UNITED STATES OF AMERICA, Plaintiff - Appellee, v. CURTIS A. ANTHONY, Defendant - Appellant, THE HUMAN TRAFFICKING INSTITUTE, Amicus Curiae.
No. 18-6047
United States Court of Appeals, Tenth Circuit
October 31, 2019
PUBLISH
Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 5:15-CR-00126-C-5)
Dean Sanderford, Assistant Federal Public Defender, Denver, Colorado, for Defendant-Appellant.
K. McKenzie Anderson, Assistant United States Attorney, Oklahoma City, Oklahoma, for Plaintiff-Appellee.
Before MATHESON, EBEL, and PHILLIPS, Circuit Judges.
A jury convicted Curtis A. Anthony of child-sex trafficking and conspiracy to commit child-sex trafficking, in violation of
BACKGROUND
In May and June 2014, when R.W. was 14 years old, a pimp named William Johnson prostituted her in the Oklahoma City, Oklahoma area. William pleaded guilty in 2015 to a federal charge of sex trafficking a minor, was later sentenced to 30 years in prison, and was ordered to pay R.W. $900,000 in restitution. See Amended Judgment, United States v. Johnson, No. CR 14-0341-F (W.D. Okla. Jan. 13, 2016), ECF No. 83. In a victim-impact statement prepared for that case, R.W. reported that William had taken her virginity, had “beat the mess out of” her, and had “brainwashed” her “into practically being a slave.” ROA vol. 2 at 70. R.W. described the psychological еffects of this abuse, including her not “know[ing] how to act around people [her] age” and feeling “no worth whatsoever.” Id. at 71. R.W. also reported numerous symptoms of psychological trauma such as nightmares, fear for her safety, fear of being alone, fear of adults and strangers, anxiety, depression, anger, crying spells, and feelings of helplessness.
On October 8, 2014, after law-enforcement officers rescued R.W., and she had returned home, she received Facebook messages from another pimp, Maurice M. Johnson (no relation to William) and one of his adult prostitutes, Chelsee A. Griffin, offering to pick her up to “make money.” Id. vol. 3 at 345. After midnight on October 9, Maurice picked up R.W., photographed her, and had a longtime associate, Tonya Gay Gum, post the photos on websites advertising escort services. For a share of the escort revenue, Gum operated a “call center” with over twenty publicly listed phone numbers—all of which forwarded to two personаl cell phones—through which she fielded requests for sexual services and arranged for escorts to meet with customers. Id. at 38–39. After using these services to traffic R.W. for about two weeks, Maurice had her recruit her friend, 15-year-old M.M., to work as a prostitute. M.M. did so for about a week before law enforcement halted the operation. In their time with Maurice, R.W. and M.M. together brought in about $40,000 from prostitution.
On the evening of October 24, 2014, Anthony called one of Gum‘s escort lines. Anthony stated only that he was “looking for company” at his office. See id. at 254–55. Gum sent R.W. to the office, but when she arrived, Anthony couldn‘t locate his wallet, so he and R.W. drove to an ATM to withdraw cash for the transaction. But Anthony was unable to make a withdrawal without his wallet, so R.W. left with Maurice, who had followed them to the ATM along with M.M., Griffin, and two others. Minutes later, while the group was heading back, Anthony called again and asked for R.W. to return because he had located his wallet and now had cash. Maurice turned around and drove R.W. back to Anthony‘s office, this time sending M.M. in with her. Anthony paid the girls to strip
On October 27, 2014, law-enforcement officers, while running an undercover sting operation, located and rescued R.W. and M.M. Maurice had kept the girls in a hotel room where he forced them into commercial sex transactions. He and Gum split the proceeds. Maurice used psychological manipulation, threats of force, and physical abuse to control the girls. As R.W. later testified, Maurice had treated her “[l]ike a slave, basically.” Id. at 446. Griffin also testified that Maurice was a violent and dangerous man.
On June 16, 2015, a federal grand jury sitting in the Western District of Oklahoma indicted Anthony on child-sex-trafficking charges. On January 6, 2016, the grand jury returned a superseding indictment charging Anthony with: (i) child-sex trafficking, in violation of
as coconspirators Anthony and two оther adult customers—Trung N. Duong and William M. Baker, both of whom pleaded guilty—who had paid R.W. for sexual services. None of the three men knew each other. Gum—who had pleaded guilty to the original indictment—was named as an unindicted coconspirator. Maurice was prosecuted in a separate action. See United States v. Johnson, No. 14-CR-0342-C-1 (W.D. Okla. Aug. 6, 2019).
The superseding indictment alleged a conspiracy spanning the time that R.W. had spent with Maurice—from October 8 to 27, 2014. The conspiracy‘s charged objective was “to operate and perpetuate a prostitution enterprise that recruited, enticed,
prostitutes. The superseding indictment alleged as specific “acts in furtherance of the conspiracy” (i) Maurice‘s recruitment оf R.W. (but not M.M.); (ii) Maurice‘s making R.W. available to Gum as a prostitute; and (iii) Gum‘s arranging the commercial sex transactions for Duong, Baker, and Anthony. See id. at 67–70.
In mid-June 2017, Anthony went to trial. Both R.W. and M.M. testified as government witnesses, as did Maurice, Gum, and Duong. Gum testified that, in October 2014, she fielded over 10,000 calls on her escort phone lines scheduling commercial sex appointments. She testified about sending R.W. on four calls during the alleged conspiracy: once to Baker, twice to Duong, and once to Anthony. Maurice, meanwhile, testified that he would meet Gum five to six times on a normal workday to give her proceeds from completed appointments.4
After the close of the government‘s case-in-chief, Anthony orally moved for a general judgment of acquittal under Rule 29 of the Federal Rules of Criminal Procedure. The district court reserved decision until after the close of all the evidence, at which point it denied the motion for the substantive trafficking count. The next day, the court denied the motion for the conspiracy count. Anthony did not renew his Rule 29 motion at the end of trial.
On June 19, 2017, the jury returned a guilty verdict on both counts. On September 18, 2017, the government moved for restitution awards totaling $530,000 for R.W. and
$510,000 for M.M., including $300,000 each for a lifetime of psychological treatment, $200,000 each for a lifetime of lost income, and $30,000 for R.W. and $10,000 for M.M. for Maurice and Gum‘s ill-gotten gains. The government requested that the district court hold the coconspirators jointly and severally liable for the full amounts. See
The government submitted victim-impact statements to support its request for restitution. For R.W., it submitted her statement from William‘s case and a statement about psychological trauma resulting from the instant conspiracy. In the latter statement, R.W. expressed that she “look[s] at men very different” and is “scared that all men are like this.” ROA vol. 2 at 67. She further reported experiencing the same symptoms of psychological trauma that she had reported in William‘s case. For M.M., the government submitted a declaration from M.M.‘s
On October 24, 2017, the district court sentenced Anthony to the statutory mandatory-minimum term of ten years’ imprisonment, to be followed by five years’ supervised release. At the hearing, the court stated that, though it was “not entering an order of restitution at this time,” it intended to order “joint and several” restitution among the coconspirators. Id. vol. 3A at 56. Anthony waived his right to attend any future restitution hearing.
On December 11, 2017, in a one-page response to the government‘s restitution motion, Anthony argued that his “role in the conspiracy to which he was convicted was that he called an ‘escort’ line which sent R.W. and M.M., minors, to his home [sic] for sexual services without him knowing or having reason to know that they were minors.” Id. vol. 1 at 226. Anthony stressed that “[t]his was a one-time event.” Id. Beyond that, Anthony simply adopted Duong‘s response and surrеply. Duong‘s response first faulted the government for failing to disaggregate from the request for future therapy costs the psychological harm that William had caused R.W. long before the instant conspiracy had even begun. Addressing lost future income, Duong‘s response argued that the requested amount failed to account for R.W.‘s and M.M.‘s abilities to increase their earning potential by pursuing high-school or college degrees. And, finally, Duong‘s response argued that Maurice and Gum should be solely responsible to reimburse the victims for all money obtained by prostituting them. In his surreply, Duong argued that the court should apportion his restitution liability under
On February 21, 2018, the district court granted in part the government‘s motion for restitution. The court declined to order that Anthony pay restitution for lost future income, but it did require that he pay restitution for the estimated $40,000 that Maurice and Gum had earned from prostituting R.W. and M.M., and for the full cost of R.W.‘s and M.M.‘s anticipated future therapy expenses—totaling $327,013.50 and $308,233.50, respectively. The court held Anthоny, Gum, Duong, Baker, and Maurice jointly and severally liable for the full awards. This appeal followed.
ANALYSIS
Anthony raises two issues on appeal. First, he argues that the district court erred by ordering that he pay restitution for losses that R.W. had sustained while with William, months before the instant conspiracy. And second, he argues that the district court erred by ordering restitution for all the losses that R.W. and M.M. suffered during the charged three-week conspiracy, when at most he had joined a subset of that broad conspiracy by conspiring to obtain sexual services one time, on October 24, 2014. In short, Anthony argues that the district court erred by ordering restitution against him for losses beyond those he caused.
I. The Restitution Statutes
Courts may award restitution only as authorized by statute. United States v. Gordon, 480 F.3d 1205, 1210 (10th Cir. 2007). Here, the district court ordered that Anthony pay restitution to R.W. and M.M. under the Mandatory Victims Restitution Act (MVRA),
Restitution may be ordered only for losses actually resulting from the offense of conviction. United States v. West, 646 F.3d 745, 751 (10th Cir. 2011). So before ordering restitution, the district court must determine whether the victim‘s losses result from the offense of conviction. See United States v. Zander, 794 F.3d 1220, 1233 (10th Cir. 2015). The government bears the burden of proving the amount of loss by a preponderance of the evidence. United States v. Galloway, 509 F.3d 1246, 1253 (10th Cir. 2007). It “bears the same burden regarding the subordinate question of what harms are properly included in the loss calculation because they are ‘a result of the offense.‘” United States v. Wells, 873 F.3d 1241, 1265 (10th Cir. 2017) (quoting
What standard of causation applies, though, is a matter of some dispute. Anthony insists that both the MVRA and TVPRA limit restitution to losses directly resulting from the offense of conviction. But the government argues that the two statutes require a showing of only proximate causation.5 Our cases have resolved this issue for the MVRA but not for the TVPRA.
The MVRA provides that, for certain crimes,6 a court must order restitution for the “full amount” of the victim‘s losses.
standard“).
But our cases have not addressed the causation standard for restitution under the TVPRA. The TVPRA mandates restitution for “any offense under” Chapter 77 of the U.S. Code, which includes slavery and human-trafficking offenses.
Paroline involved a conviction for child-pornography possession under
The Court concluded that this “special context” warrants departing from a but-for test for restitution under
Relying on Paroline, the government insists that TVPRA restitution does not require but-for causation. But Paroline specifically concerned the application of
That does not mean, though, that
We see none. That the statute‘s text mentions only proximate causation does not mean it abrogates but-for causation. Even Paroline did not adopt such an interpretation; it found only that
Determining whether the TVPRA requires a showing of but-for causation is more than an academic exercise. The TVPRA authorizes restitution “[n]otwithstanding” the MVRA.
But-for and proximate causation are well-established concepts in the law. Wells, 873 F.3d at 1266. The but-for cause of an event is that “without which the event could not have occurred,” while the proximate cause is that which is “legally sufficient to result in liability.” United States v. Burkholder, 816 F.3d 607, 613 (10th Cir. 2016) (citations omitted). The “basic question” for proximate causation “is ‘whether the harm alleged has a sufficiently close connection to the conduct’ at issue.” Robers v. United States, 572 U.S. 639, 645 (2014) (quoting Lexmark Int‘l, Inc. v. Static Control Components, Inc., 572 U.S. 118, 133 (2014)). And this question “entails an inquiry into the foreseeability of the harm.” Wells, 873 F.3d at 1267. Where other causes have contributed to the harm, the inquiry focuses on “whether the defendant bears the risk of all the harm” or “whether the chain of causation was in effect broken by the intervening cause, resulting in less harm for which the defendant would be held liable in restitution.” Id. (citation omitted). An intervening cause that is “directly related to the defendant‘s offense” does not break the chain. Speakman, 594 F.3d at 1172.
II. Liability for Past Harm
Anthony argues that the district court‘s restitution order fails to disaggregate, and thus compensates, harms that R.W. sustained during her earlier, months-long exploitation by William Johnson. Anthony posits that “[t]he losses that William inflicted on R.W. were clearly not caused by the offenses in this case” because William‘s crimes were “distinct crimes, separate in time and in participants.” Appellant‘s Opening Br. 14–15. In short, Anthony argues that his conduct was not the but-for cause of all the harm that the restitution order compensates. We agree.
Months before the events in this case, William trafficked R.W. in Oklahoma City. R.W.‘s victim-impact statement in William‘s case described his abusive behavior and its long-term psychological damage to her. R.W. resubmitted that statement for consideration in this case, which we understand to mean that she still suffers the harms William‘s exploitation caused her. Separately, in a victim-impact statement written for this case, R.W. reported experienсing the same symptoms of psychological trauma that she had reported in William‘s case. It therefore appears that many of R.W.‘s harms predate Anthony‘s involvement and would exist regardless of his crimes.
The government, though, did not even try to disaggregate William‘s harms in its request for restitution. Instead, it submitted both victim-impact statements7 and relied on harms from each as indicia of R.W.‘s “psychological trauma . . . from being trafficked.” ROA vol. 2 at 47. It then requested almost $300,000 for a lifetime of psychological care to address these undifferentiated harms. To support this figure, it relied on calculations from its expert witness—certified physician‘s assistant Julie Bryant—which accounted for William‘s abuse. Rather than limit her analysis to the harms that R.W. sustained during the three weeks at issue in this case, Bryant considered R.W.‘s general “trauma . . . [as] a victim of sex trafficking when she was 14 years old,” id. at 81, as well as her “emotional damage” from “the last few years while being involved in the human trafficking ring,” id. at 84. In short, Bryant did not differentiate the psychological treatment needed to address the harms William caused versus the harms caused by the conduct charged in this case.
From this, the district court ordered restitution, including about $300,000 for R.W.‘s future psychological care. Consistent with the government‘s approach, the court did not differentiate the harms in this case from the harms that William had caused. Instead, the court found the harms described in R.W.‘s “Victim Impact Statements . . .
appropriate matters for consideration in determining the amount of restitution.” Id. at 215 (emphasis added). It also accepted Bryant‘s “valuation of the necessary psychological care for R.W.” as “well supported” by a preponderance of the evidence. Id. at 218. But the court did not identify what evidence of harm in this case supported the valuation. In fact, its only reference to harm in this case was to mention generally that R.W. “suffered harm as a result of the criminal activity in this case.” Id. at 215. This finding—unspecific to any defendant—does not establish
Tellingly, the district court recоgnized the “overlap” between the harms in this case and the harms that William had caused, but it declined to disaggregate those harms because “relevant law requires the Court to make the victims whole in this case.” Id. The law indeed seeks to make victims whole for their losses. United States v. Ferdman, 779 F.3d 1129, 1132 (10th Cir. 2015). But it intends to make them whole for losses that they incur only from the offense of conviction. A restitution amount that exceeds such losses and compensates other harms constitutes an “illegal sentence.” United States v. Griffith, 584 F.3d 1004, 1019 (10th Cir. 2009) (citation omitted). Simply put, the obligation to make victims whole does not obviate the need to limit restitution to losses resulting from the defendant‘s convicted conduct.
Nevertheless, the district court declined to limit the restitution amount absent evidence from Anthony that R.W.‘s previous award for $900,000 in William‘s case had “changed or altered the harm suffered in this case.” ROA vol. 2 at 215. In other words, the court faulted Anthony for not proving an entitlement to an offset. Cf. United States v. Serawop, 505 F.3d 1112, 1127 (10th Cir. 2007) (requiring the defendant who killed a three-month old girl to show any offsets to the total restitution losses he alone caused).8 But this presupposes a proper restitution amount to offset. The problem is that the ordered-restitution amount unlawfully compensates harms that Anthony did not cause. The government had the burden to prove what losses Anthony caused. See
On appeal, the government does not dispute that the restitution order accounts for losses that William caused R.W. Instead, it defends the order on grounds that, regardless of R.W.‘s previous abuse, “Anthony‘s offenses independently caused the losses for which she was awarded restitution.” Appellee‘s Br. 29. It then recounts R.W.‘s experiences with Maurice, insisting that the harms from those experiences justify the “full restitution”
award. Id. at 37. But when it originally moved for restitution, the government relied on harms identified in R.W.’s victim-impact statement from William’s case and on a valuation for future therapy that accounted for losses that William had inflicted. And the district court, by simply adopting the government’s valuation, factored in William’s abuse when it ordered restitution. On remand, the government must prove that
But the government disclaims any need to isolate Anthony’s share of the harm vis-à-vis William, arguing simply that Anthony need not have been “the sole cause of harm” for “entire liability” to attach. See id. at 32–33 (quoting In re Sealed Case, 702 F.3d 59, 66 (D.C. Cir. 2012)). The government relies on In re Sealed Case, a child-sex-trafficking case involving victims who had suffered psychological harms even before associating with the defendant. As here, the defendant argued that he should not have to pay for a lifetime of treatment, because he did not cause all the victims’ harm. The D.C. Circuit rеjected this argument, citing expert testimony that the defendant had been the “most significant cause” of the victims’ harm and that they would have needed identical treatment even if they had had “no previous trauma.” In re Sealed Case, 702 F.3d at 67. The court stressed that “entire liability for harm may be imposed . . . if two or more causes produce [a] single result and either one cause would be sufficient alone to produce [the] result or each cause is essential to [the] harm.” Id. at 66 (relying on United States v. Monzel, 641 F.3d 528, 538 (D.C. Cir. 2011)). Similarly here, the government argues, Anthony’s crimes were sufficient for R.W.’s trauma.
This out-of-circuit authority is triply inapposite. First, unlike the expert in In re Sealed Case, physician’s assistant Bryant did not conclude that R.W. would have needed identical treatment even if William had not already harmed her. Thus, on this record, it is not clear that Anthony’s harms were sufficient, apart from William’s harms, to require a lifetime of psychological treatment. Second, as explained above, the restitution statutes require that the defendant’s offenses were the but-for cause of the victim’s losses. In re Sealed Case’s suffiсient-causation test—a “rare” alternative to a “strict but-for” causation test, see Burrage, 571 U.S. at 214—is inconsistent with that requirement. And third, in any event, a sufficient-causation test would not apply on this case’s facts. As the Supreme Court explained in Burrage, the test ordinarily applies when “multiple sufficient causes independently, but concurrently, produce a result.” Id. at 214. Even had the government offered evidence that Anthony’s convicted conduct caused all of R.W.’s harms—and it did not—the sufficient-causation approach would fail, because his crimes postdated, rather than concurred with, William’s offenses.
We recognize the difficulty in setting a restitution amount in cases like this one, where the victim’s asserted losses overlap with similar harms that occurred before the events at issue. But a district court cannot “simply ‘rubber stamp’ a victim’s claim of loss” because it is difficult to
III. Liability for the Charged Conspiracy
Anthony’s second objection is that the restitution award improperly holds him accountable for all the losses that R.W. and M.M. sustained from the roughly three weeks and one week in October 2014, respectively, during which Maurice held them captive. The superseding indictment charged Anthony with conspiring with Maurice, Tonya Gum, and two other customers to operate a child-prostitution enterprise for those three weeks, and the jury convicted him of that charge. Anthony now claims a variance between the broad, charged conspiracy and the proof offered at trial. He argues that, though the evidence demonstrated Maurice’s and Gum’s participation in the broad, charged conspiracy, it proved only his involvement in a subset оf that conspiracy, i.e., a “much smaller conspiracy” with Gum to obtain R.W. and M.M. for a single sexual transaction.11 See Appellant’s Opening Br. 18. He argues that restitution should have been limited to losses resulting from that proved subset of the broad conspiracy.
Ordinarily, we consider the existence of a conspiracy variance in the context of an appeal from a conviction for the conspiracy charged in the indictment. See, e.g., United States v. Marquez, 898 F.3d 1036, 1043 (10th Cir. 2018); United States v. Fishman, 645 F.3d 1175, 1189 (10th Cir. 2011). In that context, we inquire (i) whether the evidence at trial suffices to sustain the jury’s finding that the defendant was a member of the single charged conspiracy; and (ii) if the evidence proves multiple conspiracies, whether the variance substantially prejudiced the defendant’s rights. See United States v. Carnagie, 533 F.3d 1231, 1237 (10th Cir. 2008). Prejudice exists if the defendant lacked sufficient notice of the need to defend against smaller conspiracies, or if the jury imputed to the defendant evidence of guilt offered against coconspirators who were involved in other conspiracies. United States v. Hill, 786 F.3d 1254, 1266 (10th Cir. 2015).
Here, though he argues that the evidence at trial failed to prove his involvement in the broad, charged conspiracy, Anthony admits that evidence of his
In this case, the district court did not instruct the jury that it could convict only if Anthony had conspired with all the alleged coconspirators to operate a child-prostitution enterprise for three weeks. Rather, it instructed the jury on the minimum facts necessary to convict, i.e., that “at least two individuals reached an agreement” at any time “between . . . October 8 . . . [and] 27, 2014,” to “engage in sex trafficking of a child.” See ROA vol. 3 at 563. Consistent with these instructions, the jury could convict on evidence proving only the supposed smaller conspiracy, i.e., that Anthony had agreed with Gum to arrange a single sexual transaction with R.W. and M.M. No prejudicial guilt-spillover effect was necessary to find Anthony guilty on this conspiracy. In its closing argument on the conspiracy count, the government focused solely on Anthony’s single transaction with Gum and not on any facts that might tie him to the broad, charged conspiracy. For example, it did not argue that Anthony had conspired with the other indicted customers. And for good reason—despite charging them as coconspirators, the government introduced no evidence that the customers even knew of each other.
Nevertheless, despite conceding the evidence’s sufficiency for his conviction, Anthony disputes its sufficiency for the restitution award. He contends that proof of the minimum facts necessary to convict on the broad, charged conspiracy isn’t sufficient to justify restitution for the entire conspiracy. Rather, he argues, the scope of his restitution liability should approximate the scope of the conspiracy proved at trial.
But Anthony failed to preserve this argument in the district court. Before his sentencing, the government moved for “full restitution” for all losses resulting from the three-week conspiracy charged in the indictment. ROA vol. 2 at 53. The government requested that the court hold the alleged conspirators jointly and severally liable for the award, and at the sentencing hearing, the court indicated that it would grant that request. Rather than file his own briefing, Anthony joined his codefendant Trung N. Duong’s response and surreply to the motion. Neither brief mentions Anthony’s trial, much less suggests a variance between the indictment and the proof offered at trial. In fact, Duong’s sole argument about “the conspiracy charged in this case,”
Anthony insists that he preserved this restitution, conspiracy-variance argument by moving at trial for a general judgment of acquittal under
Because Anthony forfeited his conspiracy-variance argument, we review it for plain error. See United States v. Cooper, 654 F.3d 1104, 1117 (10th Cir. 2011). We will reverse only if (i) there is an error; (ii) that is plain, i.e., “clear or obvious under current law”; (iii) “that affects substantial rights”; and (iv) that “seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Goode, 483 F.3d 676, 681 (10th Cir. 2007) (citation omitted).
Anthony argues that the district court erred by compensating losses beyond his proved conduct underlying his conspiracy conviction. We have long held that a defendant convicted оf a conspiracy offense is liable in restitution for all losses that proximately result from the conspiracy itself, including losses attributable to coconspirators. See, e.g., United States v. Osborne, 332 F.3d 1307, 1314 (10th Cir. 2003); United States v. Nichols, 169 F.3d 1255, 1278 (10th Cir. 1999); United States v. Brewer, 983 F.2d 181, 184–85 (10th Cir. 1993). And we have equated the conspiracy of conviction for restitution purposes with the “offense as outlined in the indictment.” United States v. Alisuretove, 788 F.3d 1247, 1258 (10th Cir. 2015). In those cases, though, the evidence offered at trial proved the defendant’s membership in the
So this leaves Anthony room to argue that the conspiracy proved at trial, not the broader conspiracy charged, determines the scope of his restitution liability. In effect, Anthony suggests that, for restitution purposes, the conspiracy of conviction must conform to the proof at trial rather than the scope of the indictment.
The threshold matter, of course, is whether the conspiracy proved at Anthony’s trial varied from the conspiracy charged in the superseding indictment. See United States v. Windrix, 405 F.3d 1146, 1153 (10th Cir. 2005). At a minimum, the evidence proved that for three weeks in October 2014, Maurice and Gum conspired to operate a prostitution enterprise, which included two prostituted minor females. Maurice and Gum played interdependent roles to ensure the success of the enterprise: Maurice recruited and controlled the girls, while Gum advertised the girls’ services and connected them with customers. The government offered no evidence, however, that Anthony ever joined this broad conspiracy. Instead, it proved that Anthony and Gum agreed to arrange a single commercial sex transaction with R.W. on October 24, 2014.
The main deficiency in proof concerns the second and third conspiracy elements, i.e., knowledge of the conspiracy’s objective and knowing participation in it. See United States v. Pickel, 863 F.3d 1240, 1252 (10th Cir. 2017) (noting the “overlap[]” between these elements). To demonstrate knowing participation, the evidence must “show that the defendant shared a common purpose or design with his alleged coconspirators.” United States v. Hamilton, 587 F.3d 1199, 1206 (10th Cir. 2009) (citation omitted). Though the defendant need not know “the existence or identity” of all conspirators or “the full extent of the conspiracy,” he must have a “general awareness of both the scope and the objective of the enterprise to be regarded as a coconspirator.” United States v. Evans, 970 F.2d 663, 669–70 (10th Cir. 1992) (citation omitted). The knowing requirement is subjective, so we “examine the conspiracy from th[e] defendant’s point of view.” Id. at 674.
Here, nothing suggests that Anthony shared his alleged coconspirators’ purpose to operate a child-prostitution enterprise throughout October 2014. From his perspective, Anthony sought to obtain R.W. and M.M. from Gum to have sex with on a single night. In fact, in its closing argument, the government described the “purpose of the agreement” from Anthony’s perspective as “having sex,” not as running a prostitution enterprise. See ROA vol. 3 at 573. The government now argues that Anthony knowingly provided money for the enterprise’s “continued operation” and for the “provision of R.W. and M.M. to others.” Appellee’s Br. 49. Yet nothing suggests that Anthony considered or was motivated by the enterprise’s viability or others’ ability to obtain escorts from it. True, he likely knew that paying for sex with the victims facilitated a broader enterprise. And action that “facilitate[s] the venture as a whole” tends to prove the interdependence element of a conspiracy. United States v. Acosta–Gallardo, 656 F.3d 1109, 1124 (10th Cir. 2011). But “[m]ere knowledge” that his actions furthered an illegal enterprise, even in conjunction with his participation in a small part of the enterprise, doesn’t by itself establish that Anthony “joined in the grand conspiracy.” See United States v. Ellis, 868 F.3d 1155, 1176 (10th Cir. 2017) (citation omitted); cf. Evans, 970 F.2d at 670 (noting that it would “pervert the concept of conspiracy” to treat a drug dealer as a member of a “vast conspiracy” with
We therefore conclude that a variance occurred between the indictment and the proof at trial. As explained above, the evidence for the smaller conspiraсy was sufficient to convict Anthony of the charged offense. But that doesn’t end the matter. In our view, where a variance occurs, and evidence for a smaller conspiracy proved at trial satisfies only the minimum facts necessary for the elements of the charged conspiracy offense, the smaller conspiracy constitutes the conspiracy of conviction for restitution purposes. To base restitution liability on a defendant’s having been a coconspirator in the broad, charged conspiracy, when the evidence offered at trial shows otherwise, would contravene the “bedrock principle that restitution should reflect the consequences of the defendant’s own conduct.” Paroline, 572 U.S. at 455.
The government emphasizes that the evidence at trial proved the existence of the “full conspiracy.” Appellee’s Br. 50. We agree, but the evidence failed to prove that Anthony was a coconspirator in it. The government adds that the district court properly “impose[d] joint liability on all defendants for loss caused by others participating in the scheme.” Id. at 45 (quoting United States v. Moeser, 758 F.3d 793, 797 (7th Cir. 2014)). Again, we agree on the permissibility of joint-restitution liability, but the “scheme” for which such liability can be ordered is the one proved at trial. The government, however, contends that the district court properly held Anthony liable for the charged conspiracy because it couldn’t “substitute its view of the evidence . . . for the jury’s verdict.” Id. at 50 (quoting United States v. Morgan, 635 F. App’x 423, 443 (10th Cir. 2015)). But the verdict did not include a finding that Anthony had joined the broad, charged conspiracy; it simply found him guilty of the conspiracy offense, based on proof satisfying only the minimum facts necessary for the offense. Regardless, conforming restitution liability to the proof does not disturb the jury’s verdict.
Because the district court erred by ordering restitution for the broad conspiracy, we must next determine whether the error is plain. Plain error exists if it is “‘clear or obvious’ under ‘current, well-settled law.’” United States v. Story, 635 F.3d 1241, 1248 (10th Cir. 2011) (quoting United States v. Whitney, 229 F.3d 1296, 1308–09 (10th Cir. 2000)). In general, this means that “either the Supreme Court or this court must have addressed the issue.” United States v. Ruiz–Gea, 340 F.3d 1181, 1187 (10th Cir. 2003).
Here, Anthony falters. He cites no Supreme Court or Tenth Circuit authority ruling as we have today—that restitution liability for a conspiracy with a non-fatal variance is measured by the scope of the smaller conspiracy proved at trial rather than the conspiracy charged in the indictment. It is a matter of first impression for us whether a defendant’s conviction for a smaller conspiracy limits his restitution liability. Thus, the district court’s error in using the broad, charged conspiracy to measure restitution in this case is not plain under “well-settled law.” See Story, 635 F.3d at 1248. And that leaves Anthony unable to meet the plain-error standard.
We vacate the district court’s restitution order and remand for a recalculation of restitution based on actual losses resulting from Anthony’s offenses of conviction.
Notes
To violate
At trial, the government presented no evidence that Anthony either knew or recklessly disregarded the victims’ minority status when he initially contacted Gum to arrange for an escort. During argument on a motion for acquittal, discussed infra, the district court noted the absence of such evidence and expressed skepticism that Anthony “had any involvement in a child sex trafficking conspiracy.” See ROA vol. 3 at 540–41. In response, the government asserted that R.W. and M.M. were in fact coconspirators, that Anthony had a reasonable opportunity to observe them when they arrived at his office, and that he entered the conspiracy when he agreed to pay them for sexual services. See id. at 540 (arguing that “there‘s no restriction on who a co-conspirator is“). Under that theory, the government would not have to prove that Anthony knew or recklessly disregarded R.W. and M.M.‘s minority status.
Anthony does not raise this issue on appeal, so we address it no further. But we note that, if R.W. and M.M. were indeed coconspirators—though the indictment contains no such allegation—the government offers no authority for awarding any restitution to them. It isn‘t clear that the restitution statutes would authorize such an award. See, e.g., United States v. Reifler, 446 F.3d 65, 127 (2d Cir. 2006) (holding that treating coconspirators as “victims” who are entitled to restitution from fellow perpetrators is a “fundamental” error that “adversely reflect[s] on the public reputation of judicial proceedings“).