57 F.4th 1168
10th Cir.2023Background
- Coulter, a longtime pimp, recruited an underage girl (Doe 2) to introduce a schoolmate (Doe 1); Coulter drove Doe 1 home, proposed sex work, and promised money/gifts. Elizabeth Andrade (Coulter’s sex worker) photographed Doe 1 and advertised her to clients; Coulter directed pricing and collection.
- Doe 1 performed paid sexual encounters; Andrade trained Doe 1 and took her on a “call” where both had sex with a client. Coulter also attempted to recruit another minor (Doe 3), who never worked for him.
- Indictment charged Coulter with conspiracy to commit child sex trafficking and two counts of child sex trafficking (Doe 1 and Doe 3); Andrade pled guilty to conspiracy. Trial evidence included testimony from victims, co-workers, a client, law enforcement, and Coulter’s cell‑phone records corroborating texts and explicit photos.
- Trial developments: testimony referenced the deaths of two women associated with Coulter (Diaz and Biggers); Doe 1’s guardian ad litem allegedly mouthed “you’re doing a good job” to Doe 1; jury initially deadlocked on Count 3, later convicted on conspiracy and the Doe 1 trafficking count and mistrial declared as to Count 3.
- District court denied Coulter’s Rule 33 motion; sentenced to 360 months. On appeal Coulter raised sufficiency, evidentiary/Confrontation/hearsay and prosecutorial‑misconduct claims about death testimony, guardian‑ad‑litem bolstering, post‑verdict jury handling (poll, bench contact, Allen charge), and cumulative error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of the evidence (child sex trafficking & conspiracy) | Gov’t: witnesses plus phone records, explicit photos, texts, and client testimony supported convictions | Coulter: key witnesses (Andrade, Doe 1) not credible; evidence insufficient | Affirmed — viewing evidence in Govt’s favor a reasonable jury could convict; credibility for jury to decide |
| Admission of testimony about deaths — Confrontation Clause | Gov’t: death testimony provided context about Coulter’s relationship with victims; not testimonial | Coulter: Confrontation Clause violated by out‑of‑court statements about deaths | Waived — Coulter failed to preserve Confrontation objection and did not press plain‑error standard in opening brief |
| Admission of testimony about deaths — hearsay & evidentiary error | Gov’t: any testimony was context and harmless; defense opened door to some testimony | Coulter: hearsay (and speculation) about Diaz/Biggers’ deaths was inadmissible | Most hearsay objections waived except for Mullins’s redirect on Diaz; any error harmless given overwhelming evidence |
| Prosecutorial misconduct re: eliciting death testimony/closing remarks | Gov’t: questions and quote illustrated intimidation/dynamic; did not imply Coulter caused deaths | Coulter: eliciting such testimony and referencing Diaz in closing was improper and prejudicial | No plain error — questions and remark not improper; even if error, defendant failed to show clear legal error or prejudice |
| Guardian ad litem mouthing to Doe 1 (bolstering) | Gov’t: third‑party reassurance not equivalent to vouching by prosecutor; curative instruction given | Coulter: mouthing “you’re doing a good job” improperly bolstered witness and denied fair trial | No plain error — bolstering doctrine applies to prosecutor/agents, not third parties; curative jury instruction presumed followed |
| Jury poll, bench interview of juror, and Allen instruction | Gov’t: polling, limited chambers inquiry, and Allen charge were within trial court’s discretion to resolve apparent deadlock | Coulter: poll revealed numerical split (Brasfield), chambers contact coerced juror, Allen instruction was coercive | Affirmed — poll after verdict and non‑numerical inquiry permitted; private interview was appropriate and non‑coercive; Allen instruction proper and jury later remained deadlocked on Count 3 |
| Cumulative error | Gov’t: only one harmless error occurred; cumulative argument fails | Coulter: combined errors deprived him of due process | Denied — only one harmless error found; cumulative test requires at least two harmless errors |
Key Cases Cited
- United States v. Brinson, 772 F.3d 1314 (10th Cir. 2014) (elements of 18 U.S.C. § 1591 for child‑sex‑trafficking)
- United States v. Mullins, 613 F.3d 1273 (10th Cir. 2010) (plain‑error standard in criminal appeals)
- United States v. Bustamante‑Conchas, 850 F.3d 1130 (10th Cir. 2017) (reasonable‑probability prong of plain error)
- United States v. Benford, 875 F.3d 1007 (10th Cir. 2017) (de novo review of sufficiency challenges)
- United States v. Evans, 318 F.3d 1011 (10th Cir. 2003) (jury resolves credibility and conflicting evidence)
- Brasfield v. United States, 272 U.S. 448 (1926) (prohibits numerical polling during deliberations to avoid coercion)
- Allen v. United States, 164 U.S. 492 (1896) (permitting supplemental instruction to encourage jury deliberation)
- United States v. Cornelius, 696 F.3d 1307 (10th Cir. 2012) (factors for evaluating coerciveness of Allen instruction)
- United States v. Zabriskie, 415 F.3d 1139 (10th Cir. 2005) (court may investigate deliberation issues, but not give individualized Allen instruction)
- United States v. Blechman, 657 F.3d 1052 (10th Cir. 2011) (harmless‑error review of erroneously admitted evidence)
- United States v. Christy, 916 F.3d 814 (10th Cir. 2019) (standards for assessing prosecutorial misconduct in closing argument)