UNITED STATES of America, Plaintiff-Appellee, v. Robert DANIELS, a.k.a. Twin T, Defendant-Appellant.
No. 10-14794.
United States Court of Appeals, Eleventh Circuit.
July 2, 2012.
685 F.3d 1237
III.
The doctrine of tribal sovereign immunity may well be anachronistic and overbroad in its application, especially when applied to shield from suit even the most sophisticated enterprises of Indian tribes, including commercial activities—such as the sale of alcohol—that have obvious and substantial impacts on non-tribal parties. But it remains the law of the land until Congress or the Supreme Court tells us otherwise. Accordingly, the district court‘s dismissal of Furry‘s complaint for lack of subject matter jurisdiction must be, and is, AFFIRMED.
Tracy Michele Dreispul, Jan Christopher Smith, II, Michael Caruso, Aimee Ferrer, Samuel J. Randall, Fed. Pub. Defenders, Fed. Pub. Defender‘s Office, Miami, FL, for Defendant-Appellant.
Before TJOFLAT, PRYOR and FAY, Circuit Judges.
PER CURIAM:
Following a jury trial, Robert Daniels, a/k/a “Twin T” (“Daniels“), appeals his convictions and sentences for the following: 1) using a facility and means of interstate commerce to persuade, induce, entice, or coerce any individual who had not attained the age of eighteen, to engage in prostitution and any sexual activity for which any person can be charged with a criminal offense, in violation of
I. Background and Procedural History
On July 18, 2008, a grand jury in the Southern District of Florida returned a three-count indictment against Daniels, charging as follows:
Count I: From in or about September 2004, through on or about October 30, 2004, in Miami-Dade and Broward Counties and elsewhere, Daniels, using a facility and means of interstate commerce, did knowingly persuade, induce, entice, and coerce an individual who had not attained the age of eighteen (“A.W.“),3 to engage in prostitution and any sexual activity for which any person can be charged with a criminal offense, in violation of
18 U.S.C. § 2422(b) .
Count II: On or about October 30, 2004, in Miami-Dade and Broward Counties in the Southern District of Florida and elsewhere, Daniels did knowingly, in and affecting interstate commerce, recruit, transport and provide by any means, A.W., knowing she had not attained the age of eighteen and would be caused to engage in a commercial sex act, in violation of
18 U.S.C. § 2421 .Count III: On or about October 30, 2004, in Miami-Dade and Broward Counties, in the Southern District of Florida and elsewhere, Daniels did knowingly transport A.W. in interstate commerce with the intent that she engage in prostitution, and in any sexual activity for which any person can be charged with a criminal offense, in violation of
18 U.S.C. §§ 2421-22 .
After the government‘s case in chief, Daniels moved for a judgment of acquittal, arguing that there was no evidence showing that Daniels knew or believed that A.W. was under eighteen. The court denied that motion, and the defense subsequently rested without presenting any evidence. The jury then convicted Daniels on Counts I and III, and acquitted him on Count II. On September 30, 2010,4 the district court sentenced Daniels to 78 months’ imprisonment, to run consecutively to an undischarged term of imprisonment from his convictions in the Eastern District of Michigan.5 This appeal followed.
A. Government‘s Evidence at Trial
As we must, we consider the factual testimony adduced at trial in the light most favorable to the government. See United States v. Glen-Archila, 677 F.2d 809, 812 (11th Cir. 1982). Accordingly, the record reflects the following facts:
At all times relevant to this case, Daniels was a pimp. Beginning in late 2003, Daniels began managing one prostitute, Stephanie Head, a/k/a “Chocolate” (“Head“). Daniels managed Head‘s prostitution activities from the time she was 18 years old. At that time, she was working as a prostitute in Detroit. Daniels also managed other prostitutes. In exchange for the money each prostitute gained from selling her body, Daniels would provide housing, food, clothes, and some money. Eventually, Head became Daniels‘s “bottom girl,” meaning that she earned the most money and was respected and trusted above Daniels‘s other prostitutes.
In September 2004, Daniels and Head drove from Detroit, Michigan to Miami, Florida for purposes of prostitution. They were accompanied by another pimp, Dennis Paige, a/k/a “Detroit Slim” (“Paige“), and a prostitute he managed named “Womp.” Head and Womp engaged in prostitution along the way in such cities as Atlanta, Orlando, and Miami.
The group reached Miami in October 2004. When they arrived, they stayed at a Days Inn on Miami Beach, where Paige and Womp stayed in one room, while Daniels and Head stayed in another. On one
When Daniels and A.W. returned to the Days Inn, Daniels introduced her to Head. Although A.W. had already been working as a prostitute when Daniels found her, Head explained to A.W. the details of working for Daniels and what would be expected of her. For example, Head briefed her on necessary hygiene, the appropriate prices to charge for certain services, and “just how to act with a trick.” Womp was also present during these conversations. At that time, there was no mention of A.W.‘s age.
Soon afterwards, the group of pimps and prostitutes left the Days Inn in Miami Beach and traveled to Fort Lauderdale, where Head and A.W. continued to work as prostitutes for Daniels. It was in Fort Lauderdale that Head first learned of A.W.‘s age, after receiving a text message on her cellular phone from Head‘s boyfriend.6 Head, however, could not recall if she conveyed that information to Daniels.
Problems were brewing between Head and A.W. They did not like each other and frequently argued. To diffuse the situation, Daniels arranged to sell A.W. to another pimp. He called Robert Lipsey, a/k/a “Fat Daddy” (“Lipsey“), on Lipsey‘s cellular telephone to sell him A.W. Daniels, who was still in Florida, told Lipsey, then in Tennessee, that he was having issues with A.W., who was not getting along with Head, his “bottom girl.” Daniels described A.W. to Lipsey as “young, thick, and cute.” Lipsey agreed to pay Daniels $200 for A.W., who would then become his prostitute. Lipsey did not have any other prostitutes working for him at that time, as his last prostitute “grew up” and left him.
Daniels and Paige took A.W. to the bus station in Miami, Florida, where she boarded a bus bound for Memphis, Tennessee. When she arrived at the Memphis bus station, A.W. called Lipsey on his cellular phone. Lipsey, along with a partner, came to pick her up. A.W. identified herself to Lipsey as “Tiffany Thomas,” the name on her bus ticket. From the bus station, they drove to a hotel room in West Memphis, Arkansas. There, Lipsey taught A.W. “the rules” of working at a truck stop, which included walking around until a truck driver provided her with a “safe house.”7 In addition, Lipsey told A.W. how to talk “really sexy” on a CB radio, how to describe herself, how to watch out for the police, and how much to charge her customers. After receiving payment, A.W. gave Lipsey the entirety of the money she earned and in return, Lipsey bought A.W. hygiene products, condoms, food, and clothing.
Lipsey knew that A.W. was under eighteen because she came across as childish and young; she not only appeared young, but also acted young. When Lipsey asked A.W. her age, though, she told him she was nineteen years old. Only later, when she turned fifteen, did she tell Lipsey her true age.
Prior to trial, Daniels submitted proposed jury instructions asking that the jury be instructed with respect to Count I, “that the Defendant believed that A.W. was less than eighteen (18) years of age.” The government argued that the jury should instead be instructed pursuant to the Eleventh Circuit Pattern Jury Instructions, which do not require the defendant to know that the victim was under eighteen, but only that the victim was actually under eighteen. Daniels acknowledged that the relevant pattern jury instructions did not require knowledge of the victim‘s age, but argued that under other circuit decisions,8
With respect to Count III, Daniels asked for an instruction stating,
The Defendant can be found guilty [of] the offense only if all the following facts are proved beyond a reasonable doubt: First: The Defendant knowingly transported A.W. across a state line; and Second: The Defendant transported A.W. with the intent that A.W. engage in prostitution or any sexual activity for which any person can be charged with a criminal offense.
After some discussion with the parties,11 the court‘s instruction was as follows:
In Count 3, the defendant is charged with violating
18 U.S.C. § 2421 . It‘s a federal crime for anyone, to knowingly transport an individual in interstate commerce with the intent that such individual engage in prostitution or any sexual activity for which any person can be charged with a criminal offense. The defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt. First, that the defendant knowingly transported A.W. across a state line. Second, that the defendant transported A.W. with the intent that A.W. engage in prostitution or any sexual activity for which any person can be charged with a criminal offense.As to the first element of the offense, the phrase “transport across a state line” means to move or carry, or cause someone to be moved or carried, from one state to another. It is not necessary to show that the defendant knew that state lines were being crossed. However, the government must prove, beyond a reasonable doubt, that state lines were crossed ....
II. Standard of Review
There are various standards that apply to the issues raised by Daniels in this appeal. The interpretation of a statute is a question of law subject to de novo review. United States v. Pistone, 177 F.3d 957, 958 (11th Cir. 1999). This court reviews de novo whether the evidence was sufficient to sustain conviction. United States v. Jiminez, 564 F.3d 1280, 1284 (11th Cir. 2009). The issue of whether a jury instruction misstated the law or misled the jury to the defendant‘s prejudice is reviewed de novo. United States v. Deleveaux, 205 F.3d 1292, 1296 (11th Cir. 2000).
If a party does not object to the court‘s instructions, we review for plain error. United States v. Prather, 205 F.3d 1265, 1270 (11th Cir. 2000). Where, however, a party expressly agrees with the court‘s instruction, the claimed error is waived and we will not review it, even for plain error. United States v. Fulford, 267 F.3d 1241, 1246–47 (11th Cir. 2001). Similarly, where a defendant invites error by expressly consenting to the admission of evidence, we will not review his appellate argument contesting that admission, even for plain error. United States v. Jernigan, 341 F.3d 1273, 1289-90 (11th Cir. 2003).
In reviewing a claim under the Sentencing Guidelines, this Court reviews the district court‘s findings of fact for clear error and its interpretation of the Guidelines de novo. United States v. Rendon, 354 F.3d 1320, 1328-29 (11th Cir. 2003). The substantive reasonableness of a sentence is reviewed for abuse of discretion in light of the totality of the circumstances. Gall v. United States, 552 U.S. 38, 51 (2007).
Daniels advances the following issues on appeal in regard to his convictions and sentences for Counts I and III:
- Whether the district court erred in denying Daniels‘s motion for a judgment of acquittal as to Count I because there is insufficient evidence to support Daniels‘s conviction for using a facility or means of interstate commerce to persuade, induce, entice, or coerce A.W. to engage in prostitution, in violation of
18 U.S.C. § 2422(b) . - Whether the district court erred in not instructing the jury that the government was required to prove that Daniels knew that A.W. had not attained the age of 18 years in order to establish that Daniels violated
18 U.S.C. § 2422(b) . - Whether the district court erred in not instructing the jury that the government was required to prove that Daniels knew that A.W. would be transported interstate in order to establish that Daniels violated
18 U.S.C. § 2421 . - Whether the district court erred in admitting into evidence Daniels‘s judgment of conviction from the Eastern District of Michigan.
- Whether Daniels‘s sentence is unreasonable in that it is to run consecutively to the sentence he is serving in connection with his convictions in the Eastern District of Michigan or in that it includes a 25-year term of supervised release.
- Whether the district court erred in applying a two-level sentencing enhancement based upon a finding that Daniels exerted “undue influence” over A.W.
We address these issues in turn.
A.
As to the first issue, Daniels argues that there was insufficient evidence to support his conviction for the violation of
Section 2422(b) states, in pertinent part,
Whoever, using the mail or any facility or means of interstate or foreign commerce, ... knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity for which any person can be charged with a criminal offense, ... shall be fined under this title and imprisoned not less than 10 years or for life.
18 U.S.C. § 2422(b) .
Daniels‘s actions arranging for A.W.‘s sale to Lipsey and putting her on a bus so she could reach him clearly falls within this circuit‘s definition of “induce.” See United States v. Murrell, 368 F.3d 1283, 1287 (11th Cir. 2004). In Murrell, we ruled that an individual “induces” a minor to
[T]he term “induce” in § 2422 is not ambiguous and has a plain and ordinary meaning. “Induce” can be defined in two ways. It can be defined as “[t]o lead or move by influence or persuasion; to prevail upon,” or alternatively, “[t]o stimulate the occurrence of; cause.” We must construe the word to avoid making § 2422 superfluous. To that end, we disfavor the former interpretation of “induce,” which is essentially synonymous with the word “persuade.”
Id. at 1287 (internal citations omitted). Here, Daniels‘s actions satisfy this circuit‘s definition of “induce.”
Nor is there any question that Daniels‘s actions were interstate in nature. Lipsey testified that Daniels contacted him by phone to arrange for the sale of A.W. Further evidence presented at trial showed that Daniels used his cellular phone for that negotiation. Our case law holds that the use of a cellular phone is interstate commerce. See, e.g., United States v. Evans, 476 F.3d 1176, 1180-81 (11th Cir. 2007) (stating that the use of telephones and cellular telephones “is sufficient to satisfy § 2422(b)‘s interstate-commerce element.“). Lipsey further testified that at the time the agreement was made, he was in Memphis, Tennessee, Daniels was in Florida, and Daniels put A.W. on a bus en route to him. The sale of A.W. to Lipsey therefore required her to travel from Florida to Tennessee. Head also testified to the same. Thus, the district court did not err in denying Daniels‘s motion for judgment of acquittal on Count I. Although Daniels may not have used a facility or means of interstate commerce when he initially induced A.W. to work for him, he certainly did when he telephoned Lipsey in Tennessee, arranged for him to become A.W.‘s pimp, and coerced A.W. to be transported across state lines from Florida to Tennessee.
B.
The second issue before this Court is whether the district court erred in not instructing the jury that the government was required to prove that Daniels knew that A.W. had not attained the age of 18 years in order to establish that Daniels violated
Section 2422(b) states, in pertinent part, “Whoever, ... knowingly persuades, induces, entices, or coerces any individual who has not attained the age of 18 years, to engage in prostitution or any sexual activity ... shall be fined under this title and imprisoned not less than 10 years or for life.”
In Flores-Figueroa, the Court considered whether an aggravated identity theft statute,
Section 1028A(a)(1) states, in relevant part, “Whoever ... knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person ... shall be punished as provided in subsection (b) of this section.”
In his concurring opinion in Flores-Figueroa, Justice Alito expressed concern that the Court‘s majority opinion might be read “as adopting an overly rigid rule of statutory construction.” Id. at 659-61 (Alito, J., concurring). Instead, he preferred a contextual approach. Justice Alito gave examples where context may rebut the presumption that the specified mens rea applies to every element of the offense. For example, he pointed to
The majority in Flores-Figueroa approved of Justice Alito‘s reasoning. It acknowledged that there are instances that involve special contexts where “a more
After careful consideration of Flores-Figueroa, we decline to find knowledge a requirement here. In this case, we are called upon to interpret a statute concerned with the protection of minors against sexual exploitation. Despite the similarities in the grammatical structure of
The circumstances at issue here are more akin to those at issue in the interpretation of
Although there is no authority in our circuit deciding whether or not a defendant‘s knowledge of the victim‘s age is an essential element, at least six of our sister circuits have considered this issue within the context of
A thorough review of the jurisprudence rejecting scienter as an elemental requirement in
In particular, we are persuaded by the Seventh Circuit‘s approach in Cox, which relied on Justice Alito‘s contextual approach in rejecting a Flores-Figueroa challenge. The Cox court distinguished its rationale from that of X-Citement Video. Cox, 577 F.3d at 837. In X-Citement Video, the Supreme Court held that “the age of the performers is the crucial element separating legal innocence from wrongful conduct.” 513 U.S. at 73. In contrast, the Cox court explained that the conduct prohibited by
Like the Cox court, we agree that Flores-Figueroa does not mandate a bright-line rule for all occasions. As the Seventh Circuit observed, “[t]he Flores-Figueroa Court made clear, pointing to the concurring opinion by Justice Alito, that ‘the inquiry into a sentence‘s meaning is a contextual one,’ and that a ‘special context’ might call for a different statutory interpretation.” Id. at 838 (quoting Flores-Figueroa, 556 U.S. at 652).
Daniels makes essentially the same arguments as the defendant in Cox by urging that the Court‘s decision in Flores-Figueroa controls.15 He argues that the knowingly element clearly applies to the verbs—“persuades, induces, entices, or coerces“—and equally to the object of the verbs—“to engage in prostitution or ... sexual activity.” Therefore, he contends that it makes no sense that the intervening factor that the individual has not attained the age of eighteen would not be encompassed by the “knowingly” adverb as well. Likewise, Daniels contends that the language in
Daniels‘s argument is misplaced. In Root, our holding was based on the rejection of a defense to charges brought under
Our ruling today is decided in the same spirit as we decided Root. We honor the congressional goal inherent in the Child Protection and Sexual Predator Punishment Act of 1998,17 and reach a holding that aims to protect minors—not make conviction more difficult for crimes that affect them. A defendant such as Daniels who lures and encourages young children into these activities does so at his own peril, regardless of what the victim says or how she appears. He runs the risk that he is dealing with someone who falls within the purview of
Therefore, based on the forgoing reasons, we affirm the district court‘s jury instruction as to the charges under
C.
The third issue on appeal is whether the district court erred in not instructing the jury that the government was required to prove that Daniels knew that A.W. would be transported interstate in order to establish that Daniels was guilty of violating
Prior to instructing the jury, the district court reviewed the instructions with Daniels‘s counsel. See supra note 11. Daniels contends that he preserved this issue on appeal by stating: “knowing applies to whether or not the defendant did things in interstate commerce” immediately after the district court asked for objections to the jury instructions for Count III. After careful review of the record, we find that Daniels did not preserve his objection to the instruction for Count III. Although Daniels‘s counsel‘s objection to the definition of interstate commerce followed the court‘s request for objections to the instructions for Count III, both the substance of that objection—counsel‘s reference to the instructions for Count II—and the context of the discussion—indicate that Daniels‘s counsel intended her objection to apply to the instructions for Count II and not to the instructions for Count III. See supra note 11.
Furthermore, Daniels‘s proposed jury instructions for Counts II and III, respectively, likewise show that Daniels‘s counsel intended the objection raised to apply to Count II because Daniels requested a specific instruction as to knowledge of the interstate commerce element in his proposed instructions for Count II, but not for Count III. Daniels‘s proposed jury instructions for Count II included the specific charge, “The government must prove that the defendant knew that his recruiting, enticing, harboring, transporting, providing, or obtaining of the person under the age of 18 would affect interstate or foreign commerce.” Daniels did not include this specific charge in his proposed jury instructions for Count III, further lending support to the conclusion that the objection raised was intended for Count II and not Count III.
Daniels‘s final argument on this issue is that the error in the jury instruction for Count III was plain. However, Daniels failed to offer any precedent from the Supreme Court or this Court that resolves the issue of whether
D.
The fourth issue before the Court, is whether the district court erred in admitting into evidence Daniels‘s judgment of conviction from the Eastern District of Michigan. Daniels initially challenged the inclusion of his prior convictions, arguing that the government failed to offer any facts regarding the prior offense. He argued that the jury‘s reliance without any evidence of the underlying facts would have constituted plain error warranting reversal if his convictions were vacated. However, after the Sixth Circuit affirmed the majority of Daniels‘s convictions, he conceded in his Reply Brief that the admission of the convictions could not rise to the level of plain error and withdrew this issue from appeal. Therefore, we need not consider this issue further.
E.
The fifth issue Daniels raises on appeal is whether his sentences for Counts I and III are unreasonable because they are to run consecutively to the sentence he is in connection with his convictions in the Eastern
Daniels argues that his sentences are substantively unreasonable because the facts in this case were used as relevant conduct in the calculation of his sentence for his convictions in the Eastern District of Michigan and should therefore run concurrently, rather than consecutively to his undischarged term of imprisonment there. Daniels acknowledges that the Michigan conduct was not “relevant conduct” to the offense herein and urges that, although U.S.S.G. § 5G1.3(b) technically does not require the sentences to run concurrently, basic concerns of fairness do. As to the 25-year term, Daniels argues that it is too extensive, in light of the consecutive terms of imprisonment he faces.
We consider the substantive reasonableness of a sentence under an abuse-of-discretion standard, based on the totality of the circumstances. United States v. Pugh, 515 F.3d 1179, 1199 (11th Cir. 2008). Daniels‘s arguments as to the unreasonableness of his sentence do not establish that the trial court abused its discretion at sentencing. We will vacate a sentence only if we are “left with a definite and firm conviction that a mistake has been committed.” United States v. Crawford, 407 F.3d 1174, 1177 (11th Cir. 2005). Here, it was within the district court‘s discretion under the Sentencing Guidelines to impose consecutive sentences. The district court considered Daniels‘s arguments for a concurrent sentence and rejected them because his conduct in the Eastern District of Michigan was not part of the relevant conduct herein. Therefore, the district court acted within its discretion in imposing a consecutive sentence. We find no abuse in its decision to do so.
It was also within the district court‘s discretion to impose the 25-year term of supervised release. The applicable statute,
F.
The sixth and final issue on appeal is whether the district court erred in applying a two-level sentencing enhancement based upon a finding that Daniels exerted “undue influence” over A.W. Daniels argues that his sentence is procedurally unreasonable because the district court misapplied the guidelines by applying a two-level enhancement to his base offense level under § 2G1.1(b)(4)(B) of the Sentencing Guidelines. He argues that the district court did not make sufficient factual findings to support the enhancement. Daniels further contends that A.W. was already engaged in prostitution before she met him and therefore the evidence adduced at trial does not support a finding that he unduly influenced her.
At the time of Daniels‘s offense conduct, Sentencing Guideline § 2G1.1(b)(4)(B) provided for a two-level sentencing enhancement if the defendant “unduly influenced a minor to engage in a commercial sex act.” U.S.S.G. § 2G1.1(b)(4)(B) (2003). The comment to this section provides as follows:
In determining whether subsection (b)(4)(B) applies, the court should closely consider the facts of the case to deter-
mine whether a participant‘s influence over the minor compromised the voluntariness of the minor‘s behavior. In a case in which a participant is at least 10 years older than the minor, there shall be a rebuttable presumption, for purposes of subsection (b)(4)(B), that such participant unduly influenced the minor to engage in a commercial sex act. In such a case, some degree of undue influence can be presumed because of the substantial difference in age between the participant and the minor. U.S.S.G. § 2G1.1 cmt. n. 7 (2003).
Given this presumption and the evidence at trial, the district court did not err in applying the two-level sentencing enhancement. Here, the district court did not depart from the Guidelines range in sentencing Daniels. In sentencing Daniels, it “considered ... the presentence report which contains the advisory guidelines and the statutory factors set forth in Title 18, United States Code § 3553.” Specifically, the PSI report included the following findings: Daniels was at least 10 years older than A.W.; A.W. initially declined to prostitute for Daniels but then agreed once Daniels told her that she would only have to work for a one-week trial period; Daniels instructed Head to speak with A.W. regarding what was expected of A.W. while she was working for Daniels; Daniels arranged to send A.W. to Memphis to work as a prostitute for Lipsey; and Daniels brought A.W. to a bus station and provided her with a bus ticket to Memphis, where A.W. was to meet Lipsey and begin working as a prostitute for him.
There is ample evidence supporting the district court‘s reliance on the Guideline‘s rebuttable presumption of Daniels‘s undue influence over A.W. The district court here resolved any disputed factual issues about whether Daniels “unduly influenced” A.W. in favor of the presentence investigation report (“PSI“). We find that these findings were sufficient to support the conclusion that the presumption of undue influence prescribed by section 2G1.1(b)(4)(B) applied here and was not rebutted.
Moreover, Daniels‘s contention that the district court did not make sufficient findings of fact to support the enhancement is without merit because “a sentencing court‘s failure to make individualized findings regarding the scope of the defendant‘s activity is not grounds for vacating a sentence if the record support[s] the court‘s determination with respect to the offense conduct.” United States v. Moriarty, 429 F.3d 1012, 1022 (11th Cir. 2005) (citing United States v. Petrie, 302 F.3d 1280, 1290 (11th Cir. 2002)). We have previously rejected “the argument that the district court failed to make explicit findings of fact and conclusions of law” where “the court did not depart from the guidelines range and clearly resolved all disputed factual issues in favor of the [PSI].” United States v. Saunders, 318 F.3d 1257, 1269 n. 18 (11th Cir. 2003). Here, the district court‘s findings were sufficient to provide for meaningful review of this case. See United States v. Villarino, 930 F.2d 1527, 1529 (11th Cir. 1991); accord Crawford, 407 F.3d at 1177 (we will not find clear error unless we have a “firm conviction that a mistake has been committed“). Therefore, we affirm the district court‘s use of a two-level enhancement.
IV. Conclusion
Accordingly, based on the statutory language and underlying public policy, rulings of our sister circuits, and this Court‘s rulings in like-matters, we affirm Daniels‘s convictions and sentences.
AFFIRMED.
Notes
In Count I the defendant is charged with violating
18 U.S.C. § 2422(b) . It‘s a federal crime for anyone [to use] any facility of interstate or foreign commerce to persuade, induce, entice, or coerce anyone under eighteen (18) years old to engage in prostitution or any sexual activity for which any person could be charged with a criminal offense. The defendant can be found guilty of this crime only if all the following facts are proved beyond a reasonable doubt.First, that the defendant knowingly persuaded, induced, enticed or coerced A.W. to engage in prostitution or a sexual activity with himself or a third party as charged.
Second, that the defendant used a facility of interstate commerce, such as telephone, motel/hotel, or a bus crossing state lines to do so.
Third, that A.W. was less than 18 years old.
Fourth, that (1) or more of the individuals engaging in the sexual activity could have been charged with a criminal offense under the law of Florida.
As to the first element, in considering the terms “persuade,” “entice,” or “coerce,” I instruct you to use their plain and ordinary definition. As used in this instruction, induce means to stimulate the occurrence of or to cause ....
As to the second element, a cell phone is a facility of interstate commerce. A hotel/motel is a facility of interstate and foreign commerce because it serves interstate travelers, even if the greater share of its customers are from inside the state. A bus that crosses state lines is also a facility of interstate commerce.
As to the third element, while it is necessary for the government to prove that A.W. was, in fact, less than eighteen (18) years of age, it is not necessary for the government to prove that the defendant knew that A.W. was less than eighteen years of age ....
THE COURT: Count 2, any objection?
[PROSECUTOR]: No objection.
THE COURT: Count 3, any objection?
[DANIELS‘S COUNSEL]: Your Honor, we just wanted to renew our objections. We have an objection to the definition of interstate commerce. If you could give me one second just to review it. We would like our objection noted for the record that we believe that for the same reasons that knowing applies to both elements of the crime in the previous count, similarly here, under Flores-Figueroa, knowing applies to whether or not the defendant did things in interstate commerce, which would be contrary to the last sentence of the instruction in Count 2.
THE COURT: Okay. I will note the objection to that. Count 3?
[PROSECUTOR]: No, no objection, Your Honor.
[DANIELS‘S COUNSEL]: No objection, Your Honor.
Given the similarities betweenA person who knowingly transports an individual who has not attained the age of 18 years in interstate or foreign commerce, or in any commonwealth, territory or possession of the United States; with intent that the individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense, shall be fined under this title and imprisoned not less than 10 years or for life.
18 U.S.C. § 2423(a) .