property
a
of
substantial
another,
risk
or
that
(B)
that
physical
by
its
force
nature,
against
the
person or property of another may be used in the course of
committing
the
offense.”
18
U.S.C.
§
924(c)(3).
Section
924(c)(3)(A) is referred to as the “force clause,” while section
924(c)(3)(B) is called the “residual clause.”
In determining whether an offense qualifies as a “crime of
violence” under either clause, the court may (depending on the
features
of
approach”
the
or
applicable
the
“modified
statute)
employ
categorical
the
“categorical
approach.”
“[T]he
modified approach serves a limited function: It helps effectuate
the
categorical
analysis
when
a
divisible
statute,
listing
potential offense elements in the alternative, renders opaque
which
element
played
a
part
in
the
defendant’s
conviction.”
Descamps v. United States, 133 S. Ct. 2276, 2283 (2013).
The
categorical approach, by contrast, applies when the defendant
was convicted of an offense under “an ‘indivisible’ statute—
i.e., one not containing alternative elements.”
Id. at 2281.
A statute is indivisible when “the jury need not agree on
anything past the fact that the statute was violated.”
Rendon
v. Holder, 764 F.3d 1077, 1085 (9th Cir. 2014).
“Any statutory
phrase
to
that—explicitly
or
implicitly—refers
22
multiple,
Appeal: 13-4755
Doc: 116
alternative
Filed: 08/18/2015
of
means
Pg: 23 of 33
must
commission
still
be
regarded
as
indivisible if the jurors need not agree on which method of
committing the offense the defendant used.”
Id.
Thus, “mere
use of the disjunctive ‘or’ in the definition of a crime does
not automatically render it divisible.”
775
F.3d
192,
194
(4th
Cir.
2014).
Omargharib v. Holder,
“Only
when
[the]
law
requires that in order to convict the defendant the jury must
unanimously
agree
that
he
committed
a
particular
substantive
offense contained within the disjunctively worded statute are we
able to conclude that the statute contains alternative elements
and not alternative means.”
in
original).
Rendon, 764 F.3d at 1086 (emphasis
Accordingly,
alternative
means
indivisible
set
of
of
although
commission,
elements,
and
it
the
§
1591(a)
contains
refers
a
categorical
to
single,
approach
applies.
Under the “categorical approach,” the court “look[s] only
to the fact of conviction and the statutory definition of the []
offense.”
James v. United States, 550 U.S. 192, 202 (2007)
(internal quotation marks omitted), overruled on other grounds,
Johnson v. United States, 135 S. Ct. 2251 (2015).
The court
does not consider the “particular facts disclosed by the record
of conviction.”
Id. (internal quotation marks omitted).
“The
point of the categorical inquiry is not to determine whether the
defendant’s conduct could support a conviction for a crime of
23
Appeal: 13-4755
Doc: 116
Filed: 08/18/2015
Pg: 24 of 33
violence, but to determine whether the defendant was in fact
convicted of a crime that qualifies as a crime of violence.”
United States v. Cabrera-Umanzor, 728 F.3d 347, 350 (4th Cir.
2013) (emphasis in original).
Applying
the
above
test,
we
consider
first
whether
sex
trafficking by force, fraud, or coercion qualifies categorically
as a crime of violence under the force clause, § 924(c)(3)(A).
It does not.
After Descamps, when a statute defines an offense
using a single, indivisible set of elements that allows for both
violent and nonviolent means of commission, the offense is not a
categorical crime of violence.
Cf. United States v. Aparicio-
Soria, 740 F.3d 152, 157–58 (4th Cir. 2014) (en banc) (reasoning
that, because the Maryland offense of resisting arrest has a
single and indivisible set of elements that may be committed by
either
violent
or
nonviolent
means,
it
does
not
qualify
categorically as a crime of violence under U.S.S.G. § 2L1.2, the
reentry Guideline); United States v. Royal, 731 F.3d 333, 341–42
(4th Cir. 2013) (reasoning that, because the Maryland offense of
second-degree assault has an indivisible set of elements that
may be committed by either violent or nonviolent means, it does
not
qualify
924(e)(1)).
trafficking
categorically
as
a
“violent
felony”
under
§
Accordingly, because § 1591(a) specifies that sex
by
force,
fraud,
or
coercion
may
be
committed
nonviolently—i.e., through fraudulent means—the offense does not
24
Appeal: 13-4755
Doc: 116
qualify
as
a
Filed: 08/18/2015
categorical
Pg: 25 of 33
crime
of
violence
under
the
force
clause.
Turning
to
the
residual
clause,
the
government
suggests
that sex trafficking is categorically a crime of violence under
§ 924(c)(3)(B) because, even where the defendant effects the
offense by means of fraud, there is still a substantial risk of
physical injury from the prostitute’s customers, or johns. 5
argument
misapprehends
the
clear
language
of
the
This
residual
clause, which specifies that a felony is a crime of violence
when
it,
“by
its
nature,
involves
a
substantial
risk
that
physical force against the person or property of another may be
used in the course of committing the offense.”
924(c)(3)(B) (emphasis added).
18 U.S.C. §
The residual clause makes plain
5
We have considered the parties’ supplemental briefing
following the Supreme Court’s decision in Johnson v. United
States, 135 S. Ct. 2251 (2015). We note that in Johnson, id. at
2557-60, the Supreme Court held unconstitutionally vague the
version of the residual clause set forth in 18 U.S.C.
§ 924(e)(2)(B), but the Court had no occasion to review the
version of the residual clause set forth at 18 U.S.C. §
924(c)(3)(B), the one at issue in this case. The two
formulations, one requiring “conduct that presents a serious
potential risk of physical injury to another,” § 924(e)(2)(B),
the other requiring proof of “a felony . . . that by its nature
involves a substantial risk that physical force against the
person or property of another may be used in the course of
committing the offense,” § 924(c)(3)(B), are similarly worded
but not identically so.
For the reasons explained in text, we
find it unnecessary in this case to explore whether the Supreme
Court’s invalidation of the former provision applies as well to
the latter provision. See Ashwander v. Tenn. Valley Auth., 297
U.S. 288, 346–48 (1936) (setting forth the principle of
constitutional avoidance).
25
Appeal: 13-4755
Doc: 116
Filed: 08/18/2015
Pg: 26 of 33
(for all its erstwhile murkiness) that the relevant inquiry is
not whether there is a risk of any person using force in any way
tangentially related to an on-going offense, but rather whether
there is a substantial risk of the defendant doing so.
The
government
nevertheless
relies
on
United
States
v.
Willoughby, 742 F.3d 229 (6th Cir. 2014), to argue that the risk
of force need not come from the defendant.
In Willoughby, the
Sixth Circuit observed that:
the act of causing a minor to engage in prostitution—
even when the defendant’s act does itself not involve
force—obviously does present a “serious potential risk
of physical injury” to the victim.
U.S.S.G. §
4B1.2(a)(2).
There is the risk of physical injury
from the sex act itself; the risk of violence from
johns, many of whom . . . are addicted to drugs; and,
not least, the risk of violence from the pimps
themselves.
Id. at 242.
But, unlike the present case, Willoughby involved
the more expansive definition of a crime of violence found in
U.S.S.G. § 4B1.2.
See id. (explaining that, under U.S.S.G. §
4B1.2, a “crime of violence” includes “any felony that has as an
element the use, attempted use, or threatened use of physical
force
against
the
person
of
another
or
is
burglary
of
a
dwelling, arson, or extortion, involves use of explosives, or
otherwise
involves
conduct
that
presents
a
serious
potential
risk of physical injury to another” (emphasis added) (internal
quotation marks omitted)).
26
Appeal: 13-4755
Doc: 116
In
Filed: 08/18/2015
analyzing
identical
Pg: 27 of 33
language
to
that
contained
in
§
924(c)(3)(B), the Supreme Court has indicated that the relevant
inquiry in determining whether an offense qualifies as a crime
of violence is not simply whether there is a substantial risk of
physical injury.
See Leocal v. Ashcroft, 543 U.S. 1, 10–11 &
n.7 (2004) (deciphering the term “crime of violence” under 18
U.S.C. § 16).
Rather, the relevant inquiry is whether there is
a substantial risk that the defendant will use physical force
against
the
victim
in
completing
the
crime.
Id.;
see
also
United States v. Serafin, 562 F.3d 1105, 1110 (10th Cir. 2009)
(“[F]or an offense to qualify as a crime of violence under §
924(c)(3)(B),
we
must
ensure
the
statute
proscribes
conduct
which not only (1) involves a disregard of a substantial risk of
force against another—which, by itself, would only satisfy the §
4B1.2(a)(2) definition—but also (2) where such risk of force
arises during the course of committing the offense.” (emphasis
added)).
Thus,
for
example,
“[a]
burglary
would
be
covered
under § 16(b) not because the offense can be committed in a
generally reckless way or because someone may be injured, but
because burglary, by its nature, involves a substantial risk
that the burglar will use force against a victim in completing
the
crime.”
conclude,
Leocal,
therefore,
543
that
U.S.
the
27
at
10
(emphasis
district
added).
court
erred
We
in
Appeal: 13-4755
Doc: 116
Filed: 08/18/2015
Pg: 28 of 33
instructing the jury that sex trafficking by force, fraud, or
coercion is categorically a crime of violence.
Having determined that the district court erred, we next
consider whether the error was clear or obvious.
argues
that
any
error
could
not
have
been
The government
clear
or
obvious
because neither this Court nor the Supreme Court has determined
whether sex trafficking qualifies as a crime of violence under §
924(c).
Cf. United States v. Wynn, 684 F.3d 473, 480 (4th Cir.
2012) (concluding that, where the court never addressed an issue
and
the
other
circuits
were
split,
“the
resolved plainly” (emphasis in original)).
issue
has
not
been
Descamps, however,
speaks directly to whether § 1591(a) qualifies categorically as
a crime of violence under § 924(c)’s force clause.
Moreover,
despite the government’s argument to the contrary, it is of no
import that Descamps was decided after the jury verdict in this
case.
As the Supreme Court has said, “whether a legal question
was settled or unsettled at the time of trial, it is enough that
an
error
be
Henderson
v.
plain
United
at
the
time
States,
133
(internal quotation marks omitted).
of
appellate
S.
Ct.
consideration.”
1121,
1130
(2013)
It is sufficient, in short,
that the district court’s error as to the force clause is plain
on appeal.
Likewise, the district court’s error was plain as to the §
924(c)(3)(B) residual clause.
As stated above, we reject the
28
Appeal: 13-4755
Doc: 116
Filed: 08/18/2015
Pg: 29 of 33
government’s argument that sex trafficking by force, fraud, or
coercion qualifies as a categorical crime of violence under the
§
924(c)(3)(B)
residual
clause
because
prostitutes
substantial risk of physical injury from johns. 6
face
a
Given the clear
language of the § 924(c)(3)(B) residual clause, and the Supreme
Court’s analysis in Leocal, the government cannot credibly claim
that
the
district
court
lacked
controlling
authority
in
interpreting § 924(c)(3)(B) and deciding whether sex trafficking
by
force,
fraud,
or
coercion
6
is
categorically
a
crime
of
At oral argument, the government did not advance the
position that the typical case of sex trafficking by force,
fraud, or coercion involves a substantial risk that the
defendant will use physical force as a means to commit the
offense.
See Oral Argument at 32:42, United States v. Fuertes
(No. 13-4755) (counsel referred the court to legislative
findings when questioned about why the government did not
advance a “typical case” argument).
Following argument,
however, the government submitted a letter pursuant to Federal
Rule of Appellate Procedure 28(j), contending that, under the
Eleventh Circuit’s decision in United States v. Keelan, 786 F.3d
865 (11th Cir. 2015), the “ordinary case” of sex trafficking
involves a substantial risk that the defendant will use physical
force.
Keelan has no bearing on this case.
In Keelan, the
Eleventh Circuit confronted whether 18 U.S.C. § 2422, which
“prohibits knowingly persuading, inducing, enticing, or coercing
a minor to engage in sexual activity,” is categorically a crime
of violence under 18 U.S.C. § 16(b).
Id. at 870 (emphasis
added). Critical to the court’s determination that the offense
did so qualify was the fact that the victim was a minor.
See
id. at 871 (“We [have] found that [i]n cases involving sex
crimes against minors, . . . there is always a substantial risk
that physical force will be used to ensure a child’s compliance
with an adult’s sexual demands.” (internal quotation marks
omitted)). In any event, we are not persuaded that the ordinary
case of sex trafficking by force, fraud, or coercion involves a
substantial risk that the defendant will use physical force as a
means to commit the offense.
29
Appeal: 13-4755
Doc: 116
Filed: 08/18/2015
violence under that provision.
Pg: 30 of 33
Cf. United States v. Carthorne,
726 F.3d 503, 516–17 (4th Cir. 2013), called into question in
part by Johnson v. United States, 135 S. Ct. 2251, 2560 (2015). 7
Finally, we agree with Ventura that the district court’s
obvious error affected his substantial rights as well as the
fairness,
integrity,
proceedings.
and
public
reputation
of
judicial
Ventura cannot be guilty of violating § 924(c),
and yet he received an additional sixty months’ imprisonment for
this offense.
“[Five] years of a man’s life is not a trifling
thing.”
United States v. Ford, 88 F.3d 1350, 1356 (4th Cir.
1996).
We
simply
cannot
“require
a
man
to
serve
[five]
undeserved years in prison when [we] know[] that the sentence is
improper.”
Id.
Accordingly, because the district court plainly
erred in instructing the jury that sex trafficking by force,
fraud,
or
coercion
is
categorically
a
crime
of
violence,
we
vacate Ventura’s § 924(c) conviction, and remand for entry of
judgment of acquittal on that count and resentencing.
7
Our opinion in United States v. Carthorne, 726 F.3d 503
(4th Cir. 2013), analyzed the career offender guideline,
U.S.S.G. § 4B1.2(a).
Id. at 510.
In that guideline, the
Sentencing Commission adopted verbatim the residual clause of
the Armed Career Criminal Act, which the Supreme Court
invalidated as fatally vague under the Fifth Amendment due
process clause.
Cf. Johnson, 135 S. Ct. at 2560 (discussing
Carthorne).
30
Appeal: 13-4755
Doc: 116
Filed: 08/18/2015
Pg: 31 of 33
D.
Fuertes argues that the district court erred in denying his
motion for judgment of acquittal on Count Six, as there was
insufficient
evidence
that
he
knew
or
recklessly
disregarded
that Duenas was coerced or forced to engage in commercial sex
acts. 8
We disagree.
As
stated
above,
we
review
de
novo
a
district
court’s
denial of a motion for judgment of acquittal.
Green, 599 F.3d
at
of
367.
“[A]ppellate
reversal
on
grounds
insufficient
evidence . . . will be confined to cases where the prosecution’s
failure is clear.”
Id. (internal quotation marks omitted).
In
reviewing the sufficiency of the evidence, the relevant question
is whether, viewing the evidence in the light most favorable to
the government, “any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
(internal
quotation
marks
omitted).
Put
another
way,
Id.
a
reviewing court “cannot set aside a jury’s verdict if it is
supported by substantial evidence when viewed in the light most
8
The district court instructed the jury that Fuertes was
guilty of sex trafficking by force, fraud, or coercion if: (1)
he
knowingly
recruited,
enticed,
harbored,
transported,
provided, or obtained a person (namely, Duenas) by any means, or
benefitted financially from participation in a venture engaged
in any such act; (2) he knew or recklessly disregarded that
force, fraud, or coercion would be used with respect to Duenas;
(3) he knew that Duenas would be engaged in a commercial sex
act; and (4) his conduct was in or affecting interstate
commerce.
31
Appeal: 13-4755
Doc: 116
Filed: 08/18/2015
favorable to the government.”
Pg: 32 of 33
United States v. Taylor, 659 F.3d
339, 343 (4th Cir. 2011).
Here, a reasonable jury could have found that Fuertes knew
or recklessly disregarded that Duenas was forced or coerced to
commit commercial sex acts.
As pointed out by the government,
Fuertes does not dispute “the sufficiency of the evidence of his
participation
in
the
behalf of Ventura.”
commercial
sex
Gov’t Br. at 43.
enterprise
with
and
on
Nor does he dispute that
he was present at most, if not all, of the places where Duenas
provided sexual services on behalf of Ventura.
Rather, Fuertes
disputes that he witnessed one occasion when Ventura beat her
with a belt.
Although Duenas indicated on direct examination
that Fuertes was in the same house (but not necessarily the same
room) when Ventura beat her with a belt, she clarified during
redirect
beating.
examination
that
Fuertes
had
in
fact
witnessed
the
Taking the facts in the light most favorable to the
government, a reasonable trier of fact could have found that
Fuertes witnessed Ventura beating Duenas, and that the beating,
combined with the level of Fuertes’ involvement in Ventura’s
prostitution
business,
constituted
proof
beyond
a
reasonable
doubt that Fuertes knew or recklessly disregarded that Duenas
was coerced or forced into prostitution.
Accordingly, we affirm
the district court’s denial of Fuertes’ motion for judgment of
acquittal on Count Six.
32
Appeal: 13-4755
Doc: 116
Filed: 08/18/2015
Pg: 33 of 33
III.
For the reasons stated above, the judgment in No. 13-4755
is affirmed; the judgment in No. 13-4931 is affirmed in part and
vacated and remanded in part.
No. 13-4755 AFFIRMED;
No. 13-4931 AFFIRMED IN PART AND
VACATED AND REMANDED IN PART WITH INSTRUCTIONS
33
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?