U.S. vs. Todd, No. 08-30360 (10-20-09). The statute for the Trafficking Victim's Protection Act (TVPA) provides imprisonment of 15 years to life if the offense was "effected by fraud, force, or coercion." 18 USC 1591(b)(1). The punishment is 10 years to life if the offense was "not so effected" and the victim was 14 to 18. 1591(b)(2). Here, the defendant was convicted of the offense, designed to combat sex trafficking both internationally and interstate. The jury instruction required the jury to find beyond a reasonable doubt that, as one element, the defendant recruited victims knowing that force, fraud, or coercion would be used against a person to cause him or her to engage in a commercial sex act. The instruction did not require the jury to find that the victims were indeed "effected by fraud, force, or coercion." This failure for the jury to so find creates a conviction for which there is no punishment. The victims here were all over 18. There was evidence that he recruited them with a soft approach, and then turned violent, beating and coercing them. This evidence supports the elements of knowing recruitment and that the recruitment was done knowing that force would later be used. Under Booker, though, a jury must find the facts on which imprisonment is justified. The lack of a jury finding provides a punishment loophole. This error was not argued by defendant, but was noted by the 9th (Noonan joined by Pregerson and M. Smith) which found plain error prejudice. The defendant's convictions on the TVPA counts were still affirmed, as was his conviction on the conspiracy count. He did not appeal his conviction for transporting a prostitute. His sentences of 26 years on the TVPA counts were vacated; as were his sentences of 5 years on conspiracy and 10 years on transportation. The 9th wanted to allow the district court to consider all its resentencing options.

In affirming the convictions, the 9th analyzed the evidence as to the knowledge element. That is, when did the defendant know that force would be used? After all, he recruited them by courting and being nice (soft soaking). The 9th found such awareness in the defendant's later actions; he knew what he would do later. His actions were with an awareness of a future course where force would be used. In making this point, some strange analogies, given the subject matter, are made: the example of a mother making school lunch for her first child, and so knows that she will make school lunch for her second child; or that a judge knows his law clerks will use Westlaw. There is even a reference to Shakespeare's Sonnet 115 ("million'd accidents creep in")to illustrate that the future is not certain. Yet, certainty is not required in a congressional act requiring knowledge of a future action; there only must be proof of an awareness of the "modus operandi" that force would be used to force a person into prostitution.