United States v. Omar TaylorUnited States v. Omar Taylor
Appeal from United States District Court for the District of Minnesota
Submitted: October 19, 2021
Filed: August 10, 2022
Before GRUENDER, ERICKSON, and STRAS, Circuit Judges.
Omar Kashaka Taylor was convicted by a jury of sex trafficking a minor, in violation of
I. BACKGROUND
Taylor was a regular client of a massage parlor located in St. Paul, Minnesota. After the parlor was shut down for operating without a license, Taylor started his own massage business in a house he leased in northeast Minneapolis. The charged offenses pertain to activities taking place at Taylor‘s massage business from August 2017 until his arrest in March 2018.
Taylor advertised his massage business on Backpage.com and enlisted numerous women to work for him. One of those women was S.N., who in August 2017 was 17 years old. At trial, S.N. testified that Taylor told her she could make more money if, during the massage, she was naked, wore lingerie, or gave clients “handjobs” or “blowjobs.” Taylor posted sexually suggestive advertisements of S.N. on Backpage.com. S.N. testified that Taylor posted the ads, scheduled appointments for S.N., responded to client messages inquiring about the services S.N. would provide, drove S.N. to his house for client appointments, purchased drugs for S.N., and brought S.N. to parties so she could make extra money by stripping. S.N. further testified that most of her massage clients asked for sex acts, which included “handjobs,” touching, and digital penetration. Taylor took half of every client payment received by S.N. S.N. further testified that Taylor raped her at least 15 times, twice resulting in hospital visits. S.N. feared that clients and Taylor would get upset if she refused clients’ requests for sexual acts. S.N. described Taylor to the jury as “manipulative.”
On cross-examination, Taylor elicited testimony from S.N. about her usage of methamphetamine, heroin, and acid, including how the drugs affected her body and impacted her memory. S.N. testified about running away from a treatment center and eventually connecting with Taylor for the purpose of friendship due to their age difference. S.N. testified that she initially thought Taylor was “kind of a funny guy” and “a nice guy.” S.N. discussed staying at Taylor‘s house, acknowledging that she was able to leave the home when she wanted. In addition to drug usage, defense counsel posed several questions directed at S.N.‘s credibility. In particular, Taylor questioned S.N. about her lack of reporting a sexual assault to anyone but her grandma and her inability to recall what she said to others during the course of the investigation, including to a nurse during an examination in January 2018 about the number of times Taylor had assaulted her. The jury convicted Taylor on both counts involving sex trafficking of S.N.
Eighteen-year-old A.L. worked for Taylor‘s massage business in March 2018. A.L. had no prior experience in the massage business. A.L. testified that when she agreed to work for Taylor, she was not told that giving “handjobs” would be part of her work. Taylor made pricing decisions for A.L. and took $40 of each client payment. A.L. testified that Taylor purchased
On one occasion, A.L. declined a client‘s request to perform a “handjob,” which caused the client to ask her why she was working in a place like this because “he‘s not dumb and neither [is] [she].” The man became “aggressive” and “forceful,” took A.L.‘s hands and put them on his penis, and pressured A.L. to perform a “handjob,” which A.L. then reluctantly did and left. A.L. testified that she would drink alcohol and use drugs while working for Taylor because she, along with other women working for Taylor, did not want to be doing what they were being directed to do while sober. The jury convicted Taylor of sex trafficking A.L.
The district court received, over Taylor‘s objection, testimony from another woman, R.T., who stayed at Taylor‘s house for periods of time during 2017 or 2018. The district court determined R.T.‘s testimony was admissible as intrinsic evidence and under
Prior to the commencement of trial, Taylor moved to preclude the government from introducing his 2005 conviction for sexual assault of a minor during the government‘s case-in-chief, asserting the conviction was potentially admissible only if Taylor testified. The government countered that even if pursuant to Old Chief v. United States, 519 U.S. 172 (1997), Taylor stipulated that he had a prior conviction requiring him to register as a sex offender (an element of Count Three), the conviction was still admissible under
Still unhappy with the district court‘s ruling, the government filed a motion to reconsider, requesting that the court again revisit its evidentiary ruling on the 2005 conviction and citing what it perceived as anticipated contested trial issues. The government also added a new argument—the failure to present Count Three to the jury could be fatal to the charge. The court held a hearing on the motion. While proposing bifurcation of Count Three such that if the jury convicted on Counts One, Two, or both, then the jury could be asked to decide whether Taylor was a registered sex offender, the government noted during the hearing that its primary objective was admission of the 2005 conviction during its case-in-chief. The court denied reconsideration on the admissibility of the conviction and reserved ruling on whether bifurcation or submission of an additional question to the jury on the registered sex offender issue was necessary, without conceding either was required in this case.
Trial commenced. Following the testimony of several witnesses, including R.T. and S.N., the government requested that the court revisit its ruling on the admissibility of the 2005 conviction. The government argued Taylor had opened the door during his cross-examination of the women by saying “things like so-called sexual assaults, or referr[ed] to the activity in this case as sex rather than any kind of sexual assault.” The government argued Taylor, by implication, was claiming the sexual encounters, including rape of the minor victim, was consensual sex and not sexual assault. The government highlighted questions Taylor‘s counsel posed to S.N. and R.T. about whether during the sexual encounters Taylor used aspects of force, such as if the women were tied up, tied down, bruised, choked, visited a doctor, or reported the incident to anyone else. The government argued defense counsel‘s questions opened the door to admission of the prior conviction in addition to facts underlying the conviction. Taylor persisted in his objections to admission of the conviction.
After reviewing the record, the district court reversed its pretrial rulings and allowed the government to introduce during its case-in-chief evidence pertaining to Taylor‘s 2005 conviction for criminal sexual assault in the third degree. The court stated that credibility had become “a clear issue with inferences here that, well, one or more of the women just made up the stories, or exaggerated them, or inconsistent to either get out of the trouble they were in, or because of - - in combination of other issues of alcohol or drugs.”
After analyzing Rule 403, the court found admissibility would be a closer call without Rule 413, which it found changed the Rule 403 balancing. While recognizing “significant prejudice” in permitting the fact of the 2005 conviction to be admitted during the government‘s case-in-chief and Taylor‘s standing objection to any reference to it, the court found the conviction was probative and the prejudice did not amount to “substantial unfair prejudice.” There remained an unsettled issue, however, about which facts or circumstances underlying the conviction were admissible.
Special Agent Tonya Price was called as a government witness. After she stated her name, the court read the following instruction to the jury:
Members of the Jury, you will hear evidence that the Defendant was convicted of criminal sexual conduct in the third degree in January of 2005. Any person convicted of criminal sexual conduct in the third degree must register as a sex offender. Consequently, the Defendant was required to register as a sex offender in January of 2005.
You may consider this evidence of such other acts of criminal sexual conduct for its tendency, if any, to determine whether the Defendant committed the acts charged in the indictment, including the Defendant‘s knowledge and his intent.
Remember the Defendant is on trial for only the crimes charged. You may not convict a person simply because you believe he may have committed similar acts in the past.
During her testimony, Special Agent Price informed the jury that she had checked Taylor‘s criminal history and located a 2005 conviction for third degree criminal sexual assault, which required Taylor to register as a sex offender. Later in the trial, Taylor‘s former state probation officer testified, without objection, consistent with the parties’ agreement. She informed the jury that Taylor was on supervision because of a 2005 conviction for criminal sexual conduct in the third degree. She testified as to the facts underlying the offense—that is, Taylor engaged in sexual penetration of a known minor between the ages of 13 and 16 when Taylor was more than 24 months older. The probation officer also testified that beginning in 2005 Taylor was required to register on the Predatory Offender Registration as a sex offender in Minnesota. Taylor‘s probation officer informed the jury that, during his term of supervision, she met with Taylor monthly. Mostly she met Taylor at his place of employment in Eden Prairie, Minnesota. Occasionally she met Taylor at her office. And twice she met with Taylor at his house where she toured the living room, kitchen, and upstairs bedrooms, but not the basement. Taylor‘s probation officer told the jury that Taylor‘s supervision ended on October 17, 2017.
Taylor testified in his own defense. He testified that after the business where he was receiving massages closed, one of the women who had worked there approached Taylor about renting his basement for $300 a month so she had a place to continue her massage business. Because Taylor‘s basement was occupied by a renter at that time, he permitted her to perform massages in other areas of the house until the renter moved out. Two weeks later, the renter moved out and she began performing massages in the basement.
According to Taylor, over the course of two years, more than 60 women worked at his massage business. Some women paid Taylor $30 for a half hour or $40 for an hour. A.L. was charged $40 for an hour, which was sometimes discounted to $20 for
Taylor unsuccessfully moved for a judgment of acquittal at the close of the government‘s case-in-chief and again at the close of evidence, asserting the government failed to prove a “commercial sex act” or “venture” and failed to produce sufficient evidence to prove Taylor trafficked A.L. through force, fraud, or coercion. Taylor also moved to dismiss the charge for sex trafficking of a minor (Count One), arguing that it was a lesser offense included of sex trafficking by force, fraud, and coercion (Count Two). The district court denied the motion to dismiss as untimely and on the merits. This appeal followed.
II. DISCUSSION
1. Sufficiency of the Evidence
We review the sufficiency of the evidence de novo, considering the evidence in a light most favorable to the verdict, and accepting all reasonable inferences that support the verdict. United States v. Bell, 761 F.3d 900, 906 (8th Cir. 2014). “When a sufficiency argument hinges on the interpretation of a statute, we review the district court‘s interpretation de novo.” United States v. Reed, 668 F.3d 978, 982 (8th Cir. 2012) (quoting United States v. Gentry, 555 F.3d 659, 664 (8th Cir. 2009)). We will overturn a verdict only if no reasonable jury could find Taylor guilty beyond a reasonable doubt. See United States v. Thompson, 11 F.4th 925, 929 (8th Cir. 2021).
Taylor does not dispute that S.N. and A.L. gave “happy-ending” massages to customers. He argues instead that a “happy-ending” massage is not a “commercial sex act” within the meaning of
Taylor was charged under
Whoever knowingly—
(1) in or affecting interstate . . . commerce . . . recruits, entices, harbors, transports, provides, obtains, advertises,
maintains, patronizes, or solicits 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, except where the act constituting the violation of paragraph (1) is advertising, 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 be punished as provided in subsection (b).
We have noted “the expansive language of
A. 18 U.S.C. § 1591 – “any sex act”
While Congress defined “commercial sex act” as “any sex act, on account of which anything of value is given to or received by any person,” it did not define the phrase “any sex act.”
Notwithstanding Congress‘s use of the word “any,” Taylor maintains that “sex act” as used in
Notwithstanding Taylor‘s improbable claims of ignorance, use of the term “happy ending” in the context of the massages being advertised by Taylor and given by the women working for Taylor had a known understanding in the industry, which included the touching of another‘s genitals for sexual gratification. Both A.L.
B. 18 U.S.C. § 1591 – “venture”
Taylor next claims there was insufficient evidence establishing the existence of a “venture.” The statute defines “venture” to mean “any group of two or more individuals associated in fact, whether or not a legal entity.”
The government presented evidence showing Taylor posted advertisements for massages, recruited women to work for him at his massage business, answered clients’ inquiries about the services available, provided lingerie for S.N. and A.L., drove S.N. and A.L. to his house for the purpose of performing “happy-ending” massages, set the rates for the massages, and received a portion of the clients’ payments. The evidence presented at trial was sufficient to prove beyond a reasonable doubt that Taylor participated in a venture by knowingly receiving money acquired from his massage business, which included assisting, supporting, and facilitating sex trafficking.
C. 18 U.S.C. 1591 – “force, threats of force, fraud, coercion . . . used to cause the person to engage in a commercial sex act”
Lastly, Taylor contends the evidence was insufficient on Count Four, which charged him with sex trafficking of A.L. by force, fraud, or coercion. See
A determination on whether a defendant‘s conduct violates
Based on the evidence and reasonable inferences, Taylor induced A.L. to work for him in his massage business that he knew, or in reckless disregard of the fact, would cause A.L. to engage in a commercial sex act. The evidence is sufficient to
2. Jury Instruction
Taylor argues the district court erred by instructing the jury that a sex act included “happy-ending” massages. A district court errs when it deprives the jury of its ability to make a factual finding. United States v. White Horse, 807 F.2d 1426, 1429 (8th Cir. 1986). The court‘s duty is to instruct on the law, and it improperly invades the jury province if it applies the law to the facts. Id. at 1430. Over Taylor‘s objection, the court instructed the jury that, “The ordinary and natural meaning of any sex act includes happy-ending massages.” A review of the record demonstrates that overwhelming evidence established that clients who scheduled appointments with women working for Taylor expected and requested more than a traditional massage. They expected and demanded sexual gratification, which was repeatedly described by witnesses and the lawyers as “handjobs” or “happy-ending” massages. Rather than describe the nature of the contact as a “happy-ending” massage, it would have been preferable to instruct the jury on the physical act at issue—here, digital to genital contact for the purpose of sexual gratification of the client. While the instruction given is not one that we would condone, it is apparent from the record that the evidence tied the reference to “happy ending” to a sex act in exchange for money that was indisputably occurring as part of many of the massages S.N. and A.L. were performing.
Because the nature of the “happy-ending” massages in this case did, by definition, include a sex act, any error in the challenged jury instruction was harmless. Because a reasonable jury would have found Taylor guilty beyond a reasonable doubt—regardless of whether the sex act was defined as a “happy-ending” massage or defined in specific terms as an act involving digital stimulation of the genitals for the sexual gratification of the client—we find Taylor‘s alleged jury instruction error harmless beyond a reasonable doubt. See United States v. Janis, 810 F.3d 595, 599 (8th Cir. 2016) (determining that while the court abused its discretion by resolving a jury question as a matter of law, the error was harmless beyond a reasonable doubt).
3. Admission of R.T.‘s Testimony and Taylor‘s Prior Convictions
Taylor argues the district court erred when it (1) permitted R.T. to testify about other bad acts Taylor engaged in with her; (2) allowed evidence during the government‘s case-in-chief regarding his 2005 conviction for criminal sexual assault in the third degree; and (3) admitted Taylor‘s other felony convictions for impeachment purposes. Reviewing Taylor‘s evidentiary challenges for abuse of discretion, United States v. Nordwall, 998 F.3d 344, 347 (8th Cir. 2021), we find none of Taylor‘s claims warrants relief.
A. R.T.‘s Testimony
Among other experiences, R.T. testified that Taylor raped her while she was working for him at his massage business. When reviewing a district court‘s decision, “there is ‘strong legislative judgment
We need not resolve Taylor‘s Rule 413 argument as to R.T.‘s testimony because it was admissible under
Here, all four 404(b) elements were met for R.T.‘s testimony. Her testimony was relevant to material issues, including Taylor‘s knowledge, intent, and plan of operating a massage business involving commercial sex acts. Taylor challenged the victims’ credibility, asserting the victims fabricated or exaggerated their stories. He claimed he had no knowledge that women were engaging in commercial sex acts in his house. R.T. testified about her experiences with Taylor that were similar in kind and close in time to the conduct giving rise to the charged crimes. R.T. expressed firsthand knowledge about Taylor. Taylor‘s contentions that R.T. lacked credibility and was unreliable are issues for the jury. See United States v. Johnson, 860 F.3d 1133, 1143 (8th Cir. 2017). Damaging evidence is always prejudicial; the question is whether the evidence was unfairly prejudicial. To the extent there was potential propensity evidence presented through R.T.‘s testimony, it overlapped with permissible uses to show knowledge, intent, and plan such that the probative value of the evidence outweighed the risk of unfair prejudice. Regardless of Rule 413(a), R.T.‘s testimony was admissible under exceptions set forth in Rule 404(b)(2).
B. 2005 Rape Conviction
Admission during the government‘s case-in-chief of Taylor‘s 2005 conviction for sexual conduct in the third degree presents a much closer question. While Count Three charged Taylor with committing a felony when he was required under Minnesota law to register as a sex offender, Taylor stipulated that he was a felon who was required to register as a sex offender, negating the need for the government to prove he was required to register as a sex offender. See United States v. Taylor, 122 F.3d 685, 688 (8th Cir. 1997) (noting when a defendant offers to stipulate to a prior conviction, it might be an abuse of discretion under Old Chief v. United States, 519 U.S. 172 (1997) to expose the jury to the name and nature of the prior conviction).
Given the stipulation and Taylor‘s agreement to allow the district court to impose a conviction on Count Three if the jury found him guilty of Count One or Two, the court indicated, over the government‘s objection, that it was not going to send Count Three to the jury. For these reasons combined
Regarding the government‘s proffered reasons for admission, Taylor was not charged with an offense involving sexual assault. Nor has the government established that he was charged with an offense involving conduct proscribed by chapter 109A. See Blazek, 431 F.3d at 1108-09.
The 2005 rape conviction was not admitted as impeachment evidence, as were Taylor‘s other felony convictions. Instead, the prior conviction and underlying facts were admitted during the government‘s case-in-chief. After several government witnesses had testified, at the request of the government, the court reversed its pretrial ruling, finding witness credibility had become an issue such that knowledge and intent were at issue and the Rule 403 balancing had changed in a way that the conviction was now admissible. A review of the record reveals defense counsel had cross-examined the government‘s fact witnesses using typical tactics: pointing out the witnesses’ drug and/or alcohol usage, attempting to impeach the witnesses with prior inconsistent statements, implying the witnesses’ factual recitation was faulty or wrong, proposing possible reasons the witnesses had motive to lie, etc. While Taylor initially persisted in his objection to admission of the conviction during the government‘s case-in-chief, when the government sought the court‘s permission to elicit testimony from Taylor‘s probation officer about certain facts underlying the 2005 conviction for which Taylor had been on supervision, Taylor no longer persisted in his objection and indicated the government‘s proposed questions were “okay” and “fine.” On appeal, Taylor challenges the court‘s ruling on admission of his prior conviction. Taylor contends that he would not have testified at trial but-for the prejudice caused by admission of evidence regarding the 2005 conviction. Taylor has not asserted the government exceeded the parties’ agreement regarding the nature of the probation officer‘s testimony, which is the point in the trial when the facts underlying the 2005 conviction were introduced. To the extent that Taylor objects to this testimony, he has waived the claim based on his statements made to the district court. See United States v. Robinson, 617 F.3d 984, 989 (8th Cir. 2010) (explaining that where a defendant is aware of a stipulation and does not object, we presume he has acquiesced in his counsel‘s stipulation, resulting in a waiver of the claim). Notably, the government proposed underlying facts regarding the nature of Taylor‘s conviction that it sought to elicit through the probation officer. Taylor‘s counsel started reading his own proposal that included the word “forcibly” and Taylor interjected. Counsel then agreed to proceed with the government‘s proposal. Since there was no objection to the probation officer‘s testimony, we presume Taylor acquiesced in the stipulation. See Id. (finding no error in the district court‘s admission of stipulated evidence).
Even if Taylor did not waive his claim, any error was harmless beyond a reasonable doubt. The government bears the burden of identifying “the permissible non-propensity purpose for the evidence, and must articulate the relationship between the evidence and a material issue in the case.” United States v. Jackson, 856 F.3d 1187, 1192 (8th Cir. 2017) (quoting United States v. Cotton, 823 F.3d 430, 432 (8th Cir. 2016)). Simple recitation of Rule 404(b) elements, such as knowledge and intent, is generally discouraged. Id. (citation omitted). Rule 404(b) requires something more than stating an exception listed in the rule to ensure the inference the defendant‘s previous bad conduct invites in jurors’ minds is not that the defendant was a bad man in the past and therefore probably committed the crimes for which is his now charged. Nonetheless, even assuming the government did not satisfy its burden of connecting Taylor‘s prior conviction to a material element of the charged offenses, as Taylor argues, the admission of improper 404(b) evidence is harmless when “the government introduced ample competent evidence from which the jury could conclude beyond a reasonable doubt that the defendant was guilty even without the evidence that should have been excluded.” Cotton, 823 F.3d at 435 (quoting United States v. Aldridge, 664 F.3d 705, 714 (8th Cir. 2011)).
The testimony offered by the women working in Taylor‘s massage business, if given credence by the jury, is sufficiently strong for us to conclude that the 2005 conviction, even assuming it was improperly admitted, did not have a substantial influence on the jury‘s verdict. See Id. (“An evidentiary error is harmless if it did not substantially influence the jury‘s verdict.“). Additionally, we view the district court‘s comprehensive limiting instructions given prior to the initial admission of the evidence by Special Agent Price and again during final instructions as important because “the presence of a limiting instruction diminishes the danger of any unfair prejudice from the admission of other acts.” United States v. Drew, 9 F.4th 718, 724 (8th Cir. 2021) (quoting United States v. Wright, 866 F.3d 899, 905 (8th Cir. 2017)). Given the limiting instructions and the overwhelming evidence of Taylor‘s guilt on the charged crimes, the jury could not have been substantially swayed by admission of the 2005 conviction.
C. 1991 Armed Burglary and 1993 Forgery Convictions
Among others, Taylor‘s criminal history includes convictions for armed burglary and forgery. He did not object to the admission of these convictions as impeachment evidence. On appeal, he asserts these 26- and 28-year-old convictions were improperly allowed because of their age and the government‘s lack of written notice of its intent to use them. We review the unobjected to evidentiary issue for plain error. United States v. Eagle, 515 F.3d 794, 801 (8th Cir. 2008). Plain error requires: (1) an error; (2) that was plain; (3) that affected the proponent‘s substantial rights; and (4) that seriously affects the fairness, integrity, or reputation of judicial proceedings. Id. As impeachment under
Taylor is incorrect in claiming the government violated the notice requirement in
The government questioned Taylor about the fact of the prior convictions, not any of the underlying conduct. It did not reference these convictions during closing argument. The district court instructed the jury on how it could consider evidence of other bad acts. After carefully reviewing the record, Taylor has failed to articulate how the admission of these two convictions affected his substantial rights, particularly when there were four other felony convictions also introduced that he does not challenge. Given the overwhelming evidence presented at trial, the brief mention of these convictions, and the court‘s limiting instruction on prior bad acts, we cannot conclude under a plain error standard that evidence of these prior convictions called into question the fairness, integrity, or public reputation of the proceedings.
4. Double Jeopardy
Taylor argues the two convictions involving S.N. violate the Double Jeopardy Clause of the Fifth Amendment because Count One is a lesser-included offense of Count Two. We review double jeopardy clause claims de novo. United States v. Hansen, 944 F.3d 718, 721 (8th Cir. 2019). To establish a double jeopardy violation, Taylor must show the offenses are the same in law and fact. United States v. Muhlenbruch, 634 F.3d 987, 1002 (8th Cir. 2011). We examine whether each statute “requires proof of a fact that the other does not.” Id. at 724 (quoting Blockburger v. United States, 284 U.S. 299, 304 (1932)).
The government charged Taylor with two separate counts involving S.N.: sex trafficking of a minor and sex trafficking by force, fraud, and coercion. To prove sex trafficking of a minor in Count One, the government was required to prove that S.N. was over 14 and under 18 years old. There is no requirement that the offense involve force, fraud, or coercion. Count Two does not require any showing of age but does require a showing of force, fraud, or coercion. Other circuits have uniformly found that multiple subsections of
III. CONCLUSION
For the foregoing reasons, we affirm the judgment of the district court.
I join the opinion except as to Section II.1.C and the affirmance of Taylor‘s conviction on Count 4, which charged Taylor with sex trafficking of A.L. by force, fraud, or coercion. See
As the court notes, we have said that “fraud” in
Section 1591(a) hinges criminal liability on several alternative conditions, requiring the defendant to know or recklessly disregard the fact that means of (1) “force,” (2) “threats of force,” (3) “fraud,”3 (4) or “coercion” will be used to cause the victim to engage in a commercial sex act, or that (5) a victim having “not attained the age of 18 years” will be caused to engage in a commercial sex act. Congress did not select these at random, arbitrarily choosing five among innumerable conditions that would make any crime more serious. Rather, these terms are ejusdem generis,
“of the same kind,” see “Ejusdem Generis,” Black‘s Law Dictionary (11th ed. 2019), in that each condition alters the character of a sex act by vitiating the victim‘s consent, see, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 233 (1973) (noting that consent is invalid where “it was coerced by [(1)] force” or by (2) “threats“); Stewart v. United States, 151 F.2d 386, 388 (8th Cir. 1945) (holding that “there is an absence of real consent” where it is “secured by means of [(3)] fraud“); Bumper v. North Carolina, 391 U.S. 543, 550 (1968) (“Where there is [(4)] coercion there cannot be consent.“); United States v. Elbert, 561 F.3d 771, 777 (8th Cir. 2009) (noting that the victims “could not legally consent” because (5) they “were minors“); cf.
Congress‘s intent is evident in the text; the five alternative conditions were written into this sex-crime statute because each renders the sex act nonconsensual.4 Cf. McDonough v. Anoka Cnty., 799 F.3d 931, 940 (8th Cir. 2015) (noting that “the
text and structure of a statute can evince Congress’ intent” (internal quotation mark omitted)). This purposeful commonality informs the meaning of “used to cause.” See
Attention to context is particularly vital when interpreting the phrase “used to cause.” See Bailey v. United States, 516 U.S. 137, 148-49 (1995) (noting that the word “‘use’ takes on different meanings depending on context“); Smith v. United States, 508 U.S. 223, 245 (1993) (Scalia, J., dissenting) (noting that the word “use” is among “common words that are . . . inordinately sensitive to context“); cf. Paroline v. United States, 572 U.S. 434, 458 (2014) (“It would be unacceptable to adopt a causal standard so strict that it would undermine congressional intent . . . .“). Suppose a statute required licensure where “a hammer is used to cause a house to be built.” A man wants to hire a construction crew to build a house. To select the right crew, he uses a hammer and nail to post signs around town inviting contractors to submit bids. In this example, the context makes obvious that the prospective homeowner need not obtain a license even though he “used” a hammer for the purpose of eventually getting his house constructed. And the scope of the hypothetical provision becomes even clearer if it lists multiple items—“hammer, nail, or saw“—that are ejusdem generis, sharing a common function in the context of home construction.
A similar contextual approach applies here. Just as a hammer, nail, and saw must be used in the way that such tools are ordinarily understood to cause houses to be built, so too the alternative means in
Applying this interpretation to the fraud element, a conviction under
On this interpretation, there is insufficient evidence to convict Taylor of sex-trafficking A.L. by fraud. Although Taylor undoubtedly deceived A.L.—he promised her that clients expected “just a massage,” not sexual acts—that deception was immaterial because all it induced her to do was work for Taylor as a masseuse. This case aptly illustrates the contrast between fraud that is excluded by the statute and fraud that is covered; here Taylor‘s misrepresentation persuaded A.L. only to do the opposite of what covered fraud would induce—it persuaded her to accept a job on the understanding that it would involve no sex acts of any kind. Compare this to Noble v. Weinstein, where the defendant persuaded the victim to engage in a sex act by falsely promising that she would be chosen for a film role. 335 F. Supp. 3d 504, 519 (S.D.N.Y. 2018). Only in cases like Noble, where the sex act is the immediate object of the inducement, can fraud support a conviction.
Nor is there sufficient evidence to convict Taylor of sex-trafficking A.L. by force, threats of force, or coercion. The record does not support Taylor having knowledge that force, threats of force, or coercion were used against A.L. True, construing the record in favor of the jury verdict, A.L. was coerced by a client the one time she engaged in a sex act. But A.L. testified that she never told Taylor about it. And although Taylor created a mismatch in expectations between clients and A.L., that does not show that he knew or recklessly disregarded the fact that clients would threaten to harm her seriously or restrain her physically when she failed to engage in a sex act with them. See
For the foregoing reasons, I would reverse Taylor‘s conviction on Count 4. Because the court instead affirms it, I respectfully dissent as to that affirmance and Section II.1.C. I concur in the remainder of the court‘s opinion.
STRAS, Circuit Judge, concurring in part and concurring in the judgment.
I join all but Part II.1.A. of the opinion.