UNITED STATES оf America, Plaintiff-Appellee, v. Jerome E. TODD, also known as Rome also known as JT, Defendant-Appellant.
No. 08-30360.
United States Court of Appeals, Ninth Circuit.
Filed Oct. 20, 2009.
As Amended on Denial of Rehearing and Rehearing En Banc Nov. 15, 2010.
616 F.3d 1033
Ye-Ting Woo, Assistant United States Attorney, Seattle, WA, for the plaintiff-appellee.
Before: HARRY PREGERSON, JOHN T. NOONAN and MILAN D. SMITH, JR., Circuit Judges.
Opinion by Judge NOONAN; Concurrence by Judge MILAN D. SMITH, JR.
NOONAN, Circuit Judge:
Jerome Eugene Todd appeals his conviction of three counts of sex trafficking in violation of
The statute, captioned the Trafficking Victim‘s Protection Act (TVPA), is a new effort to deal with a social ill whose international as well as interstate dimensions have invited federal attention and action. The TVPA was enacted in December 2000 and amended, as relevant here, in December 2003, July 2006 and December 2008. The statute focuses on those (usually men) who make money out of selling the sexual
Subtitled “Sex trafficking of children or by force, fraud, or coercion,” the law strikes at two particularly vicious permutations of commercialized sex: at the exploitation of minors in the business of selling sex and at the use of criminal means to produce the product being sold. This case falls into the second slot.
FACTS
We state the facts as to Todd‘s treatment of four women:
Todd and Kelsey Kirschman. Just eighteen in January 2005, Kelsey was still in high school in Bellingham. Todd, age 26, was not working but had cash. They dated, going to dinner and to the movies. In May 2006, Todd suggested they get a place together. He also told her that they could get rich together if she worked as a prostitute. He would advertise her in the Seattle Weekly. She agreed. He ran the ad with a picture of her, offering “full service” for $200. Calls came in from men, and she responded to them. She gave up a job at Fred Meyer because Todd wanted her available for prostitution 24/7. Todd also arranged for hеr services to be posted on Craigslist. At Todd‘s direction, she also “walked the track,” that is, she hung out in an area frequented by prostitutes and potential customers. Todd laid down rules for her to obey. As she testified, “You had to, basically, do everything he wanted.” Most basically, “You had to give him all the money.” Todd allotted Kelsey $35 each day to pay for condoms, food, and gas.
Todd maintained his rules psychologically by making Kelsey feel that she was “nothing.” He maintained his rules physically by beating her “from head to toe,” blacking one of her eyes and chipping one of her teeth. When she was 2½ months pregnant, he demanded that she abort the child, and she complied. She tried to hide some of her earnings as a prostitute from Todd, but he found them and confiscated them. She did not leave him because she thought that she “had nowhere else to go,” was “scared,” and had lived “under this man‘s rules” for a year and a half.
Reduced to this state of dependencе, Kelsey performed a number of acts by agreement with Todd to further his traffic in the bodies of other women. She “groomed” Whitney T.---that is, coached her as to how she should conduct herself as a prostitute working for Todd. She placed ads in Craigslist and Seattle Weekly advertising the sexual availability of Whitney and two other women who came to work for Todd as prostitutes. She rented hotel rooms for these women to use with customers, provided them with cellphones to receive calls frоm customers, and purchased condoms for them to supply to customers. In these actions, she collaborated with Todd.
Todd and Whitney T. Whitney T., aged twenty, met Todd at a party in October 2006. Whitney was the unmarried mother of a young child. She was unemployed and living with a girlfriend in Everett. She and Todd liked each other and began a relationship. Todd had no job but he wore nice clothes and had cash. Whitney learned eventually that his income came from Kelsey‘s work as a prostitute.
In January 2007, Todd tоld Whitney that if she too worked as a prostitute for a couple of years she could have nice cars and a nice house. In February 2007, Whitney went on her first call. She moved into an apartment with Todd and Kelsey. Todd advertised her services on Craigslist and the Seattle Weekly. Todd imposed the rules that Whitney earn $500 in a day and
Whitney T. twice left Todd and twice voluntarily returned to him. On July 3, 2007, she left him for good. She continued to work as a prostitute on her own.
Todd and Whitney E. Todd met Whitney E., aged eighteen, in June 2007. She had dropped out of high school, had left her father‘s home and her mother‘s home, was using drugs, was living with a boyfriend, and had been working for a week as a prostitute. The day after she met Todd, her boyfriend suggested that she work for Todd. The next day she began to work for him as a prоstitute. He gave her a cellphone and clothes from Wal-Mart. He advertised her on Craigslist. He told her that he expected her to service five customers per day and earn at least $900. He put her in an apartment with a prostitute who worked for his cousin, Trent. Trent told her he would enforce Todd‘s rules physically. In July 2007, Todd himself assaulted her when she questioned one of his rules. She telephoned her mother for help and later the same day left the apartment with her mother and reported the assault to the police.
Todd and Jemelle L. Todd met Jemelle on her twentieth birthday in July 2007. She was living with her mother and working as a caregiver. They began to date. Todd had no job but had cash. In October 2007, she leased a house, and she and Todd moved in together.
Jemelle had previously engaged in four or five acts of prostitution. Todd now told her it would be an easy way to make money and have nice things. Todd gave her a phone to take calls from customers, and she began to respond to them after initially protesting. Todd advertised her availability in the Seattle Weekly and on the internet without her knowledge or consent. Todd told her that his rule was that she provide “full service,” charge $200 per customer, report the transaction by telephone and turn all the money over to him. He provided her with marijuana.
Jemelle was scared seeing Todd beat Kelsey, and she was scared by his threat that she would regret it if she left him. Once she attempted to leave and he “pushed me down.” The indictment covered the use of Jemelle from October 2007 to November 2007.
PROCEDURE
On November 21, 2007, Todd was indicted. On February 8, 2008, a superseding indictment was returned. Trial began May 12, 2008. After seven days, the jury found Todd guilty on all counts. Both before and after the verdict Todd moved for a judgment of acquittal.
On September 29, 2008, Todd was sentenced to five years imprisonment for conspiracy to violate the TVPA; to twenty-six years to run concurrently on each of the TVPA counts involving respectively Whitney T., Whitney E., and Jemelle; and to ten years on the count of transporting a prostitute in interstate commerce.
Todd does not appeal his conviction or sentence on the count of transportation of a prostitute. He appeals his conviction on all of the other counts.
ANALYSIS
The Statute.
Sex trafficking of children or by force, fraud, or coercion
(a) Whoever knowingly---
(1) in or affecting interstate or foreign commerce, or within the special mari-
(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).
(b) The punishment for an offense under subsection(a) is---
(1) if the offense was effected by force, fraud, or coercion or if the person recruited, enticed, harbored, transported, provided, or obtained had not attained the age of 14 years at the time of such offense, by a fine under this title and imprisonment for any term of years not less than 15 or for life; or
(2) if the offense was not so effected, and the person recruited, enticed, harbored, trаnsported, provided, or obtained had attained the age of 14 years but had not attained the age of 18 years at the time of such offense, by a fine under this title and imprisonment for not less than 10 years or for life.
(c) In this section:
(1) The term “commercial sex act” means any sex act, on account of which anything of value is given to or received by any person.
(2) The term “coercion” means---
(A) threats of serious harm to or physical restraint against any person;
(B) any scheme, plan, or pattern intended to cаuse a person to believe that failure to perform an act would result in serious harm to or physical restraint against any person; or
(C) the abuse or threatened abuse of law or the legal process.
(3) The term “venture” means any group of two or more individuals associated in fact, whether or not a legal entity.
We consider the statutory elements in turn.
Effect on interstate or foreign commerce. The TVPA was enacted after Congress took a substantial amount of evidence on the traffic in the sexual services of women based on impоrting women from around the world by force or fraud. See Victims of Trafficking and Violence Protection Act of 2000, Pub.L. No. 106-386, 114 Stat. 1464, 1466 (2000). Congress concluded that prostitution in American cities encouraged and enlarged the market for this traffic from abroad. Id. Sex traffic is a global matter.
In addition to its effect on foreign commerce, sex traffic in this case was conducted by advertising across state lines and so affected interstate commerce.
The TVPA is unlike the Violence Against Women Act of 1994,
Todd‘s knowledge. Here is a crux. Could Todd have known when he soft-soaped Whitney T., Whitney E., and Jemelle L. to go to work for him that later
What the statute means to describe, and does describe awkwardly, is a state of mind in which the knower is familiar with a pattern of conduct. If “to know” is taken in the sense of being sure of an established fact, no one “knows” his own or anyone else‘s future. As William Shakespeare said of time in Sonnet 115, its “million‘d accidents creep in” and nothing is completely stable, no plan is beyond alteration. When an act of Congress requires knowledge of a future action, it does not require knowledge in the sense of certainty as to a future act. What the statute requires is that the defendant know in the sense of being aware of an established modus operandi that will in the future cause a person to engage in prostitution.
The government‘s evidence showed that Todd had such awareness when he persuaded Whitney T. to work for him. He had an established practice of living off the earnings of Kelsey, dоing so by rules controlling her work and payment of the proceeds to him. The jury could conclude that Todd knew he would follow the same pattern with Whitney T. and then with Whitney E. and Jemelle L. Just as a mother who has had one child in school and prepared his lunch knows that she will prepare the school lunch for her second child, just as a judge knows that his law clerks will use Westlaw, so Jerome Todd knew that he would use coercion to cause his sex workers to make money for him.
The findings of the jury. The jury was instructed:
The defеndant is charged with count 2 of the first superseding indictment with sex trafficking, in violation of
Title 18, United States Code, Sections 1591(a)(1) and1591(b)(1) . In order for the defendant to be found guilty of that charge, the government must prove each of the following elements beyond a reasonable doubt:First, beginning in or about February 2007, and continuing through in or about July 2007, the defendant knowingly did recruit, entice, harbor, transport, provide, or obtain a person, that is, [Whitney T.];
Second, the defendant did so knowing that force, fraud, or coercion would be used to cause [Whitney T]. to engage in a commercial sex act; and
Third, the defendant‘s actions were in or affecting interstate commerce.
The jury answered these questions affirmatively as to Whitney T. and answered the same questions affirmatively as to Whitney E. and Jemelle L. The evidence of Todd‘s knowledge of his own modus operandi in securing an income from prostitution by a pattern of coercion was sufficient to support the jury‘s verdict.
The knowledge required of the defendant is suсh that if things go as he has planned, force, fraud or coercion will be employed to cause his victim to engage in a commercial sex transaction. That required knowledge brings the predictable use of force, fraud, or coercion into the definition of the defendant‘s crime.
The sentence. Section (b) is entitled “The punishment for an offense under subsection (a)“. Section (b), therefore, does not create a new crime. It specifies the penalties for each оf the crimes set out in (a). Two of these crimes depend on the age of the victim. The third crime is referenced summarily as an offense “effected by force, fraud or coercion.” The summary reference does not enlarge the crime identified in (a). Section (b) is punishing the act identified in (a). A defendant who satisfies the elements of subsec-
The evidence was enough to support Todd‘s conviction on the counts of sex trafficking.
Other counts.
Todd was also convicted of conspiracy to engage in sex trafficking in violation of
The judgment of conviction and the sentence are AFFIRMED.
M. SMITH, Circuit Judge, concurring:
I join in full the panel‘s amended opinion affirming Todd‘s convictions and sentence for sex trafficking in violation of
As I read
Title 18, sectiоn 1591 is titled “Sex trafficking of children or by force, fraud, or coercion.” “Although statutory titles are not part of the legislation, they may be instructive in putting the statute in context.” Singh v. Gonzales, 499 F.3d 969, 977 (9th Cir. 2007). By using this title, Congress intended to criminalize two forms of sex trafficking it considered “severe forms of trafficking in persons“: sex trafficking where the victim is under 18 years of age, and sex trafficking in which the act is induced by force, fraud, or coercion. See Pub.L. No. 106-386, 114 Stat. 1464, 1466, 1470 (2000) (explaining that in passing the Trafficking Victims Protection Act of 2000, which enacted
Subsection (a) bears this out. A prosecution may be brought under subsection (a) where a person “recruits, entices, harbors, transports, provides, or obtains by any means a person,” “knowing” either that: (1) “force, fraud, or coercion ... will be used to cause the person to engage in a commercial sex act,” or (2) the victim “has not attained the age of 18 years and will be caused to engage in a commercial sex act.”
The phrase “will be used” in subsection (a) does not leave open the possibility that force, fraud, or coercion was not eventually used in committing the offense. Rather, it simply allows for a conviction even where the defendant did not personally use force, fraud, or coercion. In other words, a defendant will only be charged with violating the statute if force, fraud, or coercion was actually used at some point in commission of the offense. By using the phrase “will be used” as opposed to something more speculative such as “could be used” or “might be used,” the statute describes definitive conduct.
Had force, fraud, or coercion not actually been used to cause the victim to engage in a commercial sex act, Todd could not have been prosecuted under
The government‘s decision to prosecute the case is a backwards-looking exercise. The use of force, fraud, or coercion to cause a victim to engage in a commercial sex act brings the case into the realm of section 1591, and the government must then ask whether the defendant “knew” that force, fraud, or coercion wоuld be used. The only question, and that which Todd argued in his appeal, is whether the defendant knew at the time he committed the offense that force, fraud, or coercion would be used.3 As the panel members now agree, Todd‘s knowledge that force,
Under this reading of section 1591(a), there is no gap in the statute. Section 1591(b) provides that “if the offense was effected by force, fraud, or coercion” the defendant is to be sentenced to a mandatory 15 year minimum prison term. So too if no force, fraud, or coercion was involved but the victim is under 14. If no force, fraud, or coercion was involved, but the victim is between 14 and 18, thе defendant is to be sentenced to no less than 10 years imprisonment.4 If a jury finds that the defendant knew “force, fraud, or coercion” would be used to cause a person to engage in a commercial sex act, it necessarily finds that “the offense was effected by means of force, fraud, or coercion.” Indeed, a defendant who satisfies the elements of subsection (a) “shall be punished as provided in subsection (b).”
This reading comports with Congress‘s desire that the “sentencing provision of section 1591(b) ... correspond fully with the language in the substantive offense provision in section 1591(a).” H.R.Rep. No. 108-264, pt. 1 (2003) (emphasis added).
The record in this case shows that Todd in fact used such “force, fraud, or coercion” to commit the offense. Whitney T. testified that once in May 2007, Todd demanded she perform oral sex on him. After she refused, Todd grabbed her by her throat, threw her backwards over the bed, and threatened to hit her with a bottle over her head while “sсreaming at the top of his lungs.” On another occasion, Todd woke Whitney T. up in the middle of the night and began screaming at her for talking to another pimp. Todd punched her in the back, then grabbed her by the throat and threw her up against the wall while calling her an “out-of-pocket bitch.” On a third occasion, Todd beat her because she met with a black male friend of hers. According to Todd, all black men are potential pimps and so Todd forbade Whitney T. from any contаct with them. After Whitney T. violated this rule, Todd choked her and punched her in the chest until she was black and blue.
Because of this evidence, all of which the jury heard, the government prosecuted and the jury convicted Todd of violating section 1591(a). Indeed, the jury was asked whether Todd knew that “force, fraud, or coercion would be used to cause [Whitney T.] to engage in a commercial sex act.” Amended Maj. Op. at 334 (emphasis added). By finding that Todd knew that force, fraud, or cоercion would be used, the jury necessarily found that force, fraud, or coercion was actually used.5