United States v. Willie Mickey
897 F.3d 1173
| 9th Cir. | 2018Background
- Willie Dwayne Mickey, a pimp, was indicted on two counts of sex trafficking under 18 U.S.C. §§ 1591(a), (b)(1) for recruiting/maintaining K.I. and A.P., charged with knowing or recklessly disregarding that means of force, threats, fraud, coercion, or any combination would be used. The operative indictment omitted the statutory phrase "or any combination of such means."
- At trial the government presented extensive evidence (advertisements, phone/email links, testimony, physical assaults, control of prices/logistics, seizure of proceeds) that Mickey used violence, threats, coercion, and fraud in controlling victims; jury convicted on two counts.
- The Special Verdict Form and jury instructions listed each listed means separately (force; threats; fraud; coercion; any combination), asking the jury to answer five separate unanimity questions per count. The jury: for K.I. found only "any combination" unanimous; for A.P. found force, threats, coercion, and any combination.
- During deliberations the jury asked whether it must find all listed means or only at least one, and whether combinations could satisfy the element; the court answered that jurors need not unanimously agree on a particular means or particular combination so long as they unanimously find the element (i.e., at least one listed means or any combination).
- Mickey appealed, arguing (1) the court should have given a specific unanimity instruction identifying the precise means/combination for Count 1 and (2) that including "any combination of such means" in instructions and the verdict form constructively amended the indictment.
Issues
| Issue | Plaintiff's Argument (Mickey) | Defendant's Argument (United States) | Held |
|---|---|---|---|
| Whether district court erred by refusing to give a specific unanimity instruction identifying the particular means or combination for Count 1 | Needed specific unanimity because jury must agree on the exact means/combination used | Means listed in §1591 are alternative means, not separate elements; jury need not agree on which means | Court affirmed: no specific unanimity instruction required; means are not elements and jurors need not unanimously agree on a single factual means |
| Whether inclusion of phrase "or any combination of such means" in instructions and verdict form (omitted from indictment) constructively amended the indictment | Inclusion altered the charging terms and deprived grand-jury notice — plain error requiring reversal | Omission was a minor technical clerical divergence; indictment charged all four means conjunctively, so grand jury effectively foreclosed combinations; no prejudice | Court affirmed: no constructive amendment; not plain error |
| Whether jury confusion from subdivided special verdict form required remedial instruction or reversal | Subdividing created risk and could cause disagreement on means; required clarity/unanimity | Jury was correctly instructed on elements; jury’s note resolved doubt; defendant had notice and accepted instructions/forms | Court: government erred in form but error did not prejudice defendant; verdict stands |
| Standard of review for unanimity instruction request made after initial charge | Mickey argued preserved by timely request after jury question | Government argued forfeiture or reviewed only for plain error | Court applied abuse-of-discretion review (request made during deliberations) and found no abuse |
Key Cases Cited
- Schad v. Arizona, 501 U.S. 624 (explains jurors need not agree on a single means of commission)
- Richardson v. United States, 526 U.S. 813 (clarifies juries need not unanimously pick which means underlie an element)
- Mathis v. United States, 136 S. Ct. 2243 (distinguishes elements from means; threshold inquiry whether listed items are elements)
- United States v. Kim, 196 F.3d 1079 (9th Cir.) (discusses unanimity instruction and jury agreement on means)
- United States v. Davis, 854 F.3d 601 (9th Cir.) (example where jury instruction constructively amended indictment by changing mens rea)
- Apprendi v. New Jersey, 530 U.S. 466 (principle that distinct elements affecting punishment must be submitted to jury)