UNITED STATES of America, Appellee, v. Devon ROBINSON, aka Da Da, Defendant-Appellant.
Docket No. 11-301-cr.
United States Court of Appeals, Second Circuit.
Decided: Nov. 30, 2012.
Argued: Jan. 25, 2012.
Lastly, we affirm the district court‘s grant of summary judgment on the Monell claim, as well as the dismissal of the malicious prosecution claims. Ackerson appealed the Monell claim but only made passing references to it in his opening brief. Moreover, Ackerson has not contested the dismissal of his malicious prosecution claim under either New York Law or
Conclusion
For the foregoing reasons, the judgment of the district court is VACATED. The order of the district court granting summary judgment to all defendants on the theory that Fisher and Fottrell were entitled to qualified immunity is hereby REVERSED; denying partial summary judgment on Ackerson‘s state law false arrest claims against Fisher, Fottrell, and the City of White Plains is REVERSED; and denying partial summary judgment for Ackerson against Fisher and Fottrell under
Sylvia S. Shweder, Assistant United States Attorney (David C. James, Assistant United States Attorney, on the brief), for Loretta E. Lynch, United States Attorney, United States Attorney‘s Office for the Eastern District of New York, for Appellee.
Before: KEARSE, CABRANES, and STRAUB, Circuit Judges.
Judge KEARSE concurs in the judgment in a separate opinion.
JOSÉ A. CABRANES, Circuit Judge:
Defendant-appellant Devon Robinson appeals from the January 26, 2011 judgment of the United States District Court for the Eastern District of New York (John Gleeson, Judge), convicting him, following a jury trial, on two counts of sex trafficking of a minor in violation of
BACKGROUND
On April 14, 2010, a federal grand jury returned a superseding indictment charging Devon Robinson with three counts of child sex trafficking in violation of
of a minor under the preceding version of
A. The Trial
A jury trial commenced before Judge Gleeson in the Eastern District of New York on June 21, 2010. During trial, the government called Jane Doe—who at that time was nineteen years old—to testify. After she invoked the Fifth Amendment protection against self-incrimination and was granted immunity, the government received permission to treat her as a hostile witness. She testified that she had run away from home on several occasions in her early teenage years, and had dropped out of high school at the age of seventeen. While in high school, Jane Doe began to work as an exotic dancer at a strip club and as a prostitute. She was arrested several times for and convicted of prostitution in Queens, New York, in 2008 and 2009. Jane Doe testified that she met Robinson through his sister two and a half years prior to the trial and started dating him when she was seventeen. She also testified that she told “everybody” that she was nineteen at the time. Throughout the trial, Jane Doe insisted that Robinson was her boyfriend rather than her pimp, and that he was only living off of her income as a prostitute rather than facilitating that line of work.
The balance of the evidence against Robinson consisted primarily of recorded statements. On July 18, 2008, Robinson made a videotaped statement to a detective and an assistant district attorney (“ADA“) in the Queens County District Attorney‘s Office, in which he admitted that he had been staying with his “girlfriend” Jane Doe at the Courtesy Hotel in Hempstead, New York, for about three months and that Jane Doe paid for their room. The videotaped statement included the following exchange:
ADA: You gotta, the obvious thing[] [is] you got to be real with us[.]
DR: But I ain‘t gonna say I‘m a pimp though. But you know.
ADA: You watch out for them and they give you money[.]
DR: They take care of me. Word[.]
ADA: I think that‘s by definition a pimp[.]
DR: (laughter)
*
*
*
DR: [Robinson admitted to having promoted prostitution on an occasion in the past.]5 So I stopped it. So I tried to do something else. You feel what I‘m saying?
ADA: That‘s when you moved on to the prostitution.
DR: Exactly. Tried to do something else. And awright [sic], it worked for a little while.
Gov‘t App‘x 11. The prosecution also introduced thirty-five recorded telephone calls that Robinson made from various detention facilities between July 20, 2008, and April 10, 2010. As demonstrated in the following excerpts, Robinson repeatedly implored Jane Doe to make money for him:
September 2, 2008: “You‘re gonna make that bread tonight, right baby? . . . . So you‘re gonna make daddy happy when I call you in the morning?” Id. at 29.
September 7, 2008: “Listen, every night, you give [Robinson‘s grandmother] 200 f***ing dollars man. . . . [J]ust make 200 tomorrow, give all that sh** to my grandma man. . . . [T]onight, yo, you better on some real sh** man, like these next 7 days man. 2, 4, 6, 8, 10, 12, 14. Yo man, that‘s 1400. 200 dollars every mother f***ing day to my grandmother for the next 7 days man.” Id. at 48, 50, 54.
September 9, 2008: “Can you please make me happy baby? That‘s all, man. That‘s all I want you to do man is just to get that money out for me baby. . . . How hard is it, right? Every date that you go on, right, when you finish with the date, how hard is it to get the date to drop you off on 115?” Id. at 58, 62.
In other conversations, Robinson threatened Jane Doe when she failed to deliver the money:
September 16, 2008: “Word to my mother . . . if my grandmas have to bail me out, when I come home I‘m not f***in with you no more and I‘m gonna beat the sh** out of you . . . I‘m gonna beat the sh** out of you stupid slut a** man.” Id. at 101.
September 26, 2008: “I‘m ready to send a bit** over there to wash you the f*** up. . . . I said I‘m ready to send, I‘m ready to send somebody over there to f*** you up man. . . . All right, listen I‘m gonna get the last laugh man. Always remember that, when I come home I‘m gonna have the last laugh. Cause I‘m gonna beat the sh** out of your stupid a**. Word to mother I‘ma throw you in a f***ing garbage can and let everybody know you ain‘t sh**. . . . [S]tupid bit**, f*** you talking about[?] Yo, just make sure man you get that money tonight man. And you take that to my grandmother man on some real sh** man.” Id. at 110, 113.
October 4, 2008:
Jane Doe: “If I was to ever leave you, what would you do?”
Robinson: “Kill your a**.”
Jane Doe: “Didn‘t you use to say till death do us part? . . . . What does that mean? You‘re gonna kill me before I leave right?”
Robinson: “Yeap, kill you.” Id. at 132.
During other phone calls, Robinson discussed women named “Angie” and “Creame.” For instance, in an October 11, 2008 call, Robinson told his cousin, Tykim, that when he got out of jail, “Creame is back in my possession.” Robinson also said that he spoke to Creame and that she was “ready to come back to her n***er” and that Robinson told her “just stay where you‘re at though right now man I‘ll be home soon man. You‘re coming back to a pimp.” Id. at 140.
B. The Verdict and Sentence
On June 24, 2010, the jury returned a guilty verdict on both counts of sex trafficking of a minor in violation of
On January 21, 2011, Robinson was sentenced principally to 180 months of imprisonment on each count, to run concurrently, followed by five years of supervised release. Judgment was entered on January 26, 2011. This appeal followed.
DISCUSSION
Section 1591 was first enacted as part of the Trafficking Victims Protection Act of 2000 (“TVPA“), Pub.L. No. 106-386, 114 Stat. 1464 (Oct. 28, 2000),6 the stated purpose of which was “to combat trafficking in persons, a contemporary manifestation of slavery whose victims are predominantly women and children, to ensure just and effective punishment of traffickers, and to protect their victims.”
Section 1591 was amended by the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (“TVPRA“), Pub.L. No. 110-457, 122 Stat. 5044 (2008),7 which took effect on December 23, 2008.8 Under the amended version of
In a prosecution under subsection (a)(1) in which the defendant had a reasonable opportunity to observe the person so recruited, enticed, harbored, transported, provided, obtained or maintained, the Government need not prove that the defendant knew that the person had not attained the age of 18 years.
Id.
As noted above, Count One charged Robinson with sex trafficking of a minor, in violation of the amended version of
A. The Jury Instructions on Count One
Robinson challenges the jury instructions on Count One, which charged him with sex trafficking of a minor, in violation of the amended version of
On appeal, where our review of jury instructions for legal error is de novo, United States v. Kozeny, 667 F.3d 122, 130 (2d Cir.2011), the parties present two widely divergent interpretations of the statute. Robinson argues that
Robinson responds to the government‘s interpretation by pointing out that the amended version of
We must begin, of course, with the plain language of the statute, and “our inquiry must cease if the statutory language is unambiguous . . . and the statutory scheme is coherent and consistent.” Schindler Elevator Corp. v. United States ex rel. Kirk, 563 U.S. 401, 412, 131 S.Ct. 1885, 1893, 179 L.Ed.2d 825 (2011) (alterations and internal quotation marks omitted). “The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997). “In interpreting the statute at issue, we consider not only the bare meaning of the critical word or phrase but also its placement and purpose in the statutory scheme.” Holloway v. United States, 526 U.S. 1, 6, 119 S.Ct. 966, 143 L.Ed.2d 1 (1999) (alteration and internal quotation marks omitted). Or, as Justice Scalia observed in another context, “the words of a statute are not to be read in isolation; statutory interpretation is a ‘holistic endeavor.‘” Regions Hosp. v. Shalala, 522 U.S. 448, 466, 118 S.Ct. 909, 139 L.Ed.2d 895 (1998) (Scalia, J., dissenting) (quoting United Sav. Assn. of Tex. v. Timbers of Inwood Forest Assocs., Ltd., 484 U.S. 365, 371, 108 S.Ct. 626, 98 L.Ed.2d 740 (1988)).
Robinson‘s interpretation is mistaken. The text and structure of the statute do not indicate that
The better reading of
This commonsensical understanding of
We are mindful that criminal statutes are generally construed to include mens rea requirements. See Staples v. United States, 511 U.S. 600, 605-06, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994); United States v. U.S. Gypsum Co., 438 U.S. 422, 437-38, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978). But that presumption does not apply to sex crimes against minors, see Morissette v. United States, 342 U.S. 246, 251 n. 8, 72 S.Ct. 240, 96 L.Ed. 288 (1952), at least when “the perpetrator confronts the underage victim personally,” United States v. X-Citement Video, Inc., 513 U.S. 64, 72 n. 2, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994).9 Moreover, the presumption ap-
Our interpretation of
Finally, we note that
Given this holding, we conclude that the District Court did not err in giving the three-part jury instruction. In a prosecution under
B. The Sufficiency Challenge
Robinson raises sufficiency challenges on Counts One and Two, arguing that the government failed to present sufficient evidence that he either knew or recklessly disregarded Jane Doe‘s minor status. When reviewing a sufficiency challenge, we will uphold the judgments of conviction if “any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). As we
Robinson primarily argues that the evidence was insufficient to prove his knowledge or reckless disregard of Jane Doe‘s status as a minor because Jane Doe testified repeatedly that she told Robinson, his family, and “everybody” she was nineteen. When she was arrested for prostitution, Jane Doe also told the police she was nineteen; the police were able to determine her true age only by producing her arrest record (or “rap sheet“). Robinson also cites the testimony of Donald Smith, who worked at a hotel frequented by Robinson and Jane Doe, and who testified that an African American female staying with Robinson appeared to be “maybe 21, 22” years old.13
The government responds by pointing out that Robinson‘s “reasonable opportunity to observe” Jane Doe was “a highly relevant circumstance from which an inference of knowledge or reckless disregard can be drawn.” Gov‘t Br. 37. For example, in a call recorded on January 5, 2010 (when Jane Doe was eighteen years old), Jane Doe stated that she and Robinson had “been together” every weekend “for like three years.” In another conversation, Robinson and Jane Doe discussed her birthday. The government argues that even if people who interacted with Jane Doe on a short-term or casual basis could be deceived about her age, “it would strain credulity to suggest that someone who had known her as long and as intimately as Robinson would not have learned her true age.” Gov‘t Br. 39. Finally, the jury had an opportunity to observe Jane Doe testify at trial, when she was nineteen years old, and also to view several photographs of Jane Doe taken before she turned eighteen. The government concludes that it was well within the province of the jury to find that Jane Doe‘s appearance and demeanor were such that her status as a minor would have been obvious to someone intimately involved in her life.
Viewing the evidence in the light most favorable to the government, see Evans v. United States, 504 U.S. 255, 257, 112 S.Ct. 1881, 119 L.Ed.2d 57 (1992), we conclude that the record supports the jury‘s finding of guilt on Counts One and Two. With regard to Count One, it is uncontested that Robinson had a “reasonable opportunity to observe” Jane Doe when he was causing her to engage in commercial sex acts as a minor, and, as explained above, that showing satisfies the government‘s burden under the amended statute. See
For the same reasons, a reasonable jury also could conclude, both with respect to the Count One time period and the Count Two time period, that Robinson knew that Jane Doe was under the age of eighteen at the time he was causing her to engage in commercial sex acts within those respective time spans. The government‘s case rested on circumstantial evidence, but “the mens rea elements of knowledge and intent can often be proved through circumstantial evidence and the reasonable inferences drawn therefrom.” United States v. MacPherson, 424 F.3d 183, 189 (2d Cir.2005). In fact, “[a] verdict of guilty may be based entirely on circumstantial evidence as long as the inferences of culpability drawn from the circumstances are reasonable.” Id. at 190. Moreover, our role in reviewing sufficiency arguments is “exceedingly deferential,” Hassan, 578 F.3d at 126, because “it is the task of the jury, not the court, to choose among competing inferences,” MacPherson, 424 F.3d at 190 (quotation marks omitted).
A reasonable jury could determine, based on the evidence of the relationship between Robinson and Jane Doe, that during both relevant time periods Robinson was aware of Jane Doe‘s status as a minor, especially given that their relationship began before Jane Doe dropped out of high school during her junior year. The jury also had an opportunity to witness Jane Doe‘s appearance at trial in June 2010 when she was nineteen, and based on that appearance jurors could have inferred that Robinson knew that Jane Doe was a minor both before and after the statutory amendment in December 2008. See, e.g., United States v. Brooks, 610 F.3d 1186, 1197 (9th Cir.2010) (jury‘s “opportunity to consider [the victim‘s] appearance during her testimony, at which time she was eighteen,” was among the evidence sufficient to show defendant‘s knowledge that the victim was a minor). While this evidence by no means required the jury to infer Robinson‘s knowledge of Jane Doe‘s underage status, looking at the evidence as a whole and drawing all reasonable inferences in the government‘s favor, we cannot say that no rational trier of fact could have found beyond a reasonable doubt that Robinson knew that Jane Doe was a minor.
C. The Evidentiary Rulings
Robinson also challenges the admission of recorded telephone calls that included evidence of his relationship with other prostitutes and evidence that he threatened and used force against Jane Doe. We review a district court‘s evidentiary rulings with deference, “mindful of its superior position to assess relevancy and to weigh the probative value of evidence against its potential for unfair prejudice.” United States v. Abu-Jihaad, 630 F.3d 102, 131 (2d Cir.2010). “We will reverse an evidentiary ruling only for ‘abuse of discretion.‘” Id.; see also In re Sims, 534 F.3d 117, 132 (2d Cir.2008) (explaining that the term of art “abuse of discretion” includes errors of law).
1. Evidence Regarding Robinson‘s Relationship with Other Prostitutes
First, Robinson argues that the District Court erred by admitting several recorded telephone calls in which Robinson discussed his former, current, or prospective control of other prostitutes, including Angie and Creame. Robinson asserts that this evidence served to demonstrate only his propensity to engage in prostitution-related activity, and was therefore inad-
In this case, the District Court held that the conversations that made reference to other prostitutes did not constitute “other act” evidence within the meaning of
We find no error in that decision. Evidence of uncharged criminal conduct is not evidence of “other crimes, wrongs, or acts” under
Robinson also argues that, because he had stipulated that he had “promoted prostitution on an occasion in the past,” the District Court erred by failing to exclude the conversations about other prostitutes as needlessly cumulative and unfairly prejudicial under
We conclude that the District Court did not abuse its discretion by admitting the recorded telephone calls involving other prostitutes as direct proof of the charged crimes. See Quinones, 511 F.3d at 309.
2. Evidence That Robinson Threatened and Used Force Against Jane Doe
Robinson further contends that the District Court erred by admitting recorded telephone calls in which he threatened, among other things, to beat Jane Doe and to kill her if she were to leave him. Robinson argues that this evidence was irrelevant because Robinson was charged with sex trafficking of a minor—not with sex trafficking by force, fraud, or coercion. We disagree. Evidence of threats was relevant here because it addressed the nature of the relationship between Robinson and Jane Doe. A reasonable juror, for example, could conclude that Robinson sounded a lot more like Jane Doe‘s pimp than her “boyfriend,” “lover,” or “best friend,” when he threatened that, if she did not have the “f***ing money,” he would “beat the sh** out of [her] stupid a** . . . [and] throw [her] in a f***ing garbage can and let everybody know [she] ain‘t sh**.”
Robinson‘s fallback argument, that the threat evidence caused him unfair prejudice, is equally unavailing. The sole case Robinson cites in support of his prejudice argument, United States v. Colombo, 869 F.2d 149 (2d Cir.1989), is readily distinguishable. In that case, we reversed a conspiracy conviction where the district court admitted “background” evidence that the defendant‘s co-conspirators had raped and sodomized a woman in the course of a robbery—despite the fact that the defendant was not present during the sexual assault and did not know that it would occur. Id. at 153. Here, by contrast, Robinson‘s threats were not simply gratuitous evidence of violence offered to show the “background” of the charged offense. Instead, the evidence of these threats related to material factual disputes at trial.
On these facts, we conclude that the District Court did not abuse its discretion in admitting evidence of Robinson‘s threats of using force against Jane Doe.
D. The Sentencing Challenge
Finally, Robinson contends that his sentence of 180 months of imprisonment was procedurally unreasonable. We review a criminal sentence for reasonableness, which “amounts to review for abuse of discretion.” United States v. Cavera, 550 F.3d 180, 187 (2d Cir.2008) (en banc). “Reasonableness review requires an examination of the length of the sentence (substantive reasonableness) as well as the procedure employed in arriving at the sentence (procedural reasonableness).” United States v. Johnson, 567 F.3d 40, 51 (2d Cir.2009). A district court commits procedural error where it fails to calculate (or improperly calculates) the Sentencing Guidelines range, treats the Sentencing Guidelines as mandatory, fails to consider the
Robinson‘s entire sentencing claim rests on a single word in the District Court‘s remarks at the sentencing proceeding, as highlighted in the following passage:
The driving factors of this sentence have to be, in my judgment . . . this very chilling, really, ownership of [Jane Doe] by the defendant and the threats . . . that he wasn‘t kidding around when he said he was going to come home and beat her up, the evidence in the conversations themselves that he had done that in the past and she still came back, and the use of that control to force them on her, and I mean force.
I listened to her testimony. I mean, she was an impressive young woman, I thought, but she was a minor in the situation she was in and, make no mistake about it, no matter what she says, she was coerced as a minor to prostitute herself by this defendant.
That bundle of activity—the ownership of a person, the threatening, the physical abuse, forcing them to become a prostitute—is so much more worthy of . . . condemnation expressed in the form of jail time than most of the federal crimes we see.
Joint App‘x 261-62 (emphasis supplied). Robinson contends that the highlighted word demonstrates a “significant procedural error,” Gall, 552 U.S. at 51, because there was no evidence that he forced Jane Doe “to become a prostitute” in the first instance. We disagree. The clear import of the District Court‘s remarks, taken as a whole, was not that Robinson had corrupted an otherwise innocent victim, but that he had taken control of Jane Doe and forced her to engage in prostitution. For example, the tapes contain numerous conversations in which Robinson coerced Jane Doe to prostitute herself when she was reluctant or unwilling to do so. We find no error, procedural or otherwise, in the District Court‘s commentary on the nature of the relationship between Robinson and his victim, or in the Court‘s sentencing decision.
CONCLUSION
For the reasons stated above, we hold that:
(1) When applicable,
(2) Sufficient evidence supported the jury‘s special verdict that Robinson knew or recklessly disregarded Jane Doe‘s status as a minor during the Count One time period (under the 2008 version of the applicable statute) and knew Jane Doe‘s status as a minor during the Count Two time period (under the 2000 version of the applicable statute).
(3) The District Court properly admitted recorded telephone calls regarding (a) Robinson‘s relationship with other prostitutes, and (b) Robinson‘s threats and prior use of force against Jane Doe.
(4) The sentence imposed by the District Court was procedurally reasonable.
Accordingly, the judgment of the District Court is AFFIRMED.
KEARSE, Circuit Judge, concurring in the judgment:
I concur in the judgment affirming the conviction of defendant Devon Robinson on both counts of the indictment charging him
As amended, subsection (a)(1) of
The Majority concludes that a defendant who had “a reasonable opportunity to observe” the underage traffickee is strictly liable for causing the person to engage in a commercial sex act even if the defendant neither knew nor recklessly disregarded the fact that the person was younger than 18. It is not clear to me that when Congress, in the amended
In the present case, however, if it was error for the trial court to instruct that the jury could find Robinson guilty on Count One if he had a reasonable opportunity to observe Jane Doe, his underage traffickee, even if he neither knew nor recklessly disregarded the fact that she was younger than 18, I would affirm Robinson‘s conviction on the ground that that error was entirely harmless: The jury, in response to interrogatories on Count One, not only found that Robinson had such an opportunity to observe, but also found expressly “[t]hat Mr. Robinson knew Ms. Doe was under the age of 18,” and “[t]hat Mr. Robinson was in reckless disregard of the fact that Ms. Doe was under the age of 18.” (Verdict Sheet, June 24, 2010.) There is thus no need in this case to interpret
Notes
(a) Whoever knowingly—
(1) in or affecting interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States, recruits, entices, harbors, transports, provides, obtains, or maintains 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 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). . . . .
(c) In a prosecution under subsection (a)(1) in which the defendant had a reasonable opportunity to observe the person so recruited, enticed, harbored, transported, provided, obtained or maintained, the Government need not prove that the defendant knew that the person had not attained the age of 18 years.
(a) Whoever knowingly—
(1) in or affecting interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States, recruits, entices, harbors, transports, provides, or obtains 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 that force, fraud, or coercion described in subsection (c)(2) 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).
(1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person‘s character in order to show that on a particular occasion the person acted in accordance with the character.
(2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.
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.