United States v. Omar Taylor ( 2022 )

United States Court of Appeals
For the Eighth Circuit
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No. 20-2756
___________________________
United States of America
Plaintiff - Appellee
v.
Omar Kashaka Taylor
Defendant - Appellant
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Appeal from United States District Court
for the District of Minnesota
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Submitted: October 19, 2021
Filed: August 10, 2022
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Before GRUENDER, ERICKSON, and STRAS, Circuit Judges.
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ERICKSON, Circuit Judge.
Omar Kashaka Taylor was convicted by a jury of sex trafficking a minor, in
violation of 18 U.S.C. §§ 1591(a), (b)(2), (c), 1594(a), and 3559(e) (Count One);
two counts of sex trafficking by force, fraud, and coercion, in violation of 18 U.S.C.
§§ 1591(a), (b)(1), 1594(a), and 3559(e) (Counts Two and Four); and committing a
felony offense involving a minor when required to register as a sex offender, in
violation of 18 U.S.C. § 2260A (Count Three). The district court 1 sentenced Taylor
to concurrent terms of 280 months’ imprisonment on the sex trafficking offenses and
a consecutive 120 months for committing a felony involving a minor while a
registered sex offender, for a total imprisonment term of 400 months. Taylor raises
four claims on appeal: (1) the evidence was insufficient to sustain the sex trafficking
convictions; (2) the district court erred when it instructed the jury that a “happy-
ending massage” was a commercial sex act; (3) the district court abused its discretion
when it admitted prior bad act evidence; and (4) a conviction on Count One—sex
trafficking of a minor—violated the double jeopardy clause because it is a lesser
included offense of Count Two—sex trafficking by force, fraud, and coercion. We
affirm.
I. BACKGROUND
Taylor was a regular client of a massage parlor located in St. Paul, Minnesota.
After the parlor was shut down for operating without a license, Taylor started his
own massage business in a house he leased in northeast Minneapolis. The charged
offenses pertain to activities taking place at Taylor’s massage business from August
2017 until his arrest in March 2018.
Taylor advertised his massage business on Backpage.com and enlisted
numerous women to work for him. One of those women was S.N., who in August
2017 was 17 years old. At trial, S.N. testified that Taylor told her she could make
more money if, during the massage, she was naked, wore lingerie, or gave clients
“handjobs” or “blowjobs.” Taylor posted sexually suggestive advertisements of
S.N. on Backpage.com. S.N. testified that Taylor posted the ads, scheduled
appointments for S.N., responded to client messages inquiring about the services
S.N. would provide, drove S.N. to his house for client appointments, purchased
1
The Honorable Donovan W. Frank, United States District Judge for the
District of Minnesota.
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drugs for S.N., and brought S.N. to parties so she could make extra money by
stripping. S.N. further testified that most of her massage clients asked for sex acts,
which included “handjobs,” touching, and digital penetration. Taylor took half of
every client payment received by S.N. S.N. further testified that Taylor raped her at
least 15 times, twice resulting in hospital visits. S.N. feared that clients and Taylor
would get upset if she refused clients’ requests for sexual acts. S.N. described Taylor
to the jury as “manipulative.”
On cross-examination, Taylor elicited testimony from S.N. about her usage of
methamphetamine, heroin, and acid, including how the drugs affected her body and
impacted her memory. S.N. testified about running away from a treatment center
and eventually connecting with Taylor for the purpose of friendship due to their age
difference. S.N. testified that she initially thought Taylor was “kind of a funny guy”
and “a nice guy.” S.N. discussed staying at Taylor’s house, acknowledging that she
was able to leave the home when she wanted. In addition to drug usage, defense
counsel posed several questions directed at S.N.’s credibility. In particular, Taylor
questioned S.N. about her lack of reporting a sexual assault to anyone but her
grandma and her inability to recall what she said to others during the course of the
investigation, including to a nurse during an examination in January 2018 about the
number of times Taylor had assaulted her. The jury convicted Taylor on both counts
involving sex trafficking of S.N.
Eighteen-year-old A.L. worked for Taylor’s massage business in March 2018.
A.L. had no prior experience in the massage business. A.L. testified that when she
agreed to work for Taylor, she was not told that giving “handjobs” would be part of
her work. Taylor made pricing decisions for A.L. and took $40 of each client
payment. A.L. testified that Taylor purchased lingerie for her to wear while
providing massages to clients. Like S.N., Taylor told A.L. that she could charge
more if she gave nude massages. Taylor helped A.L. coordinate her schedule, drove
her to work, trained her, and paid her to massage him. Many of A.L.’s clients would
try to touch her and would often get upset because they expected a “happy ending.”
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When A.L. inquired of Taylor about why the clients believed they could touch her
or were expecting more than a traditional massage, Taylor assured her that they were
coming to the house for “just a massage.”
On one occasion, A.L. declined a client’s request to perform a “handjob,”
which caused the client to ask her why she was working in a place like this because
“he’s not dumb and neither [is] [she].” The man became “aggressive” and
“forceful,” took A.L.’s hands and put them on his penis, and pressured A.L. to
perform a “handjob,” which A.L. then reluctantly did and left. A.L. testified that
she would drink alcohol and use drugs while working for Taylor because she, along
with other women working for Taylor, did not want to be doing what they were being
directed to do while sober. The jury convicted Taylor of sex trafficking A.L.
The district court received, over Taylor’s objection, testimony from another
woman, R.T., who stayed at Taylor’s house for periods of time during 2017 or 2018.
The district court determined R.T.’s testimony was admissible as intrinsic evidence
and under Federal Rule of Evidence 404(b). R.T. testified that each time she would
perform a massage at Taylor’s house, regardless of what went on in the room
between her and the client, she gave Taylor a $50 “drop fee,” meaning $50 was
placed in an envelope and left for Taylor. R.T. also testified about the Backpage.com
ads posted by Taylor as well as other evidence similar to the testimony provided by
S.N. and A.L., including evidence that Taylor arranged R.T.’s massage
appointments, took a portion out of every client payment made to R.T., expected
R.T. to provide “happy-ending” massages, provided R.T. drugs and alcohol, and
raped R.T. R.T. further testified that she had sexual relations with Taylor around 25
or 30 times and resisted only the last time when she was drunk and drugged.
Prior to the commencement of trial, Taylor moved to preclude the government
from introducing his 2005 conviction for sexual assault of a minor during the
government’s case-in-chief, asserting the conviction was potentially admissible only
if Taylor testified. The government countered that even if pursuant to Old Chief v.
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United States, 519 U.S. 172 (1997), Taylor stipulated that he had a prior conviction
requiring him to register as a sex offender (an element of Count Three), the
conviction was still admissible under Federal Rules of Evidence 413 and 404(b).
Subject to Taylor stipulating that he was required to register as a sex offender and
that a conviction on Counts One or Two was sufficient to sustain a conviction on
Count Three, which Taylor did, the district court prohibited the government from
introducing evidence pertaining to the prior conviction during its case-in-chief. The
district court reasoned that the prior conviction was inadmissible under Federal Rule
of Evidence 403 because of the nature of the conviction and its age. Given the
stipulation, the district court removed Count Three from the jury instructions and
verdict form. Noting the government’s “very strong objections” to its decision, the
court stated that it was amenable to revisiting its evidentiary ruling during trial if
Taylor’s theory of defense or cross-examination opened the door in a way that might
cause the court to change its Rule 403 analysis.
Insistent that the district court’s ruling on the 2005 conviction was in error,
the government then sought to sever Count Three, requiring Taylor to either plead
guilty to that count or hold a separate trial on that count. The district court explained
that it “would not seriously consider severing anything that would create more issues
than it would resolve.” The court declined to alter its prior ruling, noting Taylor, by
stipulation, had waived any right to have the jury determine whether he was a
convicted sex offender and again relying on its Rule 403 analysis.
Still unhappy with the district court’s ruling, the government filed a motion to
reconsider, requesting that the court again revisit its evidentiary ruling on the 2005
conviction and citing what it perceived as anticipated contested trial issues. The
government also added a new argument—the failure to present Count Three to the
jury could be fatal to the charge. The court held a hearing on the motion. While
proposing bifurcation of Count Three such that if the jury convicted on Counts One,
Two, or both, then the jury could be asked to decide whether Taylor was a registered
sex offender, the government noted during the hearing that its primary objective was
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admission of the 2005 conviction during its case-in-chief. The court denied
reconsideration on the admissibility of the conviction and reserved ruling on whether
bifurcation or submission of an additional question to the jury on the registered sex
offender issue was necessary, without conceding either was required in this case.
Trial commenced. Following the testimony of several witnesses, including
R.T. and S.N., the government requested that the court revisit its ruling on the
admissibility of the 2005 conviction. The government argued Taylor had opened
the door during his cross-examination of the women by saying “things like so-called
sexual assaults, or referr[ed] to the activity in this case as sex rather than any kind of
sexual assault.” The government argued Taylor, by implication, was claiming the
sexual encounters, including rape of the minor victim, was consensual sex and not
sexual assault. The government highlighted questions Taylor’s counsel posed to
S.N. and R.T. about whether during the sexual encounters Taylor used aspects of
force, such as if the women were tied up, tied down, bruised, choked, visited a
doctor, or reported the incident to anyone else. The government argued defense
counsel’s questions opened the door to admission of the prior conviction in addition
to facts underlying the conviction. Taylor persisted in his objections to admission
of the conviction.
After reviewing the record, the district court reversed its pretrial rulings and
allowed the government to introduce during its case-in-chief evidence pertaining to
Taylor’s 2005 conviction for criminal sexual assault in the third degree. The court
stated that credibility had become “a clear issue with inferences here that, well, one
or more of the women just made up the stories, or exaggerated them, or inconsistent
to either get out of the trouble they were in, or because of - - in combination of other
issues of alcohol or drugs.”
After analyzing Rule 403, the court found admissibility would be a closer call
without Rule 413, which it found changed the Rule 403 balancing. While
recognizing “significant prejudice” in permitting the fact of the 2005 conviction to
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be admitted during the government’s case-in-chief and Taylor’s standing objection
to any reference to it, the court found the conviction was probative and the prejudice
did not amount to “substantial unfair prejudice.” There remained an unsettled issue,
however, about which facts or circumstances underlying the conviction were
admissible. The government sought to introduce through Taylor’s former state
probation officer the following evidence: (1) Taylor had been convicted of third
degree criminal sexual conduct; (2) the offense conduct included sexual penetration
with a known juvenile, who was between the ages of 13 and 16 while Taylor was
more than 24 months older than the juvenile; and (3) because of the conviction,
Taylor was required to register as a sex offender. After a thorough discussion,
Taylor indicated he was “fine” with the admission of the proposed testimony.
Special Agent Tonya Price was called as a government witness. After she
stated her name, the court read the following instruction to the jury:
Members of the Jury, you will hear evidence that the Defendant
was convicted of criminal sexual conduct in the third degree in January
of 2005. Any person convicted of criminal sexual conduct in the third
degree must register as a sex offender. Consequently, the Defendant
was required to register as a sex offender in January of 2005.
You may consider this evidence of such other acts of criminal
sexual conduct for its tendency, if any, to determine whether the
Defendant committed the acts charged in the indictment, including the
Defendant’s knowledge and his intent.
Remember the Defendant is on trial for only the crimes charged.
You may not convict a person simply because you believe he may have
committed similar acts in the past.
During her testimony, Special Agent Price informed the jury that she had
checked Taylor’s criminal history and located a 2005 conviction for third degree
criminal sexual assault, which required Taylor to register as a sex offender.
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Later in the trial, Taylor’s former state probation officer testified, without
objection, consistent with the parties’ agreement. She informed the jury that Taylor
was on supervision because of a 2005 conviction for criminal sexual conduct in the
third degree. She testified as to the facts underlying the offense—that is, Taylor
engaged in sexual penetration of a known minor between the ages of 13 and 16 when
Taylor was more than 24 months older. The probation officer also testified that
beginning in 2005 Taylor was required to register on the Predatory Offender
Registration as a sex offender in Minnesota. Taylor’s probation officer informed the
jury that, during his term of supervision, she met with Taylor monthly. Mostly she
met Taylor at his place of employment in Eden Prairie, Minnesota. Occasionally
she met Taylor at her office. And twice she met with Taylor at his house where she
toured the living room, kitchen, and upstairs bedrooms, but not the basement.
Taylor’s probation officer told the jury that Taylor’s supervision ended on October
17, 2017.
Taylor testified in his own defense. He testified that after the business where
he was receiving massages closed, one of the women who had worked there
approached Taylor about renting his basement for $300 a month so she had a place
to continue her massage business. Because Taylor’s basement was occupied by a
renter at that time, he permitted her to perform massages in other areas of the house
until the renter moved out. Two weeks later, the renter moved out and she began
performing massages in the basement.
According to Taylor, over the course of two years, more than 60 women
worked at his massage business. Some women paid Taylor $30 for a half hour or
$40 for an hour. A.L. was charged $40 for an hour, which was sometimes discounted
to $20 for a half hour. Other women Taylor did not charge at all. Others, like R.T.,
Taylor charged $40 per client. Taylor testified that most of the women performing
massages in his house had a key. The women typically worked from 9:00 a.m. to
9:00 p.m. Taylor indicated that he welcomed all these women into his house because
he hoped to have a sexual relationship with them.
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Taylor’s testimony contradicted the women’s testimony in many aspects. He
testified he did not post ads on Backpage.com unless a woman asked him to do so;
he did not sexually assault A.L. or take her to a strip party; he instructed the women
to leave the session and text him if they felt uncomfortable for any reason during a
massage; the women were not supposed to do anything extra for money no matter
how much was offered; and he had no knowledge of any woman performing any
kind of commercial sex act. Taylor further testified that he did not care whether the
women gave massages to clients because his motivation was in having a sexual
relationship with them. Taylor denied that he had in any way coerced, pressured,
encouraged, or permitted any woman to engage in sexual acts while performing
massages. For impeachment purposes, the district court allowed the government to
introduce six prior convictions. Although Taylor did not object at trial, on appeal
Taylor challenges the admission of his 1991 conviction for armed burglary and 1993
conviction for forgery.
Taylor unsuccessfully moved for a judgment of acquittal at the close of the
government’s case-in-chief and again at the close of evidence, asserting the
government failed to prove a “commercial sex act” or “venture” and failed to
produce sufficient evidence to prove Taylor trafficked A.L. through force, fraud, or
coercion. Taylor also moved to dismiss the charge for sex trafficking of a minor
(Count One), arguing that it was a lesser offense included of sex trafficking by force,
fraud, and coercion (Count Two). The district court denied the motion to dismiss as
untimely and on the merits. This appeal followed.
II. DISCUSSION
1. Sufficiency of the Evidence
We review the sufficiency of the evidence de novo, considering the evidence
in a light most favorable to the verdict, and accepting all reasonable inferences that
support the verdict. United States v. Bell, 761 F.3d 900, 906 (8th Cir. 2014). “When
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a sufficiency argument hinges on the interpretation of a statute, we review the district
court’s interpretation de novo.” United States v. Reed, 668 F.3d 978, 982 (8th Cir.
2012) (quoting United States v. Gentry, 555 F.3d 659, 664 (8th Cir. 2009)). We will
overturn a verdict only if no reasonable jury could find Taylor guilty beyond a
reasonable doubt. See United States v. Thompson, 11 F.4th 925, 929 (8th Cir. 2021).
Taylor does not dispute that S.N. and A.L. gave “happy-ending” massages to
customers. He argues instead that a “happy-ending” massage is not a “commercial
sex act” within the meaning of 18 U.S.C. § 1591. Taylor contends that a reasonable
interpretation of “commercial sex act” requires a sex act involving penetration or
sexual abuse as defined in 18 U.S.C. § 2246(2). Taylor’s arguments are unavailing.
Taylor was charged under 18 U.S.C. § 1591(a), which provides:
Whoever knowingly—
(1) in or affecting interstate . . . commerce . . . recruits, entices,
harbors, transports, provides, obtains, advertises, maintains,
patronizes, or solicits by any means a person; or
(2) benefits, financially or by receiving anything of value, from
participation in a venture which has engaged in an act described
in violation of paragraph (1),
knowing, or, except where the act constituting the violation of
paragraph (1) is advertising, in reckless disregard of the fact, that means
of force, threats of force, fraud, coercion described in subsection (e)(2),
or any combination of such means will be used to cause the person to
engage in a commercial sex act, or that the person has not attained the
age of 18 years and will be caused to engage in a commercial sex act,
shall be punished as provided in subsection (b).
We have noted “the expansive language of § 1591 ‘criminalizes a broad spectrum’
of conduct relating to the sex trafficking of children.” United States v. Jungers, 702
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F.3d 1066, 1070 (8th Cir. 2013) (quoting United States v. Jongewaard, 567 F.3d 336,
340 (8th Cir. 2009)).
A. 18 U.S.C. § 1591 – “any sex act”
While Congress defined “commercial sex act” as “any sex act, on account of
which anything of value is given to or received by any person,” it did not define the
phrase “any sex act.” 18 U.S.C § 1591(e)(3). Congress’s use of the term “any” prior
to the term “sex act” is noteworthy. The Supreme Court has explained that “any” is
a word with “an ‘expansive meaning.’” Freeman v. Quicken Loans, Inc., 566 U.S.
624, 635 (2012) (quoting Dep’t of Hous. & Urban Dev. v. Rucker, 535 U.S. 125,
131 (2002)). “It can broaden to the maximum, but never change in the least, the
clear meaning of the phrase selected by Congress.” Id.; see United States v.
Gonzales, 520 U.S. 1, 5 (1997) (“Read naturally, the word ‘any’ has an expansive
meaning, that is, ‘one or some indiscriminately of whatever kind.’” (quoting
Webster’s Third New Int’l Dictionary 97 (1976)).
Notwithstanding Congress’s use of the word “any,” Taylor maintains that
“sex act” as used in § 1591 ought to be restricted or limited to sexual conduct
involving penetration or contact between two sets of genitalia. Courts have
repeatedly rejected this argument. See, e.g., United States v. Bazar, 747 F. App’x
454, 456 (9th Cir. 2018) (finding the ordinary and natural meaning of “any sex act”
includes happy-ending massages); Ardolf v. Weber, 332 F.R.D. 467, 477 (S.D.N.Y.
2019) (relying on the plain and ordinary meaning of “sex act” to find that grabbing
and fondling a person’s genitals for sexual gratification is a “sex act” under § 1591);
United States v. Tollefson, 367 F.Supp.3d 865, 879-80 (E.D. Wis. 2019) (finding the
ordinary meaning of sex act does not require physical contact or the ultimate act of
sexual intercourse but includes acts of sexual gratification generally and
masturbation is an act of sexual gratification); Noble v. Weinstein, 335 F.Supp.3d
504, 522-23 (S.D.N.Y. 2018) (finding that forcibly rubbing the victim’s vagina and
masturbating the defendant to ejaculation meets the statutory definition of “any sex
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act” in § 1591). Congress’s decision to use the modifier “any” before the term “sex
act” indicates an intent to expand “sex act” to include activities involving sexual
gratification such as masturbation.
Notwithstanding Taylor’s improbable claims of ignorance, use of the term
“happy ending” in the context of the massages being advertised by Taylor and given
by the women working for Taylor had a known understanding in the industry, which
included the touching of another’s genitals for sexual gratification. Both A.L. and
S.N. testified that while working for Taylor they were expected to and did perform
“handjobs” for clients in exchange for money. The witnesses and jury understood
“handjobs” to mean direct contact by A.L. and S.N. with clients’ genitals for the
purpose of sexually gratifying the client. The testimony at trial was sufficient
beyond a reasonable doubt to establish the women were directed and encouraged by
Taylor to digitally stimulate client’s genitalia in exchange for money—conduct that
satisfies the statutory definition of a “commercial sex act.” We, like other courts,
decline Taylor’s invitation to restrict “sex act” as used in 18 U.S.C. § 1591 (Chapter
77) by incorporating a definition set forth in 18 U.S.C. § 2246(2), which expressly
limits its application to offenses in Chapter 109A. See Bazar, 747 F. App’x at 456
(rejecting argument that the narrower definition of “sexual act” set forth in § 2246
should be imported into § 1591); Tollefson, 367 F.Supp.3d at 879 (noting Congress
chose not to cross reference § 2246’s definition of “sexual act” and observing that it
does not necessarily follow that the terms “sex act” or “sexual act” or “sexual
activity” all have the same meaning).
B. 18 U.S.C. § 1591 – “venture”
Taylor next claims there was insufficient evidence establishing the existence
of a “venture.” The statute defines “venture” to mean “any group of two or more
individuals associated in fact, whether or not a legal entity.” 18 U.S.C. § 1591(e)(6).
“Participation in a venture” is “knowingly assisting, supporting, or facilitating a
violation of subsection (a)(1).” 18 U.S.C. § 1591(e)(4); see United States v.
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Unpradit, 35 F.4th 615, 626 (8th Cir. 2022). A venture may include a worker, see
United States v. Paul, 885 F.3d 1099, 1102-03 (8th Cir. 2018), a supplier, or a
purchaser of commercial sex acts, see United States v. Cook, 782 F.3d 983, 987 (8th
Cir. 2015).
The government presented evidence showing Taylor posted advertisements
for massages, recruited women to work for him at his massage business, answered
clients’ inquiries about the services available, provided lingerie for S.N. and A.L.,
drove S.N. and A.L. to his house for the purpose of performing “happy-ending”
massages, set the rates for the massages, and received a portion of the clients’
payments. The evidence presented at trial was sufficient to prove beyond a
reasonable doubt that Taylor participated in a venture by knowingly receiving
money acquired from his massage business, which included assisting, supporting,
and facilitating sex trafficking.
C. 18 U.S.C. 1591 – “force, threats of force, fraud, coercion . . .
used to cause the person to engage in a commercial sex act”
Lastly, Taylor contends the evidence was insufficient on Count Four, which
charged him with sex trafficking of A.L. by force, fraud, or coercion. See 18 U.S.C.
§ 1591(a). Because A.L. was an adult, the government was required to prove Taylor
knew or recklessly disregarded that force, fraud, coercion, or any such combination
would be used on A.L. See United States v. Elbert, 561 F.3d 771, 777 (8th Cir.
2009) (noting minor victims are unable to legally consent so the government is not
obligated to prove the elements of fraud, force, or coercion, but it is required to do
so for adult victims). The government need only prove one of the prohibited means.
See Unpradit, 35 F.4th at 624-25 (explaining the government can prove the offense
of conspiracy to commit sex trafficking by showing fraud, force, or coercion);
United States v. Bell, 761 F.3d 900, 908 (8th Cir. 2014) (noting § 1591(a) is defined
in the disjunctive so the government need only prove the defendant “knew or
recklessly disregarded that force, threats of force, fraud, or coercion would be used
on the[] women”).
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While “fraud” is not defined in § 1591, this Court has stated that “deception
practiced in order to induce another” is “the common meaning” of the term. Paul,
885 F.3d at 1105; see also Webster’s Third New International Dictionary 904 (2002)
(“[A]n instance or an act of trickery or deceit especially when involving
misrepresentation.”). Fraud need not have caused the commercial sex act for a
defendant to be found guilty under § 1591(a). United States v. Maynes, 880 F.3d
110, 114 (4th Cir. 2018). Evidence presented at trial demonstrated that Taylor knew
A.L. and the clients were coming to the massage appointments, which Taylor helped
facilitate, with different expectations. Unbeknownst to A.L., clients began arriving
at their massage appointment with an expectation that they were to receive a massage
involving sexual gratification. When A.L. informed Taylor that clients were
repeatedly touching her and asked Taylor why clients were expecting sex acts, A.L.
testified that Taylor did nothing more than tell her the clients were there for “just a
massage.” Although Taylor testified that he told the women they were not supposed
to do anything extra and he had no knowledge that sex acts were being conducted as
part of the massage, it is within the jury’s province to assess credibility and we are
not empowered to reweigh the evidence or second guess the jury’s credibility
determinations. United States v. Dowty, 37 F.4th 489, 494 (8th Cir. 2022).
A determination on whether a defendant’s conduct violates 18 U.S.C. § 1591does not turn on whether the commercial sex was consensual or nonconsensual. Cf.
United States v. Rivera, 799 F.3d 180, 185 (2d Cir. 2015) (“But knowing that
suggestive behavior or even sexual acts might become a part of the job does not
mean that the victims therefore consented to being threatened or coerced into
performing sexual acts they did not wish to perform.”). Nor does it require a direct
(or exclusive) causal link between the fraud and commercial sex act, or even a sex
act to have occurred. See United States v. Garcia-Gonzalez, 714 F.3d 306, 312 (5th
Cir. 2013) (“The future verb tense of the phrase ‘will be caused’—which precedes
‘to engage in a commercial sex act’—indicates that a sex act does not have to occur
to satisfy the elements of the child-sex-trafficking offense.”). A crime under § 1591
is “complete when the defendant recruits, entices, harbors, etc., the victim with
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knowledge that the prohibited means will be used in the future to cause them to
engage in commercial sex acts.” Maynes, 880 F.3d at 114. By engaging in the
advertising techniques that he did, Taylor led the clients to believe they had
purchased a right to touch and engage in sex acts with A.L. A.L., on the other hand,
was unaware of this understanding and had not consented to engage in massages
involving sex acts. The evidence is sufficient to show Taylor recruited the women,
including A.L., through deception, deceit, and trickery by telling the customers one
thing and the women working for him something else. While Taylor told the women
there was no expectation of happy-ending massages, he then placed them in a room
with customers, who sometimes became aggressive, expecting sexual gratification.
A reasonable jury could find fraud was used by Taylor to cause A.L. to engage in
commercial sex acts.
Based on the evidence and reasonable inferences, Taylor induced A.L. to work
for him in his massage business that he knew, or in reckless disregard of the fact,
would cause A.L. to engage in a commercial sex act. The evidence is sufficient to
sustain the conviction on Count Four. Maynes, 880 F.3d at 114 (“There is no
requirement that a commercial sex act actually occurred, must less that fraud in fact
caused the commercial sex act.”); see United States v. Roy, 781 F.3d 416, 420 (8th
Cir. 2015) (reciting the language in 18 U.S.C. § 1591 and stating a violation occurs
if a defendant does “an act with the use of force, threats, fraud, or coercion to cause
the victim to engage in commercial sex”).
2. Jury Instruction
Taylor argues the district court erred by instructing the jury that a sex act
included “happy-ending” massages. A district court errs when it deprives the jury
of its ability to make a factual finding. United States v. White Horse, 807 F.2d 1426,
1429 (8th Cir. 1986). The court’s duty is to instruct on the law, and it improperly
invades the jury province if it applies the law to the facts. Id. at 1430.
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Over Taylor’s objection, the court instructed the jury that, “The ordinary and
natural meaning of any sex act includes happy-ending massages.” A review of the
record demonstrates that overwhelming evidence established that clients who
scheduled appointments with women working for Taylor expected and requested
more than a traditional massage. They expected and demanded sexual gratification,
which was repeatedly described by witnesses and the lawyers as “handjobs” or
“happy-ending” massages. Rather than describe the nature of the contact as a
“happy-ending” massage, it would have been preferable to instruct the jury on the
physical act at issue—here, digital to genital contact for the purpose of sexual
gratification of the client. While the instruction given is not one that we would
condone, it is apparent from the record that the evidence tied the reference to “happy
ending” to a sex act in exchange for money that was indisputably occurring as part
of many of the massages S.N. and A.L. were performing.
Because the nature of the “happy-ending” massages in this case did, by
definition, include a sex act, any error in the challenged jury instruction was
harmless. Because a reasonable jury would have found Taylor guilty beyond a
reasonable doubt—regardless of whether the sex act was defined as a “happy-
ending” massage or defined in specific terms as an act involving digital stimulation
of the genitals for the sexual gratification of the client—we find Taylor’s alleged
jury instruction error harmless beyond a reasonable doubt. See United States v.
Janis, 810 F.3d 595, 599 (8th Cir. 2016) (determining that while the court abused its
discretion by resolving a jury question as a matter of law, the error was harmless
beyond a reasonable doubt).
3. Admission of R.T.’s Testimony and Taylor’s Prior Convictions
Taylor argues the district court erred when it (1) permitted R.T. to testify about
other bad acts Taylor engaged in with her; (2) allowed evidence during the
government’s case-in-chief regarding his 2005 conviction for criminal sexual assault
in the third degree; and (3) admitted Taylor’s other felony convictions for
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impeachment purposes. Reviewing Taylor’s evidentiary challenges for abuse of
discretion, United States v. Nordwall, 998 F.3d 344, 347 (8th Cir. 2021), we find
none of Taylor’s claims warrants relief.
A. R.T.’s Testimony
Among other experiences, R.T. testified that Taylor raped her while she was
working for him at his massage business. When reviewing a district court’s decision,
“there is ‘strong legislative judgment that evidence of prior sexual offenses should
ordinarily be admissible.’” United States v. Medicine Horn, 447 F.3d 620, 623 (8th
Cir. 2006) (quoting United States v. LeCompte, 131 F.3d 767, 769 (8th Cir. 1997)).
Federal Rule of Evidence 413(a) does not require the defendant to be charged with
a Chapter 109A offense, only that the charged offenses involve conduct proscribed
by Chapter 109A. United States v. Blazek, 431 F.3d 1104, 1109 (8th Cir. 2005).
Taylor contends on appeal that R.T.’s testimony was inadmissible under Rule 413(a)
because the offenses he was charged with do not involve sexual assault or unlawful
sexual contact by him.
We need not resolve Taylor’s Rule 413 argument as to R.T.’s testimony
because it was admissible under Federal Rule of Evidence 404(b). Prior acts
evidence “may be admissible for another purpose [other than propensity], such as
proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence
of mistake, or lack of accident.” Fed. R. Evid. 404(b)(2). To be admissible under
Rule 404(b), evidence must be (1) relevant to a material issue; (2) close in time and
similar in nature to the crimes charged; (3) supported by sufficient evidence; and
(4) higher in probative value than prejudicial effect. United States v. Nordwall, 998
F.3d 344, 347 (8th Cir. 2021).
Here, all four 404(b) elements were met for R.T.’s testimony. Her testimony
was relevant to material issues, including Taylor’s knowledge, intent, and plan of
operating a massage business involving commercial sex acts. Taylor challenged the
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victims’ credibility, asserting the victims fabricated or exaggerated their stories. He
claimed he had no knowledge that women were engaging in commercial sex acts in
his house. R.T. testified about her experiences with Taylor that were similar in kind
and close in time to the conduct giving rise to the charged crimes. R.T. expressed
firsthand knowledge about Taylor. Taylor’s contentions that R.T. lacked credibility
and was unreliable are issues for the jury. See United States v. Johnson, 860 F.3d
1133, 1143 (8th Cir. 2017). Damaging evidence is always prejudicial; the question
is whether the evidence was unfairly prejudicial. To the extent there was potential
propensity evidence presented through R.T.’s testimony, it overlapped with
permissible uses to show knowledge, intent, and plan such that the probative value
of the evidence outweighed the risk of unfair prejudice. Regardless of Rule 413(a),
R.T.’s testimony was admissible under exceptions set forth in Rule 404(b)(2).
B. 2005 Rape Conviction
Admission during the government’s case-in-chief of Taylor’s 2005 conviction
for sexual conduct in the third degree presents a much closer question. While Count
Three charged Taylor with committing a felony when he was required under
Minnesota law to register as a sex offender, Taylor stipulated that he was a felon
who was required to register as a sex offender, negating the need for the government
to prove he was required to register as a sex offender. See United States v. Taylor,
122 F.3d 685, 688 (8th Cir. 1997) (noting when a defendant offers to stipulate to a
prior conviction, it might be an abuse of discretion under Old Chief v. United States,
519 U.S. 172 (1997) to expose the jury to the name and nature of the prior
conviction).
Given the stipulation and Taylor’s agreement to allow the district court to
impose a conviction on Count Three if the jury found him guilty of Count One or
Two, the court indicated, over the government’s objection, that it was not going to
send Count Three to the jury. For these reasons combined with the court’s finding
that the balancing required under Rule 403 tipped in favor of exclusion of the
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conviction, the district court initially excluded evidence of the 2005 conviction
unless Taylor testified or otherwise opened the door. 2
Regarding the government’s proffered reasons for admission, Taylor was not
charged with an offense involving sexual assault. Nor has the government
established that he was charged with an offense involving conduct proscribed by
chapter 109A. See Blazek, 431 F.3d at 1108-09.
The 2005 rape conviction was not admitted as impeachment evidence, as were
Taylor’s other felony convictions. Instead, the prior conviction and underlying facts
were admitted during the government’s case-in-chief. After several government
witnesses had testified, at the request of the government, the court reversed its
pretrial ruling, finding witness credibility had become an issue such that knowledge
and intent were at issue and the Rule 403 balancing had changed in a way that the
conviction was now admissible. A review of the record reveals defense counsel had
cross-examined the government’s fact witnesses using typical tactics: pointing out
the witnesses’ drug and/or alcohol usage, attempting to impeach the witnesses with
prior inconsistent statements, implying the witnesses’ factual recitation was faulty
or wrong, proposing possible reasons the witnesses had motive to lie, etc. While
Taylor initially persisted in his objection to admission of the conviction during the
government’s case-in-chief, when the government sought the court’s permission to
elicit testimony from Taylor’s probation officer about certain facts underlying the
2005 conviction for which Taylor had been on supervision, Taylor no longer
persisted in his objection and indicated the government’s proposed questions were
“okay” and “fine.”
2
Ultimately the jury was asked to decide whether Taylor was guilty on Count
Three, only after a guilty verdict was returned on the other counts.
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On appeal, Taylor challenges the court’s ruling on admission of his prior
conviction. Taylor contends that he would not have testified at trial but-for the
prejudice caused by admission of evidence regarding the 2005 conviction. Taylor
has not asserted the government exceeded the parties’ agreement regarding the
nature of the probation officer’s testimony, which is the point in the trial when the
facts underlying the 2005 conviction were introduced. To the extent that Taylor
objects to this testimony, he has waived the claim based on his statements made to
the district court. See United States v. Robinson, 617 F.3d 984, 989 (8th Cir. 2010)
(explaining that where a defendant is aware of a stipulation and does not object, we
presume he has acquiesced in his counsel’s stipulation, resulting in a waiver of the
claim). Notably, the government proposed underlying facts regarding the nature of
Taylor’s conviction that it sought to elicit through the probation officer. Taylor’s
counsel started reading his own proposal that included the word “forcibly” and
Taylor interjected. Counsel then agreed to proceed with the government’s proposal.
Since there was no objection to the probation officer’s testimony, we presume Taylor
acquiesced in the stipulation. See id. (finding no error in the district court’s
admission of stipulated evidence).
Even if Taylor did not waive his claim, any error was harmless beyond a
reasonable doubt. The government bears the burden of identifying “the permissible
non-propensity purpose for the evidence, and must articulate the relationship
between the evidence and a material issue in the case.” United States v. Jackson,
856 F.3d 1187, 1192 (8th Cir. 2017) (quoting United States v. Cotton, 823 F.3d 430,
432 (8th Cir. 2016)). Simple recitation of Rule 404(b) elements, such as knowledge
and intent, is generally discouraged. Id. (citation omitted). Rule 404(b) requires
something more than stating an exception listed in the rule to ensure the inference
the defendant’s previous bad conduct invites in jurors’ minds is not that the
defendant was a bad man in the past and therefore probably committed the crimes
for which is his now charged. Nonetheless, even assuming the government did not
satisfy its burden of connecting Taylor’s prior conviction to a material element of
the charged offenses, as Taylor argues, the admission of improper 404(b) evidence
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is harmless when “the government introduced ample competent evidence from
which the jury could conclude beyond a reasonable doubt that the defendant was
guilty even without the evidence that should have been excluded.” Cotton, 823 F.3d
at 435 (quoting United States v. Aldridge, 664 F.3d 705, 714 (8th Cir. 2011)).
The testimony offered by the women working in Taylor’s massage business,
if given credence by the jury, is sufficiently strong for us to conclude that the 2005
conviction, even assuming it was improperly admitted, did not have a substantial
influence on the jury’s verdict. See id. (“An evidentiary error is harmless if it did
not substantially influence the jury’s verdict.”). Additionally, we view the district
court’s comprehensive limiting instructions given prior to the initial admission of
the evidence by Special Agent Price and again during final instructions as important
because “the presence of a limiting instruction diminishes the danger of any unfair
prejudice from the admission of other acts.” United States v. Drew, 9 F.4th 718, 724
(8th Cir. 2021) (quoting United States v. Wright, 866 F.3d 899, 905 (8th Cir. 2017)).
Given the limiting instructions and the overwhelming evidence of Taylor’s guilt on
the charged crimes, the jury could not have been substantially swayed by admission
of the 2005 conviction.
C. 1991Armed Burglary and 1993 Forgery Convictions
Among others, Taylor’s criminal history includes convictions for armed
burglary and forgery. He did not object to the admission of these convictions as
impeachment evidence. On appeal, he asserts these 26- and 28-year-old convictions
were improperly allowed because of their age and the government’s lack of written
notice of its intent to use them. We review the unobjected to evidentiary issue for
plain error. United States v. Eagle, 515 F.3d 794, 801 (8th Cir. 2008). Plain error
requires: (1) an error; (2) that was plain; (3) that affected the proponent’s substantial
rights; and (4) that seriously affects the fairness, integrity, or reputation of judicial
proceedings. Id.-21-
As impeachment under Federal Rule of Evidence 609(a), a witness-
defendant’s prior criminal conviction is admissible if: (1) “the probative value of the
evidence outweighs its prejudicial effect to that defendant,” or (2) the felony or
misdemeanor conviction involved “a dishonest act or false statement.” Fed. R. Evid.
609(a); see United States v. Collier, 527 F.3d 695, 699 (8th Cir. 2008). If the
conviction or prison release occurred more than 10 years ago, admissibility is
appropriate only if (1) the probative value of the conviction substantially outweighs
its prejudicial effect, and (2) the proponent gives reasonable written notice to the
adverse party about intent to use the conviction. United States v. Shelledy, 961 F.3d
1014, 1023 (8th Cir. 2020).
Taylor is incorrect in claiming the government violated the notice requirement
in Federal Rule of Evidence 609(b)(2). On December 12, 2018, a few weeks before
trial, Taylor was put on notice by the government that his felonies may be used at
trial if he testified or put his character for truthfulness at issue. Taylor testified. He
denied knowing that any commercial sex acts were taking place at his house. He
denied posting ads of S.N. or A.L. on Backpage.com. He denied having a sexual
relationship with S.N. He claimed that he did not care if the women at his house
were performing massages and that the reason he allowed them to be there was to
engage in consensual sexual relationships with them. Witness credibility thus was
a significant issue for the jury to resolve.
The government questioned Taylor about the fact of the prior convictions, not
any of the underlying conduct. It did not reference these convictions during closing
argument. The district court instructed the jury on how it could consider evidence
of other bad acts. After carefully reviewing the record, Taylor has failed to articulate
how the admission of these two convictions affected his substantial rights,
particularly when there were four other felony convictions also introduced that he
does not challenge. Given the overwhelming evidence presented at trial, the brief
mention of these convictions, and the court’s limiting instruction on prior bad acts,
we cannot conclude under a plain error standard that evidence of these prior
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convictions called into question the fairness, integrity, or public reputation of the
proceedings.
4. Double Jeopardy
Taylor argues the two convictions involving S.N. violate the Double Jeopardy
Clause of the Fifth Amendment because Count One is a lesser-included offense of
Count Two. We review double jeopardy clause claims de novo. United States v.
Hansen, 944 F.3d 718, 721 (8th Cir. 2019). To establish a double jeopardy violation,
Taylor must show the offenses are the same in law and fact. United States v.
Muhlenbruch, 634 F.3d 987, 1002 (8th Cir. 2011). We examine whether each statute
“requires proof of a fact that the other does not.” United States v. Hansen, 944 F.3d
718, 724 (8th Cir. 2019) (quoting Blockburger v. United States, 284 U.S. 299, 304
(1932)).
The government charged Taylor with two separate counts involving S.N.: sex
trafficking of a minor and sex trafficking by force, fraud, and coercion. To prove
sex trafficking of a minor in Count One, the government was required to prove that
S.N. was over 14 and under 18 years old. There is no requirement that the offense
involve force, fraud, or coercion. Count Two does not require any showing of age
but does require a showing of force, fraud, or coercion. Other circuits have
uniformly found that multiple subsections of 18 U.S.C. § 1591 constitute different
offenses. See United States v. Keys, 747 F. App’x 198, 206 (5th Cir. 2018)
(explaining subsections (b)(1) and (b)(2) of § 1591 require proof of different
elements, each of which requires different evidence); United States v. Flanders, 752
F.3d 1317, 1338 (11th Cir. 2014) (“A plain reading of § 1591(a)(1) and (a)(2)
demonstrates that the two subsections meet the Blockburger test of whether separate
convictions are authorized.”); United States v. Moss, 379 F. App’x 651, 653 (9th
Cir. 2010) (determining there is no double jeopardy violation if a defendant is
convicted under both 18 U.S.C. § 1591(a)(1) and (a)(2)).
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Because the two counts involving S.N. each require proof of an element that
the other does not, Taylor’s double jeopardy claim is without merit.
III. CONCLUSION
For the foregoing reasons, we affirm the judgment of the district court.
GRUENDER, Circuit Judge, concurring in part and dissenting in part.
I join the opinion except as to Section II.1.C and the affirmance of Taylor’s
conviction on Count 4, which charged Taylor with sex trafficking of A.L. by force,
fraud, or coercion. See 18 U.S.C. § 1591(a).
As the court notes, we have said that “fraud” in § 1591(a) means “deception
practiced in order to induce another.” See United States v. Paul, 885 F.3d 1099,
1105 (8th Cir. 2018). But not all fraud falls within the statute’s ambit; it must be
fraud that the defendant knows will be “used to cause the person to engage in a
commercial sex act.” § 1591(a). Understood in context, this language captures
deceptions practiced to induce another “to engage in a commercial sex act,” not
deceptions practiced to induce other conduct, such as accepting a job as a masseuse.
See id.
Section 1591(a) hinges criminal liability on several alternative conditions,
requiring the defendant to know or recklessly disregard the fact that means of (1)
“force,” (2) “threats of force,” (3) “fraud,” (4) or “coercion” 3 will be used to cause
the victim to engage in a commercial sex act, or that (5) a victim having “not attained
the age of 18 years” will be caused to engage in a commercial sex act. Congress did
not select these at random, arbitrarily choosing five among innumerable conditions
that would make any crime more serious. Rather, these terms are ejusdem generis,
3
The Government’s brief argues only that fraud, rather than force, threats of
force, or coercion, underlies Taylor’s conviction on Count 4.
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“of the same kind,” see “Ejusdem Generis,” Black’s Law Dictionary (11th ed. 2019),
in that each condition alters the character of a sex act by vitiating the victim’s
consent, see, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 233 (1973) (noting that
consent is invalid where “it was coerced by . . . [(1)] force” or by (2) “threats”);
Stewart v. United States, 151 F.2d 386, 388 (8th Cir. 1945) (holding that “there is an
absence of real consent” where it is “secured by means of [(3)] fraud”); Bumper v.
North Carolina, 391 U.S. 543, 550 (1968) (“Where there is [(4)] coercion there
cannot be consent.”); United States v. Elbert, 561 F.3d 771, 777 (8th Cir. 2009)
(noting that the victims “could not legally consent” because (5) they “were minors”);
cf. 22 U.S.C. § 7106(a)(2) (directing foreign governments to punish “sex trafficking
involving force, fraud, coercion, or in which the victim of sex trafficking is a child
incapable of giving meaningful consent” (emphasis added)). Thus, in Elbert, where
the victims were underage, we held that “the government did not need to prove the
elements of fraud, force, or coercion” “because the victims were minors and could
not legally consent.” 561 F.3d at 777 (emphasis added). The minor victims were
therefore “caused to engage” in sex acts, id. (quoting § 1591(a)), where the
defendant had “instructed the children to work as prostitutes,” id. at 774.
Congress’s intent is evident in the text; the five alternative conditions were
written into this sex-crime statute because each renders the sex act nonconsensual.4
Cf. McDonough v. Anoka Cnty., 799 F.3d 931, 940 (8th Cir. 2015) (noting that “the
4
This distinguishes § 1591(a), which carries a minimum sentence of fifteen
years’ imprisonment, see § 1591(b)(1), from otherwise similar sex crimes. For
example, 18 U.S.C. § 2421(a) prohibits the knowing transport of an individual with
the intent that the individual engage in prostitution or unlawful sexual activity. That
is a crime irrespective of whether the individual consents to sex, and it carries a
maximum sentence of ten years’ imprisonment. Id. Any conviction of sex-
trafficking by fraud necessarily carries a higher sentence—potentially life—than any
§ 2421(a) conviction. That severe increase in sentencing is proportionate to the
“severe forms of trafficking” criminalized by § 1591(a), see Pub. L. No. 106-386,
114 Stat. 1464, 1466, 1470 (2000); that is, sex-trafficking schemes where victims
are made to have sex without their consent, not schemes to arrange consensual sex
that happen to involve fraud.
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text and structure of a statute can evince Congress’ intent” (internal quotation mark
omitted)). This purposeful commonality informs the meaning of “used to cause.”
See § 1591(a); Neal v. Clark, 95 U.S. 704, 709 (1877) (“[T]he meaning of a word,
and, consequently, the intention of the legislature, [is] ascertained by refer[e]nce to
the context, and by considering whether the word in question and the surrounding
words are, in fact, ejusdem generis, and referable to the same subject-matter.”). As
Elbert illustrates, minor victims are “caused to engage” in commercial sex acts in
the relevant sense that the sex acts occurred without their valid consent. See 561
F.3d at 777. Likewise, force, threats of force, fraud, and coercion are “used to cause
the [victim] to engage” in commercial sex acts, § 1591(a), only if they render the sex
acts nonconsensual—they induce (in the case of fraud) or compel the victim’s
participation, see, e.g., Paul, 885 F.3d at 1103 (upholding a sex-trafficking
conviction where the defendant threatened his victims and ordered them to prostitute
themselves); United States v. Bell, 761 F.3d 900, 909 (8th Cir. 2014) (similar);
United States v. McMillian, 777 F.3d 444, 447 (7th Cir. 2015) (holding that the
evidence established sex trafficking based on fraud where the defendant enticed
women to engage in prostitution through “false promises of love and money”). The
statute does not cover the employment of such means to induce or compel someone
to do something else in hopes that later on, she will consensually decide to engage
in a commercial sex act.
Attention to context is particularly vital when interpreting the phrase “used to
cause.” See Bailey v. United States, 516 U.S. 137, 148-49 (1995) (noting that the
word “‘use’ takes on different meanings depending on context”); Smith v. United
States, 508 U.S. 223, 245 (1993) (Scalia, J., dissenting) (noting that the word “use”
is among “common words that are . . . inordinately sensitive to context”); cf.
Paroline v. United States, 572 U.S. 434, 458 (2014) (“It would be unacceptable to
adopt a causal standard so strict that it would undermine congressional intent . . . .”).
Suppose a statute required licensure where “a hammer is used to cause a house to be
built.” A man wants to hire a construction crew to build a house. To select the right
crew, he uses a hammer and nail to post signs around town inviting contractors to
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submit bids. In this example, the context makes obvious that the prospective
homeowner need not obtain a license even though he “used” a hammer for the
purpose of eventually getting his house constructed. And the scope of the
hypothetical provision becomes even clearer if it lists multiple items—“hammer,
nail, or saw”—that are ejusdem generis, sharing a common function in the context
of home construction.
A similar contextual approach applies here. Just as a hammer, nail, and saw
must be used in the way that such tools are ordinarily understood to cause houses to
be built, so too the alternative means in § 1591(a) must be “used to cause” a person
to engage in a commercial sex act in the way that force, threats, fraud, and coercion
are ordinarily understood to “cause” sex acts; that is, through inducing or compelling
the sex act itself, depriving the victim of valid consent. See Niz-Chavez v. Garland,
593 U.S. ---, 141 S. Ct. 1474, 1484-85 (2021) (explaining that when interpreting a
statute, “[w]e simply seek the law’s ordinary meaning,” consulting interpretive tools
because they “inform how ordinary people understand the rules that govern them”).
Applying this interpretation to the fraud element, a conviction under § 1591(a)
requires proof of the defendant’s knowledge that deceptions will be practiced to
“induce,” which means to “entic[e] or persuad[e],” the person to engage in a
commercial sex act. See “Inducement,” Black’s Law Dictionary (11th ed. 2019);
Paul, 885 F.3d at 1105. When deceptions persuade someone to engage in nonsexual
conduct, fraud has not been “used to cause [someone] to engage in a commercial sex
act” in the relevant sense. See § 1591(a). In other words, such fraud would not be
“material” to the sex act. See Neder v. United States, 527 U.S. 1, 22-23 (1999)
(holding that a statutory “fraud” element entails a “materiality” element unless the
statute dictates otherwise).
On this interpretation, there is insufficient evidence to convict Taylor of sex-
trafficking A.L. by fraud. Although Taylor undoubtedly deceived A.L.—he
promised her that clients expected “just a massage,” not sexual acts—that deception
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was immaterial because all it induced her to do was work for Taylor as a masseuse.
This case aptly illustrates the contrast between fraud that is excluded by the statute
and fraud that is covered; here Taylor’s misrepresentation persuaded A.L. only to do
the opposite of what covered fraud would induce—it persuaded her to accept a job
on the understanding that it would involve no sex acts of any kind. Compare this to
Noble v. Weinstein, where the defendant persuaded the victim to engage in a sex act
by falsely promising that she would be chosen for a film role. 335 F. Supp. 3d 504,
519 (S.D.N.Y. 2018). Only in cases like Noble, where the sex act is the immediate
object of the inducement, can fraud support a conviction.
Nor is there sufficient evidence to convict Taylor of sex-trafficking A.L. by
force, threats of force, or coercion. The record does not support Taylor having
knowledge that force, threats of force, or coercion were used against A.L. True,
construing the record in favor of the jury verdict, A.L. was coerced by a client the
one time she engaged in a sex act. But A.L. testified that she never told Taylor about
it. And although Taylor created a mismatch in expectations between clients and
A.L., that does not show that he knew or recklessly disregarded the fact that clients
would threaten to harm her seriously or restrain her physically when she failed to
engage in a sex act with them. See § 1591(e)(2)(A) (defining “coercion”). On this
record, a jury could not reasonably find beyond a reasonable doubt that Taylor knew
or recklessly disregarded the fact that force, threats of force, or coercion would be
used against A.L.
For the foregoing reasons, I would reverse Taylor’s conviction on Count 4.
Because the court instead affirms it, I respectfully dissent as to that affirmance and
Section II.1.C. I concur in the remainder of the court’s opinion.
STRAS, Circuit Judge, concurring in part and concurring in the judgment.
I join all but Part II.1.A. of the opinion.
______________________________
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