United States v. Erin Graham, Jr. ( 2022 )

In the
United States Court of Appeals
for the Seventh Circuit
____________________
No. 19-2373
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
ERIN F. GRAHAM, JR.,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Western District of Wisconsin.
No. 3:18CR00043-001 — James D. Peterson, Chief Judge.
____________________
ARGUED NOVEMBER 16, 2020 — DECIDED AUGUST 29, 2022
____________________
Before SYKES, Chief Judge, and EASTERBROOK and WOOD,
Circuit Judges.
SYKES, Chief Judge. A grand jury indicted Erin “Sonny”
Graham for conspiracy to commit sex trafficking and six
related crimes stemming from his operation of an interstate
commercial-sex enterprise in central Wisconsin. About a year
before he was indicted, police in Grand Chute, Wisconsin,
were called to a local motel to break up a fight between
Graham and his coconspirator Patience Moore. During that
encounter, the officers’ body cameras captured Moore in an
2 No. 19-2373
agitated state shouting that Graham was prostituting young
women and was holding and prostituting a 19-year-old in a
room at the motel.
The government played the body-camera recordings at
Graham’s trial during an officer’s testimony. By then Moore
had pleaded guilty and was on the government’s witness list,
though it was uncertain whether the prosecutor would
actually call her to testify. Later in the trial, Graham’s attor-
ney moved for a mistrial, arguing that if Moore did not
testify, Graham would be denied his Sixth Amendment right
to confront her about the statements in the bodycam record-
ings. See generally Crawford v. Washington, 541 U.S. 36 (2004).
The government later clarified that it would not call Moore
as a witness.
Ruling on the mistrial motion, the district judge agreed
with Graham’s attorney that a Confrontation Clause viola-
tion had occurred but declined to grant a mistrial. He con-
cluded that a curative instruction was adequate to remedy
any prejudice and therefore instructed the jury to disregard
Moore’s statements in the bodycam video. The jury found
Graham guilty on all counts. On appeal he challenges the
denial of his mistrial motion.
We affirm, but on somewhat different reasoning. There
was no Confrontation Clause violation. Moore uttered her
statements spontaneously as the officers were responding to
a fight in progress and to rapidly evolving circumstances
suggesting that sex trafficking might be occurring at the
motel. When statements are made to law-enforcement
officers under circumstances objectively indicating that the
primary purpose of the police encounter is to respond to an
ongoing emergency, the statements are not testimonial and
thus do not implicate the Confrontation Clause. That is the
No. 19-2373 3
case here. And even if a confrontation violation had oc-
curred, it was harmless.
I. Background
Graham ran a commercial sex business in and around
Madison, Wisconsin, from approximately October 2015 until
about May 2017 when he was arrested. He was charged by
superseding indictment with seven crimes: conspiracy to
commit sex trafficking, 18 U.S.C. §§ 1591, 1594(c); three
counts of sex trafficking by force, threat, or coercion, id.§ 1591(a)(1); one count of attempted sex trafficking by force,
threat, or coercion, id.; and two counts of interstate transpor-
tation of a person to engage in commercial sex, id. § 2421.
Moore, who assisted Graham in his prostitution business,
was named as a codefendant in four of these charges: con-
spiracy to commit sex trafficking and three of the sex-
trafficking crimes. She eventually pleaded guilty to the
conspiracy count. In exchange the government dropped the
remaining charges against her.
The case against Graham proceeded to trial, and Moore
was listed as a potential government witness. The charges
against Graham centered on his actions relating to four
victims: Cinderria, Krystle, Cynthia, and Kelsey. They testi-
fied that Graham used drugs, violence, and various forms of
psychological coercion to force them to engage in sex acts on
“dates” with paying customers who responded to his adver-
tisements on backpage.com. Graham did not deny his
involvement in a commercial-sex enterprise involving these
women; the crux of his defense was that he did not use force
or coercion.
The mistrial decision—the only issue on appeal—largely
concerns the evidence relating to Cinderria, so we limit our
4 No. 19-2373
discussion accordingly. Cinderria testified that she met
Graham and Moore at a shopping mall when she was 18 and
had just moved to Wisconsin. Graham promised her an
apartment, a car, and a 50/50 split of the earnings if she
agreed to perform commercial sex acts with his customers.
Soon after she began to engage in commercial sex “dates” at
Graham’s direction, but he withheld her share of the earn-
ings and became violent if she did not comply with his
demands. She testified that Graham choked and beat her,
pulled her hair, and on one occasion left her by the side of a
road in freezing weather. He also blackmailed her by threat-
ening to tell her family that she was a prostitute. When she
said she did not want to perform “dates,” Graham and
Moore tracked her location via cell phone. They used similar
coercive tactics, threats, and violence against the other
victims.
In May 2016 Graham and Moore had an explosive argu-
ment in a motel room at a Red Roof Inn in Grand Chute,
Wisconsin. Cinderria was present; she testified that Graham
got violently angry when Moore tried to wake him up. They
argued, and as the fight continued, Moore nudged Graham’s
face. Graham then threw Moore into the bathroom, and
Cinderria heard sounds of a beating. Moore was bleeding
heavily when she emerged from the bathroom. The fight
then moved into the motel parking lot, where Moore contin-
ued to scream at Graham. When she began to throw rocks at
him, bystanders called the police.
When officers arrived on the scene, they attempted to ar-
rest Moore. She resisted, so they called for backup and tried
to calm her down. But she remained extremely agitated and
continued to resist arrest. Officer Travis Waas responded to
the call for backup, and the officers managed to handcuff
No. 19-2373 5
Moore. Graham, however, was not arrested. Instead, Officer
Waas accompanied him back to his room in the motel.
Much of the police encounter with Moore in the motel
parking lot was captured by the officers’ body cameras. At
trial the government played excerpts of the bodycam footage
during Officer Waas’s testimony. The first excerpt showed
Moore handcuffed in the parking lot while Graham was on
the upstairs balcony. Moore was extremely agitated, and the
officers were trying to calm her down. She identified
Graham by name and yelled, “He got a 19-year-old prosti-
tute! And he took me from New York … . [H]e took me all
the way from fucking New York.” An officer asked if
Graham was pimping her. She answered, “[H]e pimp[ed] me
for a fucking year and a half[,] … worst year and a half of
my life.”
The prosecutor questioned Officer Waas about Moore’s
statements in the video:
GOVERNMENT: Did she say something about
her face?
OFFICER WAAS: Yes. That [Graham] had
scratched her face.
GOVERNMENT: Did she say, “He put a mark
on my face”?
OFFICER WAAS: Uh-huh, yes.
…
GOVERNMENT: So when this is going on,
where are you, and what are you doing?
OFFICER WAAS: Before this had happened, I
had walked with Mr. Graham up to the balco-
ny to grab his ID from the hotel room. … I
6 No. 19-2373
walked inside. There were two other females
inside the room. …
GOVERNMENT: And do you know the ap-
proximate age of the females?
OFFICER WAAS: I believe one looked young-
er, maybe 19 years old. …
In the next excerpt, Officer Waas is seen talking to
Graham near and in his motel room. Cinderria appears in
the background, though only briefly, and Moore’s screaming
from the parking lot below was audible on the recording.
Officer Waas testified that Moore was yelling about Graham
prostituting women.
The final excerpt is actually the prequel to the other two,
but the government played it last. It showed another officer
attempting to arrest Moore before Officer Waas arrived on
the scene. Moore shouted to the officers, “He’s over here
prostituting bitches. He kidnapped me from fucking New
York.”
As we’ve noted, the police did not arrest Graham in con-
nection with the incident at the Red Roof Inn. Cinderria
testified that he continued to traffic her for another year. She
tried to leave in April 2017, but Graham assaulted and
choked her in a hotel room until she blacked out. She man-
aged to escape and alert a hotel employee who called 911.
This time Graham was arrested.
As the government continued to present its case,
Graham’s attorney alerted the court to a potential Confronta-
tion Clause problem: if the government decided not to call
Moore as a witness, then Graham would be deprived of his
right to confront her about her statements to the police at the
Red Roof Inn as captured in the bodycam videos. The gov-
No. 19-2373 7
ernment replied that the videos raised no Confrontation
Clause concerns because Moore’s statements were nonhear-
say utterances offered to show their effect on Cinderria
rather than the truth of the matters asserted. The videos, the
government argued, were offered merely to reinforce
Cinderria’s testimony that she was fearful of what would
happen to her if she tried to leave Graham and Moore.
It remained uncertain whether the government would
call Moore as a witness, so the judge deferred consideration
of the Confrontation Clause question. But he acknowledged
the dilemma and expressed some skepticism about the
government’s argument that Moore’s statements were not
hearsay. His preliminary view was that Moore’s statements
on the videos were probably testimonial hearsay, so their
admission would violate Graham’s right of confrontation
unless she testified and was subject to cross-examination.
Still, the judge did not “see [her statements] as all that
damning.” He said he would be inclined to simply instruct
the jury to disregard them if she did not testify.
The next day the government announced that it would
not call Moore as a witness. At that point Graham’s attorney
moved for a mistrial, reiterating his Confrontation Clause
objection. The judge denied the motion, explaining that a
mistrial was unnecessary. He agreed with the defense that
because Moore did not testify, the admission of her recorded
statements violated Graham’s right of confrontation. But the
judge determined that a curative instruction directing the
jury to disregard the statements would adequately address
any prejudice to Graham.
The judge then instructed the jury as follows:
8 No. 19-2373
Yesterday, we watched a video in which
Patience Moore made statements during an in-
cident at the hotel in Grand Chute. We have
now been informed that Ms. Moore will not be
testifying. Accordingly, you can’t consider any-
thing that Ms. Moore said in that video be-
cause Ms. Moore can’t be cross-examined
about those statements. You can consider the
video itself and statements made by other par-
ticipants. This instruction is specific to the vid-
eo that we saw yesterday, and it doesn’t relate
to your consideration of any other evidence or
testimony in the case.
The jury convicted Graham on all counts, and the judge
imposed a sentence of 300 months in prison.
II. Discussion
Graham limits his appeal to the denial of his mistrial mo-
tion. Evidentiary rulings implicating a defendant’s Sixth
Amendment right to confrontation are reviewed de novo.
United States v. Burgos, 539 F.3d 641, 643 (7th Cir. 2008). We
review the denial of the mistrial motion for abuse of discre-
tion. United States v. Marchan, 935 F.3d 540, 546 (7th Cir.
2019).
The Sixth Amendment’s Confrontation Clause provides
that “[i]n all criminal prosecutions, the accused shall enjoy
the right … to be confronted with the witnesses against
him.” U.S. CONST. amend. VI. As the Supreme Court held in
Crawford, the Clause bars the admission of “testimonial
statements of a witness who [does] not appear at trial unless
he [i]s unavailable to testify[] and the defendant … had a
prior opportunity for cross-examination.” 541 U.S. at 53–54.
No. 19-2373 9
The phrase “testimonial statements” is a “critical por-
tion” of Crawford’s holding. Davis v. Washington, 547 U.S.
813, 821 (2006).
Only statements of this sort cause the declarant
to be a ‘witness’ within the meaning of the
Confrontation Clause. It is the testimonial
character of the statement that separates it
from other hearsay that, while subject to the
traditional limitations upon hearsay evidence,
is not subject to the Confrontation Clause.
Id. (citation omitted).
Whether the Confrontation Clause bars the admission of
out-of-court testimonial statements of a nontestifying wit-
ness depends on how the prosecution uses the statements at
trial. A testimonial statement is inadmissible “only if it is
admitted for its truth,” i.e., if the statement is hearsay. Woods
v. Etherton, 136 S. Ct. 1149, 1152 (2016). The Confrontation
Clause has no role to play in the admissibility of nonhear-
say—“testimonial statements [admitted] for purposes other
than establishing the truth of the matter asserted.” Crawford,
541 U.S. at 59 n.9.
We begin with the common ground: the parties agree
that Moore was both available to testify and that Graham did
not have a prior opportunity to cross-examine her. The
defense, of course, was not required to call Moore as a
witness. “[T]he Confrontation Clause imposes a burden on
the prosecution to present its witnesses, not on the defend-
ant to bring those adverse witnesses into court.” See
Melendez-Diaz v. Massachusetts, 557 U.S. 305, 324 (2009).
Graham was under no obligation to remedy the Confronta-
10 No. 19-2373
tion Clause dilemma created by the government’s decision
not to call Moore as a witness.
The government argues here, as it did in the district
court, that Moore’s recorded statements were not hearsay
because they were offered to show the effect on Cinderria
and not the truth of what Moore asserted. If the government
is wrong about this—if Moore’s statements were indeed
hearsay—then we must decide whether they were testimo-
nial within the meaning of the Supreme Court’s confronta-
tion jurisprudence. See United States v. Amaya, 828 F.3d 518,
528 (7th Cir. 2016). The government argues that Moore’s
statements were not testimonial—and even if they were,
their admission was harmless error.
A. Moore’s Statements Were Hearsay
An out-of-court statement is hearsay if it is offered “to
prove the truth of the matter asserted in the statement.” FED.
R. EVID. 801(c)(2). “[S]tatements introduced to show their
effect on the listener” are not offered to prove the truth of
the matter asserted and therefore are not hearsay. Torry v.
City of Chicago, 932 F.3d 579, 585 (7th Cir. 2019). A statement
is offered to show an effect on the listener only if the listener
heard and reacted to the statement, United States v. Gaytan,
649 F.3d 573, 579–80 (7th Cir. 2011), and if the “actual use” of
the statement at trial was to demonstrate the listener’s
response, Jones v. Basinger, 635 F.3d 1030, 1042 n.2 (7th Cir.
2011).
The government argues that Moore’s statements were
not hearsay because they were offered for the purpose of
showing their effect on Cinderria—i.e., the statements
corroborated her testimony that she feared that Graham
would resort to violence against her if she tried to leave. But
No. 19-2373 11
the government did not actually use Moore’s statements in
that way. The prosecutor made no effort to connect Moore’s
statements as captured in the bodycam video to Cinderria’s
state of mind. Officer Waas was not asked about Cinderria’s
reaction (if any). Nor was Cinderria asked about how the
statements, or the incident more generally, affected her. The
government’s use of Moore’s statements was not so circum-
scribed as it claims.
We’re left, then, with a broader and open-ended eviden-
tiary purpose for admitting Moore’s statements, one that
invited the jury to accept as true her accusations that
Graham was prostituting young women, including
Cinderria. Moore, hysterical, blurted out that Graham was
prostituting young women and had “a 19-year-old prosti-
tute” in his room at the motel. Cinderria was briefly visible
in Graham’s room in one of the bodycam excerpts, and
Officer Waas testified that he saw two young women—
including one who was about 19 years old—in the room. The
officer also described an online advertisement for a prosti-
tute dated the same day as the incident at the Red Roof Inn.
In short, we agree with the district judge that Moore’s
statements in the bodycam videos were hearsay.
B. Moore’s Statements Were Not Testimonial
The next question is whether Moore’s statements were
testimonial. The inquiry focuses on the “primary purpose”
of the police encounter in which they were made. Ohio v.
Clark, 576 U.S. 237, 244 (2015). The Supreme Court distin-
guishes between police encounters that enable officers to
respond to ongoing emergencies and interrogations aimed at
establishing past events:
12 No. 19-2373
Statements are nontestimonial when made in
the course of police interrogation under cir-
cumstances objectively indicating that the pri-
mary purpose of the interrogation is to enable
police assistance to meet an ongoing emergen-
cy. They are testimonial when the circumstanc-
es objectively indicate that there is no such
ongoing emergency, and that the primary pur-
pose of the interrogation is to establish or
prove past events potentially relevant to later
criminal prosecution.
Id. (quoting Davis v. Washington, 547 U.S. 813, 822 (2006)).
Whether “an emergency exists … is a highly context-
dependent inquiry.” Michigan v. Bryant, 562 U.S. 344, 363
(2011). The Supreme Court has, however, determined that an
ongoing emergency exists when a dangerous individual is
on the loose and poses a “bona fide physical threat” to
others. Davis, 547 U.S. at 827. In Davis a woman called 911
and reported that her ex-boyfriend, whom she identified by
name, was “jumpin’ on me again” and “usin’ his fists.” Id. at
817. The Court held that the admission of the 911 call at the
ex-boyfriend’s trial did not violate the Confrontation Clause
because the woman “was speaking about events as they were
actually happening, rather than describing past events.” Id. at
827 (cleaned up). The woman “simply was not acting as a
witness; she was not testifying.” Id. at 828 (quotation marks
omitted). Instead, the primary purpose of her statements
was to report and explain an ongoing emergency to police
officers and to seek their help in ending the emergency.
In Bryant the Court reaffirmed these principles. There,
police officers responded to a 3:25 a.m. dispatch about a
shooting and spoke to the victim when they arrived. He had
No. 19-2373 13
a gunshot wound to the abdomen and was in great pain, but
he was able to tell them that he was shot at about 3 a.m. by a
man named “Rick”—an acquaintance later identified as
Richard Bryant—through the back door of Rick’s house. The
prosecution introduced the victim’s statement to the police
at Bryant’s murder trial. The Court held that the victim’s
statement was nontestimonial because its primary purpose
was “to enable police assistance to meet an ongoing emer-
gency”—namely, an armed shooter with an unknown
motive had fled the scene and remained at large. Bryant,
562 U.S. at 349 (quoting Davis, 547 U.S. at 822).
This case falls on the nontestimonial side of the line as
explained in Davis and Bryant. Moore’s statements to the
police were made spontaneously and under circumstances
objectively indicating that the officers’ primary purpose was
to resolve the ongoing emergency of a fight in progress and
sex trafficking occurring at the motel. Moore identified a
dangerous individual and described his crime as it was
actually happening. She told the officers that Graham pres-
ently had “a 19-year-old prostitute” in his room at the motel
and was “prostituting bitches.” The primary purpose of this
police encounter was to enable the officers to respond to
unfolding events—i.e., to report ongoing sex trafficking at
the motel, rescue the victim, and apprehend the perpetrator.
Graham’s argument to the contrary is unpersuasive. He
relies on Hammon v. Indiana, 547 U.S. 1213 (2006), a case
consolidated with Davis. In Hammon police responded to a
reported domestic disturbance, separated the victim from
the perpetrator, and interviewed the victim, who made
statements regarding the disturbance. The Supreme Court
determined that the victim’s statements were testimonial
because the ongoing emergency of domestic violence had
14 No. 19-2373
ended. The victim and perpetrator had been separated, and
police were in control of the situation.
Hammon is distinguishable. The Hammon victim de-
scribed a past assault, whereas Moore described a present,
ongoing criminal act. As Bryant makes clear, a statement is
more likely to be nontestimonial when it describes danger-
ous criminal activity that is “actually happening.” 562 U.S. at
356. Additionally, police had neutralized the Hammon perpe-
trator by separating him from his victim. But police had not
yet neutralized Graham at the time Moore made her state-
ments. Indeed, Graham and his victim Cinderria remained
in the motel room, and Graham continued to traffic her for
another year. Moore’s statements were nontestimonial
hearsay, so their admission at trial did not violate Graham’s
Sixth Amendment confrontation right.
Even if a Confrontation Clause error occurred, we’re sat-
isfied that it was harmless. In this context harmless-error
analysis “depends upon factors such as the importance of
the witness’s testimony in the prosecution’s case, whether
the testimony was cumulative, … and the overall strength of
the prosecution’s case.” United States v. Walker, 673 F.3d 649,
658 (7th Cir. 2012) (quotation marks omitted). A
Confrontation Clause violation is not harmless if these
factors indicate to “the average juror” that without the
wrongfully admitted testimony, “the prosecution’s case
would have been significantly less persuasive.” United States
v. Eskridge, 164 F.3d 1042, 1044 (7th Cir. 1998) (quotation
marks omitted).
The government’s case against Graham was very strong.
He was convicted under § 1591(a), which prohibits the use of
force or coercion “to cause [a] person to engage in a com-
mercial sex act,” and also § 2421, which prohibits transport-
No. 19-2373 15
ing a person in interstate commerce “with intent that [the
person] engage in prostitution.” By his own testimony,
Graham admitted that he prostituted multiple women; he
denied only that he used force or coercion to do so. Moore’s
outbursts as recorded in the bodycam videos simply con-
firmed what Graham conceded. Cinderria and the other
victims testified that Graham used physical force, including
choking, hair-pulling, pushing, punching, and forced re-
straint. They also testified about Graham’s coercive tactics,
like withholding money and using illegal drugs as a means
of control.
Moore’s statements were therefore both cumulative and
of limited evidentiary value. Her identification of Graham as
having a “19-year-old prostitute” and her other references to
“pimping” merely parroted Graham’s concessions at trial.
Likewise, her statements contained little, if any, information
about force or coercion. In light of the other victims’ graphic
and damning testimony, Moore’s statements were of mini-
mal importance to the government’s case.
AFFIRMED