United States v. Tony Wardlow
830 F.3d 817
8th Cir.2016Background
- Defendant Tony Eugene Wardlow, an over-the-road truck driver, was convicted by a jury of transporting a minor (A.R.), age 16 at the time, for prostitution in 2011 under 18 U.S.C. § 2423(a). He was sentenced to 250 months’ imprisonment.
- A.R. testified she worked as a prostitute on Independence Avenue in Kansas City, became a regular client to Wardlow, was paid in cash and in kind, and was taken on multi-state trips (including St. Louis and Texas) where she had sex with Wardlow and an associate, Tom Farrell; Farrell corroborated parts of her testimony.
- The government moved in limine to exclude evidence of A.R.’s post-offense prostitution with another man (Otis Warren); the district court granted the motion under Fed. R. Evid. 412 and 403.
- Wardlow sought to cross-examine A.R. about a journal entry showing she later called another client her boyfriend (to show Wardlow believed she was his girlfriend) and sought to probe a recorded interview where Wardlow allegedly called A.R. a "lying bitch;" the court limited those lines of inquiry.
- At sentencing the district court applied U.S.S.G. §2A3.1 (instead of §2G1.3) based on findings that Wardlow placed A.R. in fear consistent with 18 U.S.C. §2241(a) and applied a four-level §2A3.1(b)(1) enhancement and a five-level §4B1.5(b) pattern-of-activity enhancement; Wardlow appealed evidentiary rulings and Guidelines applications.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Exclusion under Rule 412 of evidence of A.R.’s sexual activity with Otis Warren (post-offense) | Prosecution: exclude under Rule 412 to protect victim privacy and avoid prejudice and confusion | Wardlow: needed to challenge A.R.’s credibility/state of mind and to support a claim he believed she was his girlfriend | Court: Affirmed exclusion — Rule 412 applies; purpose of 412 and prejudice outweigh probative value; defendant failed to file required 412 notice |
| Exclusion of cross-exam about A.R.’s alleged lies re: age and related questioning about Wardlow’s recorded name-calling (Rule 403) | Prosecution: inquiry would improperly suggest a mistake-of-age defense and confuse jury | Wardlow: Government opened door by eliciting witness testimony quoting Wardlow calling A.R. a "lying bitch," so cross-exam should be allowed to probe belief about truthfulness/age | Court: Affirmed exclusion — probative value minimal and substantially outweighed by danger of unfair prejudice and jury confusion under Rule 403 |
| Whether base offense level §2A3.1 applies (conduct under 18 U.S.C. §2241) | Government: §2A3.1 applies because Wardlow threatened/placed A.R. in fear consistent with §2241(a) | Wardlow: conduct did not meet §2241(a) elements so §2G1.3 base level should control | Court: Affirmed §2A3.1 application — A.R.’s testimony about threats and fear supported finding of conduct under §2241(a); base level 30 and §2A3.1(b)(1) enhancement proper |
| Application of §4B1.5(b) five-level pattern-of-activity enhancement | Government: multiple separate occasions (including multi-state trips) satisfy pattern requirement; activity outside Missouri involved a minor | Wardlow: Sexual activity in Missouri with a 17-year-old was not criminal under Missouri law, so insufficient separate occasions of prohibited sexual conduct | Court: Affirmed enhancement — evidence showed at least two occasions of prohibited sexual conduct (including activity outside Missouri), so no clear error in applying §4B1.5(b) |
Key Cases Cited
- United States v. Papakee, 573 F.3d 569 (8th Cir.) (limitations on evidence must not be arbitrary or disproportionate)
- Michigan v. Lucas, 500 U.S. 145 (1991) (defendant’s right to present evidence is not absolute)
- United States v. Abad, 350 F.3d 793 (8th Cir.) (consent by a minor is not a defense)
- Gebardi v. United States, 287 U.S. 112 (1932) (statute covers cases where woman consents to transportation)
- United States v. Bordeaux, 400 F.3d 548 (8th Cir.) (exclusion appropriate when probative value minimal and risk of prejudice high)
- United States v. Wood, 670 F.3d 883 (8th Cir.) (standard of review for sentencing guideline interpretation)
- United States v. Spikes, 543 F.3d 1021 (8th Cir.) (errors in Guidelines calculation can require remand)
- Gall v. United States, 552 U.S. 38 (2007) (procedural and substantive review standards for sentencing)