United States v. Monroe Evans , 272 F.3d 1069 ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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Nos. 00-2576EM, 00-2650EM, 00-2785EM, 00-2786EM, 00-2931EM
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No. 00-2576EM *
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United States of America, *
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Appellee, *
*
v. *
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Monroe Evans, also known as Ty, * On Appeal from the United
also known as Daddy, * States District Court
* for the Eastern District
Appellant. * of Missouri.
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No. 00-2650EM *
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United States of America, *
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Appellee, *
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v. *
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Derry Evans, also known as Bujie, *
also known as Boogie, also known as *
Darnell Washington, also known as *
Shon Perry, *
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Appellant. *
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No. 00-2785EM *
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United States of America, *
*
Appellee, * On Appeal from the United
* States District Court
v. * for the Eastern District
* of Missouri.
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Terrance Roberts, also known as Terry, *
also known as Terrance Evans, *
*
Appellant. *
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No. 00-2786EM *
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United States of America, *
*
Appellee, *
*
v. *
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Clem Evans, also known as Big Clem, *
also known as Clem L., *
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Appellant. *
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No. 00-2931EM *
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United States of America, *
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Appellee, *
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v. *
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Johnny Lee Evans, also known as *
Jerome, also known as Bunny, *
*
Appellant. *
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Submitted: September 11, 2001
Filed: November 27, 2001
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Before LOKEN, RICHARD S. ARNOLD, and FAGG, Circuit Judges.
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RICHARD S. ARNOLD, Circuit Judge.
Appellants Derry Evans, Terrance Roberts, Monroe Evans, Clem Evans, and
Johnny Lee Evans appeal their convictions of multiple counts relating to transporting
individuals in interstate commerce for prostitution in violation of the Mann Act, 18
U.S.C. §§ 2421–2423, money laundering, 18 U.S.C. § 1956, and conspiracy to
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commit those offenses. The most substantial arguments that they raise on appeal
concern: (1) whether a juror provided adequate assurance of his impartiality; (2)
whether an incorrect jury instruction on money laundering—that omitted the need to
find an effect on interstate commerce—requires reversal; (3) whether the District
Court’s general “knowledge” instruction conflicted with the Court’s specific
“knowledge” instruction under the money-laundering statute; and (4) whether there
was sufficient evidence to support the conviction of Derry Evans for conspiracy to
launder money.
For the reasons that follow, we affirm the convictions and sentences of Derry
Evans, Terrance Roberts, and Johnny Lee Evans in their entirety. We also affirm the
convictions of Monroe Evans and Clem Evans. Regarding those two defendants,
however, we reverse for resentencing with respect to the counts for which, both sides
agree, they were sentenced in violation of the Ex Post Facto Clause. For those
defendants, we remand the case to the District Court for further proceedings.
I. Background
The defendants were convicted of being part of an interstate conspiracy—based
in Minneapolis, Minnesota—involving the recruitment, transportation, control, and
abuse of prostitutes. The conspiracy began in the early 1980s and lasted until the
time of the defendants’ arrest. The defendants are all relatives. Monroe Evans, 50
years old at the time of trial, Clem Evans, 53, and Johnny Lee Evans, 46, are
brothers.1 Terrance Roberts, 26, is the son of Monroe Evans, and Derry Evans, 28,
is a nephew of the brothers. The facts will be further stated as relevant to the points
urged on appeal.
1
A fourth brother, LeVorn Evans, 52, also was convicted. His appeal has been
severed from those of the remaining defendants.
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Following a two-week jury trial, the defendants were found guilty on
March 27, 2000. The District Court2 entered final judgment on the verdicts. This
appeal followed.
II. Discussion
A. Derry Evans
Derry Evans was convicted under the Mann Act, 18 U.S.C. § 2422(a), of
knowingly persuading, inducing, or enticing an individual to travel in interstate
commerce to engage in prostitution; under 18 U.S.C. § 2423(a), of three counts of
transporting an individual under the age of 18 in interstate commerce with the intent
that the individual engage in prostitution; and under 18 U.S.C. § 371, of conspiracy
to violate the Mann Act. He also was convicted under 18 U.S.C. § 1956(a)(1)(A)(i)
of money laundering and under 18 U.S.C. § 1956(h) of conspiracy to launder money.
In addition, he was convicted under 42 U.S.C. § 408(a)(7)(B) of fraudulent use of a
social security number.
Following his conviction, the District Court sentenced Derry Evans to 85 years
in prison. Based on a total offense level of 43 and a criminal history category of VI,
the imprisonment range under the Sentencing Guidelines was life. However, the
statutory maximum punishment for the crimes of which he was convicted was 85
years. Therefore, pursuant to U.S. Sentencing Guidelines Manual § 5G1.2(d) (1998),
the District Court imposed consecutive sentences to the extent of the combined
statutory maximum to achieve a sentence as close as possible to the Guidelines’
result. The length of the sentence is not an issue on appeal.
2
The Hon. Jean C. Hamilton, Chief Judge, United States District Court for the
Eastern District of Missouri.
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1. Adequacy of Juror 8's Assurances of Impartiality
Derry Evans argues that the District Court erred in denying his motion to
remove a juror who, following his exposure to other jurors’ misconduct, refused to
give unequivocal assurances that he could be fair and impartial.
On the fourth day of trial, in response to the complaint of one of the
jurors—juror 15—about the conduct of certain members of the jury, the Court
conducted a voir dire of the jury. In the voir dire, juror 8 testified that he had
overheard conversations among other jurors concerning the lack of professionalism
and lack of interest of defense counsel, and concerning television coverage of the
trial. During his examination by the government’s lawyer, the following colloquy
took place:
Q. [Y]ou indicated that some of the jurors or a couple of the jurors had
made comments about some of the lawyers. Has that affected your
ability to be fair and impartial here today?
A. No.
Q. And as you said, you have an open mind completely on this case?
A. I’m not sure I can say that.
Q. Let me ask you this. In the beginning, you were instructed not to
make a decision until you’ve heard all the evidence and the entire case
is closed.
A. Uh-huh.
Q. Are you to the point now where you can’t—let me rephrase that.
Are you to the point where you no longer have a completely open mind?
A. Some of the content has affected me more than I thought it would.
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Q. But have you—is it going to impact your ability to render a fair and
impartial verdict?
A. I would certainly hope not.
Q. Have you made a decision as you sit right now on guilt or
innocence?
A. That would not be fair. No.
Q. So you haven’t done that?
A. No.
Q. And you’re going to reserve making a decision on guilt and
innocence until all the evidence is done?
A. To the best of my ability.
Excerpt of Hearing In Re Jurors at 86-87 (emphasis added).
Later, during examination by defense counsel, the following exchange
occurred.
Q. [A]s you sit now—and we have a long way to go maybe—
A. Uh-huh.
Q. —in listening to more evidence—do you have any concerns or
qualms about being able to maintain an open mind through the rest of
the evidence?
A. I will do my best.
Id. at 90-91 (emphasis added).
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Citing Thompson v. Altheimer & Gray, 248 F.3d 621 (7th Cir. 2001), and
United States v. Gonzalez, 214 F.3d 1109, 1114 (9th Cir. 2000), Derry argues that the
District Court’s failure to remove juror 8, despite juror 8's equivocal responses to
questions about his impartiality and his ability to keep an open mind, was error.
The Sixth Amendment guarantees the right to trial “by an impartial jury.”
Impartiality is presumed “so long as the jurors can conscientiously and properly carry
out their sworn duty to apply the law to the facts of the particular case.” Lockhart v.
McCree, 476 U.S. 162, 184 (1986). Although removal of a juror is appropriate if “a
juror has formed an opinion as to the issue to be tried,” Reynolds v. United States, 98
U.S. 145, 155 (1878), “[i]t is sufficient if the juror can lay aside his [pretrial]
impression or opinion and render a verdict based on the evidence presented in court.”
Irvin v. Dowd, 366 U.S. 717, 723 (1961). District courts have substantial discretion
in conducting voir dire, so our review is for abuse of discretion. United States v.
Blom, 242 F.3d 799, 805-06 (8th Cir.), cert. denied, 122 S. Ct. 1984 (2001) (“[I]n
federal criminal cases, we will not overturn the district court’s finding that a
prospective juror can put aside any pretrial opinion and render a verdict based upon
the evidence at trial ‘unless the error is manifest.’”) (quoting United States v.
McNally, 485 F.2d 398, 403 (8th Cir. 1973), cert. denied, 415 U.S. 978 (1974));
United States v. Jones, 193 F.3d 948, 951 (8th Cir. 1999).
In Thompson, a race discrimination case brought by an employee against her
employer, the Seventh Circuit considered the district court’s failure to remove a juror
who expressed a belief that some plaintiffs’ claims against their employers are
spurious and that her background as an owner of a business would “cloud” and
“sway” her judgment in the case. 248 F.3d at 624, 626. The court expressed its
concern that, in response to questioning, the juror “said she would try to be fair, but
she expressed no confidence in being able to succeed in the attempt.” Id. at 626. The
court reversed and remanded for a new trial, concluding that the district judge had not
pushed “hard enough to determine whether [the juror] could relinquish her prior
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beliefs for purposes of deciding the case.” Id. In Gonzalez, a criminal case in which
the defendant was convicted for distributing cocaine, the Ninth Circuit considered the
district court’s failure to remove a juror who, after being asked three times if she
could put aside her personal experiences and serve fairly and impartially, responded
equivocally with answers such as, “I’ll try.” 214 F.3d at 1111. The juror had testified
on voir dire that she had been married to someone who regularly bought and sold
cocaine, had a child with that person, and then divorced him on account of his
involvement with drugs, all within approximately five years of sitting on the jury. As
the court noted, the activities of the juror’s husband, which led to her divorce and the
break-up of her family, resembled the fact pattern in the case in which she served. Id.
at 1114. The court reversed and remanded for a new trial.
The Thompson and Gonzalez courts both concluded: “When a juror is unable
to state that she will serve fairly and impartially despite being asked repeatedly for
such assurances, we can have no confidence that the juror will ‘lay aside’ her biases
or her prejudicial personal experiences and render a fair and impartial verdict.”
Thompson, 248 F.3d at 627 (quoting Gonzalez, 214 F.3d at 1114).
Despite persistent questioning, juror 8 did not state unequivocally that he
would be able to keep a completely open mind, remain impartial, and reserve a
determination of guilt or innocence until the conclusion of trial. However, unlike
Thompson and Gonzalez, in which there was testimony concerning both the prior
beliefs of the jurors in question and the jurors’ inability to set aside those beliefs in
the case they were to consider, here there is no evidence of any prior bias. Nor is
there any evidence that juror 8 learned any extrinsic information that would have
prejudiced him. Instead, any doubts that the juror may have expressed on voir dire
are traceable to the testimony that he had already heard. Unlike pretrial voir dire, the
voir dire in question in this case occurred on the fourth day of trial, after several days
of testimony. Not only is there nothing wrong with juror 8's being influenced by such
prior testimony, he is supposed to be. This testimony is necessarily going to be a
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factor in a competent juror’s determination of guilt or innocence. Therefore, we
conclude that the District Court’s decision to accept the juror’s assurance of
impartiality as sufficient was within its discretion.
2. Whether the Purchase of a Used Car Affected Interstate Commerce
Derry Evans argues that the government did not present sufficient evidence of
money laundering because it failed to establish that his purchase of a used car—a
1987 Mercury Topaz—on June 4, 1997, had any effect on interstate commerce.
Relying on United States v. Grey, 56 F.3d 1219, 1224 (10th Cir. 1995), and United
States v. Levine, 41 F.3d 607, 614 (10th Cir. 1994), Derry contends that the effect on
interstate commerce must occur either at the time of the transaction or later.
Moreover, he argues, citing United States v. Monholland, 607 F.2d 1311 (10th Cir.
1979), his driving the car only within Missouri is insufficient to affect interstate
commerce.
In considering the sufficiency of the evidence, we view the evidence in the
light most favorable to the government’s case, reversing only if no reasonable jury
could have found the defendant guilty beyond a reasonable doubt. See, e.g., United
States v. Shoff, 151 F.3d 889, 890 (8th Cir. 1998).
We put aside the questions of whether we should disregard any pre-purchase
effects on interstate commerce and whether Derry’s use of the car after the purchase
actually affected interstate commerce, because it is clear that the purchase itself had
an effect on interstate commerce. To come under the statute, the purchase need only
“in any way or degree affect[ ] interstate . . . commerce.” 18 U.S.C. § 1956(c)(4).
Derry bought a car titled in the state of Illinois from a Missouri dealer, and then
completed a Missouri application for title. More important, the transaction—the
purchase of an automobile from a commercial used car dealer—is sufficient, by itself,
to have an effect on interstate commerce. Cf. Russell v. United States, 471 U.S. 858,
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862 (1985) (stating that rental of real estate is unquestionably activity that affects
interstate commerce); United States v. Westbrook, 119 F.3d 1176, 1192 (5th Cir.
1997) (holding that purchase of two cars with proceeds from cocaine sale affects
interstate commerce), cert. denied, 522 U.S. 1119 (1998).
3. Eighth Circuit Model Jury Instruction 6.18.1956J
The District Court gave instruction number 43, a supplemental instruction on
money laundering based on Eighth Circuit Model Jury Instruction 6.18.1956J. That
instruction omitted the necessity of finding an effect on interstate commerce. After
failing to object below, Derry Evans now argues that the District Court committed
plain error by giving the model instruction.
On plain-error review, we have discretion to reverse only if there is an error
that is obvious and that affects a defendant’s substantial rights. United States v.
Campa-Fabela, 210 F.3d 837, 840 (8th Cir. 2000), cert. denied, 121 S. Ct. 1739(2001). Even in such circumstances, we should not exercise our discretion to correct
forfeited error “unless the error seriously affects the fairness, integrity or public
reputation of judicial proceedings.” United States v. Olano, 507 U.S. 725, 732 (1993)
(citations omitted).
The jury instruction reads as follows:
It is not necessary for the government to show that a defendant actually
intended or anticipated an effect on interstate commerce, or that
commerce was actually affected. All that is necessary is that the natural
and probable consequences of a defendant’s actions would be to affect
interstate commerce no matter how minimal.
Brief of Derry Evans at 11a (jury instruction number 43) (emphasis added); Judicial
Committee on Model Jury Instructions for the Eighth Circuit, Manual of Model
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Criminal Jury Instructions for the District Courts of the Eighth Circuit 6.18.1956J
(2000) (modified).3
Derry Evans argues that the instruction erroneously permitted the jury to find
him guilty of money laundering even if the transaction at issue—the purchase of an
automobile from a used-car dealer in Missouri—arguably did not affect interstate
commerce. He cites to United States v. Aramony, 88 F.3d 1369, 1387 (4th Cir.
1996), cert. denied, 520 U.S. 1239 (1997), for the proposition that the giving of an
instruction that negates the need for the jury to find an essential element of the
offense causes structural constitutional error that automatically requires reversal. The
government contends that this instruction was not reversible error because, taken as
a whole, the instructions made clear that to convict, the jury must find at least a
minimal effect on interstate commerce.
The government’s position is untenable. The express language of the
instruction informed the jury that it was not necessary to find that Derry Evans’s
transactions affected interstate commerce to convict him of money laundering under
18 U.S.C. § 1956(a). Thus, the instructions were reasonably likely to have
understated the government’s burden of proof.
There is no doubt that the model instruction is incorrect. An effect on interstate
commerce is an essential element of the offense of money laundering. See 18 U.S.C.
3
The title of this Manual is perhaps somewhat misleading. The instructions
contained in the Manual are “model,” and they are for the “Eighth Circuit,” but they
are not drafted by this Court, or indeed by any court, nor do they have this Court’s
automatic approval. As the preface to the Manual states, the instructions are “model,
not mandatory” and “the Eighth Circuit cannot give prior approval to the [model]
instructions.” Id. at iii. See also id. at xiii (“The Model Instructions . . . are not
binding on the district courts of this circuit, but are merely helpful suggestions to
assist the district courts.”) (quoting United States v. Norton, 846 F.2d 521, 525 (8th
Cir. 1988)).
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§ 1956(c)(4). The question remains, however, whether an instruction that eliminated
the necessity of a jury finding of that element constituted plain error in this case. A
jury instruction that omits a single element of the offense can be subject to harmless
error review. Neder v. United States, 527 U.S. 1, 8-9 (1999) (distinguishing cases
involving omission of single instruction from cases in which “a criminal trial cannot
reliably serve its function as a vehicle for determination of guilt or innocence . . . and
no criminal punishment may be regarded as fundamentally fair.”) (quoting Rose v.
Clark, 478 U.S. 570, 577-78 (1986)); see also United States v. Ben M. Hogan Co.,
809 F.2d 480, 481 (8th Cir.), cert. denied, 484 U.S. 822 (1987) (deciding that jury
instruction giving conclusive evidentiary presumption of effect on interstate
commerce can be harmless error and finding that “because the evidence was so
dispositive of the issue of effect on interstate commerce, we can say beyond a
reasonable doubt that the jury would have found it unnecessary to rely on the
conclusive presumption” that interstate commerce was affected).
Other circuits have held that a court’s giving erroneous instructions virtually
identical to the one given here does not create reversible error. See United States v.
Owens, 167 F.3d 739, 755 (1st Cir.), cert. denied, 528 U.S. 894 (1999) (holding that
giving of instruction virtually identical to Model Jury Instruction 6.18.1956J was not
plain error because substantial evidence supported effect on interstate commerce);
United States v. Allen, 129 F.3d 1159, 1164 (10th Cir. 1997) (holding that when
evidence establishing effect on interstate commerce is “overwhelming and essentially
uncontroverted” omission of element from jury instruction is not reversible error).
Cf. United States v. Ables, 167 F.3d 1021, 1030 (6th Cir.), cert. denied, 527 U.S.
1027 (1999) (holding that parties’ stipulation that designated financial institution
“was engaged in activities which affected in some way or degree interstate
commerce” sufficed to establish interstate-commerce nexus, despite erroneous jury
instruction).
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We hold that the error was harmless. Underlying the charge for money
laundering was the allegation that Derry Evans used proceeds generated from
prostitution to purchase a used car. Derry disputes only that the purchase had any
effect on interstate commerce. But—as was discussed previously—the purchase of
a car necessarily has an effect on interstate commerce. Therefore, the erroneous jury
instruction was not plain error.
4. Derry Evans’s Conviction for Conspiracy to Launder Money
Derry Evans also argues that the government failed to offer sufficient evidence
that he conspired to launder money. To convict Derry of conspiracy to launder
money, the government must establish that he knowingly joined a conspiracy to
launder money and that one of the conspirators committed an overt act in furtherance
of that conspiracy. United States v. Hildebrand, 152 F.3d 756, 762 (8th Cir.), cert.
denied, 525 U.S. 1033 (1998). At base, there must exist an agreement to achieve an
illegal purpose. United States v. Agofsky, 20 F.3d 866, 870 (8th Cir.), cert. denied,
513 U.S. 909 (1994).
Derry is correct that the government has not produced sufficient evidence of
a conspiracy to launder money with his codefendants. However, the charge under the
indictment was not limited to conspiracy among the defendants. Rather, count 44 of
the indictment charged that all of the defendants “did unlawfully and knowingly
combine, conspire, confederate and agree together and with each other, and with
others known and unknown to the Grand Jury” to launder money in violation of 18
U.S.C. § 1956. (Emphasis added). And the government has produced evidence
regarding a conspiracy to launder money between Derry and his prostitutes. Eleana
Garcia, one of Derry’s prostitutes, testified that she wired money to Derry on several
occasions (using aliases) and gave money to Derry from her prostitution earnings, and
that he used that money to buy the Mercury Topaz and to pay for their travel
expenses. She also testified that when she worked for escort agencies, she had to pay
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those agencies a fee out of the proceeds of prostitution. Those agencies promoted
prostitution activities. These joint activities necessarily presuppose an agreement
between Derry and Ms. Garcia regarding the handling of the proceeds of prostitution.
Therefore, viewing all of the evidence in the light most favorable to the government,
there was sufficient evidence to convict Derry of conspiring to launder money.
5. Other Arguments
Derry Evans raises a variety of other arguments, none of which has merit.
Derry argues that the evidence was insufficient to prove that he conspired with the
other defendants to violate the Mann Act. However, viewing the evidence in the light
most favorable to the government, see Jackson v. Virginia, 443 U.S. 307, 319 (1979),
the trial revealed sufficient evidence of an agreement to violate the law. In the course
of promoting prostitution, Derry traveled with and stayed in hotels with other
defendants. In addition, Ms. Garcia testified that she received referrals for
prostitution from Tonya May, one of LeVorn Evans’s prostitutes, and that she and
Ms. May participated in “two-girl calls,” in which they engaged in sex for money and
shared the proceeds. Ms. May and Julia Wilson, one of Monroe Evans’s prostitutes,
testified that they drove Ms. Garcia on prostitution calls. Finally, Deanna Kirkman,
one of Terrance Roberts’s prostitutes, testified that, following Ms. Wilson’s arrest on
state charges of prostitution, she witnessed a meeting involving all of the defendants
concerning a statement that Ms. Wilson had made implicating the defendants. This
evidence suffices to uphold Derry’s conviction of conspiracy to violate the Mann Act.
Derry also argues that the District Court erred in admitting evidence of a gang
rape. We review the Court’s decision for abuse of discretion, which is particularly
broad in conspiracy cases. United States v. Davis, 882 F.2d 1334, 1343 (8th Cir.
1989), cert. denied, 494 U.S. 1027 (1990). Here, Latoya Madison, an acquaintance
of Ms. Garcia, testified that she took a message to Derry Evans. After arriving to
deliver the message, she was directed to a back room, where Derry asked her if she
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would work for him as a prostitute. When she refused, he had her raped by three
men, after which he again asked if she would work for him. When she again refused,
he said that he would have people continue to rape her until she agreed. Derry asserts
that the Court should have disallowed this testimony as character evidence under Rule
404(b) of the Federal Rules of Evidence and that, under Rule 403, the prejudicial
effect of allowing the evidence far outweighed its probative value.
Derry misconstrues this testimony as character evidence to be evaluated under
Rule 404(b) when, in fact, it is direct evidence of the Mann Act violations and the
conspiracy. The rape—along with various other violent acts introduced into
evidence—were actions taken to recruit, control, and discipline prostitutes.
Regarding exclusion under Rule 403, substantial discretion is given to the District
Court in weighing probative evidence—which this testimony clearly was—against
prejudicial effect—which is also present here. The Court did not abuse this
discretion.
Derry Evans was convicted under 18 U.S.C. § 2422(a), which states that
whoever knowingly “persuades, induces, entices, or coerces” an individual to travel
in interstate commerce to engage in prostitution, violates that section. However, his
indictment charged only that he knowingly “persuaded, induced and enticed” an
individual to travel in interstate commerce, omitting the reference to coercion. The
Court’s jury instruction reinstated the coercion element not charged in the indictment,
asking whether the defendant “persuaded, induced, enticed, or coerced” an individual
to travel in interstate commerce. Derry argues that by submitting evidence on
coercion and inserting the coercion element into the instruction, the government and
the District Court constructively amended the indictment in violation of the Fifth
Amendment. Because Derry failed to object to the instruction, our review is for plain
error. There is none. Adding “coerced” to the instruction had no effect on the case
other than, perhaps, to raise the government’s burden of proof. If the jury found
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Derry to have violated the statute by coercing his victims to travel in interstate
commerce, then he necessarily induced them to do so.
Derry next argues that the District Court committed plain error by submitting
jury instructions that failed to identify the victims of the Mann Act violations by
name. This Court has upheld indictments, like the ones at issue here, that failed to
identify victims by name. See, e.g., United States v. Gay, 577 F.2d 465, 466 (8th Cir.
1978) (holding description of victims as “campers” to be sufficiently specific). Derry
asserts, however, that lack of specificity in a jury instruction is different from lack of
specificity in an indictment. Citing Stump v. Bennett, 398 F.2d 111, 116 (8th Cir.
1986), cert. denied, 393 U.S. 1001 (1968), he argues that jury instructions are
erroneous and prejudicial if they result in substantial jury confusion, and that, in this
case, there is substantial record evidence of jury confusion. There is some evidence
of juror confusion early in the proceedings. In addition, the jury asked several
questions during the deliberation stage (such as requests for the testimony of several
witnesses, confusion as to who various prostitutes were and their ages, and the
submitted question, “who is with who?”). However, this evidence is insufficient to
overcome—on plain error review—the presumption that the jury has followed the
instructions, United States v. Paul, 217 F.3d 989, 997 (8th Cir. 2000), cert. denied,
122 S. Ct. 71 (2001), and the sufficiency of the evidence of guilt in this case. In a
long, complicated trial, jurors, like any conscientious observers, may be uncertain of
details at some point. This does not mean they did not ultimately come to a reasoned
decision.
Derry Evans also argues that the District Court erred in refusing to sever his
case from the cases of the other defendants under Federal Rule of Criminal Procedure
14. We review for abuse of discretion, asking whether “definite prejudice” resulted
that is sufficient to overcome “[t]he [strong] presumption against severing properly
joined cases.” United States v. Delpit, 94 F.3d 1134, 1143 (8th Cir. 1996). That
prejudice must be “severe or compelling” because “rarely, if ever, will it be improper
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for co-conspirators to be tried together.” United States v. Warfield, 97 F.3d 1014,
1018 (8th Cir. 1996), cert. denied, 520 U.S. 1110 (1997) (citation omitted). Derry has
not met his heavy burden of establishing an abuse of discretion.
Derry also argues that the District Court erred in finding that he was a “leader”
under the Sentencing Guidelines. U.S. Sentencing Guidelines Manual § 3B1.1(a)
(1998). Section 3B1.1(a) reads: “If the defendant was an organizer or leader of a
criminal activity that involved five or more participants or was otherwise extensive,
increase by 4 levels.” Because Derry did not object at sentencing, the applicability
of this Guideline is reviewed for plain error. There is none. The evidence supports
the determination that all five defendants were part of a criminal activity involving
interstate transportation for prostitution. With regard to whether Derry was a leader,
the evidence indicates his participation in the meeting concerning Julia Wilson’s
statement. Moreover, he hired a driver, Jessica Richardson, to take Ms. Garcia on
prostitution calls, thereby satisfying the requirement that he be “the organizer, leader,
manager, or supervisor of one or more other participants.” Id., cmt. n.2; § 2G1.1,
cmt. n.3 (“For the purposes of § 3B1.1 (Aggravating Role), a victim, as defined in this
guideline, is considered a participant only if that victim assisted in the promoting of
prostitution or prohibited sexual conduct in respect to another victim.”); United States
v. Jarrett, 956 F.2d 864, 868 (8th Cir. 1992) (holding, under earlier version of
Guidelines, that § 2G1.1 prevents prostitutes from being considered “participants”
under § 3B1.1 unless they assisted in unlawful transportation of others). Even though
Ms. Richardson worked in that capacity for less than a week, the District Court did
not commit plain error.
Finally, Derry argues that the District Court erred in refusing to give a
multiple-conspiracy instruction that set forth the theory of his defense to the charge
of conspiracy to violate the Mann Act. The requested instruction is as follows:
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The government must convince you beyond a reasonable doubt that each
defendant was a member of the conspiracy charged in the indictment.
If the government fails to prove this as to a defendant, then you must
find that defendant not guilty of the conspiracy charge, even if you find
that he was a member of some other conspiracy. Proof that a defendant
was a member of some other conspiracy is not enough to convict.
Brief of Derry Evans at 14a (refused jury instruction D); Eighth Circuit Model Jury
Instruction 5.06G. Derry’s theory was that he conspired only with his prostitutes, not
with his codefendants.
Whether there is sufficient evidence to sustain a multiple-conspiracy
instruction is a question of law subject to de novo review. United States v. Hall, 171
F.3d 1133, 1149 (8th Cir. 1999), cert. denied, 529 U.S. 1027 (2000) (citation
omitted). Although the defendant usually is entitled to receive an instruction on a
theory of defense “even though the evidentiary basis for that theory is weak,
inconsistent, or of doubtful credibility,” Closs v. Leapley, 18 F.3d 574, 580 (8th Cir.
1994) (citation omitted), failure to give the conspiracy instruction requested here was
harmless error. The evidence of a conspiracy between Derry and the other defendants
was overwhelming.
B. Terrance Roberts
Terrance Roberts was convicted under the Mann Act, 18 U.S.C. § 2422(a), of
knowingly persuading, inducing, or enticing an individual to travel in interstate
commerce to engage in prostitution; under 18 U.S.C. § 2423(a), of transporting an
individual under the age of 18 in interstate commerce with the intent that the
individual engage in prostitution; and under 18 U.S.C. § 371, of conspiracy to violate
the Mann Act. He also was convicted under 18 U.S.C. §§ 1956(a)(1)(A)(i) and 2, of
money laundering and under 18 U.S.C. § 1956(h), of conspiracy to launder money.
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Following his conviction, the District Court sentenced Terrance Roberts to 36
years in prison (432 months). Based on a total offense level of 37 and a criminal
history category of III, the imprisonment range under the Sentencing Guidelines was
262 to 327 months. From the high end of the range, the Court departed upward by
105 months.
1. The District Court’s Jury Instructions on “Knowledge”
Terrance Roberts raises a number of arguments on appeal. He first argues that
the District Court’s general “knowledge” instruction, given as part of the Mann Act
instructions, conflicted with the Court’s specific “knowledge” instruction under the
money-laundering count.
The Mann Act prohibits anyone from “knowingly transport[ing] any individual
in interstate . . . commerce” for purposes of prostitution, 18 U.S.C. § 2421, from
“knowingly persuad[ing], induc[ing], entic[ing], or coerc[ing] any individual to travel
in interstate . . . commerce” for purposes of prostitution, 18 U.S.C. § 2422, and from
“knowingly transport[ing] an individual who has not attained the age of 18 years in
interstate . . . commerce” for purposes of prostitution, 18 U.S.C. § 2423. The District
Court gave the following definition of the term “knowingly” in jury instruction
number 8:
An act is done knowingly if a defendant is aware of the act and does not
act through ignorance, mistake, or accident. The government is not
required to prove that a defendant knew that his acts or omissions were
unlawful. You may consider evidence of a defendant’s words, acts, or
omissions, along with all the other evidence, in deciding whether that
defendant acted knowingly.
Brief of Terrance Roberts at 9a; Eighth Circuit Model Jury Instruction 7.03
(modified).
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In contrast to the general knowledge requirement of the Mann Act—in which
the jury need not find that the defendant knows that the act being committed is
unlawful—the money-laundering statute does require certain knowledge of illegality.
Specifically, to be convicted under the money-laundering statue, an individual must,
“knowing that the property involved in a financial transaction represents the proceeds
of some form of unlawful activity, conduct[ ] or attempt[ ] to conduct such a financial
transaction which in fact involves the proceeds of specified unlawful activity.” 18
U.S.C. § 1956(a)(1). In conjunction with the money-laundering counts, the District
Court gave jury instruction number 40, which stated that to convict on those counts
the jury had to find that “at the time that defendant conducted or attempted to conduct
the financial transaction, that defendant knew the property represented the proceeds
of some form of unlawful activity.” Brief of Terrance Roberts at 10a. In jury
instruction number 43, the Court gave supplemental instructions defining
“knowledge” with regard to the money-laundering counts:
The phrase “knew the property represented the proceeds of some form
of unlawful activity,” means that the defendant knew the property
involved in the transaction represented proceeds from some form,
though not necessarily which form, of activity that constitutes a felony
offense under State or Federal law. Thus, the government need not
prove that the defendant specifically knew that the property involved in
the financial transaction represented the proceeds of the transportation
of individuals in interstate commerce with the intent that said
individuals engage in prostitution, or any other specific offense; it need
only prove that the defendant knew it represented the proceeds of some
form, though not necessarily which form, of felony under state or federal
law.
Brief of Terrance Roberts at 13a; Eighth Circuit Model Jury Instruction 6.18.1956J
(modified).
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Mr. Roberts argues that these instructions provided conflicting directions for
the jury on the mental element of money laundering. The conflict resulted, he argues,
in the effective omission of the requirement that he know that the money being
transferred came from an unlawful activity. Because he failed to raise an objection
at sentencing, our review is for plain error.
Not only is there no plain error, there is no error. Jury instructions are
evaluated in the context of the entire charge, United States v. Davis, 237 F.3d 942,
944, n.2 (8th Cir. 2001), and we may not reverse a conviction unless, viewed in their
entirety, the jury instructions fail to state the law correctly. Paul, 217 F.3d at 996.
In this case, the knowledge requirement under one statute, the Mann Act, is different
from the knowledge requirement under the money-laundering statute. The District
Court correctly presented the requirements of the respective statutes in its jury
instructions. Its separate instructions do not conflict; they simply relate to different
statutes. There is no evidence of juror confusion and no indication that an element
of money laundering was effectively omitted; therefore, there is no error.
2. Other Arguments
Mr. Roberts also argues that a number of the jurors’ actions were misconduct
and merit a mistrial. Specifically, he asserts that a juror slept during the evidence,
that jurors discussed evidence while the case was being presented, that a juror
watched news reports about the case, that a juror read advertisements in a newspaper
referred to in the trial, and the jurors began to deliberate and form opinions of guilt
or innocence early in the trial. We review for abuse of discretion. United States v.
Williams, 77 F.3d 1098, 1100 (8th Cir.), cert. denied, 519 U.S. 967 (1996) (noting
that district court has “broad discretion in handling allegations of juror misconduct”).
Regarding the sleeping juror, once the existence of a sleeping juror was
brought to the Court’s attention, the Court stated that it would watch the juror and
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order more recesses. At a later side-bar conference with counsel, the Court stated that
it had been watching the juror, concluding that “[h]e’s been okay.” Trial Transcript,
Vol. III at 147. The Court handled the matter appropriately and did not abuse its
discretion.
During the voir dire of the jury on the fourth day of trial, juror 12 testified that
his wife had talked to him about newspaper reports of the case, and that he had seen
television coverage of the trial. He also admitted to having referred to the news
coverage in conversations with other jurors. In response to this testimony, juror 12
was—properly—stricken. Several of the other jurors testified that they had
participated in or overheard conversations regarding the professional conduct of the
defense attorneys, speculation as to the defendants’ assets, and the existence of news
coverage and the presence of the media. One juror also testified that he had seen
personal advertisements in the RiverFront Times that were similar to ones posted by
the defendants.
Relying on United States v. Blumeyer, 62 F.3d 1013 (8th Cir. 1995), cert.
denied, 516 U.S. 1172 (1996), Mr. Roberts argues that when juror misconduct
exposes the jury to factual matters not in evidence, a presumption of prejudice
attaches, requiring the government to prove beyond a reasonable doubt that the
misconduct did not harm the defendants. Id. at 1016-17. The principal problem with
this argument is that there has not been a sufficient showing that any of the
jurors—other than juror 12, who was dismissed—were exposed to any prejudicial
extrinsic information related to a substantive issue at trial; so the presumption does
not attach. Moreover, the allegations of misconduct arose on the fourth day of a
fourteen-day trial, and there were no further allegations of misconduct. Finally, even
if any presumption did attach, any extrinsic information that certain jurors received
was likely harmless beyond a reasonable doubt. The District Court did not abuse its
discretion in determining that the jurors remained competent to serve.
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Mr. Roberts also argues that juror 8 was unable to provide adequate assurances
of impartiality. We addressed this argument, as made by Derry Evans, above.
Mr. Roberts also argues that the District Court violated the Double Jeopardy
Clause by imposing a sentence for both money laundering and transporting an
individual for prostitution. He argues that because the money-laundering statute
requires the use of proceeds from a specified unlawful activity—in this case,
transportation for prostitution under the Mann Act—the specified unlawful activity
is itself a lesser included offense of money laundering. He is incorrect. As the
government points out, Mr. Roberts was convicted of multiple crimes flowing from
an extended course of conduct. Interstate transportation for prostitution—the
specified unlawful activity that triggers the money laundering statute in this case—is
not a lesser included offense of money laundering even though money laundering
requires the existence of some specified unlawful activity. The money-laundering
statute includes, as predicate offenses, so to speak, a long list of “specified unlawful
activities.” No single one of them is invariably an essential element of money
laundering. It is not the law that anybody convicted of money laundering is thereby,
under the Double Jeopardy Clause, immunized from prosecution for the underlying
offense. Money laundering and interstate transportation for prostitution are separate
offenses that each bear their own punishment, and neither the Court’s decision to
sentence Mr. Roberts for both of them nor its decision to make the sentences
consecutive violates the Double Jeopardy Clause.
Similarly, Mr. Roberts contends that he was subjected to multiple punishments
double counting) for obstruction of justice in violation of the Double Jeopardy
Clause. Specifically, he argues that the Court erred by enhancing his sentence for
obstruction of justice, under U.S. Sentencing Guidelines Manual § 3C1.1 (1998), for
instructing Deanna Kirkman, one of his prostitutes, to lie to a federal grand jury,
when that act served as one of the overt acts alleged in the charge of conspiracy to
transport individuals for prostitution under the Mann Act. Our review is de novo.
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We find no error here. A convicted defendant can be punished for an overt act,
as well as for the conspiracy requiring an overt act, assuming the overt act itself is
also a crime. Conspiracy and a substantive act taken as part of that conspiracy can
be separate crimes. See United States v. Halls, 40 F.3d 275, 277 (8th Cir. 1994), cert.
denied, 514 U.S. 1076 (1995) (“Even though the substantive offense was within the
time frame of the conspiracy, ‘the same overt acts charged in a conspiracy count may
also be charged and proved as substantive offenses, for the agreement to do the act
is distinct from the act itself.’ ”) (internal citation omitted); United States v. Thomas,
971 F.2d 147, 149 (8th Cir. 1992), cert. denied, 510 U.S. 839 (1993) (“[N]o double
jeopardy violation occurs when a person is . . . convicted of conspiracy and a
substantive overt act of the conspiracy.”) (citation omitted). Therefore, it was not
incorrect for the District Court to enhance Mr. Roberts’s sentence for obstruction of
justice simply because that act also served as an overt act of the conspiracy.
Mr. Roberts also contends that the District Court abused its discretion and
violated the Double Jeopardy Clause by granting the government’s motion for an
upward departure of 105 months based on U.S. Sentencing Guidelines Manual
§§ 5K2.2 (significant physical injury) and 5K2.8 (extreme conduct) and for enhancing
his sentence for being a leader and an organizer. Regarding significant physical
injury, there is sufficient evidence of significant injury to both Tammy Huisinga
(head trauma and cuts) and Deanna Kirkman (ear damage) as a result of beatings from
Mr. Roberts. Although Mr. Roberts argues that neither victim went to the hospital
or obtained medical documentation of permanent injury, there is sufficient testimonial
evidence of injury. The Court did not abuse its discretion.
Regarding extreme conduct, there also is sufficient evidence, including Mr.
Roberts’s forcing Ms. Huisinga to participate in the making of a pornographic
videotape with Ms. Kirkman and Theresa Krueger. Mr. Roberts argues that the
departure was impermissible double counting and a violation of the Double Jeopardy
Clause because the guideline base for sexual exploitation of a minor, § 2G2.1, which
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the District Court used, already accounted for that conduct. However, under Koon
v. United States, 518 U.S. 81 (1996), conduct can be considered both in the crime and
in the upward departure. Id. at 96. The key question is whether “the factor is present
to an exceptional degree,” or something else “makes the case different from the
ordinary case where the factor is present.” Id. Thus, it was not an abuse of discretion
for the District Court to determine that the departure basis was not already fully taken
into account because of the severity of the beatings and because of the coercion
involved in the making of the child pornographic videotape.
Mr. Roberts argues that the District Court erred in determining that he was an
organizer or leader of a criminal activity that involved five or more participants or
was otherwise extensive, so as to warrant a four-point sentence enhancement under
U.S. Sentencing Guidelines Manual § 3B1.1 (1998). Specifically, Mr. Roberts
contends that the District Court abused its discretion because it failed to state in open
court its specific reasons for departing, as required by 18 U.S.C. § 3553(c). However,
Mr. Roberts failed to object to this adjustment at the time of sentencing, so we review
for plain error only. Despite the language of § 3553(c), under United States v. Flores,
9 F.3d 54 (8th Cir. 1993), unless the defendant objects, the court can adopt the
recommendation of the presentence report without stating its reasons on the record.
Id. at 55. Under the plain error standard, there is evidence to support enhancement
because Mr. Roberts supervised prostitute Tammy Huisinga, who served as a trainer
for minor prostitute Deanne Kirkman. See U.S. Sentencing Guidelines Manual §
2G1.1 (1998), cmt. n.3. Cf. Jarrett, 956 F.2d at 868 (noting that prostitutes are
victims and not participants unless they assist in unlawful transportation of others).
Mr. Roberts also argues that the District Court clearly erred by enhancing his
sentence for targeting vulnerable victims. U.S. Sentencing Guidelines Manual
§ 3A1.1(b)(1) (1998). He argues that the basis for the enhancement—his targeting
of the 15-year-old Theresa Krueger—is erroneous because Ms. Krueger’s age was
already incorporated into his base-offense-level calculation under § 2G2.1 (sexual
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exploitation of a minor). United States v. Coates, 996 F.2d 939 (8th Cir. 1993)
(noting that when court uses § 2G2.1 as base offense level, vulnerable-victim
adjustment for age alone may constitute impermissible double counting). Moreover,
he argues, even though Ms. Krueger had worked as a prostitute prior to meeting Mr.
Roberts, her father had died when she was young, and her mother was incarcerated,
she was not atypically vulnerable as compared to other victims that the Mann Act is
intended to protect. The government’s own expert witness testified that such victims
are often runaways and individuals with family problems and drug dependency.
Nevertheless, despite some commonality between Ms. Krueger and the typical
underage victim of the Mann Act, given the deference to the District Court’s findings
of fact, there is not sufficient evidence to find that the Court clearly erred in
enhancing Mr. Roberts’s sentence under § 3A1.1(b)(1) for targeting vulnerable
victims. The District Court did not clearly err in finding Ms. Krueger more
vulnerable than the average minor victim.
Mr. Roberts further argues that the District Court erred in submitting to the jury
the alias “Terry Evans” as applicable to him. He contends that the evidence adduced
at trial showed that he was not known as Terry Evans, and that there was another,
older, individual who was known to the witnesses as Terry Evans. Although we have
recommended that aliases not be used, see Petrilli v. United States, 129 F.2d 101, 104
(8th Cir.), cert. denied, 317 U.S. 657 (1942), we have also upheld their use. See
United States v. Bradford, 246 F.3d 1107, 1117-18 (8th Cir. 2001). Mr. Roberts is
correct that there was evidence of another man named Terry Evans; however, one
witness, Julia Wilson, identified Mr. Roberts by both names and distinguished the
older Terry Evans from Mr. Roberts. The record also reveals that on the other
occasions when witnesses testified concerning the older Terry Evans, it was made
clear to the jury that the testimony did not refer to Mr. Roberts. The record does not
indicate that juror confusion resulted from the use of the alias, so there was no
prejudice to Mr. Roberts. Moreover, any association to the Evans family implied by
use of the alias was not inaccurate, given that he is the son of Monroe Evans.
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Finally, Mr. Roberts argues that the District Court abused its discretion by
refusing to grant a severance of Mr. Roberts’s trial from those of the other
codefendants pursuant to Federal Rule of Criminal Procedure 14. We reject this
argument for the reasons set out above with regard to the same argument made by
Derry Evans.
C. Monroe Evans
Monroe Evans was convicted under the Mann Act, 18 U.S.C. § 2421, of
knowingly transporting an individual in interstate commerce with the intent that the
individual engage in prostitution; under 18 U.S.C. § 2422(a), of knowingly
persuading, inducing, or enticing an individual to travel in interstate commerce to
engage in prostitution; and under 18 U.S.C. § 371, of conspiracy to violate the Mann
Act. He also was convicted under 18 U.S.C. § 1956(a)(1)(A)(i) of two counts of
money laundering; under 18 U.S.C. § 1956(a)(1)(B)(i), of money laundering; and,
under 18 U.S.C. § 1956(h), of conspiracy to launder money.
Following his conviction, the District Court sentenced Monroe Evans to 33
years in prison (396 months). Based on a total offense level of 37 and a criminal
history category of II, the imprisonment range under the Sentencing Guidelines was
235 to 293 months. From the high end of the range, the Court departed upward by
103 months.
The parties agree that the District Court committed plain error, violating the Ex
Post Facto Clause, by applying altered versions of 18 U.S.C. §§ 2421 and 2422(a),
which were amended after the date of the charged offenses, to counts 17 and 18 of the
indictment. That error resulted in Monroe’s being sentenced to punishment greater
than that existing at the time the offenses were committed. The parties agree that the
statutory maximum for each of those counts was five years in prison—not the ten
years that Monroe received—at the time of the charged offenses.
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Monroe Evans, both through counsel and pro se, raises a number of arguments
on appeal. Of these arguments, several also were made by Derry Evans or Terrance
Roberts, including that: (1) the District Court’s imposition of sentences for both
money laundering and transporting an individual for prostitution violates the Double
Jeopardy Clause; (2) various of the jurors’ actions resulted in juror misconduct and
merit a mistrial; (3) the District Court gave conflicting jury instructions on the mental
element for money laundering, resulting in the omission of the element of knowledge
that the money being transferred came from an illegal activity; and (4) the District
Court abused its discretion by failing to sever Monroe’s trial from those of the other
defendants pursuant to Federal Rule of Criminal Procedure 14. For the reasons
discussed previously, these arguments are without merit.
Like Terrance Roberts, Monroe Evans contends that the District Court
committed clear error by enhancing his sentence for targeting vulnerable victims
under U.S. Sentencing Guidelines Manual § 3A1.1(b)(1). Like Terrance Roberts, he
argues that his victims were not atypically vulnerable. However, the testimony
reflects that when Julia Wilson, one of Monroe’s victims, met Monroe, she was
incarcerated and addicted to drugs and alcohol. Monroe picked her up upon her
release from prison and furnished her with alcohol and drugs. Monroe also supplied
drugs to Amanda Kicker, another of his victims. Thus, deferring to the District Court,
we affirm the sentence enhancements. The Court did not clearly err.
Also like Terrance Roberts, Monroe Evans argues that the District Court acted
unreasonably, abused its discretion, and violated the Double Jeopardy Clause by
granting the government’s motion for an upward departure of 103 months based on
U.S. Sentencing Guidelines Manual §§ 5K2.2 (significant physical injury), 5K2.6
(use of a weapon) and 5K2.8 (extreme conduct). The Court explained that each of
these bases was independently sufficient to impose an upward departure. Monroe
contends that his case does not fall outside of the heartland of the applicable
Guidelines because the Court used § 2A3.1 (criminal sexual abuse) as the base
-29-
offense and enhanced that base by four levels pursuant to § 2A3.1(b)(1). Citing to
the application notes to the section, he argues that use of force against the victim,
threatening or placing the victim in fear of death or serious bodily injury, rendering
the victim unconscious, administering intoxicants or drugs, and using or brandishing
a weapon are incorporated into his enhanced offense level, so further departure is
impermissible. U.S. Sentencing Guidelines Manual § 2A3.1, cmt. n.1 (1998).
However, as discussed previously with regard to Terrance Roberts, the question is
whether the factors were present to an exceptional degree. Koon, 518 U.S. at 96.
Regarding significant physical injury, Monroe argues that among his victims
Julia Wilson, Amanda Kicker, and Rosita Francis, there were no hospital stays,
surgery, or permanent disability, so there were no serious injuries. This argument is
incorrect. There is sufficient evidence of significant injury to Ms. Francis (a split
head from a beating with a cable cord), Ms. Kicker (bruises, a split lip, and eyes
swollen shut), and Ms. Wilson (cuts on the head and beatings requiring hospital stays)
as a result of Monroe’s physical abuse to satisfy us that the District Court did not
abuse its discretion. Regarding use of a weapon, Ms. Wilson testified that Monroe
beat her with a gun and threatened her with it. Again, the Court did not abuse its
discretion.
Regarding extreme conduct, there also is evidence that Monroe forced Ms.
Wilson to work as a prostitute up to the time of birth of her children, threatened her
with murder, threatened her with abortion of her child by the use of a vacuum hose,
forced her to perform oral sex on him, and forced her to engage in sex with another
woman. Monroe also subjected Ms. Wilson to body-cavity searches in the presence
of her children. Monroe also forced Ms. Kicker to perform oral sex on him, and, on
one occasion, beat her until she passed out and, when she came to consciousness,
forced her to perform oral sex on him. This testimony makes clear that the District
Court did not abuse its discretion in departing upward.
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In his pro se brief, Monroe challenges the sufficiency of the evidence relating
to his conviction of money laundering and conspiracy to commit money laundering.
He argues that there was insufficient evidence to establish that he engaged in a
financial transaction, under 18 U.S.C. § 1956(a)(1)(A)(i), to promote interstate
transportation for prostitution, and, under § 1956(a)(1)(B)(i), to conceal the proceeds
of interstate transportation for prostitution. He also argues that the evidence was
insufficient to tie him to his codefendants. We review the evidence in the light most
favorable to the government. Jackson, 443 U.S. at 319.
Regarding promotion, Ms. Wilson testified that Monroe had her wire
prostitution proceeds from St. Louis to Terrance Roberts (Monroe’s son) in
Minnesota. Mr. Roberts used the funds to purchase a Mercedes Benz that was used
on prostitution calls. Monroe also purchased a Dodge Aries which was used on
prostitution calls. Regarding concealment, Julia Wilson testified that Monroe told her
that she would have to work extra hard to make money for a down payment on his
mother’s house. Tonya May testified that she was present for a conversation among
Monroe, LeVorn, Clem, and Johnny Lee regarding funding the down payment on the
house. Monroe then sent Ms. Wilson to collect money from LeVorn and Johnny Lee,
and, with Stacy Ballantyne, another prostitute, to purchase cashier’s checks. They
purchased four checks totaling $7000 and sent them to Alice Evans. The checks were
later used for the down payment on Alice’s house. This evidence is clearly sufficient
to establish concealment, promotion, and joint action among the codefendants. The
District Court did not err.
Like Derry Evans, Monroe Evans argues that the District Court erred in
admitting evidence of his violent behavior as direct evidence of the conspiracy.
Specifically, Monroe contests the admission of evidence concerning numerous violent
acts, including repeated beatings of Rosita Francis, Amanda Kicker, and Julia Wilson
and forced oral sex. For the reasons discussed above, these violent acts are relevant
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and probative of Mann Act violations because they describe actions taken to recruit,
control, and discipline prostitutes. The Court did not abuse its discretion.
Monroe also contends that the District Court erred in refusing to give a defense
instruction on multiple conspiracies. Derry Evans raised the same issue. For the
reasons discussed above, we reject this argument. Monroe further alleges that there
was insufficient evidence of conspiracy linking him to the other defendants. He is
mistaken. There is more than ample evidence of agreement between Monroe and his
coconspirators both with regard to violations of the Mann Act—including Monroe’s
ordering Julia Wilson, his prostitute, to drive Ms. Garcia, Derry’s prostitute, on
prostitution calls—and with regard to money laundering, as discussed above.
Monroe argues that counts nineteen (charging money laundering under 18
U.S.C. § 1956(a)(1)(A)(i) and aiding and abetting under 18 U.S.C. § 2) and twenty
(charging money laundering under 18 U.S.C. § 1956(a)(1)(B)(i) and aiding and
abetting under 18 U.S.C. § 2) of the indictment were legally insufficient.
Specifically, he argues that aiding and abetting is a specific-intent crime that requires
identification of all of its elements in the indictment, that the indictment failed to
specify the elements of aiding and abetting, 18 U.S.C. § 2(a), and willfulness, 18
U.S.C. § 2(b), and that, therefore, the indictment is fatally defective. The government
argues that the indictment need not allege those elements—being insufficient only if
an essential element of substance was omitted—and that the indictment is sufficient
as long as it fairly apprises the accused of the charges and allows him to plead double
jeopardy. However, according to the judgment sheet, Monroe was not convicted of
aiding and abetting, so the question whether the indictment sufficiently alleged that
charge is moot.
Monroe next argues that the District Court abused its discretion by allowing
the presence of federal marshals and court security officers in the courtroom. He
asserts that the presence of such officers with visible badges deprived him of his right
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to a fair trial because it jeopardized the appearance of a presumption of innocence.
As the government points out, the need for and extent of security measures in a
courtroom during trial are within the sound discretion of the trial court. United States
v. Darden, 70 F.3d 1507, 1533 (8th Cir. 1995), cert. denied, 517 U.S. 1149 (1996).
This argument is frivolous.
Monroe also argues that his trial counsel was ineffective for failing to make an
opening statement, revealing to the jury that he was court-appointed, and conceding
Monroe’s guilt in his closing statement. Claims of ineffective assistance of counsel
are properly raised in a post-conviction motion under 28 U.S.C. § 2255, not on direct
appeal. United States v. Embrey, 250 F.3d 1181, 1184 (8th Cir. 2001). Were we to
consider Monroe’s argument at this stage, we would find it unpersuasive. While a
couple of Monroe’s counsel’s decisions—failing to give an opening statement and
referring to himself as court-appointed once in the course of a two-week trial—may
not have represented ideal trial practice, given the strong presumption of attorney
competence, these decisions did not render counsel ineffective. Finally, counsel did
not concede guilt in his closing argument, but rather tried to diffuse the government’s
arguments addressed to the jury’s emotions.
Finally, Monroe argues that plain error occurred when counsel for Johnny Lee
and counsel for Derry, in the course of questioning witnesses, revealed that the
defendants were in custody. We find none. It is the burden of the defendant to show
prejudice from an inadvertent revelation. United States v. Robinson, 645 F.2d 616(8th Cir.), cert. denied, 454 U.S. 875 (1981). Here, not only was there no prejudice
established, but there was a tactical advantage to the revelation. Through the
questioning, counsel established that Tonya May continued to work as a prostitute
even after the defendants had all been incarcerated, thereby implying that she worked
as a prostitute voluntarily, not because of control or abuse by the defendants. There
is no plain error.
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D. Clem Evans
Clem Evans was convicted under the Mann Act, 18 U.S.C. § 2421, of two
counts of knowingly transporting an individual in interstate commerce with the intent
that the individual engage in prostitution; under 18 U.S.C. § 2422(a), of knowingly
persuading, inducing, or enticing an individual to travel in interstate commerce to
engage in prostitution; and under 18 U.S.C. § 371, of conspiracy to violate the Mann
Act. He also was convicted under 18 U.S.C. §§ 1956(a)(1)(A)(i) and 2, of money
laundering; under 18 U.S.C. §§ 1956(a)(1)(B)(i) and 2, of money laundering; and
under 18 U.S.C. § 1956(h), of conspiracy to launder money.
Following his conviction, the District Court sentenced Clem Evans to 20 years
in prison (240 months). Based on a total offense level of 32 and a criminal history
category of II, the imprisonment range under the Sentencing Guidelines was 135 to
168 months. From the high end of the range, the Court departed upward by 72
months.
As with Monroe, the parties agree that the District Court committed plain error,
violating the Ex Post Facto Clause, by applying altered versions of 18 U.S.C. §§ 2421and 2422(a), which were amended after the date of the charged offenses, to counts 22,
23, and 24 of the indictment. The parties agree that the statutory maximum for each
of those counts was five years in prison—not the ten years that Clem received—at the
time of the charged offenses.
Clem Evans raises a number of arguments on appeal. Of these arguments,
several also were made by Derry Evans or Terrance Roberts, including that: (1) the
District Court’s imposition of sentences for both money laundering and transporting
an individual for prostitution violates the Double Jeopardy Clause; (2) various of the
jurors’ actions resulted in juror misconduct and merit a mistrial; and (3) the District
Court gave conflicting jury instructions on the mental element for money laundering,
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resulting in the omission of the element of knowledge that the money being
transferred constituted the proceeds of an illegal activity. For the reasons discussed
previously, these arguments are without merit.
Clem Evans also argues that the District Court erred by allowing the
government’s expert witness on prostitution, Sergeant Andrew Schmidt, a
Minneapolis police officer familiar with vice and prostitution investigations, to testify
without holding a Daubert hearing. See Daubert v. Merrell Dow Pharmaceuticals,
Inc., 509 U.S. 579 (1993). He contends that the Court was unable to determine
properly the reliability of the testimony, and that the testimony was both prejudicial
and improper. The government argues that the testimony was reliable and relevant.
We review for abuse of discretion. Smith v. Rasmussen, 249 F.3d 755, 758 (8th Cir.
2001). Under Daubert and Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999), the
judge is to act as a gatekeeper in determining whether the proposed expert’s
testimony both is relevant and rests upon a reliable foundation. Id. at 149.
Here, the District Court was satisfied with Sergeant Schmidt’s education,
training, and experience. Sergeant Schmidt testified regarding the operation of a
prostitution ring, including recruitment of prostitutes and the relationship between
pimps and prostitutes, and regarding jargon used in such rings. There is no
requirement that the District Court always hold a Daubert hearing prior to qualifying
an expert witness under Federal Rule of Evidence 702, and the Court did not abuse
its discretion in finding the proposed testimony of Sergeant Schmidt to be both
reliable and relevant, and in allowing that testimony.
Like Terrance Roberts and Monroe Evans, Clem Evans contends that the
District Court committed clear error by enhancing his sentence for targeting
vulnerable victims under U.S. Sentencing Guidelines Manual § 3A1.1(b)(1). Like
both of them, he argues that his victims were not atypically vulnerable. However, the
testimony reflects that when Clem, then 38 years old, met Stacy Ballantyne, one of
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his victims, sometime during 1985 or 1986, she was 14 years old, a runaway, and
hiding from the police. Later, she developed a cocaine addiction. Clem argues that
he was not aware of her age when they met, and that Ms. Ballantyne did not have a
drug addiction when they met. Nevertheless, Clem certainly did take advantage of
her condition—encouraging and contributing to her addiction by furnishing her with
drugs to prevent her from leaving and moving her in with him and his mother. Thus,
deferring to the District Court, we affirm the sentence enhancements. The Court did
not clearly err.
Finally, also like Terrance Roberts and Monroe Evans, Clem Evans argues that
the District Court acted unreasonably, abused its discretion, and violated the Double
Jeopardy Clause by granting the government’s motion for an upward departure of 72
months based on U.S. Sentencing Guidelines Manual §§ 5K2.2 (significant physical
injury), 5K2.4 (unlawful restraint), and 5K2.8 (extreme conduct). Although Clem
asserts that the Court used § 2A3.1 (criminal sexual abuse; base level 27) as the base
offense and enhanced that base by four levels pursuant to § 2A3.1(b)(1), the
presentence report and the sentencing hearing reveal that the Court in fact used
§ 2G1.1 (promoting prostitution; base level 14) as the base offense, enhancing under
§§ 2G1.1(b)(1) (4 levels for use of physical force), 2G1.1(b)(2)(B) (7 levels for age
of victim), 3A1.1(b)(1) (2 levels for vulnerable victim), 3A1.3 (2 levels for victim
restraint), and 3B1.1(c) (2 levels for aggravating role).
Regarding significant physical injury, there is sufficient evidence of significant
injury to Ms. Ballantyne, including a split head, bruises, and swelling from beatings
with a shoe and a cable cord. There is also sufficient evidence of Clem’s extreme
conduct toward Ms. Ballantyne, including repeated beatings of her with a cable cord
and other weapons, preventing her from seeking medical treatment, forcing her to
work as a prostitute while pregnant until the delivery of her children, and providing
her with crack cocaine to prevent her from leaving. Regarding unlawful restraint, the
District Court found that Clem’s keeping Ms. Ballantyne at his sister’s
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house—despite evidence indicating that she could come and go as she pleased—and
tying her to a bed to beat her on one occasion satisfies this section. We conclude that
the District Court did not abuse its discretion in departing upward.
E. Johnny Lee Evans
Johnny Lee Evans was convicted under 18 U.S.C. § 371 of conspiracy to
violate the Mann Act. He also was convicted under 18 U.S.C. §§ 1956(a)(1)(B)(i)
and 2 of money laundering, and under 18 U.S.C. § 1956(h) of conspiracy to launder
money.
Following his conviction, the District Court sentenced Johnny Lee Evans to 17
years and 7 months in prison (211 months). Based on a total offense level of 30 and
a criminal history category of III, the imprisonment range under the Sentencing
Guidelines was 121 to 151 months. From the high end of the range, the Court
departed upward by 60 months.
Johnny Lee Evans raises a number of arguments on appeal. Of these
arguments, several also were made by Derry Evans or Terrance Roberts, including
that: (1) various of the jurors’ actions were misconduct and merit a mistrial; and (2)
the District Court gave conflicting jury instructions on the mental element for money
laundering, resulting in the omission of the element of knowledge that the money
being transferred constituted the proceeds of an illegal activity. For the reasons
discussed previously, these arguments are without merit.
Like Derry, Johnny Lee argues that the District Court erred in determining that
the evidence was sufficient to support his conviction for conspiracy to transport an
individual in interstate commerce to engage in prostitution. Specifically, he contends
that the evidence was insufficient to establish an agreement among the defendants.
However, when the evidence is viewed in the light most favorable to the government,
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see Jackson, 443 U.S. at 319, the trial revealed sufficient evidence of an agreement
to violate the law. For example, Brenda Schaper, one of LeVorn’s prostitutes,
testified that she and Shelly Kruse and Sherry Berndt, two of Johnny Lee’s
prostitutes, participated in “two-girl calls,” and that LeVorn and Johnny Lee shared
the proceeds. Tonya May, one of LeVorn’s prostitutes, testified that Johnny Lee
encouraged her to start working as a prostitute for LeVorn, which she did. Ms. May
also testified that she referred calls to Johnny Lee’s prostitutes and received calls
referred from his prostitutes, with Johnny Lee and LeVorn splitting the proceeds.
Rosita Francis, one of Monroe’s prostitutes, testified that Johnny Lee transported her
from Minneapolis to Houston to work as a prostitute. Finally, Deanna Kirkman, one
of Terrance Roberts’s prostitutes, testified that Johnny Lee participated in the meeting
about Julia Wilson’s statement. This evidence suffices to uphold Johnny Lee’s
conviction of conspiracy to violate the Mann Act.
Like Derry and Monroe, Johnny Lee also contends that the District Court erred
in determining that the evidence was sufficient to support his convictions for money
laundering and conspiracy to commit money laundering. Citing United States v.
Shoff, 151 F.3d 889 (8th Cir. 1998), and United States v. Herron, 97 F.3d 234, 236
(8th Cir. 1996), cert. denied, 519 U.S. 1133 (1997), Johnny Lee argues that the
evidence was insufficient to establish that he concealed the ownership, source, or
control of the money. Shoff, 151 F.3d at 891 (“A money laundering violation
requires proof of concealment, not the absence of full disclosure.”); Herron, 97 F.3d
at 237 (noting that using wire transfers is insufficient to establish concealment and
explaining that government cannot turn money laundering statute into “money
spending statute”). Johnny Lee’s argument fails for the same reasons that Monroe’s
argument fails: Tonya May testified that she was present for a conversation among
Monroe, LeVorn, Clem, and Johnny Lee regarding funding the down payment on
Alice Evans’s house. Monroe then sent Julia Wilson to collect money from LeVorn
and Johnny Lee, and, with Stacy Ballantyne, to purchase cashier’s checks. They
purchased four checks totaling $7000 and sent them to Alice Evans. The checks were
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used for the down payment on Alice’s house. Although money laundering is not
simply money spending, the jury reasonably could have determined that the
defendants used Julia Wilson to send the money to conceal the true owners and had
her send multiple cashier’s checks in small amounts to avoid detection. This
evidence is sufficient to establish concealment. This evidence also suffices to
establish conspiracy to launder money.
Like Derry and Monroe, Johnny Lee argues that the District Court erred in
admitting evidence of his violent behavior as direct evidence of the conspiracy.
Specifically, Johnny Lee contests the admission of evidence concerning numerous
violent acts, including repeated beatings of Cheryl Buchheit and Sherry Berndt and
fights between Johnny Lee and Shelly Kruse. He argues that this evidence is of
domestic violence, not of violations of the Mann Act. For the reasons discussed
above, these violent acts are relevant and probative of Mann Act violations because
they describe actions taken to control and discipline prostitutes (regardless of whether
Johnny Lee also had intimate relationships with his prostitutes). The Court did not
abuse its discretion.
Johnny Lee next argues, like Derry, that the District Court erred in enhancing
his base offense by four levels for being a leader or organizer. U.S. Sentencing
Guidelines Manual § 3B1.1(a) (1998). We review for clear error. United States v.
Ayers, 138 F.3d 360, 364 (8th Cir.), cert. denied, 525 U.S. 895 (1998). All five
defendants were part of a criminal activity involving interstate transportation for
prostitution. With regard to whether Johnny Lee was a leader, the fact that the
prostitutes involved were victims and not participants does not lessen the depth of his
involvement or the authority that he exercised. The evidence indicates his
participation in the meeting concerning Julia Wilson’s statement to the police. Tonya
May testified that he recruited her to work for LeVorn. He provided money, along
with LeVorn and Monroe, to fund his mother’s purchase of a house. Moreover,
Cheryl Buchheit testified that Johnny Lee hired a driver to take her on prostitution
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calls, thereby satisfying the requirement that he be “the organizer, leader, manager,
or supervisor of one or more other participants.” U.S. Sentencing Guidelines Manual
§ 3B1.1, cmt. n.2 (1998). The District Court did not commit clear error in finding
that he was a leader.
Johnny Lee also argues that the District Court erred in enhancing his base
offense level for use of force or coercion pursuant to the Sentencing Guidelines.
Section 2G1.1(b)(1), which relates to promoting prostitution or prohibited sexual
conduct, provides: “If the offense involved the use of physical force, or coercion by
threats or drugs in any manner, increase by 4 levels.” The trial testimony reveals that
Johnny Lee beat Sherry Berndt with a towel and a shoe, including beating her on the
face and head. Cheryl Buchheit testified that Johnny Lee split the back of her head
open and kicked her in the ribs. On another occasion, she had to be taken to the
hospital because of damage to her ribs from one of Johnny Lee’s beatings. Johnny
Lee contends, again, that this conduct should not be considered because it was part
of his domestic relationships. He is mistaken. Whether or not the violence was part
of personal relationships between Johnny Lee and his prostitutes, it was also a part
of the illegal conduct, and the District Court did not clearly err in considering it at
sentencing.
Finally, like Terrance Roberts, Monroe Evans, and Clem Evans, Johnny Lee
Evans argues that the District Court abused its discretion by granting the
government’s motion for an upward departure by 60 months based on U.S.
Sentencing Guidelines Manual §§ 5K2.2 (significant physical injury) and 5K2.8
(extreme conduct). He again argues that the physical abuse that occurred took place
in the context of a long-standing personal relationship. This is hardly an excuse. The
evidence discussed previously regarding the violent beating of and injuries suffered
by Sherry Berndt and Cheryl Buchheit is sufficient to find significant physical injury
and extreme conduct. We conclude that the District Court did not abuse its discretion
in departing upward.
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III. Conclusion
For the foregoing reasons, the judgments of the District Court are affirmed with
respect to the defendants Derry Evans, Terrance Roberts, and Johnny Lee Evans.
With respect to the other defendants, there was no error except for the Ex Post Facto
Clause point the government now concedes. In the cases of defendants Monroe
Evans and Clem Evans, the judgments are vacated, and the cases are remanded for
resentencing. Defendants may not receive more than five years for the §§ 2421 and
2422(a) counts.
It is so ordered.
A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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