United States v. Luroy Jennings , 280 F. App'x 836 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 3, 2008
No. 07-14177 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 07-20214-CR-CMA
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LUROY JENNINGS,
DARRYL JOHN JENNINGS,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Southern District of Florida
_________________________
(June 3, 2008)
Before BIRCH, DUBINA and BLACK, Circuit Judges.
PER CURIAM:
Luroy Jennings and Darryl John Jennings appeal their convictions and
sentences for aiding and abetting the sex trafficking of a minor for financial
benefit, in violation of 18 U.S.C. § 1591(a). The Jennings assert several issues on
appeal, which we address in turn. After review, we affirm the Jennings’
convictions and sentences.
I. MOTION TO SUPPRESS
The Jennings were passengers in a car the police stopped in order to
investigate whether the car’s temporary tag was expired or altered. After the
occupants were ordered out of the car, the minor victim, J.B., made statements
indicating the Jennings and the driver of the car, codefendant Sammy Carpenter,
were holding her against her will, and, accordingly, the three men were arrested.
Prior to trial, Carpenter and the Jennings filed motions to suppress physical
evidence and statements arising out of the traffic stop, which the district court,
following hearings, denied.
The Jennings assert the police lacked probable cause to believe the car’s tag
was expired and to arrest for a car-registration violation and, accordingly, lacked
the authority to conduct a full search of the vehicle. They contend the police failed
to employ the least intrusive means necessary to confirm or dispel their concerns
regarding the car’s temporary tag and engaged in an illegal “fishing expedition”
2
because they lacked reasonable articulable suspicion the occupants of the vehicle
had contraband or were armed and dangerous. They assert the police engaged in a
“full field-type search” of the car, where they discovered a joint in the ashtray,
prior to a conversation about the joint and while the occupants were already in
handcuffs. The Jennings also contend the officers’ conduct can only be explained
as racially motivated, and, because the detectives commenced their investigation
based on race, “the entire stop” should have been suppressed pursuant to the
Fourteenth Amendment.
We review a district court’s denial of a defendant’s motion to suppress under
a mixed standard of review, reviewing the district court’s findings of fact for clear
error and its application of law to those facts de novo. United States v. Smith,
459 F.3d 1276, 1290 (11th Cir. 2006), cert. denied, 127 S. Ct. 990 (2007). We
accord great deference to district court credibility determinations, United States v.
Clay, 376 F.3d 1296, 1302 (11th Cir. 2004), and must accept the district court’s
credibility findings “unless we are left with the definite and firm conviction that a
mistake has been committed,” United States v. Chirinos, 112 F.3d 1089,
1102 (11th Cir. 1997) (quotations omitted).
An officer may conduct a brief investigatory stop of a vehicle “if the seizure
is justified by specific articulable facts sufficient to give rise to a reasonable
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suspicion of criminal conduct.” United States v. Strickland, 902 F.2d 937,
940 (11th Cir. 1990). The Supreme Court has held that, once a motor vehicle has
been lawfully stopped for a traffic violation, a police officer may order the driver
and passengers to exit the vehicle without violating the Fourth Amendment.
Maryland v. Wilson, 117 S. Ct. 882, 885-86 (1997). Following a stop for the
purpose of issuing a traffic citation, the officer may lengthen the detention for
further questioning, beyond that related to the initial stop, if the officer has an
objectively reasonable and articulable suspicion that illegal activity has occurred or
is occurring. United States v. Pruitt, 174 F.3d 1215, 1220 (11th Cir. 1999).
“[W]hen the totality of the circumstances indicate that an encounter has
become too intrusive to be classified as a brief seizure, the encounter is an arrest
and probable cause is required.” United States v. Espinosa-Guerra, 805 F.2d 1502,
1506 (11th Cir. 1986). In considering whether an investigative detention was
sufficiently limited to not ripen into a full-scale, de facto arrest unsupported by
probable cause, we apply four non-exclusive factors: (1) “the law enforcement
purposes served by the detention,” (2) the diligence with which the officers pursue
the investigation; (3) “the scope and intrusiveness of the detention,” and (4) “the
duration of the detention.” United States v. Acosta, 363 F.3d 1141, 1146 (11th Cir.
2004). In examining the law-enforcement purposes, “the most important
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consideration is whether the police detained the defendant to pursue a method of
investigation that was likely to confirm or dispel their suspicions quickly, and with
a minimum of interference.” Id. (quotations omitted). Regarding the scope,
intensity, and duration of a detention, we held, in United States v. Gil, 204 F.3d
1347, 1350-51 (11th Cir. 2000), that a detention did not ripen into a full arrest,
where the stop lasted 75 minutes and Gil was handcuffed and put in the back of a
police car while officers searched her house because there was not a female officer
present to search Gil, a woman, and the officers did not know if she was armed.
Regarding searches, the “search incident to a lawful arrest is a traditional
exception to the warrant requirement of the Fourth Amendment.” United States v.
Robinson, 94 S. Ct. 467, 471 (1973). Likewise, a warrantless inventory search
permits a thorough search of property lawfully in police custody, as long as that
search is consistent with the police caretaking function. United States v. O’Bryant,
775 F.2d 1528, 1534 (11th Cir. 1985).
As an initial matter, the district court appears to have orally denied the
Jennings’ motion to suppress based on their failure to demonstrate racial profiling
and their lack of standing to challenge the admission of certain items because they
failed to establish an “ownership interest” in the items. It does not appear the
district court explicitly addressed the Jennings’ Fourth Amendment challenge to
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the initial stop and detention. However, it did state, after rejecting the Jennings’
Fourteenth Amendment claims, that it was “satisfied based on what [it] heard and
saw in the Government’s recommend[ation] to deny the motion to suppress on all
defendants.” Accordingly, in denying the motions to suppress, the district court
appears to have agreed with the Government’s reasoning that the initial stop was
proper, the search was conducted incident to lawful arrests, and the Jennings
lacked standing to challenge the search because they did not manifest a subjective
expectation of privacy in the car.1
The district court did not err in denying the Jennings’ suppression motions.
The decision to stop Carpenter was reasonable because Det. Archer believed that
the out-of-state temporary tag was expired and potentially had been altered, which
would constitute a traffic violation. See Strickland, 902 F.2d at 940. Upon
approaching the car, the detectives were permitted to order the occupants out of the
car as a matter of course for officer safety while they investigated the tag issue.
See Wilson, 117 S. Ct. at 885-86. Det. Archer testified that, upon being asked
whether there were any weapons in the car, Carpenter stated there was a joint in the
1
The Jennings’ argument that a new trial is necessary in light of error under Brendlin v.
California, 127 S. Ct. 2400, 2403 (2007), is unavailing, as the district court did not deny their
motions on the basis of lack of standing to challenge the stop or find the Jennings, as passengers,
were not seized under the Fourth Amendment. To the extent the Jennings sought to suppress all
items found in the car based on an expectation of privacy in their luggage, the district court did
not err in finding they lacked standing on that basis, as they never established any of the items
were found in their luggage.
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ashtray, and this admission provided objectively reasonable and articulable
suspicion to extend the detention of the stop. See Pruitt, 174 F.3d at 1220. As to
the Jennings’ claim the car was searched prior to Carpenter’s admission of
possessing marijuana, the district court appears to have credited Det. Archer’s
testimony that the officers did not discover the joint until after Carpenter admitted
it was in the ashtray, and there is nothing in the record to leave “the definite and
firm conviction that a mistake has been committed” in so crediting Det. Archer’s
testimony. See Chirinos, 112 F.3d at 1102.
Regarding the Jennings’ argument the scope and duration of the detention
were excessive, the totality of the circumstances does not indicate the stop became
so intrusive that it became an arrest unsupported by probable cause. See Espinosa-
Guerra, 805 F.2d at 1506. As to the first factor, the law enforcement purposes
served by the detention, an examination of the registration documents and running
of the VIN was likely to confirm or dispel the detectives’ suspicions. See Acosta,
363 F.3d at 1146. The second factor, the diligence with which the officers pursued
the investigation, likewise suggests that the stop did not ripen into an arrest, as Det.
Archer searched the glove compartment, with Carpenter’s consent, and ran the VIN
immediately after having the occupants sit on the curb. See id. The third factor,
the scope and intrusiveness of the detention also suggests the stop did not ripen
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into an arrest because the detectives only had the occupants exit the car and did not
handcuff the Jennings until probable cause for their arrest was established. Finally,
as to the fourth factor, the detention only lasted ten minutes, and there was no
indication that it was unnecessarily prolonged. See Gil, 204 F.3d at 1350-51.
Regarding the searches, according to Det. Archer, the searches were
conducted after Carpenter and the Jennings were arrested, first as a general
inventory search prior to towing, and second, as a more thorough inventory search
at the police station. See Chirinos, 112 F.3d at 1102. The evidence demonstrates
these searches were properly conducted incident to valid arrests and for inventory
purposes. See Robinson, 94 S. Ct. at 471; O’Bryant, 775 F.2d at 1534.
Likewise, the record demonstrates the Jennings failed to establish racial
profiling, violative of the Fourteenth Amendment, and the district court did not err
in this determination. Det. Archer testified he had all occupants exit the vehicle,
and while he ordered all of them to sit on the curb, he permitted J.B. to stand
because she stated that her back hurt. There is no indication he would not have
permitted any of the other occupants to stand if they had so requested. Det. Archer
also testified J.B. appeared to be “very young” woman. To the extent Det. Archer
treated J.B. differently than Carpenter and the Jennings, it was not unreasonable for
Det. Archer to believe that adult men presented a greater danger than a “very
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young” woman, and the Jennings’ allegation does not sufficiently demonstrate that
Det. Archer’s reasonable and limited precautionary measures were based on race.
Other than this conclusory allegation, the Jennings have presented no evidence that
Det. Archer’s stop of the car was based on race.
In summary, the district court did not err in denying the Jennings’ motions to
suppress because: (1) a detective had reasonable suspicion to investigate what
appeared to be an expired or altered out-of-state temporary tag and then had
probable cause to arrest the Jennings based on the minor victim’s statements on the
scene that she was being held against her will; (2) the detention did not ripen into
an arrest unsupported by probable cause; (3) the searches of their persons were
conducted incident to valid arrests; and (4) the search of the car was conducted for
inventorying purposes prior to towing the car.
II. FED. R. EVID. 404(b)
During the Jennings’ trial, Charlene Walton provided Federal Rule of
Evidence 404(b) testimony, testifying that Darryl and Luroy had attempted to
recruit her into prostitution. The Jennings challenge the admission of Walton’s
testimony, asserting the only reason the Government introduced Walton’s
prejudicial testimony was to use it for the impermissible purpose of proving their
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character, in order to show their actions in the instant case were in conformity
therewith.
We review a district court’s evidentiary rulings for an abuse of discretion.
United States v. Jiminez, 224 F.3d 1243, 1249 (11th Cir. 2000). Pursuant to
Federal Rule of Evidence 404(b):
Evidence of other crimes, wrongs, or acts is not admissible to prove
the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident, provided that upon request
by the accused, the prosecution in a criminal case shall provide
reasonable notice in advance of trial . . . of the general nature of any
such evidence it intends to introduce at trial.
We apply a three-part test to determine whether evidence is admissible under Rule
404(b): “(1) the evidence must be relevant to an issue other than defendant's
character; (2) the probative value must not be substantially outweighed by its
undue prejudice; and (3) the government must offer sufficient proof so that the jury
could find that defendant committed the act.” United States v. Ramirez, 426 F.3d
1344, 1354 (11th Cir. 2005).
“A defendant who enters a not guilty plea makes intent a material issue
which imposes a substantial burden on the government to prove intent, which it
may prove by qualifying Rule 404(b) evidence absent affirmative steps by the
defendant to remove intent as an issue.” United States v. Zapata, 139 F.3d 1355,
10
1358 (11th Cir.1998). A “mere presence” defense forces the government to prove
a defendant’s criminal intent so as to negate any innocent explanation for his
presence. United States v. Delgado, 56 F.3d 1357, 1365 (11th Cir. 1997). “Where
the extrinsic offense is offered to prove intent, its relevance is determined by
comparing the defendant's state of mind in perpetrating both the extrinsic and
charged offenses.” United States v. Dorsey, 819 F.2d 1055, 1060 (11th Cir.1987).
“Thus, where the state of mind required for the charged and extrinsic offenses is
the same, the first prong of the Rule 404(b) test is satisfied.” United States v.
Edouard, 485 F.3d 1324, 1345 (11th Cir. 2007). Finally, the risk of undue
prejudice can be reduced by a district court’s limiting instruction. United States v.
Ramirez, 426 F.3d 1344, 1354 (11th Cir. 2005).
The district court did not abuse its discretion in admitting Walton’s
testimony as evidence of the Jennings’ intent. Regarding the first prong of the
Rule 404(b) test, intent was at issue, as the Jennings pled not guilty and asserted
that, while they were knowledgeable of Carpenter’s actions, they were merely
present. See Zapata, 139 F.3d at 1358; Delgado, 56 F.3d at 1365. The uncharged
extrinsic offenses included Darryl’s enticement or coercion of Walton into
prostitution, and Luroy’s potential attempt to entice Walton into prostitution, and
the charged conduct consisted of the Jennings’ aiding and abetting the recruiting,
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enticing, or harboring of a person, knowing the person is a minor who will be
caused to engage in a commercial sex act, and receiving something of value for
participation in the venture. See 18 U.S.C. § 1591. Although the elements of the
charges that could have been brought for the extrinsic offenses and the elements of
the charged offenses are not identical, the offenses are sufficiently analogous and
require a sufficiently similar state of mind, i.e., the intent to have women commit
commercial sex acts, so as to satisfy the first prong of the Rule 404(b) test. See
Edouard, 485 F.3d at 1345; Dorsey, 819 F.2d at 1059.
Similarly, the second prong was met because the Jennings’ defense was
based on their assertion they were merely present. Thus, Walton’s testimony
Darryl had acted as her pimp and Luroy had stated he was a pimp and would act as
her pimp in the months prior to the instant offenses was highly probative of the
Jennings’ intent to aid and abet in the harboring of J.B. knowing she would engage
in commercial sex acts for their profit. See Delgado, 56 F.3d at 1365. Moreover,
contrary to the Jennings’ argument, the fact the jury requested the district court to
repeat its limiting instruction demonstrates the jury was aware Walton’s testimony
could be used only for limited purposes. This limiting instruction, which was read
prior to Walton’s testimony, was emphasized by Darryl in his closing argument,
and was included in the jury instructions, reduced the risk of undue prejudice. See
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Ramirez, 426 F.3d 1354. Finally, the third prong of the Rule 404(b) test was met
because: (1) Walton testified to the events and conversations with Darryl and
Luroy; (2) Walton’s testimony was unrebutted; and (3) the jury could credit her
testimony, which would sufficiently establish the conduct.
III. SUFFICIENCY OF THE EVIDENCE
The Jennings further contend there was insufficient evidence for conviction
because the evidence demonstrated, at most, their mere presence with Carpenter
and the minor victim. They assert there was insufficient evidence to show they:
(1) aided and abetted in enticing, recruiting, harboring, or transporting J.B. to
Florida for purposes of prostitution; (2) aided and abetted J.B.’s participation in a
commercial sex act; (3) associated in any venture; (4) received any financial
benefit from the venture; or (4) knew that J.B. was a minor.2
We review the district court’s denial of a motion for a judgment of acquittal
de novo, viewing the facts and drawing all inferences in the light most favorable to
the government. United States v. Descent, 292 F.3d 703, 706 (11th Cir. 2002). We
2
Luroy argue for the first time on appeal that the Government did not prove he
knowingly transported J.B. in interstate commerce. Arguments not raised in the district court are
reviewed for plain error. United States v. Raad, 406 F.3d 1322, 1323 (11th Cir. 2005). An error
cannot be plain unless it is clear under current law. United States v. Aguillard, 217 F.3d 1319,
1321 (11th Cir. 2000). Regarding the interstate commerce element, we have rejected an
appellant’s request to construe § 1591(a) as requiring knowledge by a defendant that his actions
were in or affecting interstate commerce. United States v. Evans, 476 F.3d 1176, 1180 n.2 (11th
Cir.) cert. denied, 128 S. Ct. 193 (2007). Thus, the district court could not have committed plain
error.
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accept “all reasonable inferences and credibility choices made in the government’s
favor, to determine whether a reasonable trier of fact could find that the evidence
established guilt beyond a reasonable doubt.” United States v. Calhoon, 97 F.3d
518, 523 (11th Cir. 1996).
The statute at issue provides punishment for:
(a) Whoever knowingly—
(1) in or affecting interstate or foreign commerce . . .
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 the person has not attained the age of 18 years and
will be caused to engage in a commercial sex act . . . .
18 U.S.C. § 1591(a). Pursuant to 18 U.S.C. § 2, whoever aids or abets the
commission of an offense against the United States is punishable as a principal. To
sustain a conviction for aiding and abetting, the evidence must show the Jennings
shared the criminal intent of Carpenter and committed an overt act in furtherance
of the criminal venture. See United States v. Leonard, 138 F.3d 906, 909 (11th Cir.
1998).
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The jury could infer Luroy knew J.B. was a minor from J.B.’s testimony that
Luroy stated he had a partner who had been arrested “for messing with a youngster
that was 15, 16,” after J.B. and Carpenter discussed changing her birth date so she
could get into clubs and buy cigarettes. The jury likewise could infer Darryl knew
J.B. was a minor from J.B.’s testimony that Carpenter told Darryl she was 16 years
old, after which Darryl stated he had “a partner who went to jail for doing it with
youngsters.”
A closer question is presented by the Jennings’ challenge to the sufficiency
of the evidence proving they committed an overt act to aid and abet the harboring
of J.B. in the motel rooms. Although the Jennings did not procure or pay for the
motel rooms, the jury could infer the Jennings were indeed “pimp partners” in the
general venture of prostituting J.B., based on J.B.’s testimony that: (1) the
Jennings would look at her as she walked Orange Blossom Trail, (2) Carpenter
stated the Jennings were “pimp partners” whom she would have to support through
prostitution because they all were broke, (3) if she were to have stated to Carpenter
or the Jennings she was leaving, there “would have been an argument about if [she]
was going to stay or not,” and (4) she did not think she could have left because
Carpenter or the Jennings “would have been right there.” Accordingly, the jury
could infer that, as part of the venture (1) the Jennings’ sleeping in the same motel
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rooms as Carpenter and J.B., and (2) the Jennings’ apparent guarding of J.B.’s
ability to leave the motel room, constituted overt acts that aided and abetted
Carpenter’s harboring of J.B.
As to Count Two, the jury could infer the Jennings benefitted financially
from their participation in the venture based on J.B.’s uncontradicted testimony
that: (1) she saw Carpenter pay for gas; (2) she never saw the Jennings pay for
anything; (3) Carpenter stated he was broke shortly after receiving and spending
$250 from J.B. and $50 from Diamond; and (4) Carpenter stated her “role in the
family” was to get him and his partners money through prostitution. Thus, there
was sufficient evidence for the jury to infer the Jennings benefitted from the gas
used to drive to South Beach and Fort Lauderdale and Carpenter’s renting of the
room at the Red Roof Inn, which were paid for, at least in part, by J.B.’s
commercial sex acts.
IV. CUMULATIVE ERROR
Luroy argues his “mere presence was certainly tipped towards conviction”
by an accumulation of errors. “The cumulative error doctrine provides that an
aggregation of non-reversible errors (i.e., plain errors failing to necessitate reversal
and harmless errors) can yield a denial of the constitutional right to a fair trial,
which calls for reversal.” United States v. Baker, 432 F.3d 1189, 1223 (11th Cir.
16
2005) (quotations omitted). However, because Luroy has not demonstrated any
reversible error in his trial, the cumulative error doctrine does not apply.
V. U.S.S.G. § 2G1.3(b)(1)(B)
Luroy argues a two-level increase for J.B. being in his custody, care, or
supervisory control was inappropriate because, according to the commentary,
§ 2G1.3(b)(1)(B) applies only to individuals like “teachers, day care providers,
baby-sitters, or other temporary caretakers,” and the record contains no evidence
that he: (1) exercised, or was in a position to exercise, any custody, care, or control
over J.B.; or (2) interacted with J.B. at the level of a teacher, day care provider, or
baby-sitter. Darryl argues there was an insufficient factual basis for the increase
because J.B. was not “entrusted” to his or Carpenter’s care, and J.B. made her own
decision to travel to Florida.
We review a district court’s interpretation of the Guidelines de novo, and its
factual findings for clear error. United States v. Jordi, 418 F.3d 1212, 1214 (11th
Cir. 2005). A two-level increase is applicable “[i]f (A) the defendant was a parent,
relative, or legal guardian of the minor; or (B) the minor was otherwise in the
custody, care, or supervisory control of the defendant.” U.S.S.G. § 2G1.3(b)(1).
The application note to the subsection states that (b)(1):
is intended to have broad application and includes offenses involving
a victim less than 18 years of age entrusted to the defendant, whether
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temporarily or permanently. For example, teachers, day care
providers, baby-sitters, or other temporary caretakers are among those
who would be subject to this enhancement. In determining whether to
apply this enhancement, the court should look to the actual
relationship that existed between the defendant and the minor and not
simply to the legal status of the defendant-minor relationship.
Id., comment. (n.2(A)).
As to Darryl’s argument that J.B. was not entrusted into Carpenter’s care,
J.B. testified she stated to Carpenter she would have to talk to her mother before
going to Miami, and her mother apparently assented, as she did not prevent J.B.
from going. Accordingly, J.B. was entrusted into Carpenter’s care. Moreover, the
guideline and commentary language do not exclude a minor’s entrustment of
herself to a defendant. See U.S.S.G. § 2G1.3(b)(1)(B), comment. (n.2(A)). The
commentary states the provision is to have broad application, and it precedes
“temporary caretakers” with the qualifier “other”–not “other similar”–cutting
against Luroy’s argument that “other temporary caretakers” was limited by the
terms preceding it. See id. The evidence was sufficient to demonstrate the
Jennings directly oversaw J.B. and slept in the motel room with her, and, as aiders
and abettors of the prostitution venture, were partially responsible for J.B.’s
custody and supervisory control. Accordingly, the district court did not err in
applying the increase.
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VI. MINOR ROLE
Finally, Luroy contends he should have received a minor-role reduction
because his involvement with the relevant conduct was, at best, minimal. He
contends the failure to apply the reduction is contrary to one of the Sentencing
Guidelines’ primary objectives, i.e., to impose comparable sentences for similar
acts, because his conduct was substantially less than Darryl’s, but he received the
same sentence.
A court’s finding regarding a defendant’s role in the offense is reviewed for
clear error. United States v. De Varon, 175 F.3d 930, 937 (11th Cir. 1999) (en
banc). The proponent of the reduction always bears the burden of proving a
mitigating role in the offense by a preponderance of the evidence. Id. at 939. A
defendant may receive a two-level reduction in his base offense level where his
role in the offense was minor. U.S.S.G. § 3B1.2(b). The district court’s ultimate
determination of the defendant’s role in the offense should be informed by: (1) the
defendant’s role in the relevant conduct for which he has been held accountable for
at sentencing; and (2) his role as compared to that of other participants in his
relevant conduct. De Varon, 175 F.3d at 940.
Luroy was held accountable for the offense that he was directly involved in,
i.e., his aiding and abetting the harboring of J.B. The district court rejected his
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argument of mere presence, finding the jury verdict supported his participation in
the venture. Moreover, Luroy’s role in aiding and abetting the venture was
essentially the same as Darryl’s as they both stayed in the motel rooms with J.B.
and Carpenter and monitored J.B. as she was in the room and walked the Orange
Blossom Trail. Thus, his role in the offense for which he was held accountable
was comparable to Darryl’s role. See De Varon, 175 F.3d at 940. Accordingly, the
district court did not err in denying Luroy a minor-role reduction.
AFFIRMED.
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