United States v. Mirna Valenzuela , 495 F. App'x 817 ( 2012 )

FILED
NOT FOR PUBLICATION NOV 02 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50581
Plaintiff - Appellee, D.C. No. 2:07-cr-00011-MMM-4
v.
MEMORANDUM *
MIRNA JEANNETH VASQUE
VALENZUELA, AKA Mirriam, AKA
Jeanette Vasquez Valenzuela, AKA Mirna
Jeanette Vasque Valenzuela,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 09-50582
Plaintiff - Appellee, D.C. No. 2:07-cr-00011-MMM-7
v.
GABRIEL MENDEZ,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 09-50586
Plaintiff - Appellee, D.C. No. 2:07-cr-00011-MMM-1
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
v.
GLADYS VASQUEZ VALENZUELA,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 09-50587
Plaintiff - Appellee, D.C. No. 2:07-cr-00011-MMM-8
v.
MARIBEL RODRIGUEZ VASQUEZ,
Defendant - Appellant.
UNITED STATES OF AMERICA, No. 09-50611
Plaintiff - Appellee, D.C. No. 2:07-cr-00011-MMM-3
v.
MARIA DE LOS ANGELES VICENTE,
AKA Angela,
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
Margaret M. Morrow, District Judge, Presiding
Argued and Submitted October 9, 2012
Pasadena, California
2
Before: PREGERSON and W. FLETCHER, Circuit Judges, and BENNETT,
District Judge.**
This appeal is from a month-long sex-trafficking and immigration trial. The
jury found all five defendants guilty of conspiracy, sex-trafficking, and
transportation of persons for purposes of prostitution. Testimony at trial recounted
that appellants and co-conspirators recruited impoverished minors and young
women from their home country of Guatemala with promises of well-paying jobs
in the United States. A minority of the girls who testified expected to work in
prostitution for a brief time to pay off their smuggling debts. Appellants and co-
conspirators arranged for the girls’ travel and paid the smugglers for the girls upon
arrival in the United States. Appellants then forced the girls to work for them as
prostitutes, using threats of force and witchcraft against the girls and their families,
brutal physical and sexual violence, economic and social dependence, as well as
lock and key to keep the girls from running away. After receiving a tip from a
driver working for the appellants, the FBI began an investigation ultimately
resulting in the arrest of nine co-conspirators. Four reached plea agreements; five
went to trial and now appeal both their convictions and sentences. We have
jurisdiction pursuant to 18 U.S.C. § 1291 and now affirm.
**
The Honorable Mark W. Bennett, United States District Judge for the
Northern District of Iowa, sitting by designation.
3
I. Rule 412
The district court did not err in excluding evidence and prohibiting cross-
examination about victims’ possible prior acts of prostitution. We review a district
court’s interpretation of the Federal Rules of Evidence de novo and evidentiary
rulings for abuse of discretion. United States v. Waters, 627 F.3d 345, 351-52 (9th
Cir. 2010). We review de novo the question whether an evidentiary ruling violates
a defendant’s constitutional rights. Id. We are willing to assume that Federal Rule
of Evidence 412 applies to sex trafficking prosecutions. Appellants argue that the
district court incorrectly applied the constitutional exception to Rule 412 on the
ground that its order prohibiting cross-examination violated the confrontation
clause. However, Appellants cannot show the relevance of questions about prior
prostitution to either Appellants’ knowledge of the use of force, fraud, or coercion,
or the victims’ consent to work in prostitution. First, 18 U.S.C. § 1591(a), the
federal sex trafficking statute under which Appellants were convicted, does not
require that Appellants know at the time of recruitment whether force, fraud, or
coercion will later be used. They must only know at the time they commit any of
the predicate acts—recruiting, enticing, harboring, transporting, providing,
obtaining, or maintaining—that force, fraud, or coercion, or threats thereof will be
used to cause a person to engage in a commercial sex act. Thus, whether
appellants believed the victims were working in prostitution prior to coming to the
4
United States and thus would willingly continue is irrelevant because there is
ample evidence that the victims did not continue to work willingly once in the
United States while the defendants harbored and maintained them with the
knowledge that force, fraud, or coercion would be used to cause the victims to
engage in commercial sex.
Second, and for similar reasons, evidence of prior prostitution is irrelevant to
whether the victims consented to working as prostitutes. Even if some of the
victims consented initially, Appellants violated § 1591 by continuing to harbor and
maintain them once Appellants realized that force, fraud, or coercion (or threats
thereof) would have to be used to cause the girls to engage in a commercial sex act.
The government’s questions about the victims’ prior employment and
general naivete upon arriving in the United States did not “open the door” because
it did not ask about the victims’ sexual histories.
II. Batson
The district court did not clearly err in finding that race was not a
substantially motivating factor in the government’s peremptory strike of a potential
juror. On a Batson claim, we review the trial court’s factual determination
concerning discriminatory intent for clear error. United States v. Steele, 298 F.3d
906, 910 (9th Cir. 2002).
5
The government provided a race-neutral explanation for its strike of an
African-American potential juror, based on her strong views about immigration,
and the defense offered no rebuttal. The record as a whole and a comparative juror
analysis reveal no reason to doubt the prosecution’s explanation. Ultimately, three
African-Americans sat on the jury.
III. Jury Instructions
The district court did not abuse its discretion in formulating the jury
instructions to explain the elements of the offense. We review “de novo whether a
jury instruction misstates the elements of a statutory crime,” but if “the instructions
fairly and adequately covered the elements of the offense we review the
instruction’s precise formulation for abuse of discretion.” United States v. Vallejo,
237 F.3d 1008, 1024 (9th Cir. 2001) (internal quotations omitted). If the appealing
party failed to object below to the jury instructions or withdrew its objection, we
review for plain error. United States v. Brooks, 508 F.3d 1205, 1208 (9th Cir.
2007) (failure to object); United States v. Davis, 36 F.3d 1424, 1431 (9th Cir.
1994) (objection withdrawn). The district court made clear that whatever
objections the parties had to the final version of the jury instructions should be
stated on the record at the final hearing. All of the defendants’ counsel stated that
they had no objections to Instruction 23 or 24. Appellants’ arguments that
6
Instructions 23 and 24 shift the jury’s focus to force, fraud, and coercion rather
than the element of the defendants’ knowledge are unconvincing, given that all
parties agree that Instruction 20 correctly stated the elements of 28 U.S.C. §
1591(a).
IV. Sentencing
We review “the district court’s interpretation of the Sentencing Guidelines
de novo, the district court’s application of the Sentencing Guidelines to the facts of
[the] case for abuse of discretion, and the district court’s factual findings for clear
error.” United States v. Kimbrew, 406 F.3d 1149, 1151 (9th Cir. 2005). The
abuse of discretion standard applies to all final sentencing decisions. United States
v. Carty, 520 F.3d 984, 993 (9th Cir. 2008). Where a defendant fails to object to a
guidelines adjustment at sentencing, we review for plain error. United States v.
Randall, 162 F.3d 557, 561 (9th Cir. 1998).
A. U.S.S.G. 2A3.1(b)(2)
The district court did not abuse its discretion in finding that evidence that
two victims were between the ages of twelve and sixteen was reliable and applying
U.S.S.G. 2A3.1(b)(2). The evidence that one of the victims was only thirteen
when appellants recruited her to the United States is overwhelming. The evidence
7
that the second victim was between the ages of twelve and sixteen is less
overwhelming but not insubstantial.
B. U.S.S.G. 2A3.1(b)(3)
The district court did not misinterpret or misapply the Custody, Care and
Supervisory Enhancement under U.S.S.G. 2A3.1(b)(3). See United States v.
Swank, 676 F.3d 919, 922-24 (9th Cir. 2012).
C. U.S.S.G. 3A1.1(b)(1)
The court did not err in finding the victims were unusually vulnerable under
U.S.S.G. 3A1.1(b)(1). Whether victims are unusually vulnerable is a factual
finding reviewed for clear error. United States v. Veerapol, 312 F.3d 1128, 1131-
32 (9th Cir. 2002). The district court found at sentencing that the victims were
predominantly poor, uneducated, far from home and without connections in the
United States, unable to speak English, and unwilling to go to the police for fear of
deportation. While the legislative findings of the Trafficking Victim Protection
Act, which includes § 1591, recognizes transnational trafficking as a problem and
notes that victims are often vulnerable, nothing suggests that the typical victim
reaches the level of vulnerability of the victims in this case. 22 U.S.C. § 7101.
D. U.S.S.G. 3A1.3
The district court did not err in finding Appellants physically restrained the
victims under U.S.S.G. 3A1.3. The application notes to 3A1.3 define “physical
8
restraint” by reference to U.S.S.G. 1B1.1 cmt. 1(K), which lists keeping victims
under lock as an example of physical restraint. The record is replete with examples
of appellants keeping the victims under lock.
E. U.S.S.G. 3C1.1
The district court did not err in applying the obstruction of justice
enhancement, U.S.S.G. 3C1.1, to Gladys, Mirna, Maria, and Gabriel. The court
erred in applying the enhancement to Maribel, but the error was harmless. The
only evidence that Maribel obstructed justice involved her threats to victims to
keep them from going to the police before the investigation began. Maribel’s
threats all took place prior November 1, 2006, when the amendments to 3C1.1
became effective. The government’s argument that Maribel’s conspiracy charge
continued through December 2006 is unavailing because the enhancement applied
to Maribel’s § 1591 conviction. United States v. Castro, 972 F.2d 1107, 1112 (9th
Cir. 1992) (overruled on other grounds in United States v. Jimenez Recio, 537 U.S.
270 (2003)). This error, however, is harmless because it does not affect Maribel’s
final guidelines range. United States v. Cruz-Gramajo, 570 F.3d 1162, 1174 (9th
Cir. 2009).
F. Maria’s Use of Force or Fear
We construe Maria’s appeal to include an appeal of the district court’s
application of U.S.S.G. 2A3.1(b)(1), the guideline for forcible sex conduct.
9
However, Maria offers no argument in support of this part of her appeal. In any
event, the district court did not err for the record contains evidence of numerous
instances of Maria using force or fear.
G. U.S.S.G. 3B1.1
The district court did not err in finding that Gladys was a leader or organizer
of an extensive scheme under U.S.S.G. 3B1.1. There were over twenty
participants in Appellants’ conspiracy, far more than the five required for the four-
level enhancement. The record makes clear that Gladys directed or gave orders to
many of these participants.
H. U.S.S.G. 3B1.2(b)
The district court did not err in applying U.S.S.G. 3B1.2(b) to Maribel. Her
argument again relies on a misunderstanding of 28 U.S.C. § 1591(a). A
defendant’s role is not minor simply because she was not directly involved in the
transportation of a victim across international boundaries. A violation of § 1591(a)
can take place completely within the bounds of a single state. Transportation is not
even a required element of § 1591(a), but one of several possible ways to fulfill the
first element, assuming knowledge. The fact that Maribel did not personally
recruit or transport the victims across the U.S. border does not make her role
minor.
I. U.S.S.G. 3E1.1(a)
10
The district court did not plainly err in failing to find that Gladys accepted
responsibility under U.S.S.G. 3E1.1(a). Gladys did not request from the district
court a reduction for acceptance of responsibility at trial. She argues on appeal that
because she would have accepted a “package deal” plea agreement had her co-
defendants agreed to accept it, she should receive the sentencing benefit of
accepting responsibility. In cases where a defendant wanted to plead guilty but
was unable to do so for some reason, the court should evaluate whether he or she
expressed genuine contrition. United States v. Johnson, 956 F.2d 894, 904-05,
opinion supplemented on denial of reh'g sub nom. United States v. Emelio, 969
F.2d 849 (9th Cir. 1992); United States v. McKinney, 15 F.3d 849, 852 (9th Cir.
1994). Gladys expressed little or no genuine contrition. Given that she did not
request the reduction, we decline to hold that the district court plainly erred. In any
event, any error would be harmless because Glady’s guidelines range would not
change.
J. Substantive Reasonableness
The district court’s sentences were substantively reasonable. After
considering each of the § 3553(a) factors, including any mitigating evidence
submitted by the defendants and length of sentences given nationwide for § 1591
violations, the court sentenced each defendant to a below-guidelines sentence. A
11
well-reasoned, below-guidelines sentence normally is reasonable, United States v.
Bendtzen, 542 F.3d 722, 729 (9th Cir. 2008), and this case is no exception.
K. Ex Post Facto Error
The district court did not violate the ex post facto clause by applying the
amended version of § 1591(a) to Maria. Congress amended 28 U.S.C. § 1591 in
July 2006, adding a fifteen-year mandatory minimum. The jury found Maria guilty
of a § 1591(a) charge on the indictment dating from February 2006 to December
2006. Several witnesses at trial described Maria’s conduct during the fall of 2006
that clearly fulfills the elements of § 1591.
V. Conclusion
For the reasons above, we affirm the convictions and sentences of the
district court.
AFFIRMED.
12