United States v. Percy Love, III
16-10066
| 9th Cir. | Nov 21, 2018Background
- Percy Love was convicted by a jury of sex trafficking by force, fraud, or coercion, and of sex trafficking a child under 18 U.S.C. § 1591(a)(1).
- During trial Love requested witness sequestration under Federal Rule of Evidence 615; after testifying, his mother and sister were excluded from the courtroom because either could be recalled as rebuttal witnesses.
- Love challenged jury instructions on the definitions of "force" and "fraud," sought a unanimity instruction as to Count Two, and objected to the court’s use of § 1591’s 2008 definition of "serious harm."
- Love also challenged a prosecutor’s closing remark that he was the kind of person who has sex with a 14‑year‑old and argued sentencing enhancements were improperly applied.
- The Ninth Circuit affirmed: sequestration did not violate the public‑trial right; ordinary meanings of force/fraud were properly used; unanimity instruction was unnecessary; any definitional error on "serious harm" was harmless; prosecutorial comment did not deny due process; sentencing calculations were correct.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Exclusion of mother and sister from courtroom (public‑trial right) | Exclusion violated Love’s Sixth Amendment public‑trial right | Rule 615 sequestration was proper because they could be recalled as rebuttal witnesses | Court affirmed exclusion under Rule 615; public‑trial right not absolute |
| Jury definitions of "force" and "fraud" | Court should provide particularized definitions beyond ordinary meaning | § 1591 is undefined; ordinary meaning is appropriate; evidence showed brute force | Court upheld use of ordinary meanings; no juror confusion given overwhelming physical‑force evidence |
| Unanimity instruction for Count Two | Requested specific unanimity instruction to ensure juror agreement on same act | Acts charged were a single, isolated physical attack so no risk of disparate juror findings | Denial of unanimity instruction affirmed |
| Use of 2008 "serious harm" definition for Count Two | Instruction used broader 2008 definition (including nonphysical threats) rather than the version in effect at offense | Even if instruction erred, evidence showed unequivocal physical harm, so no prejudice | Any error was harmless; verdict stands |
| Prosecutor’s closing remark about sex with a 14‑year‑old | Comment was prejudicial and denied due process | Viewed in context, remark did not render trial fundamentally unfair | No reversible error; remark did not infect trial with unfairness |
| Sentencing — application of § 4B1.5 enhancement and § 4B1.1 career‑offender | Double application was improper and inflated sentence | Applying § 4B1.1 would not change offense level or CHC; enhancement proper | Sentencing affirmed; no impact to guideline computations |
Key Cases Cited
- United States v. Ell, 718 F.2d 291 (9th Cir.) (Rule 615 sequestration applies after testimony)
- United States v. Sherlock, 962 F.2d 1349 (9th Cir.) (public‑trial right is not absolute and yields to fair administration of justice)
- United States v. Smith, 719 F.3d 1120 (9th Cir.) (ordinary meaning of "force" in § 1591)
- In re Roman Catholic Archbishop of Portland in Or., 661 F.3d 417 (9th Cir.) (use of ordinary statutory meanings)
- United States v. Mickey, 897 F.3d 1173 (9th Cir.) (unanimity instruction not required where single incident evidence)
- Darden v. Wainwright, 477 U.S. 168 (U.S.) (prosecutorial misconduct reversal standard — due process infection of trial)
- Donnelly v. DeChristoforo, 416 U.S. 637 (U.S.) (contextual review of prosecutorial comments)