United States v. Pawinee Unpradit ( 2022 )

United States Court of Appeals
For the Eighth Circuit
___________________________
Nos. 19-3293 & 20-1825
___________________________
United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Pawinee Unpradit,
lllllllllllllllllllllDefendant - Appellant.
___________________________
No. 19-3313
___________________________
United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Thoucharin Ruttanamongkongul,
lllllllllllllllllllllDefendant - Appellant.
___________________________
No. 19-3701
___________________________
United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Saowapha Thinram,
lllllllllllllllllllllDefendant - Appellant.
___________________________
No. 20-2905
___________________________
United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Michael Morris,
lllllllllllllllllllllDefendant - Appellant.
___________________________
Nos. 20-3051 & 21-1341
___________________________
United States of America,
lllllllllllllllllllllPlaintiff - Appellee,
v.
Waralee Wanless,
lllllllllllllllllllllDefendant - Appellant.
____________
Appeals from United States District Court
for the District of Minnesota
____________
-2-
Submitted: October 20, 2021
Filed: May 20, 2022
____________
Before COLLOTON, SHEPHERD, and KELLY, Circuit Judges.
____________
COLLOTON, Circuit Judge.
This appeal comes after a trial in which five defendants were prosecuted for
participation in a large sex-trafficking conspiracy. A jury found all defendants guilty
of conspiracy to commit sex trafficking, see 18 U.S.C. § 1594, conspiracy to transport
persons to engage in prostitution, see 18 U.S.C. §§ 371, 2421, conspiracy to engage
in money laundering, see 18 U.S.C. § 1956, and conspiracy to use a communication
facility to promote prostitution, see 18 U.S.C. §§ 371, 1952. The jury also found one
of the five, Michael Morris, guilty of a substantive count of sex trafficking under 18
U.S.C. § 1591(a). The defendants now appeal various aspects of their convictions
and the sentences imposed by the district court.1 We conclude that there is no
reversible error, and therefore affirm the judgments.
I.
The prosecution’s evidence showed that the defendants and others were
members of a conspiracy that recruited women in Thailand to move to the United
States to engage in sex work. The victims often were poor and uneducated. The
traffickers in Thailand obtained visas for the women and arranged to transport them
from Thailand to the United States. In exchange, victims owed the traffickers money
described as “bondage debt.” The debt was usually between forty and sixty thousand
1
The Honorable Donovan W. Frank, United States District Judge for the
District of Minnesota.
-3-
dollars, an amount that a poor Thai woman could not pay back for many years if she
sought to leave sex work in the United States and return to lawful work in Thailand.
The person to whom a victim owed her debt was called her “ma-tac” or owner.
In the United States, the victims worked in “houses”—apartments, houses, or spas
where the women performed commercial sex acts. “House bosses” maintained the
houses, advertised services, and scheduled clients. The scheme involved houses
located in urban areas throughout the United States, including in Phoenix,
Minneapolis, Houston, Dallas, Chicago, Atlanta, Los Angeles, Seattle, and Austin.
Other people in the organization called “runners” or “facilitators” rented the houses,
collected money, booked flights and hotels, provided transportation, and assisted in
laundering money.
After victims arrived in the United States, they paid off their debt by
performing sex acts for money from clients. About a third of a sex worker’s hourly
fee was paid to the house boss for “house fees,” and the rest went to her ma-tac as
credit on the bondage debt. The trafficked women were scheduled to have sex with
up to ten men per day, often seven days a week, until they paid off their debts.
The organization typically sent a sex worker to a particular house for about two
to four weeks and then relocated her to a new house. In most cases, the large amount
of debt prevented victims from trying to escape. But ma-tacs and house bosses also
confiscated passports to prevent the Thai women from leaving, and they sometimes
threatened to harm a woman’s family if she were to run away or attempt to do so.
There are five appellants in these consolidated cases. Pawinee Unpradit is from
Thailand and claims to have come to the United States as a victim of the organization.
Unpradit eventually became a ma-tac in the organization, and she communicated with
traffickers in Thailand to coordinate the arrival of new young women in the United
States.
-4-
Saowapha Thinram came to the United States in 2012 as a victim of the
organization. The organization sent her to Austin, Texas, where one of her paying
customers paid off her debt. Thinram married the customer, and she became a house
boss in Austin.
Thoucharin Ruttanamongkongul was a house boss in Chicago and helped to
schedule clients. She partnered with at least one woman who had been under
bondage debt.
Michael Morris was a house boss who ran several houses in California. He
worked with other members of the organization to schedule women to work at his
houses. During at least part of the conspiracy, he was a business partner of another
house boss in California named Maya.
Waralee Wanless came to the United States from Thailand. She claims to have
been a victim of the organization, and she became a house boss and a ma-tac in
Chicago and Dallas.
All defendants were convicted at trial and sentenced to varying terms of
imprisonment. They present several issues on appeal.
II.
Thinram and Unpradit argue that their convictions must be reversed because
there was a variance between the conspiracy charged in the indictment and the
conspiracy proved at trial. See Kotteakos v. United States, 328 U.S. 750 (1946). The
conspiracy charged in the indictment spanned from January 2009 through May 2017,
and thus included periods during which Thinram and Unpradit contend that they were
victims of the conspiracy. Their theory is that because each was a victim of sex
trafficking before she joined a conspiracy to engage in sex trafficking of others,
-5-
neither could be guilty of the conspiracy charged in the indictment that included her
own victimization. In other words, a defendant cannot be both a victim and a member
of the same conspiracy. The implication seems to be that each time any woman
moved from the status of victim to member of the conspiracy, the existing conspiracy
necessarily ended and a new conspiracy began.
We conclude that there was sufficient evidence to support the jury’s finding
that Unpradit and Thinram joined a single ongoing conspiracy to commit sex
trafficking. After Thinram paid off her debt, she became a house boss. The
government disputes that Unpradit ever was a victim, but in any event, the evidence
showed that she too became a ma-tac and a house boss. Unpradit and Thinram shared
the common overall goal of earning money by making women available for sex, and
they used the same method of pressuring women under bondage debt to have sex with
male customers. See United States v. Gilbert, 721 F.3d 1000, 1005 (8th Cir. 2013).
The record thus supports a reasonable finding that Unpradit and Thinram joined the
same conspiracy in which they were allegedly victims at an earlier stage.
The defendants, citing Pinkerton v. United States, 328 U.S. 640 (1946), say it
is impossible for them to have joined the charged conspiracy, because Pinkerton
provides that a conspirator is liable for substantive offenses committed by other
conspirators in furtherance of the conspiracy. See United States v. Overshon, 494
F.2d 894, 896 (8th Cir. 1974). If the two women were trafficking victims during the
early part of the conspiracy, the argument goes, then they could not logically be liable
via Pinkerton for the substantive offense of trafficking themselves, and there must
have been two separate conspiracies. The flaw in this theory, however, is that
Pinkerton liability extends only to substantive offenses committed while the
defendant was a member of the conspiracy. See United States O’Campo, 973 F.2d
1015, 1021 & n.4, 1023 n.5 (1st Cir. 1992). Thus, the jury’s conclusion that Unpradit
and Thinram joined the charged conspiracy does not render them liable for acts
committed before they joined while they were victims of the conspiracy.
-6-
III.
Thinram also raises three challenges to the jury instructions. We review the
instructions for abuse of discretion, and consider whether they fairly and adequately
submitted the relevant issues to the jury. United States v. Magallon, 984 F.3d 1263,
1286 (8th Cir. 2021).
Thinram first argues that the district court erred by not instructing the jury that
she was a victim of the alleged conspiracy as a matter of law. Thinram was free to
argue that she was a victim, and the government agreed that she was a victim during
a portion of the conspiracy. There was no error in the court declining to resolve the
issue as a matter of law by jury instruction. Thinram also contends that the court
should have instructed the jury that a person who is a victim of a conspiracy cannot
later join the same conspiracy. She did not propose that instruction, however, and
there was no plain error in declining to include it, because Thinram’s assertion is not
a correct statement of law.
Thinram next quarrels with the jury instruction on the elements of conspiracy.
The conspiracy charge against Thinram required the government to prove an
agreement to commit sex trafficking “by force, threats of force, fraud, or coercion, or
any combination of such means.” Thinram requested an instruction that “[t]he
government has the burden of proving beyond a reasonable doubt that the defendant
did not act in good faith with respect to the element of fraud.” The district court
declined the request, but did instruct that a defendant may assert good faith as a
defense to fraud, and that it was for the jury “to decide whether or not a defendant
acted in good faith and without intent to defraud.” Thinram contends that the
instructions were insufficient without a statement that the government must prove the
absence of good faith.
-7-
We see no error in the district court’s ruling. For one thing, fraud was not an
essential element of the conspiracy charge: the government could have proved the
offense with evidence of force or coercion alone. To instruct that the government
must prove that the defendant “did not act in good faith with respect to the element
of fraud” would risk confusing the jury when the government did not have to prove
fraud at all. But even if the proposed instruction had been drafted more precisely to
specify that good faith was relevant only to one of several alternative means of sex
trafficking, it still would not have been a necessary addition to the court’s final
instructions. The court explained that the government must prove the elements of
conspiracy (including fraud, if applicable) beyond a reasonable doubt, that good faith
was a defense to fraud, and that the jury must decide whether the defendant “acted in
good faith and without intent to defraud.” The instructions thus made clear that good
faith was a defense to fraud, and that before the jury could convict based on fraud, the
government must prove fraud beyond a reasonable doubt. The instructions were
sufficient to communicate the substance of Thinram’s defense. See United States v.
Cheatham, 899 F.2d 747, 751 (8th Cir. 1990).
Thinram next contends that the district court erred by giving an instruction on
willful blindness in connection with the element of knowledge. The court instructed:
“Knowledge may be inferred if the defendants deliberately closed their eyes to what
would otherwise have been obvious to them. A willfully blind defendant is one who
takes deliberate actions to avoid confirming a high probability of wrongdoing and
who can almost be said to have actually known the critical facts.”
A willful blindness instruction is proper when the defendant claims a lack of
guilty knowledge but the evidence supports an inference of deliberate ignorance.
United States v. Long, 977 F.2d 1264, 1271 (8th Cir. 1992). Even when there is
evidence of actual knowledge, a willful blindness instruction is permissible if there
is sufficient evidence to support an inference of deliberate ignorance. United States
v. Hiland, 909 F.2d 1114, 1130-31 (8th Cir. 1990). The “instruction is particularly
-8-
appropriate when the defendant denies any knowledge of a criminal scheme despite
strong evidence to the contrary.” United States v. Regan, 940 F.2d 1134, 1136 (8th
Cir. 1991).
The record supports the district court’s decision to include the willful blindness
instruction. Thinram asserted in her defense that she did not know that women in the
organization’s sex operations were compelled to engage in commercial sex acts
through force, threats of force, fraud, or coercion. Given Thinram’s own history of
bondage debt, there was reason to infer that any purported ignorance that other
women were trafficked under bondage debt was a product of Thinram’s deliberate
efforts to avoid the truth.
Any error in giving the instruction was also harmless. The government
proceeded principally on the theory that Thinram had actual knowledge of the details
of the conspiracy, and there was sufficient evidence to support a finding of guilt on
that basis. In that situation, we assume that the jury relied on a well supported theory
of actual knowledge rather than an unlikely theory of deliberate indifference. United
States v. Hernandez-Mendoza, 600 F.3d 971, 979 (8th Cir. 2010); see Griffin v.
United States, 502 U.S. 46, 59-60 (1991).
IV.
Ruttanamongkongul challenges the sufficiency of the evidence to support her
conviction for conspiracy to commit sex trafficking. She argues that the evidence
was insufficient to show that she knew of the illegal purpose of the agreement and
insufficient to show that she agreed to participate in a scheme to use force, fraud, or
coercion to cause women to engage in commercial sex.
Viewing the evidence in the light most favorable to the verdict, the proof was
sufficient to support the conviction. The government presented testimony that
-9-
Ruttanamongkongul was a facilitator and a house boss in the Chicago area and that
she partnered with another house boss in Washington, D.C. A co-conspirator named
Pantila “Noon” Rodphokha testified that women who were under debt to the
organization worked in Ruttanamongkongul’s houses, that Ruttanamongkongul
worked closely with at least one woman who owned debt, and that
Ruttanamongkongul had knowledge of overseas trafficking. The record shows that
Wilaiwan “Pim” Phimkhalee, a house boss and ma-tac in the organization, sent e-
mails to Ruttanamongkongul with escort-style photos of the women who would be
working at her house. Ruttanamongkongul also posted advertisements on the website
Backpage offering liaisons with women in her houses. To lease apartments for the
sex work, she funneled cash through a man who paid the rent with cashier’s checks
in order to avoid connecting Ruttanamongkongul to the apartments or to large
amounts of cash. Based on this evidence, a reasonable jury could conclude that
Ruttanamongkongul knowingly agreed to engage in sex trafficking and did so with
knowledge that women working in her houses were subject to coercive debt that
compelled them to participate. There was sufficient evidence to support the
conspiracy conviction.
V.
Morris challenges the sufficiency of the evidence to support his conviction on
a substantive count of sex trafficking under 18 U.S.C. § 1591(a). He argues there was
insufficient evidence to establish the elements of the substantive offense or to show
that venue was proper in the District of Minnesota.
To establish the elements of the substantive offense, the government was
required to prove one of two alternatives. First, it was sufficient to show that Morris
knowingly recruited, enticed, harbored, transported, provided, obtained, or
maintained Chabaprai Boonluea, the named victim, and did so knowing that she
would be caused to engage in a commercial sex act by means of force, threats of
-10-
force, fraud, or coercion. Id. § 1591(a)(1). Second, the government could meet its
burden by proving that there was a “venture” that engaged in one of the sex-
trafficking activities described in the first alternative, that Morris participated in some
way in that venture, and that Morris benefited financially from that venture. Id.
§ 1591(a)(2). A “venture” is “any group of two or more individuals associated in
fact.” Id. § 1591(e)(6). An offender participates in a venture by “knowingly
assisting, supporting, or facilitating” a substantive sex-trafficking violation. Id.
§ 1591(e)(4).
Morris does not challenge the jury’s finding that he conspired to commit sex
trafficking, and the evidence was sufficient that he knowingly trafficked Boonluea
in particular. The prosecution presented testimony that “M,” a house boss in
Minnesota, sent various women under bondage debt to Morris and the houses of
prostitution that he operated. Two witnesses testified that Morris and Maya were
business partners, and that “M” rotated women through houses operated by the two
partners.
Boonluea was a government witness at trial. She testified that she was also
known by nicknames, including “Iris” and “Lily.” Boonluea came to the United
States under debt. “M,” the house boss in Minnesota, was her ma-tac. Boonluea
worked fifteen months to pay off her debt, and the house bosses did not allow her to
refuse clients during that time. “M” held Boonluea’s passport to keep her from
running away, and threatened Boonluea’s family when she expressed a desire to
return to Thailand.
“M” sent Boonluea from Minnesota to different houses across the country.
Boonluea testified that “M” sent her to Maya’s house in Orange County, California,
for two weeks in early 2010. While Boonluea was working in Orange County, Morris
made dinner for Boonluea and drove her to purchase cosmetics for use in sex work.
The government produced printouts of Morris’s electronic calendar, which included
-11-
an entry for “Lilly” for fifteen days in September 2009. Morris points out that
Boonluea spelled her nickname differently as “Lily,” and that she recalled at trial nine
years later that her visit to Maya’s house came in early 2010 rather than late 2009.
But a reasonable jury could have concluded that the discrepancies were immaterial
and that the calendar corroborated testimony that Morris was involved with
maintaining Boonluea when “M” sent her to stay with Maya. Indeed, Morris’s
closing argument at trial conceded that Boonluea “met Morris two times when she
came to Maya’s house in Orange County for 15 days.”
This evidence was sufficient to support a finding that Morris participated in a
venture with Maya and “M” to “maintain” Boonluea. A reasonable jury could have
concluded that Morris knowingly helped to maintain Boonluea by providing food and
transportation while knowing that she would be caused to engage in commercial sex
acts by means of coercion. There was also sufficient evidence that Morris benefited
financially from Boonluea’s sex work because Morris and Maya were business
partners, and Maya collected house fees from Boonluea while she was in Orange
County. For these reasons, the record adequately supports the jury’s finding that
Morris committed the substantive offense under § 1591(a).
Morris also argues venue was improper in the District of Minnesota because
the charged violation of § 1591(a) occurred entirely in California. The government
argues that Morris waived any challenge to venue because although he filed a general
motion for judgment of acquittal at the close of the evidence, see Fed. R. Crim. P.
29(a), he did not raise venue specifically until a motion filed after the jury returned
its verdict. See Fed. R. Crim. P. 29(c). This court has not addressed the precise
question whether a Rule 29(c) motion is sufficient to preserve a challenge to venue.
Outside the context of venue, however, we have treated a sufficiency issue raised for
the first time in a post-verdict motion as preserved for appeal. United States v.
Inman, 558 F.3d 742, 747 (8th Cir. 2009); see United States v. Miller, 527 F.3d 54,
60-61 (3d Cir. 2008) (citing cases). In an older case, this court said in an alternative
-12-
holding that a challenge to venue was waived where the defendant stipulated before
trial that venue was proper and did not dispute the issue until a post-verdict motion
for new trial. United States v. Haley, 500 F.2d 302, 305 (8th Cir. 1974). There has
been no occasion to reconcile Haley with more recent cases concerning motions
under Rule 29(c).
Assuming for the sake of analysis that Morris adequately preserved the venue
question for appellate review, we conclude that there was sufficient evidence to
support a finding that venue was proper in the District of Minnesota. The evidence
showed that Morris participated in a venture that facilitated a sex-trafficking violation
that occurred in both California and Minnesota.
As discussed, the evidence was sufficient to show that Morris participated in
a venture with Maya and “M” to maintain Boonluea, knowing that she would be
caused by means of coercion to engage in commercial sex acts. The indictment
charged that Morris participated in a venture from about April 2009 through about
January 2010. The evidence supported a finding that the associated persons
maintained Boonluea in different locations over a period of time.
A continuing offense may be tried “in any district in which such offense was
begun, continued, or completed.” 18 U.S.C. § 3237(a). Thus, if Morris’s
participation in the venture to maintain Boonluea was a continuing offense that
occurred in both Minnesota and California, then venue was proper in the District of
Minnesota.
We conclude that the offense of benefiting from participation in a venture to
“maintain” a victim of sex trafficking is a continuing offense that may occur in more
than one district. The nature of the crime is such that Congress must have intended
it to be treated as continuing rather than as a series of individual violations for each
moment in time that a victim is “maintained.” See Toussie v. United States, 397 U.S.
-13-
112, 115 (1970). In this very case, Morris did not object to the district court’s jury
instruction that a venture is an “ongoing” activity that may occur over a “period of
time,” and that a defendant could participate “throughout the length of the venture.”
R. Doc. 991, at 33-34.
The decision in Ex parte Nielsen, 131 U.S. 176 (1889), is illustrative. There,
the Court explained that the federal offense of “cohabit[ing] with more than one
woman” was “inherently a continuous offense, having duration, and not an offense
consisting of an isolated act.” Id. at 186 (internal quotation omitted). As such, the
offense spanned the entire thirty-one months covered by the indictment and did not
occur repeatedly each week or month within that period. See id. at 177, 186. The
sex-trafficking offense at issue here is comparable. Offenders under § 1591(a)
sometimes maintain a victim continuously over a period of time, and that conduct
amounts to a single offense rather than a series of isolated acts of maintenance.
While it is true that the offender must know about the prospective use of force, fraud,
or coercion at the time the offender knowingly maintains the victim, see United States
v. Marcus, 538 F.3d 97, 102 n.7 (2d Cir. 2008), the maintenance of the sex worker
and the offender’s knowledge can persist over time in a single violation.
With this understanding of Morris’s violation, the evidence was sufficient to
support a finding that venue was proper in the District of Minnesota. If Morris had
requested a jury determination on venue, the evidence would have supported a
finding that Morris was part of a venture with Maya and “M” to maintain Boonluea
that acted in both Minnesota and California over a period of time. Accordingly,
venue was proper in the District of Minnesota under 18 U.S.C. § 3237(a). See United
States v. Rodriguez-Moreno, 526 U.S. 275, 282 (1999).
-14-
VI.
Several of the defendants argue that the district court erred at sentencing in
calculating the base offense level for a conspiracy to engage in sex trafficking under
18 U.S.C. § 1594. The district court applied a base offense level of 34 based on
USSG §§ 2X1.1 and 2G1.1; the defendants contend that the level should be 14. In
United States v. Carter, 960 F.3d 1007 (8th Cir. 2020), this court held that the correct
base offense level is 34. Id. at 1013-15. Therefore, this point on appeal is foreclosed
by Carter.
VII.
Unpradit challenges the district court’s orders of restitution and forfeiture. The
court ordered Unpradit to pay $400,000 in restitution, and ordered forfeiture of two
cellular phones and a money judgment of $400,000. We review the district court’s
factual determinations for clear error. United States v. Gregoire, 638 F.3d 962, 973
(8th Cir. 2011).
The Trafficking Victims Protection Act provides that when a defendant is
convicted of conspiracy under 18 U.S.C. § 1594, the court must order restitution for
the “full amount of the victim’s losses.” 18 U.S.C. § 1593. These losses include
costs incurred by a victim that are a proximate result of the offense, as well as “the
gross income or value to the defendant of the victim’s services or labor.” 18 U.S.C.
§§ 1593(a)(3), 2259(c)(2). The government must prove the amount of restitution by
a preponderance of the evidence. See United States v. DeRosier, 501 F.3d 888, 896
(8th Cir. 2007).
The district court found that a restitution award of $400,000 was appropriate.
The court found that the government’s submission appropriately identified victims
of the conspiracy, and that the restitution amount was appropriately compensatory
-15-
and tailored to Unpradit’s role in the greater scheme. As support for a restitution
amount of $400,000, the court also cited the declaration of a special agent from the
Internal Revenue Service who averred that Unpradit deposited $444,101 of
income—unreported to the IRS—into her bank account between 2011 and 2016. The
agent observed that $380,000 of the deposits were cash and suggested that the most
likely source of the deposits was earnings from sex-trafficking and prostitution-
related activities.
We see no clear error in the district court’s finding. The IRS agent’s
declaration supported a finding that Unpradit more likely than not collected $400,000
of gross income from the victims’ services. Alternatively, the record also supported
a finding that Unpradit participated in trafficking at least ten victims. With evidence
that each victim typically paid a debt of $40,000 to $60,000 to her ma-tac and paid
house fees that totaled about half of the bondage debt, there was a sufficient basis to
conclude that Unpradit’s offense proximately caused losses of at least $400,000. See
United States v. Williams, 5 F.4th 1295, 1305-06 (11th Cir. 2021).
Unpradit raises several procedural challenges to the forfeiture order. She
argues first that the district court erred by failing to retain the trial jury or to empanel
a new jury to decide the forfeiture issues. The governing rule of procedure, however,
provides only that the court must determine whether either party requests that the jury
be retained “to determine the forfeitability of specific property if it returns a guilty
verdict.” Fed. R. Crim. P. 32.2(b)(5)(A). The rule does not entitle a defendant to a
jury’s decision on the amount of a money judgment, so there was no error in that
respect. Gregoire, 638 F.3d at 971-72. After the government reported before and
during trial that no defendant had yet requested a jury determination on forfeiture, and
Unpradit did not make such a request during the conference on jury instructions, the
court may have inferred that no party requested a jury determination as to
forfeitability of the cell phones. But even if the court erred by not inquiring of the
-16-
parties before the jury deliberated, the court retained jurisdiction to resolve the matter
later. United States v. Williams, 720 F.3d 674, 700-702 (8th Cir. 2013).
Unpradit also contends that the district court erred by not determining
forfeiture “as soon as practical” after the verdict, and by declining to conduct a
hearing on Unpradit’s request. See Fed. R. Crim. P. 32.2(b)(1). We conclude that
any procedural error was harmless. Unpradit states a desire to contest the amount of
the money judgment and the nexus between the cell phones and the conspiracy, but
does not explain how an earlier determination or a hearing would have augmented the
record or undermined the evidence on which the district court relied. The same
forensic analysis of Unpradit’s bank accounts that justified the restitution order
supports the money judgment of $400,000. See United States v. Elder, 682 F.3d
1065, 1072-73 (8th Cir. 2012). Evidence showed that the cell phones were used to
communicate with people in Thailand and the United States about women coming to
the United States for commercial sex, to communicate with house bosses (including
Morris), and to send and receive photographs of sex workers under bondage debt.
We therefore conclude that the forfeiture order is proper.
VIII.
Wanless appeals the district court’s order denying her motion for new trial. If
her conviction is sustained, then Wanless also asserts that the court committed errors
at sentencing.
Wanless first contends that the government withheld exculpatory information
in violation of her due process rights under Brady v. Maryland, 373 U.S. 83 (1963).
The disputed information concerns the source of certain evidence presented by the
prosecution. When investigators searched Wanless’s home in 2017, they seized
boxes that contained documents and electronics. One seized item was a ledger that
contained financial information related to sex trafficking.
-17-
Wanless alleges that the contents of the boxes were first seized by police
during a search at the home of one Casey Benson in Addison, Texas in 2013.
According to Wanless, police in Addison seized the items from Benson as part of a
local sex-trafficking investigation, but when the Addison case was dismissed due to
misconduct (embezzlement) by the lead investigator on the case, the evidence was
returned to Benson in 2016. Wanless claims that the government did not timely
disclose that the documents seized from her home in 2017 were part of the Benson
seizure in 2013. She maintains that the alleged non-disclosure was prejudicial
because if the history of the materials were known, then the evidence would have
been inadmissible or undermined, in part because Benson lived with another Thai
woman who could have prepared the ledger.
The district court concluded that the government did timely disclose the
relevant information, and that there was no prejudice to Wanless. The court found
that the prosecution provided to Wanless’s counsel (1) photographs of items seized
in 2013, (2) nearly 400 pages of materials related to the Addison case, (3) the details
of the Addison case, including the reasons for its dismissal, and (4) information about
chain of custody of the documents seized from Wanless. The court found that these
disclosures allowed Wanless sufficient time to prepare a defense. Wanless also
complained that the documents were stored in two boxes rather than in a single
“original” box, but the court found that nothing about the nature of the storage
containers discredited the evidence or justified any relief.
Wanless renews her contentions on appeal, but there was no clear error in the
district court’s findings and no legal error in its conclusion. The record supports the
findings that the government disclosed information about the 2013 seizures, including
that some of the evidence seized from Wanless in 2017 had earlier been seized during
the 2013 investigation. Wanless had an opportunity at trial to present evidence about
chain of custody and to raise questions about who was responsible for preparing the
-18-
disputed ledger and other documents. She has not established non-disclosure of
material exculpatory evidence.
Wanless also contends that the district court should have granted a new trial
based on prosecutorial misconduct. She argues that a prosecutor falsely stated during
a bench conference that the disputed ledger was seized from Wanless in 2017 rather
than in Addison during 2013. But the record is consistent with the conclusion that
the same evidence was seized twice—once in 2013 and then, after the evidence was
returned, again in 2017. The prosecutor’s statement during the bench conference did
not preclude Wanless from cross-examining the witness about an earlier seizure in
2013 if she thought such evidence would be useful to the defense.
Wanless cites a witness’s statement that financial documents obtained from
Wanless were seized pursuant to “a search warrant at her home” when the 2017
search was actually conducted based on Wanless’s consent. Wanless believes that
the witness’s statement misled the jury about the source of the ledger and financial
documents. That the witness misstated the authority for the search, however, does not
amount to prosecutorial misconduct or otherwise justify a new trial. If the nature of
the authority for the search was relevant to the defense, then it was a proper subject
for cross-examination.
Wanless next complains about a statement by the prosecutor during final
rebuttal argument that “[w]e didn’t hear from Wan about the ledger.” Wanless argues
that this statement was an improper comment on her constitutional right to remain
silent. The district court rejected this argument on the ground that the prosecutor was
critiquing or evaluating defense counsel’s final argument (which did not address the
significance of the ledger), and that the transcript “clearly shows that the comment
was taken out of context” in Wanless’s request for a new trial. We agree with this
conclusion and see no reasonable probability that a jury would have viewed the
-19-
remark as a comment on Wanless’s failure to testify. See United States v. Morris, 817
F.3d 1116, 1122 (8th Cir. 2016).
Wanless also asserts that she is entitled to a new trial based on ineffective
assistance of trial counsel. Ordinarily, claims asserting ineffective assistance of
counsel should be raised in post-conviction proceedings, but the record here is
adequately developed, and the district court ruled on the claim, so we proceed to
address it on direct appeal. See United States v. Hubbard, 638 F.3d 866, 869-70 (8th
Cir. 2011). To succeed on this claim, Wanless must show that counsel’s performance
was deficient and that the deficient performance was prejudicial. Strickland v.
Washington, 466 U.S. 668, 687 (1984).
Wanless alleges several errors by trial counsel. First, she asserts that counsel
was ineffective for stipulating to evidence seized in the 2017 search. Counsel
actually stipulated to the chain of custody for this evidence, and the district court
accurately pointed out that there was a chain of custody. Hence, counsel’s stipulation
to what could have been proved was not ineffective. Second, Wanless criticizes
counsel’s failure to impeach a prosecution witness who testified about financial
documents seized in 2017. She argues that counsel could have established that the
documents were seized in the Benson search four years earlier. Additional
questioning might have clarified that the documents were seized twice. But Wanless
has not demonstrated that counsel could have shown that the documents were never
seized in 2017 at all, or that evidence of a previous seizure in 2013 would have
exculpated Wanless, so counsel’s performance was not ineffective or prejudicial.
Third, Wanless contends that counsel should have pursued a defense theory that she
was a “solo provider” after 2013, and was therefore not guilty of conspiracy. The
district court found that counsel’s decision not to follow this approach was a strategic
decision that was virtually unchallengeable under the Sixth Amendment. We see no
basis to overturn that decision, especially given that the charged conspiracy began in
2009, and the government was not required to prove that Wanless participated after
-20-
2013 in order to obtain a conviction. For these reasons, the district court did not err
in rejecting Wanless’s claim that trial counsel provided ineffective assistance.
Wanless’s last several claims relate to sentencing and forfeiture. The court
imposed a term of 144 months’ imprisonment. Wanless argues that the court erred
by failing to make findings about the scope of her “relevant conduct” under the
sentencing guidelines. See USSG § 1B1.3. Wanless does not explain, however, why
any of the district court’s calculations under the sentencing guidelines were
erroneous, or why any additional findings were required to resolve issues under the
guidelines. We therefore reject Wanless’s challenge to her term of imprisonment.
Wanless also disputes the district court’s order of forfeiture. In December
2019, approximately a year after the jury’s verdict, the district court issued a
preliminary order of forfeiture. The order entered a money judgment forfeiture of
$1,000,000, and provided for the forfeiture of several items of property, including
cash seized from bank accounts and electronic devices.
At a sentencing hearing in September 2020, Wanless asked the court to impose
“the same forfeiture” that was imposed with respect to her co-defendant “Noon.” The
government asked the court to finalize the preliminary forfeiture order and
incorporate it into the judgment. The court opted instead to “reserve the right to
impose a final order for forfeiture for a period of 30 days,” and allowed the parties to
send “final submissions” related to forfeiture. The court then entered a written
judgment stating that “[t]he defendant shall forfeit . . . [a]ll property as indicated in
the Preliminary Order of Forfeiture dated 12/4/2019.”
The parties filed written briefs regarding forfeiture, and Wanless requested a
hearing. In February 2021, the court denied Wanless’s request for a hearing and
overruled her objections to the preliminary order of forfeiture. The court found that
there was a sufficient nexus between Wanless’s crimes and the forfeited property and
-21-
funds, and that the money judgment was reasonable. The preliminary order thus
became final.
Wanless first argues that the forfeiture order has no effect because it was not
included in the final judgment. Although the written judgment included a forfeiture
provision, Wanless argues that the court’s oral pronouncement controls, and the court
said at sentencing that it would reserve judgment on forfeiture for thirty days. Even
assuming, however, that the forfeiture was not properly included in the judgment as
of September 2020, it was permissible for the court to correct that omission at a later
date. See Fed. R. Crim. P. 32.2(b)(4); United States v. Shakur, 691 F.3d 979, 987 (8th
Cir. 2012); United States v. Hatcher, 323 F.3d 666, 673-74 (8th Cir. 2003). The order
of February 2021 denying objections to the preliminary order served as that
correction. Wanless maintains that the government was required to appeal the
omission of forfeiture from the judgment in September 2020, but it was sufficient for
the government to rely on the district court’s authority to correct an omission in the
judgment at a later date.
Wanless also contends that the district court denied her due process of law
when it denied her request for a hearing on forfeiture. In her objections to the
preliminary order of forfeiture, Wanless asserted that she was entitled to have a jury
determine the nexus between cited property and the offense. Citing the absence of
a jury finding, Wanless sought an evidentiary hearing on forfeiture under Federal
Rule 32.2(b)(1)(B). On appeal, she cites the rule’s provision that “[i]f the forfeiture
is contested, on either party’s request the court must conduct a hearing after the
verdict or finding of guilty.” Fed. R. Crim. P. 32.2(b)(1)(B). Wanless seems to argue
that the district court’s alleged failure to follow the rule amounts to a constitutional
deprivation.
Under the circumstances of this case, we conclude that the district court was
not required to hold a hearing. The court entered a preliminary order of forfeiture ten
-22-
months before sentencing. From then until sentencing, Wanless neither objected to
the order nor requested a hearing. To the contrary, at sentencing, Wanless asked the
court to impose the same forfeiture order that applied to a co-defendant who was
ordered to forfeit a money judgment of $1,000,000, a flash drive, and a cell phone.
This request essentially matched the preliminary order against Wanless for a money
judgment forfeiture of $1,000,000 and the forfeiture of electronic devices and cash
from bank accounts. The court nonetheless granted the parties an opportunity to
make “final submissions” in writing while reserving judgment on forfeiture for thirty
days. Only then did Wanless request an evidentiary hearing. At that point, Wanless’s
request for a hearing was untimely, and the court properly declined to grant it. The
court could have entered the final order of forfeiture at sentencing, and its gratuitous
willingness to entertain written submissions for thirty days after sentencing did not
entitle Wanless to an evidentiary hearing or deprive her of due process.
* * *
For these reasons, the judgments of the district court are affirmed.
______________________________
-23-