United States v. Brittan Kettles
970 F.3d 637
| 6th Cir. | 2020Background
- In June 2016 Kettles recruited an 18‑year‑old (Whittemore) via Instagram to run prostitution ads and operate an alleged "team."
- Whittemore and Kettles prostituted A.D., a 13‑year‑old, on multiple occasions after arranging clients on backpage.com; Kettles negotiated, transported/waited, and collected money.
- Kettles admitted post‑arrest that he helped and believed A.D. was 17; he was indicted under 18 U.S.C. §§ 1591(a), (b)(1), (c), § 2 and conspiracy under § 1594(c).
- A jury convicted Kettles of sex‑trafficking a child and conspiracy; district court sentenced him to 180 months.
- On appeal Kettles raised six challenges: exclusion under Fed. R. Evid. 412 of impeachment cross‑examination; admission of evidence about Whittemore’s prostitution (Rule 404(b)); jury instructions/verdict form re §1591(b)(1) scienter and potential constructive amendment; conjunctive indictment proved disjunctively; denial of new trial based on an alleged recantation letter; and a void‑for‑vagueness challenge to the phrase "will be caused."
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Exclusion under Fed. R. Evid. 412 of cross‑examination about victim's inconsistent statements re prior sexual assaults | Govt: Rule 412 bars evidence of other sexual behavior; exclusion proper to protect victims | Kettles: Proffered impeachment (false prior claims), not evidence of other sexual behavior; Rule 412 inapplicable | Court: District court erred in applying Rule 412, but error was harmless given overwhelming corroborative evidence; conviction affirmed |
| Admission of evidence that Kettles prostituted Whittemore (Rule 404(b)) | Govt: Evidence intrinsic to the crime/res gestae and, if 404(b) applies, admissible to prove intent/plan/knowledge | Kettles: Such evidence was extrinsic and inadmissible propensity evidence under 404(b) | Court: Kettles forfeited challenge to res gestae ruling; alternative 404(b) ground not disputed on appeal—affirmed |
| Jury instructions/verdict form and § 1591(b)(1) enhanced penalty scienter requirement | Govt: §1591(b)(1) is a penalty provision that does not require scienter as to victim being under 14; jury properly instructed | Kettles: §1591(b)(1) requires proof defendant knew or recklessly disregarded that victim was under 14; instructions therefore flawed and constructively amended indictment | Court: No scienter required for the penalty provision; instructions accurate; no constructive amendment (indictment surplusage can be ignored) |
| Indictment charged multiple means conjunctively but jury was instructed to convict on any one (conjunctive→disjunctive) | Govt: Charging in the conjunctive and proving in the disjunctive is allowed | Kettles: Switch changed the offense and constructively amended indictment | Court: Precedent permits charging conjunctively and proving disjunctively; claim rejected |
| Motion for new trial based on alleged recantation letter from Whittemore | Kettles: Letter was newly discovered evidence showing recantation and innocence | Govt: Letter forged; witness testified she did not write it | Court: District court found the letter forged after hearing experts and witness; finding not clearly erroneous; denial affirmed |
| Void‑for‑vagueness challenge to § 1591(a) phrase "will be caused" | Kettles: Phrase "will be caused" is vague and does not give fair warning | Govt: Statute clearly proscribes conduct like Kettles’—recruiting and causing a minor to engage in commercial sex | Court: Statute valid as applied; phrase gives sufficient notice in this case; denial of motion to dismiss affirmed |
Key Cases Cited
- United States v. Willoughby, 742 F.3d 229 (6th Cir. 2014) (Rule 412 exclusion of impeachment evidence was error but harmless due to strong corroboration)
- United States v. Cardinal, 782 F.2d 34 (6th Cir. 1986) (older precedent treating evidence interwoven with sexual activity as inadmissible)
- United States v. Chavez, 951 F.3d 349 (6th Cir. 2020) (harmless‑error review discussion)
- Kotteakos v. United States, 328 U.S. 750 (U.S. 1946) ("fair assurance" harmless‑error standard)
- Rehaif v. United States, 139 S. Ct. 2191 (U.S. 2019) (presumption in favor of scienter for criminal statutes)
- X‑Citement Video, Inc. v. Barr, 513 U.S. 64 (U.S. 1994) (sex‑offense statutes traditionally excepted from scienter presumption)
- United States v. Dado, 759 F.3d 550 (6th Cir. 2014) (penalty provisions need not carry scienter for elements that affect sentencing)
- United States v. Thompson, 896 F.3d 155 (2d Cir. 2018) (rejecting requirement of scienter as to victim being under 14 for §1591(b)(1))