UNITED STATES OF AMERICA, Plaintiff - Appellee, v. KENDALL DEMARKO WYSINGER, a/k/a Demarko, a/k/a D, Defendant - Appellant.
No. 20-4475
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
March 30, 2023
PUBLISHED
Appeal from the United States District Court for the Western District of Virginia, at Harrisonburg. Elizabeth Kay Dillon, District Judge. (5:17-cr-00022-EKD-JCH-1)
Argued: December 8, 2021 Decided: March 30, 2023
Before HARRIS and RUSHING, Circuit Judges, and KEENAN, Senior Circuit Judge.
Affirmed by published opinion. Judge Rushing wrote the opinion, in which Judge Harris and Senior Judge Keenan joined.
ARGUED: Paul Graham Beers, GLENN, FELDMAN, DARBY & GOODLATTE, Roanoke, Virginia, for Appellant. Laura Day Rottenborn, OFFICE OF THE UNITED STATES ATTORNEY, Roanoke, Virginia, for Appellee. ON BRIEF: Daniel P. Bubar, Acting United States Attorney, Roanoke, Virginia, Jennifer R. Bockhorst, Assistant United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Abingdon, Virginia, for Appellee.
Defendant Kendall Demarko Wysinger and his partner Leslee Garza conspired to ensnare drug-addicted women in debt-cycle sex trafficking. Wysinger would give the women heroin and cocaine they could not afford and then insist they repay their debt by prostituting themselves for his benefit throughout Virginia, West Virginia, and Maryland. On March 23, 2016, Wysinger provided fentanyl to two women who overdosed. Wysinger left the women for dead and destroyed the evidence. One of the women died, but the other survived and testified against him.
A jury convicted Wysinger of (1) conspiracy to commit sex-trafficking, in violation of
Wysinger now appeals his convictions and sentence. We affirm in full.
I.
Wysinger first challenges his Count 1 conviction for conspiracy to violate
A.
We review the sufficiency of the evidence de novo, sustaining the verdict if, “viewing the evidence in the light most favorable to the Government, it is supported by substantial evidence.” United States v. Alerre, 430 F.3d 681, 693 (4th Cir. 2005) (internal quotation marks omitted). The jury, not the reviewing court, weighs credibility and resolves conflicts in the evidence; and “if the evidence supports different, reasonable interpretations, the jury decides which interpretation to believe.” United States v. Beidler, 110 F.3d 1064, 1067 (4th Cir. 1997) (internal quotation marks omitted). A defendant bringing a sufficiency challenge therefore bears “a heavy burden,” and reversal is warranted only “where the prosecution‘s failure is clear.” United States v. Engle, 676 F.3d 405, 419 (4th Cir. 2012) (internal quotation marks and citation omitted).
As relevant here,
1.
Wysinger first contends the Government did not prove that he used or conspired to use coercive means to cause his victims to prostitute themselves. The statute defines “coercion” to include “threats of serious harm to or physical restraint against any person” and “any scheme, plan, or pattern intended to cause a person to believe that failure to perform an act would result in serious harm to or physical restraint against any person.”
The Government‘s theory was that Wysinger intended—and in at least one case succeeded—to recruit women with drug addictions by fronting them drugs and then, once they began working for him, to keep the money they made from prostitution and give the women more drugs only when they earned him more money. In support, the Government presented testimony from 23 witnesses, including two victims, law enforcement officers, associates
Wysinger does not dispute that manipulating vulnerable women by exploiting their drug addictions in exchange for prostitution services can be coercion within the meaning of Section 1591 or, put another way, that the Government‘s theory is a permissible one. See, e.g., United States v. Mack, 808 F.3d 1074, 1078, 1081–1082 (6th Cir. 2015) (upholding conviction for sex trafficking where defendant “recruit[ed] young female addicts” and exploited their addictions to coerce them “to prostitute themselves for his benefit“); United States v. Fields, 625 Fed. Appx. 949, 952 (11th Cir. 2015) (upholding sex-trafficking conviction where defendant coerced his victims to engage in commercial sex acts by “causing them to experience withdrawal sickness if they did not engage in prostitution“). Nor does he contest that withdrawal symptoms can be “serious harm” within the statute‘s broad definition of that term. Instead, Wysinger argues his conduct was not as egregious as that of defendants in other cases and that, in any event, the evidence simply did not prove the Government‘s theory. He claims that his relationship with the victims was “voluntary and collaborative,” highlighting evidence that he was not violent with the women, that they had previously engaged in prostitution and were addicted when he met them, that he did not prevent them from buying drugs elsewhere, and that one of the women moved in and out of his house freely.
Considering the evidence in the light most favorable to the Government, as we must, we conclude that it supports the jury‘s finding that Wysinger intended to use coercion. For example, victim M.J. testified that Wysinger and Garza exploited her as a prostitute. She lived in the house shared by Wysinger and Garza for about a year, performing commercial sex acts there and conducting “outcalls” elsewhere. During the same year, victim C.S.S. also lived in the house and worked as a prostitute for Wysinger.2 M.J. testified that on their very first day in Wysinger‘s house, he gave the women heroin and then posted advertisements for them on a prostitution website because they “owed him money” for the heroin they had consumed. J.A. 177. The women performed, and the cycle continued. Wysinger and Garza told M.J. she was indebted to them for Wysinger driving her to outcalls and for drugs. Wysinger took “[p]retty much all” of the money M.J. made, J.A. 211, and supplied her with daily rations of drugs. M.J. testified that Wysinger got angry at her when she “owed him money and . . . didn‘t want to work” or “was dope sick and . . . felt like [she] couldn‘t go work.” J.A. 184.
Victim S.F. also testified. At first, Wysinger gave S.F. drugs in exchange for sex. Once S.F. was receiving drugs from Wysinger every day, he required her to prostitute for him in Ocean City. S.F. testified that she only went with Wysinger because he threatened to stop supplying her drugs if she refused. Because Wysinger
advertisements for her online, and drove her to outcalls until they were arrested in an undercover law enforcement operation. S.F. testified that during this trip, Wysinger supplied her with drugs only as much as she prostituted for him. This testimony, and other consistent evidence, supports the jury‘s finding that Wysinger intended to coerce his victims into prostitution by exploiting their drug dependencies, even if he did not fully accomplish his scheme before his arrest.
Wysinger‘s arguments largely ask us to reweigh the facts, which we cannot do. See United States v. Maynes, 880 F.3d 110, 114 (4th Cir. 2018). For example, he claims that this case is not like Mack because the defendant there provided “free” drugs to his victims, only to later claim the drugs were not free and that the women owed a large debt. But whatever factual distinctions exist between this case and Mack make no difference. M.J. testified that Wysinger “fronted” her drugs and then posted her on a prostitution website to pay for them. J.A. 174–175. Although “fronting” drugs and falsely providing them for free may not be exactly the same, the underlying coercion is identical. Like the defendant in Mack, Wysinger intended to exploit the addictions of vulnerable women for his own profit by using seemingly easy access to drugs to create a cycle of debt and dependence. Wysinger also argues he cannot be guilty of using coercion because his victims purchased heroin from other dealers while involved with him. But that is not universally true. M.J., for example, retained almost none of her earnings and thus remained dependent on Wysinger. And even if some of Wysinger‘s victims were not dependent on him at all times, that would merely show that his plot did not always succeed. It would not absolve him of guilt for concocting and attempting the scheme.
As for Wysinger‘s repeated argument that he was not violent with the women, the statute plainly condemns “means of . . . coercion” separate from and in addition to “means of force [and] threats of force.”
2.
Next, Wysinger argues that even if he harbored coercive intent, the evidence does not show that his alleged co-conspirator Garza shared his intent. A basic requirement of the conspiracy offense is proof “that two or more people agreed to commit” the crime—here, sex trafficking by force, fraud, or coercion. Smith v. United States, 568 U.S. 106, 110 (2013). If Garza lacked criminal intent, there could be no agreement to commit the crime.
Contrary to Wysinger‘s contention, a reasonable jury could conclude that Garza knew of and intended to participate in Wysinger‘s illegal scheme. Garza—the mother of Wysinger‘s child—was not available to testify at trial because she died from a fentanyl overdose allegedly supplied by Wysinger. Nevertheless, the evidence showed that she lived in the same house with Wysinger and some of his victims, who engaged in commercial sex there. M.J. testified that she and C.S.S. worked for Wysinger seven days a week;
While this evidence may not compel the conclusion that Garza conspired with Wysinger, it suffices to support the jury‘s finding that Garza understood the nature of their undertaking and agreed to participate. As the jury was instructed (and Wysinger does not dispute), an agreement may be inferred from indirect and circumstantial evidence. A “rational trier of fact,” viewing the evidence and all inferences drawn therefrom in the light most favorable to the Government, “could have agreed with the jury” that Garza and Wysinger conspired to coerce the victims into prostitution. Maynes, 880 F.3d at 114 (quoting Coleman v. Johnson, 566 U.S. 650, 651 (2012) (per curiam)). We therefore cannot set aside the jury‘s verdict on this ground. Id.
B.
Wysinger also challenges the district court‘s instruction to the jury on the knowledge element of the
Wysinger is incorrect. The indictment charged him with conspiring “to recruit, entice, harbor, transport, provide, obtain, and maintain” the victims, and the jury was so instructed. J.A. 20, 1133. The charge did not include advertising, which would have required that he act with knowledge that coercion would be used. The indictment and instructions mentioned the word “advertising” in one of five overt acts alleged to support the charge, using the term to describe the website where Wysinger solicited customers to engage in sex acts with his victims, not to describe the charge‘s statutory basis. Consistent with the indictment, the instructions did not authorize the jury to convict Wysinger on Count 1 by finding that he conspired to advertise the victims. The district court therefore correctly instructed the jury that it could convict Wysinger on Count 1 upon finding that he acted with knowledge or
II.
Wysinger next challenges his convictions on Counts 3 and 4 for distributing, or possessing with intent to distribute, fentanyl resulting in serious bodily injury or death. See
We may quickly dispense with the duplicity argument, which in truth stems from the indictment rather than the jury instructions. Wysinger complains that Counts 3 and 4 each charged both distribution of fentanyl and possession with intent to distribute fentanyl, which he claims is duplicitous. The jury instructions accurately reflected the indictment. Federal Rule of Criminal Procedure 12(b)(3)(B)(i) requires a defendant to raise a duplicity objection to the indictment before trial, which Wysinger failed to do. And although a court may consider an untimely duplicity objection upon a showing of “good cause,” Fed. R. Crim. P. 12(c)(3), Wysinger has not attempted to make such a showing. We therefore decline to address his forfeited argument. See United States v. King, 628 F.3d 693, 699 (4th Cir. 2011).
As for the statutory elements, we review de novo Wysinger‘s claim that the jury instructions incorrectly stated the law. See United States v. Mouzone, 687 F.3d 207, 217 (4th Cir. 2012).
For you to find the defendant guilty, the government must prove each of the following beyond a reasonable doubt:
First, that the defendant distributed a controlled substance, namely, fentanyl;
Second, that the defendant knew that the substance distributed was a controlled substance under the law at the time of the distribution, and;
Third, that the defendant did so knowingly or intentionally.
Or: First, that the defendant possessed a detectable amount of controlled substance alleged in the indictment;
Second, that the defendant knew that the substance possessed was a controlled substance under the law at the time of the possession; and
Third, that the defendant did so with the intent to distribute the controlled substance.
On each of these two counts, Count 3 and Count 4, if you find beyond a reasonable doubt that the government has established each of these elements, then you must determine whether death or serious bodily injury resulted from the use of the controlled substance by the alleged individual. This standard is satisfied if you find beyond a reasonable doubt that but for the individual ingesting the fentanyl, the individual would not have suffered a serious bodily injury or died.
J.A. 1144–1145. Wysinger claims that this instruction misapplied the statute because it allowed the jury to convict on a finding of possession with intent to distribute, even if Wysinger did not distribute fentanyl to the victims. According to Wysinger, Section 841‘s increased penalty when death or serious bodily injury results can apply only to defendants who actually distribute the drug to the victim.
III.
Wysinger‘s convictions on Counts 3 and 4 subjected him to mandatory life sentences because the district court found that he had “a prior conviction for a felony drug offense.”
A “felony drug offense” is “an offense that is punishable by imprisonment for more than one year under any law of the United States or of a State or foreign country that prohibits or restricts conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances.”
We find the answer in the statute‘s text.
The parties miss the mark with arguments that turn on the meaning of “controlled substance,” a term that appears nowhere in the definition of “felony drug offense.” Wysinger would have us incorporate the federal drug schedules, see
The Government, for its part, argues that our decision in United States v. Ward, 972 F.3d 364 (4th Cir. 2020), compels us to define the drug categories in Section 802(44) by reference to state law. But in Ward, we interpreted the Sentencing Guidelines’ career-offender enhancement, which in relevant part defines a “controlled substance offense” as “an offense under federal or state law . . . that prohibits [certain conduct with respect to] a controlled substance.” U.S.S.G. § 4B1.2(b) (emphasis added). As we explained, a “controlled substance” is “any type of drug . . . regulated by law,” and the text of the Guideline made clear that state regulation of the drug sufficed. Ward, 972 F.3d at 371–372 (internal quotation marks and emphases omitted).
refer to “controlled substances” but instead restricts the universe of relevant regulated drugs to four categories: “narcotic drugs, marihuana, anabolic steroids, [and] depressant or stimulant substances.” Although the Government urges us to consult state law, it does not identify any state law actually defining these categories to guide our inquiry. Yet Congress precisely defined these terms in the same statutory section. We will apply those definitions.
Having ascertained the criteria of a “felony drug offense” in
Wysinger does not contest that his Virginia offense was “punishable by imprisonment for more than one year.”
Wysinger does contest whether his Virginia offense was under a state law that prohibits or restricts conduct relating to narcotic drugs, marihuana, anabolic steroids, or depressant or stimulant substances.”
When Wysinger was convicted, Virginia Schedule I, broadly speaking, included opiates, opium derivatives, certain hallucinogenic substances, certain depressants, and certain stimulants.
Wysinger first argues that we found Section 18.2-248 overbroad in Cucalon and that conclusion applies here. In Cucalon, however, we compared all the Virginia controlled substance schedules to all the federal schedules and concluded that the Virginia schedules include “at least one substance not listed on the federal schedules.” 958 F.3d at 251. But that is not our inquiry here. Rather, we are comparing Virginia Schedules I and II with the
Second, Wysinger zeroes in on purported variations between federal and Virginia law concerning isomers of cocaine.5 Virginia‘s Schedule II includes “cocaine or any salt or isomer thereof.”
985 F.3d 377, 387 (4th Cir. 2021) (“‘An error is “plain” if it is “clear or obvious, rather than subject to reasonable dispute.“‘” (quoting Puckett v. United States, 556 U.S. 129, 135 (2009))). Even assuming that positional isomers of cocaine exist in the drug trade—a debatable proposition—Wysinger offers no support for reading “any . . . isomer” in Virginia law to include positional isomers of cocaine.6 The only reference to positional isomers in Schedule I or II is in reference to certain hallucinogenic substances. See
IV.
Finally, Wysinger contests application of the career-offender sentencing enhancement. See U.S.S.G. § 4B1.1. We need not address the merits of his argument because, even assuming error, the enhancement had no effect on his sentence.
“A sentencing error is harmless if the resulting sentence was not longer than that to which the defendant would otherwise be subject.” See United States v. Hargrove, 701 F.3d 156, 161 (4th Cir. 2012) (internal quotation marks and brackets omitted). In performing harmless-error review, we may “assume that a sentencing error occurred and proceed to examine whether the error affected the sentence imposed.” Id.
There is no doubt that the district court would have sentenced Wysinger to life imprisonment even without the career-offender enhancement and that such a sentence would be reasonable. See id. at 162. As previously discussed, Wysinger‘s convictions on Counts 3 and 4 subjected him to statutorily required life sentences. And his Guidelines sentence, even without the career-offender designation, was imprisonment for life. Any error in applying the career-offender enhancement was harmless.
AFFIRMED