UNITED STATES of America, Plaintiff-Appellee, v. Kevin Garcia FUERTES, a/k/a Kerlin Esquivel-Fuentes, a/k/a Flaco, Defendant-Appellant.
Nos. 13-4755, 13-4931
United States Court of Appeals, Fourth Circuit
Decided Aug. 18, 2015
801 F.3d 485
Argued May 13, 2015.
In short, I have no doubt the School District was well aware that firing Munroe for her blog posts and media tour would land it in constitutional hot water. More than enough evidence suggests that firing her on performance grounds was a pretext for its real reason-she had spoken out to friends on a blog, it became public, School District officials were upset and proposed her termination, they decided to wait, the once-sterling evaluations of Munroe immediately became negative, and she was fired. The bottom line: too many signs suggest this was all a set-up that a jury needs to sort out. I thus respectfully dissent.
United States of America, Plaintiff-Appellee, v. German De Jesus Ventura, a/k/a Chino, a/k/a Chalo, a/k/a Pancho, a/k/a Chaco, a/k/a Oscar, Defendant-Appellant.
Nos. 13-4755, 13-4931.
United States Court of Appeals, Fourth Circuit.
Argued May 13, 2015.
Decided Aug. 18, 2015.
Before KING and KEENAN, Circuit Judges, and DAVIS, Senior Circuit Judge.
No. 13-4755 affirmed; No. 13-4931 affirmed in part and vacated and remanded in part by published opinion. Senior Judge DAVIS wrote the opinion, in which Judge KING and Judge KEENAN joined.
DAVIS, Senior Circuit Judge:
These appeals arise from the prosecution of two members of an enterprise engaged in interstate prostitution. Following a two-week trial, a jury convicted Appellants Kevin Garcia Fuertes (“Fuertes“) and German de Jesus Ventura (“Ventura“) of conspiracy to commit, and commission of, a number of sex trafficking and related offenses. On appeal, Fuertes and Ventura make four assertions of error, two individually and two jointly, regarding evidentiary rulings, jury instructions, and the sufficiency of the evidence. For the reasons stated below, we affirm the Fuertes judgment in No. 13-4755. In Ventura‘s appeal, No. 13-4931, applying plain error review, we conclude that the conviction under
I.
A.
The trial evidence was amply sufficient to permit the jury to find the following facts.
By early 2008, Ventura was operating brothels in the Hispanic community in Annapolis, Maryland. Fuertes helped Ventura run the brothels, as well as advertise the prostitution business. To maintain control over the sex trade, Fuertes and Ventura threatened perceived competitors with violence. For example, in March 2008, Ventura told Alberto Hernandez Campos (“Campos“) about trouble he was having with another Annapolis-area pimp, Ricardo Humberto “el Pelon” Rivas Ramirez (“Ramirez“). Then, to emphasize the seriousness of the matter, Fuertes showed Campos a handgun.1
Following this encounter, on September 13, 2008, Ramirez was murdered. Investigators learned that Ramirez had received
On September 24, 2008, Fuertes was arrested following an unrelated traffic violation. When he provided booking information, Fuertes gave a phone number that matched the 5015 number from which Ramirez had received threatening phone calls. Fuertes was arrested again the next day, this time on an open warrant. At the time of this arrest, Fuertes had in his possession a cellular phone with the 5015 number, as well as business cards advertising prostitution services.
After his September 25 arrest, Fuertes consented to a search of his home in Annapolis, where officers found evidence that the residence was being used as a brothel. In the living room, investigators found a cellular phone, which an occupant of the house permitted them to examine. The contacts list contained the 1397 number from which Ramirez had received threatening calls. Police also located a physical address book, which listed two phone numbers for “Pancho“: the 1397 number, as well as another number ending in 0903. After obtaining a warrant, police learned that Ventura was listed as the subscriber for the phone number ending in 0903. Witnesses in the investigation eventually identified Ventura by the aliases/nicknames of “Pancho” and “Chino,” among others.
Suspecting that Ventura and Fuertes were responsible for Ramirez‘s murder, investigators continued to monitor their activities. Agents learned that Ventura operated brothels at several locations in Annapolis, as well as in Easton, Maryland and Portsmouth, Virginia. Ventura arranged for prostitutes to work in the brothels from Monday through Sunday. Typically, the women communicated with Ventura by phone, then traveled by bus to Washington, D.C., where they met Ventura, or one of his employees, and drove to the brothel where they worked for the week. The prostitutes provided fifteen minutes of sex for thirty dollars, and were paid half of the gross receipts, less expenses for food, hygiene products, and other expenses of the trade. One woman, Margarita Santiago Laona, testified that she spoke with Ventura by telephone while she was in New Jersey, and then traveled by bus to Washington, D.C., where he met her and took her to a nearby brothel.
Rebeca Duenas Franco (“Duenas“), another woman employed by Ventura, had a particularly violent history with him. On the one hand, he helped extricate her from the control of another pimp. He also had a relationship with Duenas-indeed, she believes he is the father of her son-and provided her with a place to live. On the other hand, Ventura compelled Duenas to engage in prostitution by violence and threats of violence, and held her against her will. Ventura reintroduced Duenas to prostitution by giving her a box of condoms, telling her to “go to work,” and beating her “several times” when she resisted. J.A. 1186. On one occasion, when Duenas refused to have sex with an African-American client, Ventura beat her with a belt. On another occasion, when Duenas refused to perform a sex act with an object, Ventura pushed her down onto rocky ground.2 Ventura also discharged a
At trial, Duenas testified that Ventura threatened competitor pimps, including Ramirez, and that she witnessed Ventura and Fuertes celebrating Ramirez‘s murder. Duenas also recounted an incident when Ventura assaulted a male employee who threatened to go to the police. During another incident, Ventura beat a prostitute who he believed had sent people to rob one of his brothels. According to Duenas, Fuertes was present when Ventura beat the prostitute, as well as at least one occasion when Ventura beat her.3
On March 25, 2009, police again arrested Fuertes at an apartment in Annapolis, and found evidence that the residence was being used as a brothel. During a protective sweep, police found Duenas and another woman hiding in a bedroom closet. Meanwhile, a search of Fuertes revealed $696 in cash, a wallet with miscellaneous papers, including a piece of paper listing the 0903 phone number associated with Ventura, and a cellphone. Following his 2009 arrest, Fuertes relocated to Virginia because he had been entered into deportation proceedings by the Department of Homeland Security.
On September 24, 2009, police arrested Ventura in Annapolis on an open warrant from the District of Columbia. A search of Ventura revealed $859 in cash and documents detailing how many customers each prostitute had serviced in the past week. Ventura also had his Maryland driver‘s license, a Mexican license that featured his picture but a different name, and two cellphones. Despite having two cell phones on his person, Ventura told the police that he did not have a phone number. He claimed that he had found one cell phone at the mall, and that he was borrowing the other from a taxicab driver whose name he did not know. A later search revealed that one of the phones had the 0903 number.
Months later, on February 17, 2010, Annapolis police responded to a 911 call for a possible robbery. The call came from a phone number which, police eventually learned, was the number Ventura used after his 2009 arrest. The police located the site of the robbery, which turned out to be another brothel operated by Ventura. Maximilliano Zelaya Repalo, a former employee of Ventura, testified at trial that he committed the robbery because he had not been paid for his work at the brothel.
In May 2010, police discovered that Ventura was operating another brothel in Easton. On July 7, 2010, they executed a search warrant at the brothel and arrested two individuals who were working there. Law enforcement continued its investigation, and on August 2, 2010, learned that Ventura was transporting a prostitute from Maryland to a brothel in Portsmouth.
Back in Annapolis, on November 3, 2010, several men believed to be operating at Ventura‘s behest seriously assaulted competitor-pimp Hector Fabian Avila. Law enforcement, therefore, decided to bring its investigation to a close, and on November 15, 2010, arrested Ventura in his home. Fuertes was also charged but was not arrested at that time.
On November 29, 2011, a federal grand jury returned a superseding indictment, charging Fuertes and Ventura with conspiracy to transport an individual in interstate commerce for the purpose of prostitution, in violation of
After the district court denied most of their pretrial motions, Fuertes and Ventura proceeded to trial. The jury found Ventura guilty of all counts and Fuertes guilty of Count One and that part of Count Six based on events occurring subsequent to December 24, 2008. It found Fuertes not guilty of Count Two. The district court denied Fuertes and Ventura‘s post-trial motions for judgment of acquittal or a new trial, and sentenced Ventura to 420 months’ imprisonment and Fuertes to 235 months’ imprisonment. These timely appeals followed.
II.
A.
Fuertes and Ventura contend that the district court erred in admitting evidence of violent acts and threats of violence against competitor pimps because: (1) such evidence was offered for no purpose other than to establish their bad character; (2) the evidence was not relevant, as it did not make it more likely that they actually committed the sex trafficking offenses for which they were charged; and (3) even if the evidence was relevant, its probative value was far outweighed by the danger of unfair prejudice. We disagree.
Applying the above standard, the district court did not abuse its discretion in admitting evidence of violent acts and threats of violence against competitor pimps. The evidence was relevant to
Central to Appellants’ assertion of error is their argument that evidence of their violent acts and threats was “unnecessary” to prove any element of the Count One conspiracy charge. This argument is misplaced. As explained by the district court, to find Fuertes and Ventura guilty of conspiracy, the jury had to find at least one overt act was committed in furtherance of the charged conspiracy. And among the overt acts charged in the superseding indictment were violent acts and threats of violence against competitors. In particular, Count One alleged that, as part of the conspiracy, Fuertes and Ventura “threatened to use and used violence against those also engaged in prostitution activities within Maryland.” J.A. 38-39. Count One further alleged that, as part of the conspiracy, Ventura “claimed responsibility for the murder of multiple competitor pimps in order to intimidate competitor pimps and his own employees and female prostitutes.” J.A. 39.
Finally, although the above-described evidence of violent acts and threats may have been highly incriminating, Fuertes and Ventura proffer no convincing reason why it was unreliable (and thus lacking in probative force) or unfair. In light of the substantial evidence that Fuertes and Ventura forced Duenas-a young woman illegally present in the country with no English skills and a third-grade education-into prostitution, there was no “genuine risk” that the jury would be excited to “irrational behavior” over threats of violence and acts of violence against less sympathetic competitor pimps. United States v. Hodge, 354 F.3d 305, 312 (4th Cir. 2004). The evidence of threats and acts of violence was no more “sensational or disturbing” than the sex trafficking crimes with which Fuertes and Ventura were charged. See Byers, 649 F.3d at 210 (“Generally speaking, ‘bad acts’ evidence, admissible under
Fuertes and Ventura argue that the district court erred in permitting Dr. Baker to testify because: (1) her training and experience were almost entirely with juveniles; and (2) she did not provide an expert opinion but instead simply attempted to bolster Duenas’ credibility concerning the source of the latter‘s injuries. They are incorrect.
- the expert‘s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
- the testimony is based on sufficient facts or data;
- the testimony is the product of reliable principles and methods; and
- the expert has reliably applied the principles and methods to the facts of the case.
Applying the above standard, the district court did not abuse its discretion in permitting Dr. Baker, who had ample knowledge, skill, experience, training, and education with regard to cutaneous findings of abuse, to testify as an expert. A physician for twenty-five years, Dr. Baker served as the director of the Baltimore Child Abuse Center, where she performed complete medical examinations and collected forensic evidence for alleged cases of child abuse in Baltimore City. Dr. Baker explained that, during a forensic examination, she focuses particularly on cutaneous findings (the most common type of child abuse findings), and that when she discovers an injury to the skin, she can draw certain conclusions about the possible source or cause of the injury. Dr. Baker further testified that she had examined more than 3,000 individuals where there was a concern of possible past injury, and trained pediatric residents, nurse examiners, and staff doctors on how to perform forensic examinations. Finally, Dr. Baker testified that she had been qualified to testify as an expert in over two dozen cases, including cases in the District of Maryland.
Fuertes and Ventura take issue with the fact that Dr. Baker‘s “experience was almost entirely with juveniles,” and that her “training and experience were not in the formation and treatment of adult scars.” Defs.’ Br. at 47. But, as explained by Dr. Baker, “[o]ther than the extreme,” such as “very old people [who] have fragile skin” and “very young children [who] are particularly prone [to] . . . things that can be mistaken for abuse,” there is no distinction between adults and children when it comes to cutaneous findings. J.A. 1388. In any event, Fuertes and Ventura‘s objection to Dr. Baker‘s training and experience goes to the weight, not the admissibility, of her testimony, and counsel had the opportunity to cross-examine her on these issues. See Kopf v. Skyrm, 993 F.2d 374, 377 (4th Cir. 1993) (“The witness’ qualifications to render an expert opinion are [] liberally judged by
Turning to Fuertes and Ventura‘s argument that Dr. Baker merely provided an opinion as to whether Duenas was telling the truth, this argument must be rejected. Dr. Baker neither opined on Duenas’ credibility, nor offered an opinion as to who caused her injuries. Cf. Scott v. Sears, Roebuck & Co., 789 F.2d 1052, 1054-56 (4th Cir. 1986) (determining that the district court erred in admitting expert testimony on “human factors“). Rather, Dr. Baker‘s testimony was offered to assist the jury in determining whether there were signs and markings that Duenas had been physically injured. While Dr. Baker‘s testimony tended to corroborate Duenas’ account of how she sustained her injuries (i.e., being hit with a belt or being pushed down onto rocky ground), the mere fact that expert testimony tends to corroborate the testimony of another witness is not grounds for exclusion; indeed, it is surely the case that most expert opinion evidence proffered by litigants is paired with lay evidence that is in some fashion supported by the expert opinion. E.g., United States v. Gonzales-Flores, 701 F.3d 112, 115 (4th Cir. 2012) (testimony of confidential informant in drug trafficking prosecution corroborated by forensic expert);
C.
Ventura asserts that the district court erred in denying his motion for judgment of acquittal with respect to Count Seven, possession and use of a firearm in relation to a crime of violence, in violation of
1.
As a preliminary matter, we must determine which standard of review applies. Ventura asserts that de novo review is appropriate in light of his general
The government, however, points out, correctly we think, that Ventura‘s objection is not about factual or evidentiary sufficiency; rather, his argument is a purely legal one. As explained by the government, Ventura takes issue with the district court‘s instruction to the jury regarding Count Seven-in particular, its instruction that sex trafficking by force, fraud, or coercion is categorically a crime of violence. And, because Ventura neither objected to the instruction nor argued that Count Seven is not categorically a crime of violence, his claim may be reviewed only for plain error. See, e.g., United States v. Tillery, 702 F.3d 170, 175 (4th Cir. 2012) (“Because [the defendant] did not object to the jury instructions at trial, we review the instructions for plain error.“).
The government‘s analysis is the correct one. Ventura‘s motion for judgment of acquittal, which dealt only with the sufficiency of the evidence, did not preserve a purely legal challenge to the jury instruction regarding Count Seven. Accordingly, to prevail on appeal, Ventura must show: (1) there was an error; (2) the error was “clear or obvious, rather than subject to reasonable dispute;” (3) “the error affected [his] substantial rights, which in the ordinary case means it affected the outcome of the district court proceedings;” and (4) “the error seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.” United States v. Marcus, 560 U.S. 258, 262 (2010) (internal quotation marks omitted).
2.
To sustain a conviction under
In determining whether an offense qualifies as a “crime of violence” under either clause, the court may (depending on the features of the applicable statute) employ the “categorical approach” or the “modified categorical approach.” “[T]he modified approach serves a limited function: It helps effectuate the categorical analysis when a divisible statute, listing potential offense elements in the alternative, renders opaque which element played a part in the defendant‘s conviction.” Descamps v. United States, 133 S. Ct. 2276, 2283 (2013). The categorical approach, by contrast, applies when the defendant was convicted of an offense under “an ‘indivisible’ statute-i.e., one not containing alternative elements.” Id. at 2281.
A statute is indivisible when “the jury need not agree on anything past the fact that the statute was violated.” Rendon v. Holder, 764 F.3d 1077, 1085 (9th Cir. 2014). “Any statutory phrase that-explicitly or implicitly-refers to multiple, alternative means of commission must still be regarded as indivisible if the jurors need not agree on which method of committing the offense the defendant used.” Id. Thus, “mere use of the disjunctive ‘or’ in the definition of a crime does not automatically render it divisible.” Omargharib v. Holder, 775 F.3d 192, 194 (4th Cir. 2014). “Only when [the] law requires that in order to convict the defendant the jury must unanimously agree that he committed a particular substantive offense contained within the disjunctively worded statute are we able to conclude that the statute contains alternative elements and not alternative means.” Rendon, 764 F.3d at 1086 (emphasis in original). Accordingly, although
Under the “categorical approach,” the court “look[s] only to the fact of conviction and the statutory definition of the [] offense.” James v. United States, 550 U.S. 192, 202 (2007), overruled on other grounds, Johnson v. United States, 135 S. Ct. 2551 (2015). The court does not consider the “particular facts disclosed by the record of conviction.” Id. (internal quotation marks omitted). “The point of the categorical inquiry is not to determine whether the defendant‘s conduct could support a conviction for a crime of violence, but to determine whether the defendant was in fact convicted of a crime that qualifies as a crime of violence.” United States v. Cabrera-Umanzor, 728 F.3d 347, 350 (4th Cir. 2013) (emphasis in original).
Applying the above test, we consider first whether sex trafficking by force, fraud, or coercion qualifies categorically as a crime of violence under the force clause,
Turning to the residual clause, the government suggests that sex trafficking is categorically a crime of violence under
The government nevertheless relies on United States v. Willoughby, 742 F.3d 229 (6th Cir. 2014), to argue that the risk of force need not come from the defendant. In Willoughby, the Sixth Circuit observed that:
the act of causing a minor to engage in prostitution-even when the defendant‘s act does itself not involve force-obviously does present a “serious potential risk of physical injury” to the victim. U.S.S.G. § 4B1.2(a)(2). There is the risk of physical injury from the sex act itself; the risk of violence from johns, many of whom . . . are addicted to drugs; and, not least, the risk of violence from the pimps themselves.
Id. at 242. But, unlike the present case, Willoughby involved the more expansive definition of a crime of violence found in U.S.S.G. § 4B1.2. See id. (explaining that, under U.S.S.G. § 4B1.2, a “crime of violence” includes “any felony that has as an element the use, attempted use, or threat-
In analyzing identical language to that contained in
Having determined that the district court erred, we next consider whether the error was clear or obvious. The government argues that any error could not have been clear or obvious because neither this Court nor the Supreme Court has determined whether sex trafficking qualifies as a crime of violence under
Likewise, the district court‘s error was plain as to the
Finally, we agree with Ventura that the district court‘s obvious error affected his substantial rights as well as the fairness, integrity, and public reputation of judicial proceedings. Ventura cannot be guilty of violating
D.
Fuertes argues that the district court erred in denying his motion for judgment of acquittal on Count Six, as there was insufficient evidence that he knew or recklessly disregarded that Duenas was coerced or forced to engage in commercial sex acts.8 We disagree.
As stated above, we review de novo a district court‘s denial of a motion
Here, a reasonable jury could have found that Fuertes knew or recklessly disregarded that Duenas was forced or coerced to commit commercial sex acts. As pointed out by the government, Fuertes does not dispute “the sufficiency of the evidence of his participation in the commercial sex enterprise with and on behalf of Ventura.” Gov‘t Br. at 43. Nor does he dispute that he was present at most, if not all, of the places where Duenas provided sexual services on behalf of Ventura. Rather, Fuertes disputes that he witnessed one occasion when Ventura beat her with a belt. Although Duenas indicated on direct examination that Fuertes was in the same house (but not necessarily the same room) when Ventura beat her with a belt, she clarified during redirect examination that Fuertes had in fact witnessed the beating. Taking the facts in the light most favorable to the government, a reasonable trier of fact could have found that Fuertes witnessed Ventura beating Duenas, and that the beating, combined with the level of Fuertes’ involvement in Ventura‘s prostitution business, constituted proof beyond a reasonable doubt that Fuertes knew or recklessly disregarded that Duenas was coerced or forced into prostitution. Accordingly, we affirm the district court‘s denial of Fuertes’ motion for judgment of acquittal on Count Six.
III.
For the reasons stated above, the judgment in No. 13-4755 is affirmed; the judgment in No. 13-4931 is affirmed in part and vacated and remanded in part.
No. 13-4755 AFFIRMED; No. 13-4931 AFFIRMED IN PART AND VACATED AND REMANDED IN PART WITH INSTRUCTIONS.
DAVIS
SENIOR CIRCUIT JUDGE