United States v. Kevin Fuertes , 805 F.3d 485 ( 2015 )

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
Before KING and KEENAN, Circuit Judges, and DAVIS, Senior
Circuit Judge.
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
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”) and German de Jesus Ventura (“Ventura”) of
conspiracy to commit, and commission of, a number of sex
trafficking and related offenses. On appeal, 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. § 1591(a), is not
categorically a crime of violence. 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
By early 2008, Ventura was operating brothels in the
Hispanic community in Annapolis, Maryland. Fuertes helped
Ventura run the brothels, as well as advertise the prostitution
business. To maintain control over the sex trade, Fuertes and
Ventura threatened perceived competitors with violence. For
example, in March 2008, Ventura told Alberto Hernandez Campos
(“Campos”) about trouble he was having with another Annapolis-
area pimp, Ricardo Humberto “el Pelon” Rivas Ramirez
(“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 numbers, and 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
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 them to examine. The contacts list
contained the 1397 number from which Ramirez had received
threatening calls. Police also located a physical address book,
which listed two phone numbers for “Pancho”: the 1397 number, as
well as another number ending in 0903. After obtaining a
warrant, police learned that Ventura was listed as the
subscriber for the phone number ending in 0903. Witnesses in
the investigation eventually identified Ventura by the
aliases/nicknames of “Pancho” and “Chino,” among others.
Suspecting that Ventura and Fuertes were responsible for
Ramirez’s murder, investigators continued to monitor their
activities. 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. Typically, the
5
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
with an object, Ventura pushed her down onto rocky ground. 2
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, Duenas testified that Ventura threatened
competitor pimps, including Ramirez, and that she witnessed
Ventura and Fuertes celebrating Ramirez’s murder. 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. According to Duenas, Fuertes was present
when Ventura beat 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. During a protective sweep, police
found Duenas and another 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
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 each prostitute had serviced in the past week.
Ventura also had his Maryland driver’s license, a 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 police
responded to a 911 call for a possible robbery. 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 Zelaya Repalo, a former
8
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 29, 2011, a federal grand jury returned a
superseding indictment, charging Fuertes and Ventura 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
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 of individuals in interstate commerce for the
purpose of prostitution, in violation of 18 U.S.C. § 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 their pretrial
motions, Fuertes and Ventura proceeded to trial. 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. It found Fuertes not guilty of Count Two.
The district court 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
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)). The rule is “inclusive,”
“admitting all evidence of other crimes or acts except that
which tends to prove only criminal disposition.” United States
v. Young, 248 F.3d 260, 271–72 (4th Cir. 2001) (internal
quotation marks omitted). 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)). The
11
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. The evidence was
relevant to Fuertes and Ventura’s familiarity with the
prostitution business, as well as their intent to participate in
that business. In other words, Fuertes and Ventura’s attempts
to intimidate or eliminate others involved in the sex
trafficking business constituted evidence of their own
participation in that very business, and that they knowingly
conspired with each other to do so. Likewise, evidence that
Ventura intimidated a family that had attempted to help a
prostitute tended to establish Ventura’s connection to 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 is misplaced. As explained by the
district court, to find Fuertes and Ventura guilty of
conspiracy, the jury had to find at least one overt act was
12
committed in furtherance of the charged conspiracy. And among
the overt acts charged in the superseding 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 competitor
pimps and his own employees and female prostitutes.” 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. United States v. Hodge, 354
F.3d 305, 312 (4th Cir. 2004). 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 speaking, ‘bad acts’
13
evidence, admissible under Rule 404, is not barred by Rule 403
where such evidence ‘did not involve conduct any more
sensational or disturbing than the crimes with 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
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’ credibility concerning the source of the
latter’s injuries. 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
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 testimony is based on sufficient facts or
data;
(c) the testimony is the product of reliable
principles and methods; and
(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 testimony where it “‘is not only
relevant, but reliable.’” United States v. Crisp, 324 F.3d 261,
265 (4th Cir. 2003) (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
Applying the above standard, the district court did not
abuse its discretion in permitting Dr. Baker, who had ample
knowledge, skill, experience, training, and education with
regard to cutaneous findings of abuse, to testify as an expert.
A physician for twenty-five years, Dr. Baker served as the
director of the Baltimore Child Abuse Center, 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 and Ventura take issue with the fact that Dr.
Baker’s “experience was almost entirely with 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
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. In any event,
Fuertes and Ventura’s objection to Dr. Baker’s 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 cross-
examination. 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
had been physically injured. 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; indeed, it is surely the case that most expert
opinion evidence proffered by litigants is paired with lay
evidence that is in some fashion supported by the 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 abused her.”). Thus, the district court’s
decision to admit Dr. Baker’s expert opinion 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
§ 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 that a “broadly stated” motion for judgment of
acquittal is “sufficient to preserve the full range 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. As
explained by the government, Ventura takes issue with the
district court’s instruction to the jury regarding Count Seven—
in particular, its instruction that sex trafficking by force,
20
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. Ventura’s
motion for judgment of acquittal, which dealt 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, integrity or public
reputation of judicial proceedings.” 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
“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 property of another, or (B) 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.” 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 the applicable statute) employ the “categorical
approach” or the “modified 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 that—explicitly or implicitly—refers to multiple,
22
alternative means of commission must 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.” Omargharib v. Holder,
775 F.3d 192, 194 (4th Cir. 2014). “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.” Rendon, 764 F.3d at 1086 (emphasis
in original). Accordingly, although § 1591(a) refers to
alternative means of commission, it contains a single,
indivisible set of elements, and the categorical 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
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 categorically as a “violent felony” under §
924(e)(1)). Accordingly, because § 1591(a) specifies that sex
trafficking by force, fraud, or coercion may be committed
nonviolently—i.e., through fraudulent means—the offense does not
24
qualify as a categorical 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 This
argument misapprehends the clear language of the 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.” 18 U.S.C. §
924(c)(3)(B) (emphasis added). 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
(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
In analyzing identical 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.” Leocal, 543 U.S. at 10 (emphasis added). We
conclude, therefore, that the district court erred in
27
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. The government
argues that any error could not have been 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 issue has not been
resolved plainly” (emphasis in original)). 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 plain at the time of appellate consideration.”
Henderson v. United States, 133 S. Ct. 1121, 1130 (2013)
(internal quotation marks omitted). 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
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 face a
substantial risk of physical injury from johns. 6 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 is categorically a crime of
6
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
violence under that provision. 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, and public reputation of judicial
proceedings. 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
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 367. “[A]ppellate reversal on grounds of 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.” Id.
(internal quotation marks omitted). Put another way, a
reviewing court “cannot set aside a jury’s verdict if it is
supported by substantial evidence when viewed in the light most
8The 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
favorable to the government.” 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 commercial sex enterprise with and on
behalf of Ventura.” Gov’t Br. at 43. 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 examination that Fuertes had in fact witnessed the
beating. 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
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