A jury сonvicted McKenzie Carson of four counts of violating. the federal sex trafficking statute. Three of those counts alleged that Carson engaged in sex trafficking with knowledge that the victims were forced, threatened or coerced. The other count alleged 'that Carson was involved in the sex trafficking of a person under the. age of eighteen. He asks this court to reverse his conviction and remand for a new trial, claiming that he was prevented from eliciting relevant testimony from his victims, that he was precluded from effectively cross examining a key witness, that the district court errantly admitted evidence of uncharged “bad acts,” and that- he was prejudiced by incorrectly worded jury instructions. We find no reversible error and thus affirm the decision of the district court.
I.
Toward the end of 2009, Kaitlin Fratto’s neighbor, Christopher Richardson asked her if she would be interested in working in an escort business run by his acquaintance, McKenzie Carson; Fratto, although only seventeen years old, was in need of money and expressed interest in the job. Richardson. brokered a meeting, but not before telling Cаrson that Fratto. was seventeen, as he worried that both of them could get “into potentially a lot. of trouble” if Fratto worked as an escort while a minor. Tr. 12/2/13 at 165 (R. 161, pagelD 1495). Richardson drove Fratto to a Motel 6 in Joliet to meet Carson, reminding him again that Fratto was. seventeen. Despite the warning, Carson, asked Fratto to remove her clothing, took her to the bathroom and raped her, threatening to kill her if she told anyone. After the rape, another woman, Katie Smego arrived, and the four left for another hotel where Carson took provocative photographs of Fratto and Smego, including some in which the two were naked. Carson used the photographs to p,ost advertisements for prostitution services on the website Backpage.com.
In the two day period after Carson posted the advertisements, Carson arranged one commercial sex transaction for Fratto and two for Smego.' He also arranged to have another man take more photographs of Fratto for additional advertisements on Backpage.com. As the photographs were being taken, Richardson reminded Carson that Fratto was only seventeen. After the photo session, Richardson drove Fratto to and from three or four more commercial sex transactions that night. Carson directed Richardson where to deliver the money Fratto earned, but when Richardson insisted that some of the money was his, a heated'argument, ensued in which Carson told Richardson, that if Richardson did not bring both Fratto and the money back to
Eventually Fratto agreed to, continue working for Carson, during which time she traded sex for money three or four times a day. During the time Carson was trafficking Fratto, he flattered her' by telling her she was “his top notch bitch,” that she was pretty, and would get rich modeling. Tr. 12/3/13 at 410-11 (R. 162, pageID 1740-41). He also tried to isolate Fratto from her mother, took her bаttery out of her phone and told her “he didn’t- want [her] talking to nobody, and he didn’t want nobody to know where [she] was.” Id. at 403 (R. 162, pageID 1733).
Fratto testified 'that she told Carson that she was seventeen and even showed him her identification card. In response, she testified that he said, “it was alright, that [they] would just have’to keep it under the radar until [she] turned 18.” Id.
Unlike Fratto, the remaining three, victims were not minors, but they were easily manipulable.for other reasons. All of them were long-time drug addicts, homeless, desperate for drugs and had nowhere to go.
Veronica Del Valle was in-just such a desperate' state when she met Carson. She •testified that she had been using crack cocaine since the age- of twelve, and at the height of her addiction any interruption left her throwing up, sweating; unable to sleep and eat. In late 2009 and early 2010 she was living in a crack house when another woman suggested she could work as a prostitute for Carson. On two occasions in 2010 Del Valle left the crack house with Carson who took her to a hotel, took seductive pictures of her for advertisements he posted on Baсkpage.com and supplied her with drugs. In the summer of 2010, he located- her at the crack house again, bought her drugs and convinced her to work as a prostitute, promising that -she would keep the money she earned and that she could decide for herself when she wanted to work. Del Valle ended up working for Carson for five to -six months, engaging in commercial sex transactions up to as many as five times a day, staying with Carson at hotels, and using drugs that he provided for her.
Del Valle testified that Carson took most of her money, took away her personal cell phone and gave her á phone she could use for “business” only. He checked her phone regularly to see if anybody out of the ordinary was calling her and told her he would use the phone’s GPS to find her, which, in fact, he did one night when Del Valle tried to leave. -Using the GPS to track her, he ran up and down a street at 3 •a.m. screaming her name. He also took away her shoes and clothes to keep her from leaving the hotel where she stayed. But that was not enough control for Carson. He beat her with belts, slappеd her face, anally raped her, gave her black eyes and cut lips and told her that if she “were to leave, he would kill [her] grandmother and [her]-children.” Tr, 12/4/13 at 548 (R. 163, pagelD 1879).
Like Del Valle, Jessica' Sikora was a heroin addict who experienced severe withdrawal—vomiting, sweating, and pain—when she stopped using heroin. Si-kora testified that she too met Carson in 2010 when she was homeless. When another woman told Sikora that Carson could get her a job and a place to live, Sikora got into a car with Carson who took her straight to Chicago’s west side to buy her
Nahrin Lazzar’s story was nearly the same. She became addicted to heroin at 16 and was homeless in 2010 when Sikora introduced her to Carson. She testified that she agreed to join Carson’s business because she was homeless, had no money, no food and was suffering from withdrawal symptoms and needed drugs. As was the case with the others, Carson bought her drugs, brought her to a hotel room, and placed advertisements for her sexual services on Backpage.com. But in Lazzar’s case, the physical violence began immediately. Shortly after arriving, Carson became upset with Lazzar and whipped her with a belt, leaving her back and buttocks “red and puffy with slash marks.” Tr. 12/1/13 at 614 (R. 163, pageID 1945).
Carson required Lazzar to give him all the money she earned, and when she once tried to hide $100 in her pants, Carson whipped her with a belt and orally raped her. Hе then showed Lazzar a photograph of a buttocks with belt marks and welts and threatened her saying, “What I did to you is nothing [compared to] what I can do to you.” Tr. 12/5/13 at 895-96 (R. 164, pagelD 2226-27). Lazzar also testified that Carson supplied her with drugs but sometimes withheld them from her so she would get ill from withdrawal. Throughout her time with Carson, he beat her, whipped her, and raped her orally, vaginally and anally.
Lazzar eventually escaped from Carson by telling one of her clients about her circumstances and asking for a ride to Chicago. She left barefoot because Carson had taken her shoes. The night she left, Carson called her at least ten to twenty times.
In addition to the testimony described above, the jury also heard from Margaret Hurley, who testified that from January through March 2010, Carson paid her to drive'the women to their commercial sex transactions and retrieve drugs for them. She also testified that she saw Carson beat his victims, including Del Valle. Hurley testified that, as with the other women, Carson took pictures of her that he posted in advertisements on Backpage.com, but she never testified that shе worked as a prostitute for Carson.
The government also called Dr. Sharon Cooper, a sex trafficking expert who helped explain how the desperate situations in which victims find themselves make them easy targets for sex trafficking. Cooper testified that sex traffickers select victims who demonstrate vulnerabilities including homelessness, substance abuse, mental health issues, and histories of physical, emotional or sexual abuse. A typical trafficker recruits victims by telling them that he loves them, promising them a better life, providing them with shelter and drugs, and lying to them about the nature of the job. Traffickers often use one victim to recruit other victims as victims are more likely to trust someone of a similar
Cooper testified that traffickers control their victims through physical violence, sexual violence, psychological violence and grooming. Traffickers, she testified, groom victims with promises and compliments, but escalate to physical abuse, sexual assault and death threats. Often the trafficker will abuse a more experienced prostitute while younger victims watch. They also use psychological violence such as tearing a victim down, telling them they are worthless, socially isolating them, and controlling them financially and by taking advantage of a victim’s drug dependency. Cooper noted that traffickers tend to be more violent with adult women because children and minors are far easier to intimidate.
Importantly for this case, and for a general understanding of the complexity of trafficking in general, Cooper explained that victims often stay with their traffickers—or leave and then return—because they believe they have nowhere to go; that there is no one else out there for them, and no other options for them; they feel ashamed and guilty and stigmatized, thinking that they will not be accepted elsewhere. They are also afraid that if they leave, the trafficker will find them and harm them even more egregiously.
Given the testimony of Dr. Cooper, it was not surprising that the jury heard testimony that could be construed as evidence that the victims had chosen their lot. For example, the jury heard evidence that Fratto and Del Valle both left Carson and then returned, and that at times both could have left but did not do so. The jury heard evidence intended to convince them that these women willingly agreed to work as prostitutes. But whether they willingly agreed to essentially become enslaved— that is, to turn over all of their money and freedom and suffer abuse—is another question, and the one at the heart of the sex trafficking statute, of course. Del Valle, for example, testified that she had the combination to the safe where Carson kept her earnings, but that Carson had threatened that he would kill her if she took the money without permission. They also heard that some of the women called themselves girlfriends of Carson and used terms of endearment with him, although Del Valle, for example, said she merely “played the role” and “acted like [she was] his girlfriend” because it made her life easier. Tr. 12/4/13 at 671 (R. 163, pageID 2002). And they heard plenty of evidence of victims who did not want to leave Carson because he fed their heroin addictions, kept them from overdosing, gave them a place to stay, and paid for their food and other needs. The jury also heard evidence of women who turned to Carson for emotional support—to figuratively bail them out of difficult situations and literally bail them out of jail. But all of this evidence is not inconsistent with coercion and force. Victims of sex trafficking may make decisions that look voluntary at times due to the incredible weight of coercion and force upon them. And they may make some decisions along the way that are truly voluntary. Those decisions do not take away from the fact that they have been held hostage, coerced, forced, or threatened to engage in commercial sexual acts. Sometimes that coercion and force may be subtle, leading a fact-finder to have to decipher whether the mens rea has been met. But this is not such a case. There is nothing subtle about rape, beatings, death threats, and taking women’s clothes and phones so that they cannot readily escape. Carson kept these victims under his control by using a tightly woven web of rape, physical assault, threats, manipulatiоn, isolation, and fear.
II.
The federal sex trafficking statute under which Carson was indicted reads as follows:
(a) Whoever knowingly—
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, or that the person has not attained the age of 18 years’ and will be caused to engage in a commercial sex act, shall bе punished as provided in subsection (b).
18 U.S.C. § 1591(a).
The government charged Carson with trafficking Fratto under both the coercion and age provisions. Counts 2-4 charged. Carson with trafficking Lazzar, Sikora and Del Valle under the coercion provision.
A. Evidence of victims’ prior acts of prostitution,
Before the trial, the government moved to exclude evidence of or testimony regarding the victims’ sexual histories and prior prostitution activities, arguing that such evidence should be excluded under Federal Rules of Evidence 412 and 403. Rule 412, often referred to as the “rape shield law” .states:
(a) Prohibited Uses. The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct: •
(1) evidence offered to prove that a victim engaged in other sexual behavior; or
(2) evidence offered to prove a victim’s sexual predisposition.
(b) Exceptions.
(1) Criminal Cases. The court may admit the following evidence in a criminal case:
***
(B) evidence of specific instances of a victim’s sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor; and
(C), evidence whose exclusion would violate the defendant’s constitutional rights.
Fed. R. Evid. 412. Federal Rule of Evidence- 403 is the general rule - that: “The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, «confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403.
Before the district -court, Carson argued that evidence of his awareness of-the victim’s past prostitution had a direct bearing on his defense, that he subjectively believed that the women were not coerced into engaging in commercial sex acts, but rather did so willingly. The district court rejected Carson’s argument, relying on -our. prior decision in
United States v. Cephus,
The evidence that Carson wished to introduce at trial is classic propensity evidence—that is evidence that the women had been prostitutes before made it more likely that they had voluntarily consented to these acts with Carson. But' Carson attempts to twist it out of this usually forbidden realm by arguing that the fact of their prior prostitution was relevant to his state of mind, that is, whether' he acted “knowingly, or in reckless disregard of the fact, that means of force, threats of force, ... coercion ..., or any combination of such means will be used to cause the person to engage in a commercial sex act” as forbidden by the statute under which he was charged, 18 U.S.C. § 1591(a). That twist would bring him under one of the exceptions to Federal Rule of Evidence 4Í2(C) which allows evidence of prior sexual acts to be admitted if its exclusion would violate a constitutional right. Federal Rule of Evidence 412(b)(1)(C). In other words, Carson claims that the district court violated his Sixth Amendment rights when it barred him from presenting evidence of other sexual acts or prostitution by his victims. Such an argument—that the exclusion of the evidence violated a-defendant’s constitutional rights—requires de novo review by this court.
United States v. Peterson,
Defendant’s argument—that he was unable to argue effectively that he lacked the requisite state of mind to violate Section 1591—was not one that he made in the district court. In the district court, his motion stated: “This evidence is admissible because it will allow the jury to determine if each of the women was actually deceived.” R. 74 at 3. Because it is a new argument, we review it for plain error. Fed. R. Crim. P. 52(b).
United States v. Kruger,
Although “the Constitution guarantees criminal defendants; a meaningful opportunity to present a complete defense ... [it] does not require the admission of irrelevant evidence (or other types of evidence whose relevance is outweighed by other important considerations).”
United States v. Beavers,
Recall that § 1591 requires that Carson knowingly or recklessly disregarded the fact that force, threats of force, and coercion, and any combination of such means, would -be used to cause any of his victims—Fratto, Del Valle, Sikora and Lazzar—to engage in a commercial sex act. See 18 U.S.C. § 1591(a). Whether they had previously worked as prostitutes was irrelevant to the required
mens rea
above. First, as the government points out, Carson proffered no evidence to the district court That his victims had voluntarily engaged in commercial sex transactions on other occasions. Unless he knew that the
Second, even if Carson could demonstrate that his victims had willingly and voluntarily worked as prostitutes in the past, based on the overwhelming evidence at trial, Carson could not plausibly argue that his victims willingly worked for him or that he thought his victims were willingly working for him. The government presented example after example of compelling evidence of coercion—evidence that Carson beat and raped the victims, that he threatened to stalk and kill them and their families, the manner in which he isolated them from the outside world, confiscating their telephones, money, identification, clothes, shoes, and manipulating them with false promises and controlling their acсess to the drugs for which they were physically and mentally dependent. Whether they had worked as prostitutes previously would have no effect on whether Carson knew (or recklessly disregarded the fact) that force, threats of force or coercion would have caused his victims to engage in commercial sex acts under his “employ.” This is particularly true because Carson was the one using force, threatening, and coercing them. Had Carson truly subjectively believed (whether correctly or not) that the victims were voluntarily working for him as prostitutes, he would have had no reason to rape, beat and threaten them, to take their telephones, clothing, shoes and control their access to drugs.
Force and coercion can be complicated topics. Sometimes, for example, a minor can be forced into sex trafficking by fraud alone. See, e.g.,
United States v. McMillian,
Our decision today follows directly from the conclusion in
Cephus,
which involved a sex trafficker who brutally beat women who failed to comply with his orders. There the defendant wished to cross-examine one of the victims about her prior work as a prostitute to demonstratе that she would not have been deceived by the defendant and thus was not coerced into working for him.
Cephus,
[The defendant] wanted to suggest that having already been a prostitute she would not have been deceived by [the defendant] and therefore her testimony that she was coerced into working for him ... should be disbelieved. But the testimony sought to be elicited by the cross-examination would have been irrelevant. Even if no promises were made to [the victim], this would not be evidence that she consented to be beaten and to receive no share of the fees paid by the johns she serviced. And even if she knew going in, from her prior experience, that [the defendant] probably would beat her, it was still a crime for him to do so. And finally the fact that she’d been a prostitute before does not suggest that he didn’t beat and threaten her—that was his modus operandi and there’s no evidence that he would have made an exception for Cassandra.
Id.
For the same reasons, a number of other circuit courts have similarly held that acts of prior prostitution are irrelevant to a charge undеr § 1591(a) and thus barred. Most recently, the First Circuit, in a case where the defendant was making the same
mens rea
argument in a sex trafficking case, noted that similar evidence of prior prostitution was “either entirely irrelevant or of such slight probative value in comparison to its prejudicial effect that a decision to exclude it would not violate [the defendant’s] constitutional rights.”
United States v. Gemma,
In sum, evidence about the victims’ prior commercial sex acts was irrelevant to the question of whether Carson knew or recklessly disregarded the fact that his own use of force, threats, and coercion caused the victims to engаge in commercial sex
B, Limitations in the cross-examination of the government witness.
To convince the jury that Carson knew that Fratto was only seventeen years old, the government called Christopher Richardson who testified that he personally told Carsqn on at least two separate occasions about Fratto’s age. 1 Richardson was far from an ideal government witness. He was testifying under a grant of immunity, had participated" in many aspects of the crime at hand, was a convicted felon and a habitual drug user. The jury found out about all "of this. At trial Richardson testified that the government had offered him a grant of immunity to testify and that he understood that nothing he would say in his testimony could be used against him in the future. Richardson then testified about the role he played in trafficking Fratto. Richardson brokered the introduction between Carson and Fratto, he watched as Carson "took provocative (and sometimes nude) pictures of the underage Fratto to use in advеrtising her services and he drove Fratto to some of her appointments where she exchanged sex for money. During his direct examination, the jury also learned that Richardson used marijuana almost daily from the time he was 15 until the time he was 28, he started selling cocaine when he was 19 years old, and in 2010 he was convicted of a felony narcotics offense for which he received a five-year sentence. The defense honed in on all of this to its advantage arguing in closing that Richardson was a convicted drug dealer, testifying under a grant of immunity and that his testimony deserved “little to no[ ]” weight. Tr. 12/10/13 at 1322 (R. 166, pageID 2653).
But Carson wished to sully Richardson’s testimony more. Over the government’s objection, Carson’s counsel tried to question Richardson about a trip he took with Fratto to Springfield, Illinois after Fratto began working for Carson. Carson’s counsel informed the district court that he had evidence that during the trip Richardson “offered to pimp” Fratto. The district court ruled the line of questioning irrelevant and forbade: it, reasoning that were he to allow it “we would end up trying a different case.” Tr. 12/3/13 at 228 (R. 162, pageID 1526).
A distriсt court has broad discretion . to impose reasonable limits on the extent and scope of cross-examination.
United States v. Recendiz,
It would offend the Sixth Amendment to deny a defendant the ability to establish that the witness had a motive to lie, but once that motivation has been established, the defendant has no constitutional right to pile on. See
Recendiz,
Because the district court did not prevent Carson from establishing Richardson’s, motivation for testifying or lying during his testimony, the court’s limitation on the evidence about the trip to Springfield did not implicate Carson’s Sixth Amendment right to confrontation. See, e.g.
Recendiz,
C. Evidence of the defendant’s prior bad acts.
The federal rules of evidence prohibit an opponent from admitting evidence of other acts “to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.” Fed. R. Evid. 404(b)(1). In other words, we do not allow evidence of prior bad acts to prove or hint to the jury that a defendant is the “kind of person” who would commit an act like the one for which he is charged—that he has the propensity to act in a certain criminal manner. The evidence of other acts, however, may be used to demonstrate “motive, opportunity, intent, preparation, рlan, knowledge, identity, absence of mistake, or lack of intent.” Fed. R. Evid. 404(b).
Carson argues that several pieces of evidence and testimony constitute ed propensity evidence—evidence used for the impermissible purpose of proving his character and that he acted in accordance therewith. The difficulty is, of course, that evidence of other acts can serve several purposes at once, leaving courts to decide when such multi-purposed evidence can be used. Our court has resolved the question by allowing it only when “its admission is supported by some pi’opensity-free chain of reasoning.”
United States v. Gomez,
The “other acts” evidence to which Carson objected, consisted of testimony about women who were not victims of the crimes charged in this case, but whose names and details were mentioned as the government presented details of the victims’ experiences with Carson. Evidence about these women appeared at the trial in various forms. For example, Margaret Hurley testified that she drove other women to their appointments and appeared in Carson’s advertisements. Katie Smego’s name was mentioned in testimony because she posed
The government countered that the evidence it sought to admit served as direct evidence of the charged conduct and thus outside the realm of Federal Rule of Evidence 404(b) or, in the alternative, as evidence of Carson’s modus operandi and thus was admissible under 404(b).
Carson appears to be arguing that evidence of a defendant’s
modus oper-andi
can be introduced
only
where a defendant’s identity is in question. Brief of Appellant, Carson at 43-44. Evidence of
modus operandi
is evidence that shows a defendant’s distinctive method of operation.
United States v. Robinson,
Like all other evidence of prior bad acts,
modus operandi
can only be used if it is “relevant to a specific purpose other than the person’s character or propensity to behave in a certain way,” and that relevance must be “established through a chain of reasoning that does not rely on the forbidden inference that the person has a certain character and acted in accordance with that character on the occasion charged in the case.”
Gomez,
Some of the evidence to which Carson objects is not evidence of prior bad acts at all, but rather direct evidence of the crime. And as such Rule 404(b) is not applicable at all.
Ferrell,
Similarly, the testimony from the driver, Margaret Hurley, established that she was present when the women (and in at least one case, a girl) were paid and then handed their money over to Carson, and that she was present when some of the. women were beaten. Her testimony was direct evidence of the' crime. That it may have tangentially mentioned driving other women who were not named victims in the course of driving the named victims is of no moment, and certainly if it was prejudicial, it was well within the realm of discretion for the district court judge to admit it after balancing the probative value against the risk of prejudice. See
Thompson v. City of Chicago,
In addition to being direct evidence of the crime, much of the evidence to which Carson objected helped to corroborate the details of the victims’ testimony—testimony that the defense claimed was not credible. See
United States v. King,
Carson singles- out one particular example of other bad act testimony to which he particularly objects—that is, that Sikora testified that Carson raped her in the presence of another woman, Amanda and her newborn child, who sat in the room as she screamed out and cried. The rape was direct evidence of Carson coercing one of his victims and exerting control over her. The presence of another in such a rape is not- extraneous or evidence of other bad acts, it is a key part of the message from the defendant that “I control you and can do as I please and I have so much power that no one else will come to your aid, even if they are sitting right in the room,” It also explained to the jury the existence of photographs of -the act. This was evidence of the very crime, puré and simple. In the same vein, the evidence about Katie Smego also helped create the
This testimony was also particularly relevant because Carson argued that these victims “acted as his girlfriend, coming back for more work after leaving voluntarily, and asking him to control their cash and limit their drug consumption,” or providing them with a place to- stay. Brief of Appellant, Carson at 49. This evidence, however, is evidence of coercion—coercion through intimidation and rape, and by sending a message that his control was so severe that other women present would not come to the aid of the victims. And the fact that Carson kept women around in hotel rooms,- or hired drivers to control their movements on the way to and from the transactions, was further evidence of the power of his large enterprise and sent the message out that he was the CEO and the one in control.
Although some of this evidence was prejudicial, in the sense that it mentions more women victims than were represented in the crimes for which Carson was charged, we certainly cannot say that the district court erred in finding that it was not unfairly prejudicial as that term is used in Federal Rule of Evidence 403 (“the court may exclude evidence if its probative value is substantially outweighed by a danger of ... unfair prejudice."). Given the nature of the evidence of threats, rapes, beatings with hands, belts, extension cords, etc., the brief references to other women were not unfairly prejudicial to Carson. It is hard to imagine that the government’s case would have been significantly less persuasive had the allegedly improper evidencé been excluded. See
Gomez,
D. Jury instructions.
Carson claims that the district court’s erroneous instruction on “reckless disregard” drastically lowered the mens rea needed to convict and thus his conviction should be reversed. That instruction was as follows:
A person “recklessly disregards” a fact within the meaning of this offense when he is aware of, but consciously or carelessly ignores facts and circumstances that would reveal the fact that either: (1) force, threats of force, or coercion would be used to’cause the person identified in the indictment to engage in a commercial sex act, or (2) the person identified in the indictment was under .eighteen years of age and would be caused to engage in a commercial sex act.
R. 88 at 30. We review de novo “whether jury instructions accurately summarize the law, but give[s] the district court substantial discretion to formulate the instructions provided that the instructions represent a complete and correct statement of the law.”
United States v. Daniel,
Carson argues, and the government concedes, that the instruction should have stated that Carson must “consciously and carelessly ignore” facts and circumstances that would reveal that coercion had occurred. Carson argues that the jury could have found that he carelessly and not consciously ignored certain facts and circumstances thus lowering the mens rea to mere negligence and not recklessness as required. The government concedes that the instruction was incorrect but argues that Carson forfeited the argument by failing to raise it below and-that in any case the error did not affect Carson’s substantial rights;
The risk that the jurors might have found that Carson merely ignored the facts and circumstances carelessly rather than recklessly was mitigated by the fact that the jury instructions also contained the following instruction on the term “knowingly:”
A person acts knowingly if he realizes what he is doing and is aware of the nature of his conduct and does not act through ignorance, mistake or accident. In deciding whether the defendant acted knowingly, you may consider all of the evidence including what the defendant did or said.
(R. 88 at 29); Tr. 12/10/13 at 1375 (R. 166, pageID 2706). Thus, even if the jurors found that the defendant carelessly ignored relevant facts and circumstances, it still had to find that Carson knew those facts and circumstances in the first place, thus mitigating any concern that the jurors may have held Carson accountable for negligent rather than reckless behavior.
Moreover, given the overwhelming nature of the evidence of Carson’s state of mind any error would have been harmless. A careless disregard of knowledge scenario might apply to a participant in a sex trafficking scheme who played a minor role—for example, one who acted as a driver but who stuck his head in the sand about what happened to the women after he dropped them off at a designated address, but it is hard to imagine how Carson could carelessly disregard the circumstances of the force or coercion when he was the actor forcing and coercing by manner of rape, beatings, threats, isolation, and by taking the victims’ cell phones and clothing away. Similarly, there was also overwhelming evidence that Carson knew
Carson also objects to the fact that the •instruction required only that Carson was “aware of ... facts and circumstances that would reveal” a fact that he must have recklessly disregarded under the statute. Carson argues that criminal recklessness requires more than awareness of “facts from which the inference could be drawn,” but rather requires that the defendant actually drew the inference. Brief of Appellant, Carson, at 51. The plain language of Section 1591 criminalizes sex-trafficking activities done “in reckless disregard of the
fact”
that force, threats of force, fraud, or coercion will cause someone to prostitute herself or that a victim is a minor. 18 U.S.C. § 1591(a). Other courts to have considered the question have concluded that the phrase “reckless disregard” in this statute requires only аn awareness'of facts and circumstances- that give rise to a risk of a Section 1591 violation, not an awareness of the risk itself.
United States v. Jackson,
The government focused much of its closing argument on Carson’s . actual knowledge, and there was, plenty of evidence from which to draw. In other words, the government set forth a theory that Carson had actual knowledge of threats, forсe and coercion'and'of Fratto’s age. The evidence in this case was overwhelming that Carson knowingly recruited, enticed, harbored, transported, provided, obtained, advertised, maintained, patronized, and or solicited his victims knowing, or in reckless disregard of the fact, that means of force, threats'of force, fraud, coercion or some combination of those means was used to cause his victims to engage in a commercial sex act, and that in the case of one victim, that she engaged in a commercial sex transaction and had not attained the age of 18 in violation of 18 § U.S.C. § 1591. We AFFIRM the defendant’s conviction and sentence.
Notes
, The government’s expert witness on sex trafficking testified that people involved in the sex trafficking trade commonly tell other traffickers the age of minors because if the receiving trafficker is prosecuted for his unwitting use.of a minor and that information was known but undisclosed by the selling trafficker, then the receiving trafficker will retaliate against the selling trafficker because of the increased penalties for trafficking a minor. Tr. 12/3/13 at 288 (R. 162 at pageID 1618).