United States v. Tyrone Townsend , 521 F. App'x 904 ( 2013 )

Case: 11-12913 Date Filed: 06/10/2013 Page: 1 of 14
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
___________________________
No. 11-12913
___________________________
D.C. Docket No. 3:09-cr-00321-MMH-TEM-1
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
versus
TYRONE TOWNSEND,
Defendant - Appellant.
___________________________
Appeal from the United States District Court
for the Middle District of Florida
___________________________
(June 10, 2013)
Before PRYOR, JORDAN and KLEINFELD, * Circuit Judges.
*
The Honorable Andrew J. Kleinfeld, Senior United States Circuit Judge for the Ninth Circuit,
sitting by designation.
Case: 11-12913 Date Filed: 06/10/2013 Page: 2 of 14
PER CURIAM:
Tyrone Townsend was convicted in a jury trial of five counts related to
trafficking two women – C.B. and L.F.: (1) trafficking C.B. in violation of 18
U.S.C. § 1591(a); (2) trafficking L.F. in violation of 18 U.S.C. § 1591(a); (3)
knowingly transporting C.B. and L.F. in interstate commerce with the intent that
they engage in prostitution in violation of 18 U.S.C. § 2421; (4) knowingly
inducing, enticing and coercing L.F. to travel in interstate commerce with the
intent that she engage in prostitution in violation of 18 U.S.C. § 2422(a); and (5)
conspiracy in violation of 18 U.S.C. § 371. He was sentenced to 320 months
imprisonment and 10 years supervised release.
On appeal, Townsend argues (1) that there was insufficient evidence to
convict him of counts 1, 2, and 4; (2) that his conviction under count 4 must also
be reversed because the count 4 indictment does not match his verdict; (3) that
convicting him under 18 U.S.C. § 1591(a), 18 U.S.C. § 2421, and 18 U.S.C.
§ 2422(a) constituted double jeopardy; (4) that the district court abused its
discretion when it allowed in evidence of a previous arrest and when it allowed the
jury to see pictures of him with prostitutes; and (5) that the court erred by applying
2
Case: 11-12913 Date Filed: 06/10/2013 Page: 3 of 14
an enhancement for physical restraint under U.S.S.G. § 3A1.3.
I. Sufficiency of the Evidence
“In considering the sufficiency of the evidence, we regard the evidence in
the light most favorable to the jury verdict, and draw all reasonable inferences and
credibility determinations in favor of the Government.” United States v. Ellisor,
522 F.3d 1255, 1271 (11th Cir. 2008).
a. Counts 1 and 2: Sex Trafficking in Violation of 18 U.S.C. § 1591(a)
18 U.S.C. § 1591(a) imposes criminal liability on
[w]hoever knowingly . . . in or affecting interstate or foreign
commerce . . . recruits, entices, harbors, transports, provides, obtains,
or maintains by any means a person . . . knowing, or in reckless
disregard of the fact, that means of force, threats of force, fraud,
coercion . . . , or any combination of such means will be used to cause
the person to engage in a commercial sex act . . . .
i. Scope of 18 U.S.C. § 1591(a)
3
Case: 11-12913 Date Filed: 06/10/2013 Page: 4 of 14
Townsend first argues that Congress did not intend for § 1591(a) to apply to
willingly-recruited prostitutes, since the legislative history of the Trafficking
Victims Protection Act focuses on international sex slavery and women
disproportionally affected by poverty and lack of economic opportunity in their
home countries. The statutory language is broader than this purpose. By its
plain terms, § 1591(a) criminalizes trafficking in “person[s],” not just in slaves or
women from other countries. “The first rule in statutory construction is to
determine whether the language at issue has a plain and unambiguous meaning
with regard to the particular dispute. If the statute’s meaning is plain and
unambiguous, there is no need for further inquiry.” United States v. Tobin, 676
F.3d 1264, 1274 (11th Cir. 2012) (quoting United States v. Fisher, 289 F.3d 1329,
1337-38 (11th Cir. 2002)).
ii. Use of Force and Threats of Force
Townsend next argues that both C.B. and L.F. “recounted a relationship
with Townsend that was voluntary and from which they always had opportunity to
leave.” Though some evidence supported that argument, C.B. and L.F. testified
to the contrary. C.B. testified that although she voluntarily became a prostitute
4
Case: 11-12913 Date Filed: 06/10/2013 Page: 5 of 14
for Townsend, she remained with him out of fear after he beat and raped her.
Although she left Townsend once, she testified that she went back to him partly
because she was afraid that he would find her.
L.F. testified that she sought employment as a prostitute for Townsend after
seeing a help wanted advertisement he posted, but a few days after she met him,
he hit her, took away her passport, phone, and other personal belongings, and told
her that she would have to engage in prostitution to get her belongings back.
Townsend also raped her, made her perform anilingus on him, and made her have
sex with C.B. while he watched. L.F. testified that she felt she could not run
away because he had her belongings. She testified that he had threatened her, and
that she thought he would hit her again if she did not find customers.
Townsend also argues that there was insufficient evidence to show that he
raped and hit C.B. and L.F. in order to make them engage in commercial sex acts.
But C.B. testified that when he was raping her, he told her that he was doing so
because she was not bringing in enough prostitution money. She also said that
his raping, beating, and threatening her made her engage in more commercial sex
acts. L.F. testified that Townsend threatened her, that she did not feel she was
5
Case: 11-12913 Date Filed: 06/10/2013 Page: 6 of 14
able to leave him because he took her belongings, and that she engaged in
prostitution when she did not want to because of Townsend’s behavior towards
her. Whether to believe C.B. and L.F. was up to the jury. We are required to
resolve credibility questions favorably to the verdict. Ellisor, 522 F.3d at 1271.
iii. Knowledge that Force and Threats of Force Would Be Used
Townsend also argues that because C.B. and L.F. were recruited willingly,
there is insufficient evidence to show that he knew at the time he recruited them
that he would use force, threats of force, or fraud to get them to engage in
commercial sex acts. The jury could infer from his prior use of force that he
intended, and therefore knew, that he would use it to make them engage in
commercial sex. See United States v. Todd, 627 F.3d 329, 333-34 (9th Cir.
2010). Additionally, the jury could reasonably conclude from the evidence that
Townsend was using force and threats of force to make C.B. and L.F. engage in
commercial sex when he was harboring and maintaining them after their initial
recruitment. There was therefore sufficient evidence to find Townsend guilty of
counts 1 and 2.
6
Case: 11-12913 Date Filed: 06/10/2013 Page: 7 of 14
b. Count 4: Violation of 18 U.S.C. § 2422(a)
Townsend argues that there was insufficient evidence to convict him of
violating 18 U.S.C. § 2422(a) by knowingly inducing, enticing, or coercing L.F. to
travel in interstate commerce with the intent that she engage in prostitution. L.F.
testified that she voluntarily traveled to Virginia in order to become Townsend’s
prostitute. However, she testified that he took her to Florida so that she could
engage in commercial sex acts, and that she traveled with him because she was
afraid that if she refused he would hit her and keep her passport and other
belongings. Her testimony was sufficient for a jury to convict Townsend of
violating § 2422(a).
II. Differences Between Townsend’s Count 4 Indictment and his Verdict
Form
Count 4 of Townsend’s indictment charged him with knowingly inducing
both C.B. and L.F. to travel in interstate commerce with the intent that they engage
in prostitution. Section § 2422(a) provides:
Whoever knowingly persuades, induces, entices, or coerces any
individual to travel in interstate or foreign commerce . . . to engage in
prostitution . . . shall be fined under this title or imprisoned not more
than 20 years, or both.
7
Case: 11-12913 Date Filed: 06/10/2013 Page: 8 of 14
Townsend’s counsel objected to a proposed instruction saying that the jury could
find Townsend guilty of violating § 2422(a) if it found that Townsend knowingly
induced C.B. and/or L.F. He argued that the instruction should say C.B. and
L.F., so that it matched the charging document. The government responded that
they had charged Townsend with one count instead of two because of Bell v.
United States, 349 U.S. 81 (1955), which held that the transportation of two
women on the same trip in the same car for purposes of prostitution is a single
crime. After reviewing Bell, Townsend’s counsel agreed that it would have been
inappropriate for the government to have charged Townsend with two separate
counts. He asked that the verdict form be written so that the jury could specify
which woman, if any, they found Townsend guilty of inducing. The court and
government agreed. The jury found Townsend guilty of transporting L.F., but not
C.B., in violation of § 2422(a).
Townsend now argues that his count 4 conviction should be reversed
because his indictment does not match his verdict. However, “where an
indictment charges in the conjunctive several means of violating a statute, a
conviction may be obtained on proof of only one of the means. . . ” United States
v. Simpson, 228 F.3d 1294, 1300 (11th Cir. 2000). Moreover, we reverse a
8
Case: 11-12913 Date Filed: 06/10/2013 Page: 9 of 14
conviction based on a variance between the charged crime and the proved crime
only if the variance was material and substantially prejudiced the defendant.
United States v. Lander, 668 F.3d 1289, 1295 (11th Cir. 2012). There was no
prejudice here, since Townsend was guilty of violating § 2422(a) regardless of
whether he induced both C.B. and L.F. or just induced L.F.
III. Double Jeopardy
Townsend did not object on double jeopardy grounds below, so we review
for plain error. United States v. Lewis, 492 F.3d 1219, 1221-22 (11th Cir. 2007)
(en banc). Townsend argues that if we do not find plain error, we should find per
se ineffective assistance of counsel.
Townsend argues that count 3 (violating § 2421 by knowingly transporting
C.B. and L.F. in interstate commerce with the intent that they engage in
prostitution), is subsumed within counts 1 and 2 (trafficking C.B. and L.F. in
violation of § 1591(a)), and count 4 (violating §2422(a) by knowingly inducing,
enticing, and coercing C.B. and L.F. to travel in interstate commerce with the
intent that they engage in prostitution). Both Townsend and the government
9
Case: 11-12913 Date Filed: 06/10/2013 Page: 10 of 14
agree that the test in Blockburger v. United States, 284 U.S. 299 (1932) applies,
and that there is no double jeopardy so long as each offense requires proof of an
element that the other does not. United States v. Hassoun, 476 F.3d 1181, 1186
(11th Cir. 2007).
Counts 3 and 4 have different elements. Count 3 requires knowing
transportation, whereas count 4 requires that the defendant have knowingly
induced, enticed, or coerced a person to travel. See Wagner v. United States, 171
F.2d 354, 364 (5th Cir. 1948); United States v. Williams, 291 F.3d 1180, 1187
(9th Cir. 2002), overruled on other grounds by United States v. Gonzales, 506
F.3d 940 (9th Cir. 2007) (en banc). Thus count 3 is not a lesser included offense
of count 4.
Counts 1 and 2 (sex trafficking) require that the defendant know or
recklessly disregard the fact that means of force, threats of force, fraud, coercion
or a combination of the above will be used to cause a person to engage in
commercial sex acts. 18 U.S.C. § 1591(a). Count 3 (transportation) does not
require knowledge or disregard of the fact that force, fraud, or coercion may be
used. 18 U.S.C. § 2421. Count 3 is not a lesser-included offense of the sex
10
Case: 11-12913 Date Filed: 06/10/2013 Page: 11 of 14
trafficking counts because count 3 requires intent that the victim engage in
prostitution or other illegal sex acts, whereas the trafficking counts require only
knowledge or reckless disregard of the fact that a victim will be caused to engage
in commercial sex. “Thus, for example, if a sex trafficker arranged for a . . .
victim to be transported to a pimp in another state, the trafficker might know that
the victim would be caused to engage in a commercial sex act without actually
having any specific intent that the victim do so. In that case, the sex trafficker
could be convicted of violating § 1591(a), but not [the transport offense].”
United States v. Brooks, 610 F.3d 1186, 1195 (9th Cir. 2010). Count 3
(transporting) is not a lesser-included offense of counts 1 and 2 (sex trafficking),
and Townsend was not subjected to double jeopardy. See Blockburger, 284 U.S.
at 304. Because it was not error to charge Townsend with counts 1 through 4,
failing to make a double jeopardy argument below was not per se ineffective
assistance.
IV. Photographs of Townsend
We review evidentiary rulings for abuse of discretion. United States v.
Docampo, 573 F.3d 1091, 1096 (11th Cir. 2009). The district court admitted into
11
Case: 11-12913 Date Filed: 06/10/2013 Page: 12 of 14
evidence two photographs of Townsend flanked by scantily-clad women in
provocative poses. Townsend argues that these photographs were unduly
prejudicial and should have been excluded under Fed. R. Evid. 403, and that they
were irrelevant and thus should not have come in under Fed. R. Evid. 401.
The district court did not abuse its discretion in allowing the photographs
into evidence. The photographs are not significantly prejudicial. The women in
them are clothed, and no one in them is engaging in any sexual conduct. They
had some probative value together with C.B.’s testimony regarding Townsend’s
use of fraud to cause her to engage in commercial sex acts in violation of 18
U.S.C. § 1591(a).
V. Sentencing Enhancement for Physically Restraining a Victim
We review a sentencing court’s findings of fact for clear error and the
application of the Sentencing Guidelines to those facts de novo. United States v.
Behr, 93 F.3d 764, 765 (11th Cir. 1996).
Under U.S.S.G. § 3A1.3, “[i]f a victim was physically restrained in the
course of the offense,” a two-level enhancement applies. U.S.S.G. § 3A1.3.
12
Case: 11-12913 Date Filed: 06/10/2013 Page: 13 of 14
Physical restraint, in turn, is defined as “the forcible restraint of the victim such as
by being tied, bound, or locked up.” U.S.S.G. § 1B1.1 cmt. n.1(K) (emphasis
added). The use of the phrase “such as” indicates that the illustrations of physical
restraint are not meant to be exhaustive. See United States v. Jones, 32 F.3d
1512, 1518 (11th Cir. 1994).
Townsend forced C.B. and L.F. to engage in sexual acts with him and each
other by pinning them down, pulling their hair, and forcing their heads down.
C.B. testified that Townsend was about 55 pounds heavier than she was.
Townsend argues that he should not have received a physical restraint
enhancement because this conduct does not fall within the definition of physical
restraint found in § 1B1.1. We have held that the definition of “physically
restrained” in § 1B1.1 includes the scenario where victims were held against their
will, were left with no alternative but to comply with the defendant, and had no
effective way of leaving. See United States v. Vallejo, 297 F.3d 1154, 1167 (11th
Cir. 2002) (“Here the co-conspirators physically restrained their victims. [The
victims] both testified that two large men grabbed them and held them against
their will. This constitutes physical restraint because the victims had no
alternative but to comply and were effectively prevented from leaving . . . even if
13
Case: 11-12913 Date Filed: 06/10/2013 Page: 14 of 14
only for a short time. The fact that the victims were eventually free to leave does
not mean that they were not physically restrained.”).
Even where otherwise applicable, the § 3A1.3 enhancement does not apply
if “unlawful restraint of a victim is an element of the offense itself.”
U.S.S.G. § 3A1.3 cmt. n.2. Townsend argues that unlawful restraint of a victim is
intrinsic to counts 1 and 2, his § 1591(a) sex trafficking offenses. However,
§ 1591(a) requires knowledge or reckless disregard of the fact that “means of
force, threats of force, fraud, coercion . . . or any combination of such means will
be used . . . .” 18 U.S.C. § 1591(a). Because the sex trafficking offenses could
be accomplished without force, by means such as threats, fraud, and withholding
L.F.’s passport, physical restraint was not necessarily intrinsic and an element of
the offense itself.
In light of the foregoing, we affirm.
AFFIRMED.
14