United States v. Kashamba John ( 2022 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 20-3225
_____________
UNITED STATES OF AMERICA
v.
KASHAMBA JOHN,
Appellant
______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D. C. Criminal No. 2-18-cr-00218-001)
District Court Judge: Honorable Eduardo C. Robreno
______________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a) on
July 16, 2021
______________
Before: McKEE, GREENAWAY, JR., and RESTREPO, Circuit Judges
(Opinion filed: June 2, 2022)
_______________________
OPINION*
_______________________
*
This disposition is not an opinion of the full Court and under I.O.P. 5.7 does not
constitute binding precedent.
McKEE, Circuit Judge.
Kashamba John appeals the District Court’s denial of his motion for a new trial
following his convictions for sex trafficking and conspiracy to commit sex trafficking by
force, threats of force, fraud, or coercion.1 John argues the District Court erred by (1)
concluding the government’s belated mid- and post-trial disclosures of evidence did not
violate Brady v. Maryland;2 (2) allowing the government to introduce improper co-
conspirator hearsay; and (3) allowing separate conspiracies to be charged as a single
conspiracy under one count. For the reasons that follow, we will affirm the District
Court.3
I.
“A Brady violation occurs if: (1) the evidence at issue is favorable to the accused,
because either exculpatory or impeaching; (2) the prosecution withheld it; and (3) the
defendant was prejudiced because the evidence was ‘material.’”4 Under Brady, evidence
is material if “there is a reasonable probability that, if the evidence had been disclosed,
the result of the proceeding would have been different.”5 A “reasonable probability” of a
different result is shown if the “evidentiary suppression ‘undermines confidence in the
1
Appellant Br. 5; Gov. Br. 4.
2
373 U.S. 83 (1963).
3
The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. This Court has
jurisdiction pursuant to 28 U.S.C. § 1291.
4
Breakiron v. Horn, 642 F.3d 126, 133 (3d Cir. 2011) (citations omitted).
5
Wilson v. Beard, 589 F.3d 651, 665 (3d Cir. 2009).
2
outcome of the trial.’”6 “No denial of due process occurs if Brady material is disclosed . .
. in time for its effective use at trial.”7 In addition, “[a]ny possible prejudice . . . resulting
from disclosure at trial can be easily cured by the district court.”8
The government’s first belated disclosure was a missing person’s report about one
of the underage victims of John’s sex trafficking scheme, E.J.9 The government
disclosed the report after E.J.’s testimony but prior to the close of its case-in-chief.10
John argues the report could have been used to impeach E.J.’s credibility because it
contradicts E.J.’s testimony in several respects.11
Although the report was Brady material,12 the Court provided a seven-part remedy
to ensure the belated disclosure did not violate John’s due process rights.13 Among other
things, the Court allowed John to cross-examine the author of the report, at which time
the jury heard the evidence impeaching E.J.’s testimony; it informed the jury that the
6
Id. (quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)).
7
United States v. Higgs, 713 F.2d 39, 44 (3d Cir. 1983).
8
Id.; see, e.g., United States v. Claxton, 766 F.3d 280, 304 (3d Cir. 2014) (finding no
Brady violation where the jury had heard additional cross-examination in light of
belatedly disclosed evidence).
9
United States v. John, 391 F. Supp. 3d 458, 460–461 (E.D. Pa. 2019).
10
Id. at 461.
11
Id. at 460–61 (summarizing E.J.’s testimony and the content of the missing person’s
report that contradicts her testimony); Appellant Br. 13 (arguing that “[t]he 42 page
report included statements made by ‘E.J.’ to other individuals, electronic evidence
tending to show that she had unrestrained movement, free contact with friends and
associate[s], and most critically, had access to, and used, electronic communications
in a time period during which she claimed to have been held captive by Appellant
after he discarded her phone.”).
12
See id. at 462 (“[T]he [missing persons] report was favorable, withheld, and
material.”).
13
See id. at 465–66.
3
delay was due to the government’s late disclosure; and it required the government to
make E.J. available for re-cross-examination—which, no doubt for sound tactical
reasons, John chose not to do.14 Altogether, the Court’s remedies ensured that the jury
learned the contents of the report.15
The second set of belated disclosures, which occurred after John’s conviction,
included two reports that John argues could have been used to corroborate his position
that he did not abuse or coerce the women who worked for him as prostitutes.16 The
District Court did not err in concluding this evidence was not “material” under Brady.17
If the evidence had been disclosed, it would likely not have “undermined confidence in
the outcome of the trial.”18 Given the “substantial evidence regarding multiple other
women,” the fact that John may have afforded some modicum of “leeway” to some
victims hardly undermines the conclusion that he used force, fraud, and/or coercion in
dealing with his sex trafficking victims.19
14
Id.15
In fact, the jury did not convict John of a conspiracy to sex traffic minors, which
suggests John was not prejudiced by E.J.’s testimony. Id. at 466.
16
United States v. John, No. 18-CR-00218-01, 2020 WL 4721970, at *11 (E.D. Pa. Aug.
11, 2020). The first piece of evidence is the “Lavigne Report,” in which an
investigator claimed to visit a prostitute working for John and reported no signs of
abuse. Supp. App. 1614. The second piece of evidence is a law enforcement report
that contained a “tip” from a man whose wife worked as a prostitute for John, but
would still call him and occasionally come home to visit their children. Supp. App.
1615–16.
17
John, 2020 WL 4721970, at *12.
18
Wilson, 589 F.3d at 665 (quoting Kyles, 514 U.S. at 434).
19
John, 2020 WL 4721970, at *12; see also Supp. App. 0173 (J.S. testified that she felt
trapped and forced to comply with John’s orders because she “had nowhere to go,”
“no money to leave,” and was afraid John and his accomplices would hurt her and
4
II.
Next, John argues that the District Court improperly admitted hearsay statements
of “Daisy,” an unindicted co-conspirator, through the testimony of victim G.L.20 John
argues that Daisy’s statements were not independently corroborated and thus should not
have been admitted.21 We review the District Court’s findings regarding the
admissibility of co-conspirator statements for clear error.22
Under Federal Rule of Evidence 801(d)(2)(E), “a statement is not hearsay if it is
offered against an opposing party and ‘was made by the party’s coconspirator during and
in furtherance of the conspiracy.’”23 To admit co-conspirator hearsay, the district court
must find by a preponderance of the evidence “(1) that a conspiracy existed; (2) the
declarant and the party against whom the statement is offered were members of the
conspiracy; (3) the statement was made in the course of the conspiracy; and (4) the
her mother as they had her addresses); Supp. App. 0558-0559 (L.E. testified that she
told John that she did not want to go to Colorado, and instead wanted to go home,
but he made her board the plane because “[t]here’s money to be made.” She
testified that she “had no where to go” and that “[John] took all the money.” L.E.
started messaging friends for help as she did not want to go to Colorado.); Supp.
App. 0719-0721 (J.W. testified that when she entered John’s car to perform a sex
act, John reached across her abdomen with a pocketknife, took her phone, and
drove her to Tampa against her will. He said that if she tried to run, “he had [her]
family[’s]” information and “he loves when they run because he loves to search for
them and kill them.”); Supp. App. 0848-0854 (G.L. testified that after John gave her
lean, she lost consciousness in the back of his car, woke up in a hotel room and was
ordered to perform commercial sex acts on multiple occasions, during which she
“was barely conscious” and asleep in between acts due to the lean.).
20
Appellant’s Br. 19–20.
21
Id. at 20.
22
United States v. Vega, 285 F.3d 256, 264 (3d Cir. 2002).
23
United States v. Turner, 718 F.3d 226, 230 (3d Cir. 2013) (quoting Fed. R. Evid.
801(d)(2)(E)).
5
statement was made in furtherance of the conspiracy.”24 To prove these elements, the
government “may rely on the co-conspirator's statements themselves, if they are
corroborated by independent evidence.”25
The District Court did not clearly err in admitting Daisy’s statements. In United
States v. Gambino, we held that a witness’s testimony of his or her firsthand observations
of a defendant’s interactions with a co-conspirator is sufficient “independent evidence” to
admit the co-conspirator hearsay.26 Here, the District Court properly concluded that
Daisy’s statements were independently corroborated by G.L.’s extensive personal
observations of John and Daisy’s conspiratorial efforts.27 For example, G.L. testified,
among other things, that Daisy recruited her to work for John, took her shopping for
clothes with John, showed her how she operates internet advertisements for John’s sex
trafficking business, and took pictures of G.L. to create such an advertisement.28
III.
Finally, John argues that the verdict cannot be sustained because the evidence
presented at trial alleges two distinct conspiracies, rather than a single conspiracy as
charged in count one.29 Because this claim was not preserved in the District Court, we
review for plain error.30
24
United States v. McGlory, 968 F.2d 309, 333 (3d Cir. 1992) (citing Bourjaily v. United
States, 483 U.S. 171, 175 (1987)).
25
Turner, 718 F.3d at 231 (citing Bourjaily, 483 U.S. at 181).
26
926 F.2d 1355, 1362 (3d Cir. 1991).
27
John, 2020 WL 4721970, at *8.
28
Supp. App. 0841-49.
29
Appellant Br. 25.
30
United States v. Boone, 279 F.3d 163, 174 n.6 (3d Cir. 2002).
6
“A conviction must be vacated when (1) there is a variance between the
indictment and the proof presented at trial and (2) the variance prejudices a substantial
right of the defendant.”31 A variance exists where “a single conspiracy is alleged in the
indictment, . . . [but] the evidence at trial proves only the existence of multiple
conspiracies.”32
The essential elements of a conspiracy are “(1) a shared ‘unity of purpose,’ (2) an
intent to achieve a common goal, and (3) an agreement to work together toward the
goal.”33 Multiple conspiracies, unlike a single conspiracy, are “separate networks
operating independently of each other.”34 However, a “finding of a master conspiracy
with sub-schemes does not constitute a finding of multiple, unrelated conspiracies and,
therefore, would not create an impermissible variance.”35 Furthermore:
A variance does not prejudice a defendant's substantial rights (1) if the
indictment sufficiently informs the defendant of the charges against
him so that he may prepare his defense and not be misled or surprised
at trial, [or] (2) if the variance is not such that it will present a danger
that the defendant may be prosecuted a second time for the same
offense.36
Despite conceding that the “scheme between the two proposed conspiracies were
essentially identical,” John argues that the two alleged conspiracies were distinct because
31
United States v. Kelly, 892 F.2d 255, 258 (3d Cir. 1989) (citing United States v. Schurr,
775 F.2d 549, 553 (3d Cir. 1985)).
32
Id.33
United States v. Perez, 280 F.3d 318, 342 (3d Cir. 2002) (citations omitted).
34
Id. at 346 (quoting United States v. Barr, 963 F.2d 641, 648 (3d Cir.1992)).
35
Kelly, 892 F.2d at 258 (citation omitted).
36
United States v. Daraio, 445 F.3d 253, 262 (3d Cir. 2006) (alteration in original)
(quoting United States v. Schoenhut, 576 F.2d 1010, 1021–22 (3d Cir. 1978)).
7
he had employed different people and prostituted different women.37 However, a “single
conspiracy is not transformed into a series of unrelated, multiple conspiracies merely
through a change in its membership.”38 The District Court found “ample evidence . . . to
support a finding that John conspired with multiple people to use force, threats, fraud, or
coercion to cause [multiple women and girls] to engage in commercial sex.”39 The fact
that John employed different people at different times during the conspiracy does not
change the conclusion that this was a single conspiracy to “[i]dentify women to
prostitute, then prostitute them.”40
Moreover, even if two separate conspiracies should have been charged, John failed
to show that finding a single conspiracy prejudiced his substantial rights. He was
adequately informed of the charges against him and was not prevented from preparing his
defense or otherwise misled or surprised at trial.
IV.
For the foregoing reasons, we will affirm the District Court.
37
See Appellant Br. 25–26 (arguing that his prostitution activities involving Daisy and
G.L. in 2011 were distinct from his conduct in 2012 and later, when he prostituted other
women and girls with assistance from a different person, Arianna Somerville).
38
Kelly, 892 F.2d at 259.
39
John, 2020 WL 4721970, at *3.
40
Appellant Br. 26.
8