Friday, April 24, 2015

[Ed. note: I am counsel for the defendant in the second decision summarized here.]

United States v. Hornbuckle, Nos. 12-10541, 12-10615 (Christen with Fletcher and Davis (CA4)) ---
The court affirmed the sentences of two sisters who pleaded guilty to child sex trafficking, in violation of 18 U.S.C. § 1591. The court held that the sentencing judge properly applied two enhancements under U.S.S.G. § 2G1.3, one for "commercial sex acts" and one for undue influence over the victims.

The defendants, who are sisters, along with other siblings and their mother, ran a prostitution ring that employed both adults and children. After one of the child prostitutes came to the attention of the FBI through a confidential source, the sisters were indicted on 13 counts, including 10 counts of child sex trafficking. They pleaded guilty in exchange for dismissal of all but two of the child sex trafficking counts. The district court held an extensive sentencing hearing at which three witnesses testified -- one of the sisters' adult employees, one of their child employees, and a government "expert on prostitution culture." Based on the evidence at the hearing, the judge computed the sisters' Guidelines ranges based on two enhancements -- one under U.S.S.G. § 2G1.3(b)(2)(B) for undue influence over the children, and one under § 2G1.3(b)(4)(A) because the minors had engaged in a sex act. One sister got 151 months, and the other 188 months, both at the low end of their respective Guidelines ranges.

On the undue-influence enhancement, the court held that the record "easily" supported it. The sentencing judge heard "abundant" evidence of the sisters' use of violence, intimidation, and control over the minor victims. One of the sisters "forced all three victims to work when they did not want to and controlled every aspect of [their] lives, including time and place of work, choice of clothing, and access to money and food." The other sister, for her part, may have been less violent, but she meted out more punishment to the victims. Nor did evidence that the victims engaged in prostitution voluntarily undermine the sentencing judge's finding, because there was ample evidence that the victims were not free to leave once they began working for the sisters.

The court's explanation of why the other enhancement was proper is somewhat technical. The upshot is that there was no double-counting, because no element of a § 1591 violation requires proof that the minors actually engaged in sex acts.

The decision is here:

United States v. Alvarez-Ulloa, Nos. 13-10500, 13-10501 (Tashima with Paez and Block (EDNY)) ---

The court affirmed a conviction following a jury trial for illegal reentry and a related supervised-release revocation. The court held that the defendant did not show purposeful discrimination for any one of his three Batson challenges; that the trial judge's supplemental instruction about the insanity defense was legally correct and not unduly coercive; and that the instruction did not constructively amend the indictment by expanding the temporal scope of the offense.

The defendant was, for 12 years, an amateur and professional boxer; after being knocked out in a fight, his behavior began to change, and his legal troubles began. He was also a Mexican citizen, having been born in Nogales, Sonora, although he grew up and lived most of his life in Phoenix, Arizona. He was deported in 2010, and nine months later was arrested at a resort in Phoenix after attempting to sneak into the place where a professional football team was staying. Charged with illegal reentry, he raised an insanity defense, arguing that brain damage made it impossible for him to appreciate the nature of his actions (specifically, that he was not permitted to remain in the United States).

During voir dire, the prosecutor struck three Latino prospective jurors, and the judge rejected the defendant's Batson challenges on the ground that the prosecutor's proffered reasons for striking them were "facially neutral." During jury deliberations, the jury deadlocked about how to apply the insanity defense to the continuing offense of illegal reentry. To break the deadlock, the judge instructed the jury that the insanity defense would be negated if the defendant ceased to be insane for a long enough period of time to reasonably leave the United States, and then he knowingly remained. The jury returned with a guilty verdict 37 minutes after receiving this supplemental instruction.

The court faulted the trial judge for not reaching the third step of Batson -- whether the defendant had shown that the prosecutor purposefully discriminated against a racial minority through the use of a peremptory strike. But the record was well-developed, and so the court proceeded to examine the record to see if the defendant could carry this burden. In the court's view, he could not. The court did not see any similarly situated non-Latino jurors that were not subjects of peremptory strikes, and so held that the trial judge correctly overruled the defendant's Batson challenges.

On the jury-instruction issue, the court first held that it was legally correct. Illegal reentry is a continuing offense, and so the court approved the idea that an illegal-reentry defendant who raises an insanity defense must show that "he was legally insane for virtually the entire duration of his illegal stay." Moreover, the instruction was not coercive, because it did not suggest that the jury should view the evidence unfavorably to his side and was not directed at any particular juror's difficulty.

Nor was there a constructive amendment of the indictment. Circuit law was plain to the court that the indictment need not allege the entire period of time during which the defendant was illegally present in the United States, because the "found in" element encompasses this entire period of time.

The decision is here:

United States v. Walls, No. 13-30223 (Bea with Fisher and Murguia) ---

The court rejected a challenge based on the Commerce Clause to entirely local sex-trafficking offenses under the Trafficking Victims Protection Act, 18 U.S.C. § 1591.

The defendant was tried on numerous counts, including four counts under § 1591, which prohibits sex trafficking "in or affecting interstate or foreign commerce." There was evidence presented at trial that the victims' services were advertized on Craigslist, which had servers in California, and that they used condoms manufactured in Virginia to service clients in Washington state. At the government's request, the jury was instructed that "an act or transaction that crosses state lines is 'in' interstate commerce," and that "an act or transcation that is economic in nature and that affects the flow of money in the stream of commerce to any degree 'affects' interstate commerce." Defense counsel did not object to this instruction. The jury convicted, and the defendant received a 23-year sentence.

The defendant's argument was premised on the idea that the Supreme Court's recent decision in Bond v. United States, 134 S. Ct. 2077 (2014), might have taken away Congress's ability to regulate the purely local aspects of sex trafficking. The court disagreed, because sex trafficking affects interstate commerce in the aggregate, and so Congress was exercising the fullest extent of its commerce powers when it enacted § 1591. The jury instruction was thus proper under Gonzales v. Raich, 545 U.S. 1 (2005). Nor did the instruction direct a verdict on the interstate-commerce element of the crime; it merely defined the terms "in" and "affecting" interstate commerce, without creating a presumption that the jury had to find that element proved. (The court noted at the outset that the claim was subject to plain-error review, but since it didn't find any error it didn't need to reach the other prongs of the plain-error standard.)

The decision is here:


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