UNITED STATES of America, Plaintiff-Appellee v. Johnelle Lewis BELL, also known as Victorious P, also known as Bam, Defendant-Appellant.
No. 13-2641.
United States Court of Appeals, Eighth Circuit.
Submitted: April 16, 2014. Filed: Aug. 4, 2014.
Rehearing and Rehearing En Banc Denied Sept. 15, 2014.*
761 F.3d 900
Before SMITH, COLLOTON, and GRUENDER, Circuit Judges.
* Judge Kelly did not participate in the consideration or decision of this matter.
Finally, Axsom argues the district court should have granted his motion for new trial after his sister, a person with “extensive experience in the field of computers,” submitted what he characterizes as “new evidence” concerning the operation of Limewire and how it can lead to accidental downloading of child pornography. “We review the district court‘s denial of a motion for new trial based on newly discovered evidence for a clear abuse of discretion, a rigorous standard.” United States v. Stroud, 673 F.3d 854, 863 (8th Cir.2012) (quotation omitted). A defendant will not receive a new trial “unless the evidence weighs heavily enough against the verdict that a miscarriage of justice may have occurred.” United States v. Meeks, 742 F.3d 838, 840 (8th Cir.2014) (quotation omitted). To receive a new trial, Axsom must demonstrate “(1) the evidence was unknown or unavailable at the time of trial; (2) [he] was duly diligent in attempting to uncover the evidence; (3) the newly discovered evidence is material; and (4) the newly discovered evidence is such its emergence probably will result in an acquittal upon retrial.” Id. (citations omitted).
We agree with the district court Axsom did not meet the first requirement: none of the evidence Axsom describes as “newly discovered” was unknown or unavailable to the defense at the time of trial. During the hearing on the motion for new trial, Axsom‘s sister testified she provided 1500 pages of material to Axsom‘s first attorney prior to trial outlining how Limewire could lead to accidental downloads of child pornography. She further testified she provided information regarding Congressional hearings pertaining to Limewire to Axsom‘s second attorney before trial. These hearings were held over a year before Axsom‘s September 2010 indictment on these charges. Finally, pursuant to
The district court stated, “[W]hat I believe based on everything that I have seen and heard is that we‘re not confronting newly discovered evidence, that much of this was known at the time to the defense, that is to [Axsom‘s expert, attorney and sister], and what was unknown was not unavailable; that is, it was out there either on the internet or in the literature or in the computers and the computer materials that were in the case as evidence.” The district court did not abuse its discretion in concluding the proposed evidence was not “newly discovered” and denying Axsom‘s motion for new trial.
III. Conclusion
Based on the foregoing, we affirm.
B. John Burns, AFPD, argued and on the brief, Des Moines, IA, for appellant.
Stephen Patrick O‘Meara, AUSA, argued and on the brief, Council Bluffs, IA, for appellee.
A jury convicted Johnelle Lewis Bell of conspiracy to commit sex trafficking, sex trafficking, coercion and enticement to travel in interstate commerce for prostitution, conspiracy to engage in interstate transportation for prostitution, and interstate transportation for prostitution, after Bell coerced several women to travel interstate to perform commercial sex acts for Bell‘s pecuniary gain. On appeal, Bell challenges whether (1) sufficient evidence supported his convictions for conspiracy to commit sex trafficking, sex trafficking, and coercion and enticement to travel in interstate commerce for prostitution; (2) the district court1 erred in denying Bell‘s motion for new trial based on the weight of the evidence; (3) the district court erred in denying Bell‘s motion for new trial based on newly discovered evidence; (4) the dis
I. Background
An undercover informant with the Federal Bureau of Investigation (FBI) responded to a posting on the “Backpage” website that advertised prostitution services. The informant responded to the posting by making an appointment to meet the advertisement‘s subject, Jennifer Olewnik, at a hotel in Omaha, Nebraska. At the appointment, he and Olewnik negotiated for the informant to pay for a massage followed by oral sex. The FBI then raided the hotel room. Bell, a self-admitted “pimp,” was present during the raid along with Olewnik and another prostitute named Sabra Addison (“Sabra“). After the raid, Sabra was crying hysterically, shaking, and sitting in a fetal position.
Former prostitutes that Bell employed provided most of the government‘s evidence against Bell. Bell met Olewnik at a bar in Philadelphia, Pennsylvania, during the summer of 2010. Bell told Olewnik that he lived in New Jersey and that he was going through a divorce.2 The pair quickly formed an intimate relationship. The relationship paused briefly while Olewnik was hospitalized in a psychiatric facility. While there, Olewnik informed Bell of her admission and treatment. After Olewnik‘s discharge, she resumed her relationship with Bell. Olewnik testified that Bell then asked her if she would be interested in working for him as a prostitute. He promised her that she would never “have to work another 9:00 to 5:00 job again.” Despite this “business” proposition, Bell and Olewnik maintained their intimate relationship. Bell told Olewnik that he loved her. Bell assured Olewnik that they would have a stable environment that would allow Olewnik to obtain custody of her young daughter, who was living with Olewnik‘s mother. Bell assured Olewnik that they would be together for a long time, that they would have children, and that “he would make sure [she] had everything that [she] wanted and needed.” With these assurances, Olewnik agreed to work as a prostitute for Bell in November 2010. Bell acknowledges in his brief that “[i]n the months that followed, Olewnik traveled from state to state with Mr. Bell, along with other prostitutes and pimps, engaging in commercial sex acts and advertising mostly on the Backpage website.” Olewnik estimated that she made over $50,000 for Bell by performing commercial sex acts.
Bell and Olewnik traveled to several states pursuant to their arrangement, including Pennsylvania, New Jersey, Maryland, and South Carolina. Bell determined where they traveled and, more generally, made the decisions for the pair. Bell set rules for Olewnik. For example, “Bell told [Olewnik that she] would not be allowed to talk to any other pimps because that would be disrespectful to him.”
During these travels, Bell began to physically assault Olewnik. She testified that, while in transit from Maryland to South Carolina, Bell at one point “turned around and smacked [Olewnik] in the face” because she “said something smart.” Leaving South Carolina, the two traveled to Little Rock, Arkansas, which was “the home base” of Bell‘s prostitution operation. While in Little Rock, Olewnik objected to prostituting at truck stops. Bell told Olewnik that she “ha[d] no choice.” When she continued to object, “he made [Olew
While in Little Rock, Olewnik met a prostitute named Courtney Mayberry. Olewnik and Bell recruited Mayberry to join their enterprise rather than prostitute alone. Bell made promises to Mayberry similar to those that he had made to Olewnik. He promised Mayberry “[t]hat he would always make sure that [she was] safe and taken care of and had everything [she] needed and wanted.” Bell also promised Mayberry that “[w]hen everything was done, he just wanted to be with [her], all the other girls would be excluded, and that [she] wouldn‘t have to do [prostitution] anymore after it was all over.” Mayberry agreed and began performing commercial sex acts for Bell. During this time, Bell told Mayberry that he loved her and wrote her poetry expressing his love. Bell also informed Mayberry that he was not married. Finally, Bell instructed Mayberry not to look into the eyes or speak to another pimp. Mayberry testified that she and Bell traveled to various states pursuant to their arrangement.
Mayberry and Bell developed a sexual relationship within a few days of her recruitment. After Olewnik discovered Mayberry and Bell having sex, Olewnik confronted Bell. Bell slapped Olewnik in the face, pushed her into the motel bathroom, and choked her because she threatened to call police. While choking Olewnik, Bell “told [her] if [she] ever threatened him with the cops again that he was going to kill [her] and [her] family, especially [her] daughter.” Bell and Mayberry left, but Olewnik remained and performed commercial sex acts in the room for Bell. Olewnik testified that she still loved Bell at this time and wished that his promises to her would come true. After a few weeks apart from Bell, Olewnik contacted her mother to return home. But Olewnik refused her mother‘s conditions and decided to remain with Bell.
One month after recruiting Mayberry, Bell recruited another prostitute named Brittany Lawson. Bell and Lawson soon became intimate. Like Olewnik and Mayberry, Bell persuaded Lawson with assurances that she no longer needed “to worry about anything anymore, that [she] was going to be taken care of and he was going to be with [her], that he wanted someone like [her].” Bell explained that he could give Lawson “children, happiness, trust, loyalty.” Lawson testified that she did not realize initially that Bell recruited her to be a prostitute; rather, she thought Bell was proposing a typical relationship.
Upset with Bell over his new escapades with Lawson, Olewnik and Mayberry left Bell despite their continued affections for him. They took with them a camera and computer that Bell used to post online solicitations. Bell and Lawson searched for Olewnik and Mayberry but were unable to locate them. With two of his prostitutes gone, Bell convinced Lawson to prostitute for him. They traveled to several states pursuant to this arrangement. Bell also instructed Lawson not to make eye contact with other pimps or speak with them.
In the meantime, another prostitute named “Francesca” joined the group. She traveled to several states including Georgia, South Carolina, Alabama, and Louisiana to engage in commercial sex acts for Bell‘s benefit. She left with another pimp after about one month.
Approximately two months after Francesca departed, Olewnik returned to work
Bell also imposed conditions on Olewnik‘s return, requiring that she “had to work and that [she] had to stay off the drugs and that [she] had to be loyal and every penny that [she] got had to go to him and [she] couldn‘t keep anything from him.” Olewnik testified that she still had feelings for Bell. She also testified that she still believed that she and Bell would “end up together,” but “as long as [she] kept doing the disrespectful thing, not being loyal to him, there was no chance.” Around March 2011, Olewnik returned to Bell. Olewnik, Lawson, Francesca, and Bell traveled to various states to perform commercial sex acts. While in South Carolina, Lawson and Francesca left with another pimp; however, Lawson soon returned. Thus, Olewnik, Lawson, and Bell continued to travel to various states.
Olewnik recalls an incident where, after she had returned, Bell kicked and slapped her for falling asleep rather than working. The beating resulted in a large bruise along Olewnik‘s ribs as well as a large bruise on her face. She testified that Bell continued to slap her in the face occasionally up until his arrest. He also continued to threaten Olewnik, stating, “If [she] ever left him, he would kill [her] and [her] family. If [she] ever snitched—if [she] ever gave him up to the cops, same thing. If [she] ever lied, if [she] ever lied to him or if [she] ever kept money from him.” Olewnik explained that Bell informed her that he knew people who could carry out his threats against her, her family, and especially her daughter. Olewnik also knew that Bell carried a firearm.
Bell also required that Olewnik perform anal sex for money despite Olewnik‘s objection to the pain. She nonetheless complied “to make [Bell] happy” “[b]ecause as long as he was happy, [she] didn‘t get hit.” She also explained that she told Bell that she wanted to go home, but Bell denied her request, stating that Olewnik could go home if she gave him 30 days of “hard core working.” He never allowed her to leave. Lawson characterized Bell‘s treatment of Olewnik as being like one would treat a “dog.”
While working in Louisiana, Olewnik was arrested in a prostitution sting; however, she did not tell authorities about Bell because of his threatened retribution against her. Bell, Lawson, and Tiffany Addison (“Tiffany“) bonded Olewnik out of jail, picked her up, and drove to Hot Springs, Arkansas, where Tiffany lived. While in Hot Springs, Tiffany asked her sister, Sabra, if Sabra “wanted to go hang out with her home girl and her home girl‘s boyfriend.” Sabra agreed, and they all drove to Texarkana, Arkansas. Sabra had never met Bell before. While alone, Bell informed Sabra that he wanted her to work for him. She testified that Bell told
Bell refused to allow Sabra to return home. A few days later while in Fayetteville, Arkansas, Bell confiscated Sabra‘s phone “because nobody needed to have [her] phone number except for [customers].” Bell kept Sabra‘s phone and allowed Sabra to use it occasionally. While traveling, Bell informed Sabra, Lawson, and Olewnik
“that if [they] ever got caught by the police to not snitch on him because he would kill [them] and [their] families, and that if [they] ever ran to the police, he would kill [them], and that for every year ... that he was locked up, [they] would lose somebody in [their] family.”
Olewnik corroborated Bell‘s threats to Sabra by telling Sabra about the beatings that Bell had inflicted. Consequently, while in Iowa, Sabra performed commercial sex acts for Bell because she “would rather work for him than put [her] family in danger.” Sabra had never before been a prostitute.
About a week after Sabra joined the group, the Omaha bust occurred. Sabra explained that she was very scared for the safety of her family, causing her to cry and shake violently. Despite Bell‘s arrest, Olewnik and Mayberry continued attempts to contact him. Olewnik, Lawson, and Mayberry eventually reunited and continued to engage in prostitution and drug use. They even performed commercial sex acts for other pimps.
A grand jury indicted Bell on a variety of charges. Bell was charged with one count of conspiracy to commit sex trafficking, in violation of
A jury convicted Bell on all charges. The district court sentenced Bell to 360 months’ imprisonment on the conspiracy-to-commit-sex-trafficking count, 180 months’ imprisonment on each of the sex-trafficking counts, and 240 months’ on each of the coercion/enticement counts, all to be served concurrently. The district court denied Bell‘s motions for new trial.
II. Discussion
Bell challenges on appeal whether (1) sufficient evidence supports his convictions for conspiracy to commit sex trafficking, sex trafficking, and coercion and enticement to travel in interstate commerce for prostitution; (2) the district court erred in denying Bell‘s motion for new trial based on the weight of the evidence; (3) the district court erred in denying Bell‘s motion for new trial based on newly discovered evidence; (4) the district court properly overruled Bell‘s Federal Rule of Evidence 403 objections to trial testimony regarding the victims’ troubled pasts; and (5) Bell‘s 360-month prison sentence violates the Eighth Amendment.
A. Sufficiency of the Evidence
“We review de novo the sufficiency of the evidence to sustain a conviction, viewing the evidence in a light most favorable to the verdict and accepting all reasonable inferences supporting the verdict.” United States v. Colton, 742 F.3d 345, 348 (8th Cir.2014)
1. Conspiracy to Commit Sex Trafficking and Sex Trafficking
Bell challenges the sufficiency of the evidence supporting his conviction for conspiracy to commit sex trafficking and sex trafficking. Bell asserts that the government did not prove that he knew or recklessly disregarded that force, threats of force, fraud, and coercion would be used to cause the victims to commit commercial sex acts.
Federal law provides that “[w]hoever conspires with another to violate [
(a) Whoever knowingly—
(1) in or affecting interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States, recruits, entices, harbors, transports, provides, obtains, or maintains by any means a person; or
(2) benefits, financially or by receiving anything of value, from participation in a venture which has engaged in an act described in violation of paragraph (1),
knowing, or in reckless disregard of the fact, that means of force, threats of force, fraud, coercion described in subsection (e)(2), or any combination of such means will be used to cause the person to engage in a commercial sex act ... shall be punished....
any harm, whether physical or nonphysical, including psychological, financial, or reputational harm, that is sufficiently serious, under all the surrounding circumstances, to compel a reasonable person of the same background and in the same circumstances to perform or to continue performing commercial sexual activity in order to avoid incurring that harm.
Bell contends that “[t]he women who worked with [him] did not do so as a result of ‘force, threats of force, fraud, coercion,’ or any combination of such means.” Bell emphasizes that each of the victims, except Sabra, were prostitutes before meeting Bell.4 He thus implies that he could not be
Bell avers that the evidence showed that he never threatened any of these women to begin working for him; rather, they each agreed after he courted them. Bell also contends that the women were not threatened, forced, or coerced into continuing their services for Bell because they often left Bell and pleaded that he accept their return. In fact, two women—Mayberry and Francesca—left Bell and never returned. Also, Bell contends that the girls could have easily escaped if they truly felt endangered. For example, on the day of the FBI sting, Olewnik, Sabra, and Lawson traveled to a shopping mall without Bell. However, as the government correctly points out, Olewnik and Sabra were under threat of familial death if they attempted escape, and they each knew that Lawson might inform Bell because she was more allied with Bell than with the other girls.
Finally, Bell notes that each woman, except Sabra, continued to perform commercial sex acts after separating from Bell. Thus, Bell argues that they joined him willingly rather than from coercion or threats.
Bell also procured their services through deception. He consistently misrepresented his marital status. More significantly, Bell adopted a pattern of convincing these women that he loved them and would take care of them at the exclusion of all others. He convinced them that they would be financially secure, emotionally secure, and loved. In short, Bell preyed upon vulnerable women.
Finally, Bell coerced these women into performing commercial sex acts. He threatened both their physical and psychological well-being should they leave or implicate him to police. A reasonable person in this situation likely would have found his threats of harm credible, especially when Bell physically assaulted Olewnik, carried a weapon, and knew other pimps who could carry out his threats.
In his briefs, Bell seems to argue that the government had to prove that Bell physically abused the victims. He focuses on Jury Instruction 20, which the district court provided the jury at the government‘s suggestion. Jury Instruction 20 defined “force” as “any form of power, violence, or physical pressure directed against another person.” Bell contends that this definition of “force” required the government to prove physical violence against the victims, which Bell argues that the government failed to prove. Bell avers that Jury Instruction 20 became the law of the case. See United States v. Staples, 435 F.3d 860, 866 (8th Cir.2006)
We reject Bell‘s argument for three reasons. First, the evidence demonstrated that Bell did physically assault at least one of the victims in question—Olewnik. Olewnik testified that Bell assaulted her several times. Second, at least three women testified that Olewnik threatened to use force against them or their families, which
Bell also emphasizes that the victims here, except Sabra, were prostitutes previously and continued to be prostitutes after Bell‘s arrest. However, the evidence shows that, at least by the spring of 2011, these women did not want to be his prostitutes. Bell threatened Olewnik and Sabra that he would murder them or their families should they leave or implicate him to police. The prostitution histories of these women do not preclude a finding that Bell violated
Finally, even if we accepted the notion that prostitutes joined and departed of their own volition, the evidence at trial suggested otherwise as it related to Sabra. Sabra‘s unrefuted testimony demonstrated that Bell forced her to act as a prostitute for his pecuniary gain. He threatened to harm her and her two-year-old child. He confiscated her cell phone to isolate her from friends and family. FBI agents described Sabra as weeping, shaking, and curled into a fetal position after the Omaha raid, corroborating Sabra‘s testimony that she feared for her and her child‘s safety should law enforcement catch Bell.
The facts show that Bell intimidated these women to commit specific commercial sex acts. Bell physically assaulted at least one of the prostitutes, threatened the physical well-being of several others and their families, made false promises and statements to induce their compliance, and coerced them into committing these acts for his profit. Thus, we reject Bell‘s sufficiency argument as it relates to the conspiracy and sex-trafficking charges.
2. Coercion and Enticement
The coercion and enticement statute under which the jury convicted Bell provides that
[w]hoever knowingly persuades, induces, entices, or coerces any individual to travel in interstate or foreign commerce, or in any Territory or Possession of the United States, to engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense, or attempts to do so, shall be
fined under this title or imprisoned not more than 20 years, or both.
The jury had sufficient evidence to conclude that Bell coerced or enticed these women to become his prostitutes. See Part II.A.1., supra. Bell “enticed” these vulnerable victims by promising them bright futures consisting of money, children, security, and stability. He also “coerced” them by obtaining their services through force or threats.
We also hold that Bell failed to discuss adequately his challenge to the
B. Motion for New Trial Based on Weight of the Evidence
Bell contends that the district court erred by failing to grant his motion for new trial because the weight of the evidence favored him. We have explained that
[t]he decision to grant or deny a motion for a new trial based upon the weight of the evidence is within the sound discretion of the trial court. While the district court‘s discretion is quite broad—it can weigh the evidence, disbelieve witnesses, and grant a new trial even where there is substantial evidence to sustain the verdict—there are limits to it. Unless the district court ultimately determines that a miscarriage of justice will occur, the jury‘s verdict must be allowed to stand.
United States v. Campos, 306 F.3d 577, 579 (8th Cir.2002) (quotation and citations omitted).
The district court did not abuse its discretion in denying Bell‘s motion for new trial based on the weight of the evidence. See Part II.A.1., supra. Although the evidence revealed that, at certain times, the prostitutes may have remained with Bell on their own accord, the evidence still weighed heavily against Bell. For example, as the operation progressed, Bell assaulted at least one prostitute, threatened several others with death or death of loved ones, lied, and coerced these vulnerable women into becoming or remaining prostitutes for his financial gain. In order to avoid beatings or harm to their families, these women performed certain commercial sex acts
C. Motion for New Trial Based on Newly Discovered Evidence
Bell contends that the district court erred by denying his motion for new trial based on newly discovered evidence. Apparently, Bell located Tiffany, who did not testify, after trial. In his motion for new trial, Bell alleges that, if called upon, Tiffany would have testified at trial that
in June, 2011 she and her sister, Sabra Addison, were invited to Texarkana for a weekend of partying with Tiffany‘s friend, Brittany Lawson, and persons with whom Lawson was associated.... Sabra was aware before meeting up with them that they were involved in a prostitution operation. They were picked up and taken to a hotel, in which Sabra went into another room with Brittany Lawson and Jennifer Olewnik. They explained to her the nature of the operation. Tiffany Addison was pregnant at that time and was not involved in prostitution. The others, including Sabra, went out on calls. Sabra asked Tiffany to do her makeup and hair before she went, so that she looked her best. During this time, Sabra attempted to find a babysitter for her daughter so she could go out with the other girls on calls.
Bell avers that this testimony would have contradicted Sabra‘s testimony that Bell forced Sabra into prostitution. Bell contends that Tiffany‘s testimony would likely have changed the outcome of the trial.
“We review for clear abuse of discretion the district court‘s denial of [defendant‘s] motion for a new trial based on newly discovered evidence.” United States v. Herbst, 666 F.3d 504, 512 (8th Cir.2012) (citation omitted). To obtain a new trial on the basis of newly discovered evidence, we require the moving party to demonstrate that
(1) the evidence is in fact newly discovered since trial; (2) diligence on his part; (3) the evidence is not merely cumulative or impeaching; (4) the evidence is material to the issues involved; and (5) it is probable that the new evidence would produce an acquittal at the new trial.
United States v. Myers, 503 F.3d 676, 682-83 (8th Cir.2007) (citation omitted). The district court determined that Bell satisfied only element (4) and thus denied the motion.5
“The test for newly discovered evidence is whether the evidence could have been discovered earlier in the exercise of due diligence.” Meadows v. Delo, 99 F.3d 280, 282 (8th Cir.1996) (quotation and citation omitted). Even where an affidavit is not available until after trial, if the factual basis for the testimony in the affidavit existed before trial, then it is not newly discovered evidence. Id. In other words, ”
As for the moving party‘s exercise of diligence, the moving party must explain
Here, the district court correctly concluded that the factual basis for Tiffany‘s testimony existed before trial, so it constituted newly available evidence rather than newly discovered evidence. See Owen, 500 F.3d at 89. Furthermore, Bell never articulated facts that demonstrated that he was diligent in locating Tiffany. See Mosby, 12 F.3d at 138. Bell‘s inaction in locating Tiffany reflects dalliance more than diligence. See Lee, 312 Fed.Appx. at 846. The district court did not abuse its discretion in denying Bell‘s motion for new trial based on newly discovered evidence.
D. Rule 403
Bell contends that the district court allowed the government to introduce too many details regarding the personal lives of the victims, in violation of
“We accord great deference to the District Court‘s application of the Rule 403 balancing test, and we will reverse only if the Court committed a clear abuse of discretion.” United States v. Condon, 720 F.3d 748, 755 (8th Cir.2013) (quotation, alteration, and citation omitted). We will not substitute our judgment for the judgment of the district court unless the district court abused its discretion. Id.
Under
At trial, the government asked the victims about their troubled childhoods. For example, Olewnik testified over Bell‘s objection that she had a long psychiatric history that began when she was in third grade. She dropped out of school by ninth grade. She had a history of substance abuse involving crack, cocaine, marijuana, and alcohol. A 2011 psychiatric exam noted that her ex-boyfriend/pimp had physically, emotionally, and mentally abused her.
Mayberry testified that she was separated from her parents by age two and placed with her grandparents. Her grandparents mentally, physically, and verbally abused her. She was raped. She attempted suicide at 14 and was hospitalized as a result. She began abusing marijuana and cocaine by 14. She ran away from foster care at 16 and began living on the streets and prostituting.
Bell contends that the district court erred in overruling his objections to this evidence. We disagree. Victim vulnerability is relevant to whether a victim was coerced. See United States v. Kozminski, 487 U.S. 931, 952 (1988). In Kozminski, the Supreme Court defined “involuntary servitude” as “a condition of servitude in which the victim is forced to work for the defendant by the use or threat of physical restraint or physical injury, or by the use or threat of coercion through law or the legal process.” Id. The Kozminski Court explicitly stated that “the vulnerabilities of the victim are relevant in determining whether the physical or legal coercion or threats thereof could plausibly have compelled the victim to serve.” Id.; see also
The issue becomes how much of a victim‘s personal life and special vulnerabilities it takes to establish the point before it becomes unfairly prejudicial to the defendant. Bell argues that the government should not be able to introduce every detail about a victim‘s personal life, especially details unknown to the defendant. The basis of the victim‘s vulnerability in Kozminski was more apparent than here, for the Kozminski victims were two mentally retarded men. Id. at 934. Mental handicap is probably much more apparent than a victim‘s troubled past such that additional testimony may not be as helpful to the jury. Thus, the Kozminski Court did not address the amount of victim-vulnerability evidence that a district court may allow.
We nonetheless conclude that the district court did not err here. First, we accord district courts great deference in making
E. Eighth Amendment
Bell argues that his 360-month sentence violates the Eighth Amendment because of the “Congressional findings in
The Eighth Amendment prohibits the infliction of cruel and unusual punishment. We have “adopted Justice Kennedy‘s analysis in Harmelin7 to determine whether a sentence is ‘grossly disproportionate’ to a crime and thus violates the Eighth Amendment.” United States v. Wiest, 596 F.3d 906, 911 (8th Cir.2010) (citation omitted). The principle derived from Harmelin is “that the Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are grossly disproportionate to the crime.” Id. (quotation and citation omitted). “It is exceedingly rare for an offense that does not have a capital sentence to violate the Eighth Amendment.” Id. (citation omitted).
In comparing the sentence to sentences of related crimes, we have noted that “intra-jurisdictional and inter-jurisdictional analyses are appropriate only in the rare case in which a threshold comparison of the crime committed to the sentence imposed leads to an inference of gross disproportionality.” Id. (quotation, alteration, and citation omitted). At this threshold stage, we look to the “gravity of the crime, considering the harm caused or threatened to the victim or to society, and the culpability and degree of the defendant‘s involvement.” Id. at 911-12 (citation omitted).
To support his argument, Bell attempts to compare his conviction to a conviction for pandering under Iowa law, which carries a maximum five year sentence. See
However, as Wiest makes clear, Bell cannot make these “inter-jurisdictional” comparisons at the threshold stage. See Wiest, 596 F.3d at 911. At this stage, we consider the gravity of the crime and the defendant‘s role in it. The gravity of Bell‘s crime was substantial. Bell convinced these women to prostitute themselves, and when they desired to stop, Bell forced them to continue by assaulting them or threatening to harm them and their families. He was not merely “a pimp who travel[ed] across the Missouri River with three prostitutes.” The evidence showed otherwise. His associates were not always willing partners. The evidence showed that Bell organized the illicit enterprise, directing the victims where they would travel and where and when they
In further support of his argument that 360-month sentences for violations of the TVPA apply only to international traffickers, Bell emphasizes some of Congress‘s express findings in adopting the TVPA. For example, Bell acknowledges the finding that “[a]t least 700,000 persons annually, primarily women and children, are trafficked within or across international borders. Approximately 50,000 women and children are trafficked into the United States each year.”
However, several other findings indicate that Congress intended the TVPA to apply to defendants like Bell. First and foremost,
[t]raffickers primarily target women and girls, who are disproportionately affected by poverty, the lack of access to education, chronic unemployment, discrimination, and the lack of economic opportunities in countries of origin. Traffickers lure women and girls into their networks through false promises of decent working conditions at relatively good pay as nannies, maids, dancers, factory workers, restaurant workers, sales clerks, or models. Traffickers also buy children from poor families and sell them into prostitution or into various types of forced or bonded labor.
III. Conclusion
We therefore affirm the judgment of the district court.