United States v. Lavont Flanders, Jr. , 752 F.3d 1317 ( 2014 )

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 12-10995
________________________
D.C. Docket No. 1:11-cr-20557-KMM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LAVONT FLANDERS, JR.,
a.k.a. Antone Cobe,
a.k.a. Shannon, et al.,
EMERSON CALLUM,
a.k.a. Jah-T,
Defendants-Appellants.
________________________
No. 12-15027
________________________
D.C. Docket No. 1:11-cr-20557-KMM-1
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UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LAVONT FLANDERS, JR.,
a.k.a. Antone Cobe,
a.k.a. Shannon,,
a.k.a. Larry Griffin,
a.k.a. Karen Watson,
a.k.a. Darius,
a.k.a. Ladarius Cobe,
a.k.a. Darius Cove,
a.k.a. Errick Farmer,
a.k.a. Eric Lawson,
a.k.a. Erick Liwson,
a.k.a. Tina Clintmore,
a.k.a. Erick Blossom,
a.k.a. Gregory Bagget,
Defendant-Appellant.
________________________
No. 12-15248
________________________
D.C. Docket No. 1:11-cr-20557-KMM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
LAVONT FLANDERS, JR.,
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a.k.a. Antone Cobe,
a.k.a. Shannon,
a.k.a. Larry Griffin,
a.k.a. Karen Watson,
a.k.a. Darius,
a.k.a. Ladarius Cobe,
a.k.a. Darius Cove,
a.k.a. Errick Farmer,
a.k.a. Eric Lawson,
a.k.a. Erick Liwson,
a.k.a. Tina Clintmore,
a.k.a. Erick Blossom,
a.k.a. Gregory Bagget,
Defendant-Appellant.
________________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
(May 27, 2014)
Before MARTIN and FAY, Circuit Judges, and DUFFY, * District Judge.
DUFFY, District Judge:
For years Lavont Flanders, Jr., and Emerson Callum (collectively,
“Defendants” or “Appellants”) perpetrated a scheme in which they fraudulently
lured women to South Florida, drugged them with Benzodiazepines, filmed them
engaging in sexual acts, and distributed the pornographic footage. After a six-day
trial, a jury convicted both Flanders and Callum on multiple counts of inducing
*
Honorable Patrick Michael Duffy, United States District Judge for the District of South
Carolina, sitting by designation.
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women to engage in sex trafficking through fraud and of benefitting from that
scheme. Flanders was also convicted of distributing a controlled substance, which
he used to impair the victims’ judgments such that they would participate in the
filming of pornographic videos. Appellants were sentenced to multiple
consecutive life sentences. In this appeal, they raise several challenges to their
convictions and sentences, and Flanders challenges his forfeiture. After oral
argument and a careful review of the briefs and record in this case, we affirm.
I. Background
A. Criminal Scheme
As part of the scheme, Flanders, using one of numerous aliases, would
recruit women off of modeling websites and convince them to travel to South
Florida for an “audition” for a liquor commercial. He usually advised the women
to come alone to the audition. When they arrived, Flanders explained that they
would need to act out a scene for a commercial before they could be taken to a
second man, later identified as Callum, to film test footage. Flanders convinced
the women that the auditions required them to taste alcohol, say scripted lines, and
repeat the scene several times. Unbeknownst to the women, the alcohol was laced
with Benzodiazepines, a drug known to impair memory and reduce inhibitions.
As Flanders drove the women to another location to meet Callum, whom
they thought was a Bacardi agent, the victims became dizzy, groggy, and often
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“blacked out.” Flanders and Callum then had the women sign Model Release
Forms. The women remembered little, as they helplessly fell unconscious, waking
momentarily only to realize that Callum was having sex with them while Flanders
filmed. When they fully regained consciousness the following day in their cars or
hotel rooms, they were disoriented, confused, and sometimes bleeding and covered
in bodily fluids. At least four victims tested positive for Callum’s DNA, recovered
from vaginal swabs, and for Benzodiazepines.
Unbeknownst to the victims, Callum distributed and attempted to distribute
videos of the assaults over the Internet and to businesses through his pornographic
production company, Miami Vibes Enterprises. The distributed videos were edited
to remove portions where the victims were obviously unconscious.
B. Police Investigation
In the midst of their scheme, in 2007, Appellants were arrested by state
police, and their residences were searched pursuant to warrants. Both were
released on bond and continued their scheme until their arrests in 2011 following
searches pursuant to new warrants.
1. 2007 Searches
In Flanders’s bedroom in a residence he shared with two adult relatives,
officers discovered victims’ pornographic videos. In the only bathroom in the
residence, officers found a prescription codeine pill bottle containing eight
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Diazepam pills and three codeine pills. Flanders waived Miranda rights, stated
that he was a bus driver, denied working for Bacardi, denied knowing Callum or
Miami Vibes, and denied meeting anyone at an IHOP restaurant (although officers
knew he had met a victim there).
In Callum’s office, officers observed hundreds of pornographic photos on
the walls. They seized thousands of pornographic videos, including hundreds of
copies of three victims’ videos, and nude photos of a fourth victim. Officers found
raw footage of one victim that included footage—which had been edited out of the
commercial copy—in which she fell asleep during the sexual encounter. Even the
raw footage was not a complete representation of the encounter between the victim
and Callum because the filming stopped and started.
In Callum’s residence, officers found hundreds of inserts for, and
commercial copies of, victims’ videos, Model Release Forms for two victims,
copies of the video interview of one victim, and evidence that Callum paid for the
artwork on a victim’s video.
2. 2011 Searches
From a residence Flanders shared with his girlfriend and her sister, officers
seized four computers and memory devices, a cellphone, a camera, numerous
videos of victims (some packaged for sale), Model Release Forms for five victims,
and a copy of one victim’s student ID. Officers also found a package containing
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letters from Flanders to HomeGrownVideo revealing that Flanders was attempting
to sell pornographic videos of Callum and several young women, including one of
the victims. On a nightstand, officers found a bottle containing nineteen
Clonazepam pills. Analysis of recovered computers showed that Flanders used
them to email victims and conduct hundreds of searches on modeling websites and
searches for images of unconscious women.
In Callum’s residence, officers seized over 100 boxes, including sales
receipts for victims’ videos, victims’ Model Release Forms, and hundreds of
victims’ DVDs (commercial and master copies), and DVD cover inserts. Also
found was a handwritten note indicating that one victim’s footage was filmed at a
Miami motel.
C. Procedural History
A twenty-count superseding indictment charged both Appellants with
conspiracy and substantive sex trafficking of women (18 U.S.C. §§ 371, 1591,
1594), and Flanders with narcotics distribution (21 U.S.C. § 841). Count 1
charged a § 371 conspiracy (May 2006–July 2007) to commit sex trafficking by
fraud. Substantive offenses committed during this conspiracy were: § 1591(a)(1)
sex trafficking by fraud (Counts 2, 4, 7, and 10) and § 1591(a)(2) benefitting by
participating in a venture that commits sex trafficking by fraud (Counts 3, 6, 9, and
11). Count 13 charged a § 1594(c) conspiracy (May 2010–August 2011) to
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commit sex trafficking by fraud. Substantive offenses committed during this
conspiracy were: § 1594(a) attempted sex trafficking by fraud (Counts 14 and 16)
and § 1594(a) attempted benefitting by participating in a venture that commits sex
trafficking by fraud (Counts 15 and 18). Flanders alone was charged with § 841
distribution of Alprazolam (“Xanax”) (Counts 5, 8, 12, and 17).
During the six-day trial, the jury heard testimony from seven victims and
watched portions of their videos. The jury also heard testimony from an expert on
Benzodiazepines and learned about the evidence seized during the 2007 and 2011
searches. After the Government rested, Defendants brought a Rule 29 motion as to
all counts. The district court granted the motion as to Counts 19 and 20 1 and
denied the motion as to the other counts. The defense rested without putting on
any witnesses. The jury returned guilty verdicts on all of the remaining counts.
On January 27, 2012, the district court entered a Preliminary Order of
Forfeiture against Flanders and Callum. The court then held a sentencing hearing
on February 16, 2012. At the hearing, the district court overruled Appellants’
objections to the pre-sentence report, adopted the advisory guideline range of 262–
327 months’ imprisonment, and granted the Government’s request for an upward
departure to life imprisonment. The court heard testimony from victims, denied
Flanders’s request for a downward variance, and concluded that life imprisonment
1
These two counts involved crimes against a victim who did not testify at trial.
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was reasonable. The court sentenced Callum to a total imprisonment term of life,
including sixty months for the § 371 conspiracy and life imprisonment for each of
the sex-trafficking charges, to run consecutively to each other and to the sixty-
month term. The court similarly sentenced Flanders to a total imprisonment term
of life, including concurrent sixty-month terms for the § 371 conspiracy and drug
counts and life terms for each of the sex-trafficking charges, to run consecutively
to each other and to the sixty-month terms.
Judgment was entered against Flanders on February 21, 2012, and against
Callum on February 22, 2012. Both Appellants timely appealed their convictions
and sentences (Appeal No. 12-10995). The district court entered a Final Order of
Forfeiture against Flanders and Callum on August 28, 2012. Flanders filed a
notice of appeal of the Final Order of Forfeiture on September 20, 2012 (Appeal
No. 12-15027). On September 26, 2012, the district court denied Flanders’s
motion for disclosure of grand jury transcripts and materials, and Flanders timely
appealed (Appeal No. 12-15248).
II. Sufficiency of the Indictment
Flanders argues that the indictment was defective because (1) the drug
counts omitted a citation to the statute, and (2) the Government fraudulently told
the grand jury that the crimes involved minors. However, “a defendant must object
before trial to defects in the indictment, . . . and the failure to do so waives
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appellate review. The only exceptions to the waiver rule are for claims that the
indictment fails to state an offense—for instance, by omitting an element—or fails
to invoke the court’s jurisdiction.” United States v. Pacchioli, 718 F.3d 1294,
1307 (11th Cir. 2013) (citations omitted), cert. denied, 134 S. Ct. 804 (2013); see
Fed. R. Crim. P. 12(b)(3)(B) (“The following must be raised before trial: a motion
alleging a defect in the indictment or information—but at any time while the case
is pending, the court may hear a claim that the indictment or information fails to
invoke the court’s jurisdiction or to state an offense.”); id. R. 12(e) (“A party
waives any Rule 12(b)(3) defense, objection, or request not raised by the deadline
the court sets under Rule 12(c) or by any extension the court provides. For good
cause, the court may grant relief from the waiver.”). Because Flanders failed to
challenge the indictment prior to trial and has not shown good cause for relief from
the Rule 12(e) waiver, he has waived these challenges to the indictment. See
United States v. Dulcio, 441 F.3d 1269, 1275 (11th Cir. 2006) (holding that
because defendants did not raise before trial their argument that the indictment was
filed in bad faith, “the issue is deemed to have been waived”); United States v.
Ramirez, 324 F.3d 1225, 1227–28 & n.8 (11th Cir. 2003) (finding no good cause to
excuse waiver where defendants had all the information necessary to challenge the
indictment prior to trial but waited until after opening arguments to file their
motion).
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Even if we treat Flanders’s argument as asserting that the drug counts did
not state an offense, which would avoid the Rule 12(e) waiver, the claim lacks
merit. Flanders argues that the drug counts (Counts 5, 8, 12, and 17) are defective
because they cite the penalty provision (21 U.S.C. § 841(b)) but fail to cite the
substantive conduct provision (§ 841(a)) of the criminal statute. Because Flanders
challenges the adequacy of the indictment for the first time on appeal, “this Court
must find the indictment sufficient unless it is so defective that it does not, by any
reasonable construction, charge an offense for which the defendant is convicted.”
United States v. Pena, 684 F.3d 1137, 1147 (11th Cir. 2012) (quotation marks
omitted). Moreover, “[u]nless the defendant was misled and thereby prejudiced,
neither an error in a citation nor a citation’s omission is a ground to dismiss the
indictment . . . or to reverse a conviction.” Fed. R. Crim. P. 7(c)(2).
We readily conclude that Flanders was not prejudiced by the indictment’s
citation error. The drug counts directly quote the following language from
§ 841(a)(1): “knowingly [and] intentionally . . . distribute . . . a controlled
substance.” This language, coupled with the citation to § 841(b)(2), sufficiently
charged Flanders with the offense for which he was convicted. See Pena, 684 F.3d
at 1147; see also United States v. Elgersma, 929 F.2d 1538, 1540–42 (11th Cir.
1991) (holding that defendant was not prejudiced by citation error where the
language of the count tracked the language of the substantive requirements of the
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offense, thus giving defendant full notice of the elements of the offense charged),
reasoning adopted by United States v. Elgersma, 971 F.2d 690, 691 n.1 (11th Cir.
1992) (en banc). Thus, the citation error was harmless.
III. Sufficiency of the Evidence
We review de novo a district court’s denial of a motion for judgment of
acquittal on sufficiency of evidence grounds. United States v. Browne, 505 F.3d
1229, 1253 (11th Cir. 2007). In doing so, “we consider the evidence in the light
most favorable to the Government, drawing all reasonable inferences and
credibility choices in the Government’s favor.” Id. “It is not necessary that the
evidence exclude every reasonable hypothesis of innocence or be wholly
inconsistent with every conclusion except that of guilt.” United States v. Faust,
456 F.3d 1342, 1345 (11th Cir. 2006) (quotation marks omitted). “If a reasonable
jury could conclude that the evidence establishes guilt beyond a reasonable doubt,
we will affirm the verdict.” Browne, 505 F.3d at 1253.
A. Conspiracy Charges (Counts 1 and 13)
To prove conspiracy in Counts 1 and 13, the Government had to establish
(1) the existence of an agreement between Flanders and Callum to violate 18
U.S.C. § 1591(a)(1) (sex trafficking by force, fraud, or coercion); (2) Flanders’s
knowing and voluntary participation in the conspiracy; and (3) an overt act in
furtherance of the conspiracy. See 18 U.S.C. §§ 371, 1594(c); United States v.
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White, 663 F.3d 1207, 1214 (11th Cir. 2011). “Because conspiracies are secretive
by nature, the existence of an agreement and [Flanders’s] participation in the
conspiracy may be proven entirely from circumstantial evidence.” White, 663 F.3d
at 1214 (quotation marks omitted).
Flanders argues that there was insufficient evidence of an agreement
between Flanders and Callum to defraud the victims or of an overt act in
furtherance of the conspiracy. We disagree. The victims testified that Callum
represented himself as a Bacardi agent, and the jury could infer that he would not
have known to make such a representation unless he were in on the fraud.
Furthermore, the jury heard testimony that Flanders falsely and fraudulently
represented himself to be “Karen Watson,” a fictitious female employee of a
modeling agency who would put the victim in contact with a modeling scout.
Callum is on video laughing and telling a victim during a sexual assault to say
hello to Flanders’s alias “Karen Watson,” whom Callum would have known about
only had he been in on the fraud. Callum also used the phrase “love your look”
during another victim’s video, mocking the phrase Flanders used routinely when
contacting potential victims via modeling websites and thus demonstrating that
Callum was a party to the fraud. In the videos, the women lacked physical
strength, despite one being an Army soldier and another a fitness instructor. The
jury could reasonably conclude from their observations of the women in the videos
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that the women were drugged, and they could conclude that Callum, who had an
unparalleled opportunity to observe the unconscious and/or semi-unconscious
states of the victims while he was engaging in sex acts with them, knew that they
were drugged. From this evidence, a reasonable jury could conclude that Callum
and Flanders had agreed to defraud the victims and had committed an overt act in
furtherance of the conspiracy.
Moreover, we wholly reject Flanders’s argument that the victims’ signatures
on modeling release forms evidenced their voluntary participation in the films and
created reasonable doubt of his guilt. The evidence at trial established that the
victims signed those forms after being drugged. Viewing the evidence and
drawing all reasonable inferences in the light most favorable to the Government,
we find that a reasonable jury could conclude that the evidence at trial established
Flanders’s guilt beyond a reasonable doubt. Accordingly, we affirm the verdict as
to the conspiracy counts, Counts 1 and 13.
B. Sex-Trafficking Charges (Counts 2, 4, 7, 10, 14, and 16)
To prove the sex-trafficking charges in Counts 2, 4, 7, 10, 14, and 16, the
Government had to prove that Defendants (1) did knowingly (2) in or affecting
interstate and foreign commerce, (3) entice, recruit, harbor, transport, provide,
obtain, or maintain by any means a person, (4) knowing, or in reckless disregard of
the fact, (5) that fraud would be used to cause such person to engage in a
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commercial sex act. See 18 U.S.C. § 1591(a)(1). The evidence established that
Flanders used fraud both to recruit and entice the victims to travel to Miami and to
drug the victims in order to cause them to engage in filmed sex acts, and that the
films were then distributed commercially over the Internet. Flanders, however,
argues that the victims’ involvement was entirely voluntary and that the victims’
testimony regarding the attacks cannot be considered credible. In light of the
overwhelming evidence at trial, these arguments are completely meritless. 2
Because we find that a reasonable jury could find Flanders guilty of the sex-
trafficking charges beyond a reasonable doubt, we affirm the verdict as to Counts
2, 4, 7, 10, 14, and 16.
C. Benefitting Charges (Counts 3, 6, 9, 11, 15, 18)
To prove the sex-trafficking charges in Counts 3, 6, 9, 11, 15, and 18, the
Government had to prove that Defendants (1) did knowingly benefit, financially or
by receiving anything of value, (2) from participation in a venture which (a) in or
affecting interstate and foreign commerce, (b) has enticed, recruited, harbored,
2
The evidence established that (1) the victims were recruited by Flanders under the false
pretense of auditioning for a lucrative modeling contract in South Florida; (2) the victims were
“duped” by Flanders’s emails pretending to be a female modeling agent and his phone calls
pretending to be a modeling scout working with the female agent; (3) the victims trusted
Flanders because they believed the female agent had referred him and he appeared professional;
(4) the victims unconsciously signed release forms after unknowingly consuming drugs,
provided by Flanders, which rendered their consent invalid; and (5) the two victims who agreed
to film “love scenes” were told by Flanders that it would be like acting in a movie, and they
never agreed to film pornography. With regard to the victims’ credibility, the jury observed the
victims’ demeanor and had the opportunity to judge their character for truthfulness during their
direct and cross-examinations and made credibility determinations accordingly.
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transported, provided, obtained, or maintained by any means a person,
(3) knowing, or in reckless disregard of the fact, (4) that fraud would be used to
cause such person to engage in a commercial sex act. See 18 U.S.C. § 1591(a)(2).
Flanders argues that there is no evidence that he benefitted or attempted to benefit
financially from participating in the sex-trafficking venture. He further argues that
his possession of copies of the videos was not evidence that he derived a benefit
from the venture because possession of adult pornography is legal.
The evidence showed that Flanders benefitted personally when he received
payment from two victims in the form of auditioning fees and when he took money
from the wallet of a third victim. Moreover, the evidence established that
Appellants’ “venture” was to produce and sell pornographic footage of Callum
having sex with drugged women. Searches of Callum’s business and home
uncovered thousands of commercial copies of the victims’ DVDs, which were
being sold in pornography stores and on the Internet, as well as receipts showing
payment from the sales. Flanders’s name appeared on a release signed by Callum
in 2010, a copy of which was found in Flanders’s bedroom. Furthermore, during
both the 2007 and 2011 searches of Flanders’s residence, officers seized copies of
the victims’ videos, a thing of value to Flanders, who spent considerable time
online looking at pornography as evidenced by his Internet searches for “sex with
unconscious women.” Because Flanders aided Callum in creating the videos
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Callum sold for financial remuneration, the jury could reasonably infer that
Flanders had received the videos as remuneration for his work on the films.
Finally, officers also found a package containing letters from Flanders to
HomeGrownVideo revealing that Flanders was attempting to sell pornographic
video footage of Callum and several young women, including at least one victim.
We conclude that there is sufficient evidence to uphold the conviction on
these counts. The jury could infer that Flanders benefitted from the venture when
he accepted “auditioning fees” from the victims. Cf. United States v. Jennings, 280
F. App’x 836, 844 (11th Cir. 2008) (unpublished) (finding sufficient evidence for
the jury to infer that defendants derived a benefit from the sex-trafficking venture
where their co-defendant used money derived from minor’s prostitution to pay for
their gas and hotel room). Moreover, drawing all reasonable inferences in favor of
the Government, we conclude that Flanders’s personal copies of the victims’
videos as well as the letters from Flanders to HomeGrownVideo supported a
finding that he derived a benefit from the venture. Because a reasonable jury could
have found beyond a reasonable doubt that Flanders benefitted from the fraudulent
scheme by selling the videos and by receiving fees from the victims and free
pornography from Callum, we conclude that there is sufficient evidence to affirm
Flanders’s conviction on these counts.
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D. Drug Charges (Counts 5, 8, 12, 17)
In order to convict Flanders on the drug charges in Counts 5, 8, 12, and 17,
the Government had to “prove three elements: (1) knowledge; (2) possession; and
(3) intent to distribute.” United States v. Poole, 878 F.2d 1389, 1391 (11th Cir.
1989) (per curiam). Possession may be shown by constructive possession. Id. at
1392. Constructive possession, whether exclusive or joint, exists when a defendant
has ownership, dominion, or control over an object or the premises where the
object is found. Id.The evidence here was sufficient for a reasonable jury to conclude that
Flanders had knowing possession of Benzodiazapines and that he distributed them.
When his residence was searched in 2007, the police found Diazepam pills in the
bathroom; during the 2011 search, they found Clonazepam pills in a bottle on a
nightstand. This evidence was sufficient to establish Flanders’s constructive
possession over the drugs. Specifically with regard to the Diazepam pills, the
evidence established that Flanders was living at the residence, along with two adult
relatives, and stored pornographic videos of victims in his bedroom. The
Diazepam pills, which were concealed in a medicine bottle in a shared bathroom at
the residence, permitted the inference that Flanders was in joint constructive
possession of the drugs.
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Moreover, there was ample evidence at trial that he knowingly distributed
the drugs to the victims. The victims testified to remarkably similar experiences
after ingesting the alcohol provided by Flanders during the “pre-audition,”
including bouts of unconsciousness, weakness, and memory loss. Nearly all of the
victims testified that the amount of alcohol consumed was insignificant, lending
credence to the conclusion that they were not simply feeling the effects of the
alcohol when they became unconscious and weak. Moreover, an expert explained
that the effects of the drugs are made stronger when dissolved in liquid and that
alcohol especially intensifies the drugs’ effects. Finally, at least four of the victims
testified that they had never before knowingly ingested Alprazolam, and yet they
all tested positive for the drug following their auditions. Viewing the evidence and
drawing all reasonable inferences in the light most favorable to the Government,
we conclude that a reasonable jury could find Flanders guilty of the drug charges
beyond a reasonable doubt. Accordingly, we affirm the verdict as to Counts 5, 8,
12, and 17.
IV. Prosecutorial Misconduct
The Eleventh Circuit reviews claims of prosecutorial misconduct de
novo. United States v. House, 684 F.3d 1173, 1197 (11th Cir. 2012). “But where a
defendant fails to make a contemporaneous objection to the alleged misconduct in
the district court, we review such claims for plain error.” Id. Under the plain error
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standard, the defendant must show that (1) an error occurred; (2) the error was
plain; (3) it affected his substantial rights; and (4) it seriously affected the fairness
of the judicial proceedings. Id. “Under the third prong of the plain error analysis,
the defendant bears the burden of persuasion and must show that the claimed error
affected his substantial rights, which almost always requires that the error must
have affected the outcome of the district court proceedings.” Pena, 684 F.3d at
1151 (quotation marks omitted).
Flanders asserts that the indictment and superseding indictment were
procured by deception because the Government falsely alleged to the grand jury
that Flanders was involved in the sexual exploitation of minors. However, even if
Flanders’s allegations of misconduct before the grand jury are true, “the petit jury’s
verdict rendered harmless any conceivable error in the charging decision that might
have flowed from the violation.” United States v. Mechanik, 475 U.S. 66, 67
(1986) (explaining that “the petit jury’s verdict of guilty beyond a reasonable doubt
demonstrates a fortiori that there was probable cause to charge the defendants with
the offenses for which they were convicted”). The record shows that there was no
mention of child exploitation before the petit jury. Thus, the petit jury’s guilty
verdicts demonstrate that there was probable cause to charge Defendants with the
offenses for which they were convicted, and any alleged misconduct before the
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grand jury was harmless. Accordingly, we affirm the district court’s denial of
Flanders’s motion for disclosure of the grand jury transcripts and materials.
Flanders next argues that the Government withheld evidence in violation of
Brady v. Maryland, 373 U.S. 83 (1963). According to Flanders, the Government
failed to provide the arrest information filed by Agent Chavez that contained
exculpatory and impeaching evidence, and there are FBI 302s that were not turned
over to Flanders. “A Brady claim is available if either exculpatory or
impeachment evidence is suppressed, regardless of the good faith or bad faith of
the prosecution. A defendant who seeks a new trial based on an alleged Brady
violation must show that, had the evidence been revealed to the defense, there is a
reasonable probability that the outcome of the proceeding would have been
different.” United States v. Fernandez, 136 F.3d 1434, 1438 (11th Cir. 1998)
(citation omitted). Flanders provides no details regarding what type of exculpatory
and impeachment evidence was contained in the arrest information or in the
allegedly missing 302s. Furthermore, he has not shown that there is a reasonable
probability that, had the evidence been revealed, the outcome of the proceeding
would have been different. Accordingly, we find Flanders’s Brady claim wholly
without merit.
Finally, Flanders argues that the prosecutor’s statements in his closing
argument require reversal of Flanders’s conviction because (1) the prosecutor, over
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objection, improperly commented on Flanders’s lack of testimony to police; (2) the
prosecutor, over objection, improperly argued that Flanders committed rape; and
(3) the prosecutor tainted the jury by stating throughout its closing that Flanders
lied “over and over again” both to the police and the women. Flanders concludes
that the cumulative effect of the improper prosecutorial comments infected the
entire trial.
“[I]n reviewing claims that a prosecutor’s comments violated a defendant’s
Fifth Amendment right against compulsory self-incrimination,” the Court “must
determine whether a prosecutor’s remarks were manifestly intended to urge the
jury to draw an inference from the defendant’s silence that he or she is guilty, or
whether a jury would naturally and necessarily construe the prosecutor’s remarks
as inviting such an impermissible inference.” United States v. Thompson, 422 F.3d
1285, 1299 (11th Cir. 2005). Whether these conditions are satisfied “can be
determined only by examining the context in which the statement was made.” Id.In support of his argument that the prosecutor, over objection, improperly
commented on Flanders’s lack of testimony to police, Flanders cites the following
portion of the Government’s closing argument:
If Mr. Flanders really had been honest with the victims, if he had
nothing to hide, then why didn’t he just say that to the police when
they interviewed him? Why did he lie about knowing Emerson
Callum? We know that he knew his name was Emerson Callum . . . .
He told [a victim] three months before that his coworker’s name is
Emerson. That is how he knew it. . . . Why was he so afraid of
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admitting that he had been to the IHOP parking lot with a [victim]?
Why didn’t he just say, “. . . that is the woman I lied to, to get her
down here. Once she was here, I came clean. She decided to do
pornography and then she got real sick. Hope she is okay.” What did
he have to hide?
Trial Tr. 214:23–24. These remarks do not explicitly reference Flanders’s silence
to the police; instead, the remarks question why he lied to the police. Moreover, it
cannot be said that these remarks “were manifestly intended to urge the jury to
draw an inference from the defendant’s silence that he . . . is guilty.” Thompson,
422 F.3d at 1299. Accordingly, we find no merit to Flanders’s claim that the
prosecutor improperly commented on Flanders’s silence.
Similarly, there is no merit to Flanders’s other claims of prosecutorial
misconduct or that the comments resulted in cumulative error. In addressing a
claim of cumulative error, “we consider all errors preserved for appeal and all plain
errors in the context of the trial as a whole to determine whether the appellant was
afforded a fundamentally fair trial.” House, 684 F.3d at 1197 (quotation marks
omitted). “The total effect of the errors on the trial will depend, among other
things, on the nature and number of the errors committed; their interrelationship, if
any, and combined effect; the strength of the government’s case; and the length of
trial.” Id. (quotation marks and alteration omitted). Upon review of the record, we
find that Flanders has not demonstrated prosecutorial misconduct in any of the
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cited comments. Thus, there was no error, let alone cumulative error, in the
closing argument.
V. Evidentiary Rulings
We review a district court’s evidentiary rulings for a clear abuse of
discretion and will reverse those rulings “only if the resulting error affected the
defendant’s substantial rights.” United States v. Dodds, 347 F.3d 893, 897 (11th
Cir. 2003). “[D]eterminations as to the relevancy of evidence are well within the
broad discretion of the district courts and will not be disturbed on appeal absent a
showing that the trial court abused its discretion.” United States v. Tinoco, 304
F.3d 1088, 1120 (11th Cir. 2002) (quotation marks omitted). “[E]vidence is
relevant if it has ‘any tendency to make the existence of any fact that is of
consequence to the determination of the action more probable or less probable than
it would be without the evidence.’” Id. (quoting Fed. R. Evid. 401).
Although Federal Rule of Evidence 403 permits the district court to exclude
otherwise relevant evidence “if its probative value is substantially outweighed by
the danger of unfair prejudice,” Fed. R. Evid. 403, it is “an extraordinary remedy”
that should be used sparingly, United States v. Elkins, 885 F.2d 775, 784 (11th Cir.
1989). “[I]n a criminal trial relevant evidence is inherently prejudicial; it is only
when unfair prejudice substantially outweighs probative value that the rule permits
exclusion.” United States v. King, 713 F.2d 627, 631 (11th Cir. 1983) (emphasis in
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original). Accordingly, “in reviewing issues under Rule 403, we look at the
evidence in the light most favorable to its admission, maximizing its probative
value and minimizing its undue prejudicial impact.” Tinoco, 304 F.3d at 1020(quotation marks omitted).
A review of the record reveals that the district court did not abuse its
discretion in admitting evidence of the Internet searches over Appellants’
objections. The evidence of prior Internet searches for sex with unconscious
women was probative because, at a minimum, it demonstrated either: (1) that
Flanders was performing background research for his scheme, which involved and
relied upon sexual performances by or with drugged women; or (2) that Flanders
enjoyed viewing images of sexual intercourse with unconscious women. Under
either or both scenarios, the evidence was relevant. Admission of the evidence
would have enabled the jury to compare the searches (and any resulting images)
with the allegations against the Defendants for any similarities. Cf. United States
v. Pruitt, 638 F.3d 763, 767 (11th Cir. 2011) (discussing jury’s consideration of the
record of Internet searches using terms related to child pornography).
To the extent Flanders claims that the Internet-search evidence was unfairly
prejudicial, he has failed to properly raise the issue. See Singh v. U.S. Att’y Gen.,
561 F.3d 1275, 1278 (11th Cir. 2009) (“[A]n appellant’s simply stating that an
issue exists, without further argument or discussion, constitutes abandonment of
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that issue and precludes our considering the issue on appeal.”); Fed. R. App. P.
28(a)(8) (requiring that appellant’s brief contain “appellant’s contentions and the
reasons for them, with citation to the authorities and parts of the record on which
the appellant relies”). Nevertheless, Flanders’s argument in this regard is without
merit, particularly in view of the quantum of the other evidence presented.
Similarly unpersuasive are Flanders’s arguments with regard to the
ownership of and access to the computers. There was no evidence adduced at trial
as to the owner of the computers found in the residence Flanders shared with his
girlfriend. Rather, the jury was presented with computer analysis establishing that
Flanders’s email was used and that someone logged into the computers and
conducted hundreds of searches of modeling websites and for images of sex with
unconscious women. The jury could infer that Flanders, not his girlfriend,
conducted these searches, particularly in light of the fact that they were conducted
at times when Flanders’s girlfriend was working. Nevertheless, Flanders’s
arguments do not strike at the relevancy of the evidence, but rather the weight the
jury was entitled to assign to it.
Flanders also claims that the district court erred in allowing for the
introduction of the drugs found during a search in 2007, which were located in a
shared bathroom of the residence, because Flanders did not have exclusive access
to the bathroom, and there was no evidence of constructive possession. Flanders’s
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arguments in this regard largely mirror his claims, discussed above, regarding the
ownership of and access to the computers. As explained in the earlier discussion
addressing the sufficiency of the evidence, the Diazepam pills, which were
concealed in a medicine bottle in a shared bathroom at the residence, permitted the
inference that Flanders was in joint constructive possession of the drugs.
Moreover, Flanders fully explored this issue on cross-examination and argued that
his shared residence vitiated the significance of the Diazepam, as well as the online
searches. Notwithstanding the foregoing, even if the inferences of constructive
possession were unwarranted, any error in the admission was harmless given the
overwhelming evidence of Appellants’ guilt. 3
Similarly, there is no merit to Flanders’s argument that the reading into
evidence of a transcript of his 2007 post-Miranda statements violated the best
evidence rule. “The best evidence rule provides that the original documents must
be produced to prove the content of any writing, recording or photograph.” United
States v. Howard, 953 F.2d 610, 612 n.1 (11th Cir. 1992) (citing Fed. R. Evid.
1002–06). An original is not required if it is lost or destroyed, unless it is
unavailable through bad faith. Fed. R. Evid. 1004. A duplicate is admissible to the
same extent as an original, unless there is a genuine question of authenticity or it
would be unfair to admit the duplicate. Fed. R. Evid. 1003; see United States v.
3
We find no merit in Callum’s arguments that the evidence of the drugs and Internet searches
found during the two searches of Flanders’s residences was unfairly prejudicial to Callum.
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Ross, 33 F.3d 1507, 1513–14 (rejecting best-evidence challenge to transcripts of
destroyed recordings of co-conspirators’ conversations).
At trial, Detective Fletcher testified that the audio recording of Flanders’s
statements had been inadvertently destroyed. Furthermore, there is no evidence of
bad faith or to support Flanders’s assertion that the transcript was untrustworthy.
Thus, we conclude that the district court did not abuse its discretion when it
admitted into evidence a transcript of Flanders’s statements. Moreover, to the
extent that Flanders argues for the first time on appeal that the publication
method—wherein the transcript was read into the record—violated the rules, this
argument is subject to, and fails, the plain error standard. Given the overwhelming
evidence of his guilt, Flanders cannot show that the method of publication affected
the outcome of his district court proceedings, as required under plain error review. 4
VI. Public Trial
Appellants argue that their Sixth Amendment right to a public trial was
violated when the court ordered the courtroom doors locked during closing
arguments. “The Sixth Amendment right to a public trial is not absolute and must,
on occasion, give way to other rights and interests.” United States v. Brazel, 102
4
For the first time on appeal, Flanders argues that the search warrant was invalid because it was
based on misrepresentations that the case involved minors, rendering inadmissible all evidence
seized pursuant to the warrant. Because Flanders did not raise this issue prior to trial, it is
waived. See Fed. R. Crim. P. 12(e); United States v. Ford, 34 F.3d 992, 994 n.2 (11th Cir. 1994)
(“A party’s failure to present a suppression motion prior to trial constitutes waiver unless the
district court grants relief for good cause shown.”).
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F.3d 1120, 1155 (11th Cir. 1997) (citing Waller v. Georgia, 467 U.S. 39, 45
(1984)). We have “recognized a distinction between total closures of proceedings
. . . and situations where the courtroom is only partially closed to spectators.” Judd
v. Haley, 250 F.3d 1308, 1315 (11th Cir. 2001). In the event of a partial closure,
where access to the courtroom is retained by some spectators (such as
representatives of the press or the defendant’s family members), “a court need
merely find a ‘substantial’ reason for the partial closure,” id., rather than the
“compelling” reason that is required to justify a complete closure, Brazel, 102 F.3d
at 1155.
The record establishes the following facts: (1) the courtroom was nearly full,
and several of Defendants’ family and friends were present during closing
arguments; (2) only those people who arrived past 9:05 a.m. were denied access;
(3) neither side objected when the court proposed locking the doors; (4) when
defense counsel expressed concern after closing arguments that some of
Defendants’ family had been locked out of the courtroom, the court offered
counsel the opportunity to redeliver their closing arguments with the doors
unlocked, but both sides declined; (5) before the verdicts were announced, defense
counsel moved for a mistrial on Sixth Amendment grounds, but the court denied
the motion, finding no contemporaneous objection; and (6) defense counsel later
moved for a new trial on the same grounds, but the district court again denied the
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motion, explaining in a written order that it had locked the doors once closing
arguments had begun in order to limit distractions to the jury that could have
inhibited their ability to perform their function. Under these facts and for the
reasons given in the district court’s thoughtful order, United States v. Flanders,
845 F. Supp. 2d 1298 (S.D. Fla. 2012), we readily conclude that the Defendants’
right to a public trial was not violated by the partial closure of the courtroom. See
Aaron v. Capps, 507 F.2d 685, 687–88 (5th Cir. 1975)5 (finding no constitutional
violation caused by partial closure of criminal trial where some members of the
public, including the news media and defendant’s relatives and clergyman, were
admitted; the courtroom was at least three-fourths full; and the transcript of the
trial became public record).
VII. Double Jeopardy
Both Flanders and Callum argue that each pair of their 18 U.S.C.
§ 1591(a)(1) and (a)(2) convictions, arising out of the same set of facts, was
multiplicitous and therefore violated the Double Jeopardy Clause. We review
claims of double jeopardy de novo. United States v. Bobb, 577 F.3d 1366, 1371
(11th Cir. 2009). Among other prohibitions, the Double Jeopardy Clause of the
Fifth Amendment does not allow for multiple punishments for the same offense.
5
The Eleventh Circuit, in the en banc decision Bonner v. City of Prichard, 661 F.2d 1206, 1209
(11th Cir. 1981), adopted as precedent decisions of the former Fifth Circuit rendered prior to
October 1, 1981.
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Id. Where a defendant has violated two different criminal statues, the Double
Jeopardy Clause is implicated if both statutes prohibit the same act or if one act is a
lesser included offense of the other. Id. However, Congress has the power to
authorize multiple punishments arising out of the same act or transaction, and there
is no double jeopardy implication where legislative intent is clear. Id.In order to determine whether two provisions punish the same offense, we
look to whether each provision requires proof of a fact that the other does not. Id.at 1372 (citing Blockburger v. United States, 284 U.S. 299, 304 (1932)). This
analysis focuses on the proof necessary to establish the statutory elements for each
offense, not the evidence presented at trial. Id.Section 1591 reads:
(a) Whoever knowingly—
(1) in or affecting interstate or foreign commerce . . .
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 . . . fraud
. . . will be used to cause the person to engage in a
commercial sex act . . . shall be punished as provided in
subsection (b).
18 U.S.C. § 1591.
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A plain reading of § 1591(a)(1) and (a)(2) demonstrates that the two
subsections meet the Blockburger test of whether separate convictions are
authorized. Section 1591(a)(1) requires proof that the defendant was criminally
responsible for the recruitment or enticement of a person with knowledge that the
person will be fraudulently induced to engage in a commercial sex act. 18 U.S.C.
§ 1591(a)(1). Section 1592(a)(2) does not require proof of such conduct on the
defendant’s part, as only participation in a venture which has recruited or enticed a
person for such purposes is required. Id. § 1592(a)(2). Further, while § 1592(a)(2)
requires proof that the defendant received a valuable benefit from his participation,
§ 1591(a)(1) requires no such proof. Each subsection, therefore, requires proof of
an element that the other does not, and the separate convictions for each do not
result in a double jeopardy violation. See Bobb, 577 F.3d at 1372.
VIII. Reasonableness of the Sentences
Both Flanders and Callum challenge the reasonableness of their consecutive
total life sentences. We employ a two-step process to review a sentence for
reasonableness. United States v. Beckles, 565 F.3d 832, 845 (11th Cir. 2009).
First, we must “ensure that the district court committed no significant procedural
error, such as failing to calculate (or improperly calculating) the Guidelines range,
treating the Guidelines as mandatory, failing to consider the § 3553(a) factors,
selecting a sentence based on clearly erroneous facts, or failing to adequately
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explain the chosen sentence.” Gall v. United States, 552 U.S. 38, 51 (2007). Once
we determine that the district court did not procedurally err, we then “consider the
substantive reasonableness of the sentence imposed under an abuse-of-discretion
standard, based on the totality of the circumstances.” Beckles, 565 F.3d at 845(quotation marks omitted). We will remand for resentencing only when “left with
the definite and firm conviction that the district court committed a clear error of
judgment in weighing the § 3553(a) factors by arriving at a sentence that lies
outside the range of reasonable sentences dictated by the facts of the case.” United
States v. Pugh, 515 F.3d 1179, 1191 (11th Cir. 2008) (quotation marks omitted).
“The party who challenges the sentence bears the burden of establishing that the
sentence is unreasonable in the light of both [the] record and the factors in section
3553(a).” United States v. Thomas, 446 F.3d 1348, 1351 (11th Cir. 2006)
(quotation marks omitted).
A. § 2A3.1(b)(1) Enhancements
Appellants argue that the district court erred in applying U.S.S.G.
§ 2G1.1(c)’s cross reference to U.S.S.G. § 2A3.1 in calculating their guideline
range. We review de novo the district court’s application of the Sentencing
Guidelines, and we review underlying factual findings for clear error. United
States v. Foley, 508 F.3d 627, 632 (11th Cir. 2007). The Guidelines instruct that
when a cross reference applies, the entire referenced offense guideline, including
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enhancements, should apply. U.S.S.G. § 1B1.5(a). “Additionally, the [G]uidelines
specifically instruct courts to take into consideration all relevant conduct when
calculating the guideline range.” United States v. Webb, 665 F.3d 1380, 1383
(11th Cir. 2012) (citing U.S.S.G. § 1B1.3).
The guideline range for convictions under 18 U.S.C. § 1591 are calculated in
U.S.S.G. § 2G1.1. U.S.S.G. § 2G1.1, cmt. Under a cross-reference provision, if
the offense “involved” conduct described in 18 U.S.C. § 2241(a) or (b) (aggravated
sexual abuse) or § 2242 (sexual abuse), the guideline should be calculated under
§ 2A3.1. Id. § 2G1.1(c)(1). Section 2A3.1 provides for a four-level enhancement
only if the offense involved conduct described in 18 U.S.C. § 2241(a) or (b). Id.§ 2A3.1(b)(1). It is aggravated sexual abuse when a defendant “administers to
another person . . . without the knowledge or permission of that person, a drug,
intoxicant, or other similar substance[,]” which “substantially impairs the ability of
that other person to appraise or control conduct[,]” and “engages in a sexual act
with that other person[.]” 18 U.S.C. § 2241(b)(2).
Callum appears to argue that because he was convicted of fraudulent
inducement, and not a sex act itself, his sentence cannot be enhanced based on the
sex act. However, the plain language of the cross reference states that it should
apply if the offense “involved” § 2241 conduct, not merely if the § 2241 conduct
was the basis for the conviction. See U.S.S.G. § 2G1.1(c). The offense conduct
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met the description in § 2241(b)(2), as Flanders gave drugs to women who did not
know the alcohol they were drinking contained drugs, and Callum then had sex
with them. Accordingly, we find that Callum’s challenge to the application of the
§ 2G1.1(c) cross reference is without merit.
Flanders argues that the court erred in imposing the § 2A3.1(b)(1)
enhancement to his guideline calculation because the conduct described in 18
U.S.C. § 2241(a) or (b) was used to calculate his base offense and thus could not
be used for purposes of an enhancement. Flanders argues that imposing the
enhancement constituted impermissible double counting.
We review a claim of double counting de novo. United States v. Suarez, 601
F.3d 1202, 1220 (11th Cir. 2010). “Impermissible double counting occurs only
when one part of the Guidelines is applied to increase a defendant’s punishment on
account of a kind of harm that has already been fully accounted for by application
of another part of the Guidelines.” Webb, 665 F.3d at 1382 (quotation marks
omitted). “Double counting a factor during sentencing is permitted if the
Sentencing Commission intended that result and each guideline section in question
concerns conceptually separate notions relating to sentencing.” Id. (quotation
marks omitted). We presume that the Commission intended to apply separate
sections cumulatively unless otherwise specified, “and, as a result, a defendant
asserting a double counting claim has a tough task.” Id. (quotation marks omitted).
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In this case, the district court did not err in applying the 2G1.1(c) cross
reference and 2A3.1(b)(1) enhancement in conjunction with one another. Based on
the plain language of the Guidelines, the Sentencing Commission intended for the
entirety of § 2A3.1, including any enhancements, to apply following the
application of the cross reference. See U.S.S.G. § 1B1.5(a). Further, the cross
reference and the enhancement do not deal with identical conduct. The cross
reference applies where the offense involved any conduct constituting sexual
abuse. See id. § 2G1.1(c)(1); 18 U.S.C. §§ 2241(a)–(b) and 2242. The
enhancement, however, applies an additional four levels only where the offense
involved conduct constituting the more severe subset of aggravated sexual abuse
offenses. See U.S.S.G. § 2A3.1(b)(1); 18 U.S.C. § 2241(a) and (b). To the extent
that Appellants’ base offense level and enhancement were based on the same
conduct, therefore, those calculations did not constitute impermissible double
counting. See Webb, 665 F.3d at 1352–53.
B. § 2G1.3(d) Grouped Offenses
Flanders next argues that the district court incorrectly grouped his offenses
based on § 2G1.3(d), which deals with underage victims. In the case of a
conviction or convictions for sex trafficking involving minors, the grouping rules
apply as if each victim constituted a separate conviction. U.S.S.G. § 2G1.3(d)(1).
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The same grouping rule applies where the offense did not involve any minors. Id.
§ 2G1.1(d)(1).
Flanders did not object to the use of § 2G1.3(d) below, so plain error review
applies. See United States v. Barrington, 648 F.3d 1178, 1195 (11th Cir. 2011).
Here, as the Government concedes, the district court applied the wrong Guidelines
provision in grouping the offenses, as there was no evidence that the offenses
involved minors. Because the explicit language of the rule makes clear that an
error occurred, the error can be classified as “plain.” See United States v. Lejarde-
Rada, 319 F.3d 1288, 1291 (11th Cir. 2003) (per curiam). However, the correct
Guidelines section, § 2G1.1(d), would have grouped the offenses in the exact same
manner. See U.S.S.G. §§ 2G1.1(d)(1) and 2G1.3(d)(1). The error therefore did not
affect Flanders’s substantial rights, as the outcome of the sentencing could not
have been any different had the correct provision been applied. See Pena, 684
F.3d at 1151. Accordingly, the error does not meet the plain error standard and is
not a basis upon which to find procedural unreasonableness.
C. § 5K2.8 Upward Departure
Appellants argue that the court erred in granting the Government’s motion
for a § 5K2.8 upward departure, which applies when a defendant’s conduct was
unusually “heinous, cruel, or brutal.” We review for abuse of discretion the district
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court’s decision to grant a departure. United States v. Siegelman, 640 F.3d 1159,
1190 (11th Cir. 2011).
After calculating a defendant’s guideline range, the district court is directed
to consider whether a departure warrants consideration. U.S.S.G. § 1B1.1(b). The
court can grant an upward departure if the defendant’s conduct was “unusually
heinous, cruel, brutal, or degrading to the victim,” including where the offense
involves a “prolonging of pain or humiliation.” Id. § 5K2.8. We have upheld the
district court’s imposition of the § 5K2.8 departure where: an HIV-positive
defendant knowingly exposed a minor victim to the disease without notifying her,
United States v. Blas, 360 F.3d 1268, 1273–74 (11th Cir. 2004); a defendant forced
victims to engage in oral, anal, and vaginal sex, United States v. Lewis, 115 F.3d
1531, 1538–39 (11th Cir. 1997); and a defendant exposed victims to public
embarrassment and repeated harassing letters over a period of twenty years, United
States v. Taylor, 88 F.3d 938, 946 (11th Cir. 1996).
We readily conclude that the district court did not abuse its discretion in
granting the upward departure. Flanders videotaped Callum having sex with
women who were under the influence of drugs that Flanders had given to them
without their knowledge. Victims woke up covered in bodily fluids and uncertain
of what had happened to them. Appellants then distributed those videos over the
Internet, where the videos will be available indefinitely, thus “prolonging [the
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victims’] pain or humiliation.” U.S.S.G. § 5K2.8. The district court did not abuse
its discretion when it concluded that Appellants’ conduct was “unusually heinous,
cruel, brutal, or degrading to the victim[s].” Id. Thus, the upward departure was
not an abuse of discretion.
D. Substantive Reasonableness
Appellants challenge the substantive reasonableness of their life sentences.
On substantive reasonableness review, we can “vacate the sentence if, but only if,
we are left with the definite and firm conviction that the district court committed a
clear error of judgment in weighing the § 3553(a) factors by arriving at a sentence
that lies outside the range of reasonable sentences dictated by the facts of the case.”
United States v. Irey, 612 F.3d 1160, 1190 (11th Cir. 2010) (en banc) (quotation
marks omitted). Among the factors that the court should consider in sentencing are
the guideline range; the nature and circumstances of the offense; and the need for
the sentence to reflect the seriousness of the offense, to deter criminal conduct, and
to protect the public from the defendant’s future crimes. 18 U.S.C. § 3553(a). The
weight to be given any particular factor in sentencing generally is left to the sound
discretion of the district court. United States v. Amedeo, 487 F.3d 823, 832 (11th
Cir. 2007).
Neither Flanders nor Callum has met his burden of demonstrating that his
total life sentence was substantively unreasonable. See Thomas, 446 F.3d at 1351.
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Flanders used false pretenses to convince women to travel to South Florida, told
the women that they had to drink alcohol for a commercial, drugged the alcohol,
and drove the women to Callum, who had sex with the women while they were
under the influence of the drugs. Appellants’ crimes were made more serious,
warranting a longer sentence, by the fact that they filmed the sexual encounters and
then distributed those videos in DVDs and over the Internet. See 18 U.S.C.
§ 3553(a)(2)(A); Irey, 612 F.3d at 1208 (explaining that the seriousness of the
defendant’s crime was enhanced because he recorded his sexual assaults, in that
case on children, and distributed the videos on the Internet, which (1) “magnified
and perpetuated” the harm, because each viewing of the video represented a
renewed violation of the victims, and (2) encouraged others to commit similar
crimes).
A long sentence also could be justified by the need to protect the public from
future crimes of the Defendants, underscored by the fact that Flanders and Callum
continued their scheme after having been arrested and charged in state court. See
18 U.S.C. § 3553(a)(2)(C). Moreover, although neither Flanders nor Callum had a
significant criminal history, their scheme took place over a number of years dating
back to 2006 and involved a large number of victims. See United States v.
Campbell, 491 F.3d 1306, 1317 (11th Cir. 2007) (explaining that a first conviction
is not the same as being a first time offender where the fraud took place over a
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number of years and the defendant tried to conceal the fraud). At sentencing, the
prosecutor’s proffer showed that there were at least fifty victims, only seven of
whom testified at trial to Appellants’ abhorrent conduct.
Neither Flanders nor Callum presents any persuasive argument as to why a
life sentence was outside the range of reasonable sentences, and the facts of their
crimes do not support such a conclusion. Accordingly, we hold that their sentences
are substantively reasonable.6
IX. Constitutionality of the Sentence
Finally, Flanders argues that his life sentences violated the Eighth
Amendment’s prohibition against cruel and unusual punishment. “We review
challenges to the constitutionality of a sentence de novo.” United States v.
Sanchez, 586 F.3d 918, 932 (11th Cir. 2009). However, when a defendant fails to
raise an Eighth Amendment challenge to a sentence in the district court, we review
that challenge on appeal for plain error.7 United States v. Raad, 406 F.3d 1322,
1323 (11th Cir. 2005). Outside the context of capital punishment cases, successful
Eighth Amendment challenges are “exceedingly rare.” Solem v. Helm, 463 U.S.
277, 289 (1983). “In non-capital cases, the Eighth Amendment encompasses, at
6
There is no merit to Flanders’s argument that the court should have granted his motion for a
downward variance.
7
It is questionable whether Flanders raised an Eighth Amendment objection below. While he
asserted that a life sentence would be “cruel and unusual,” he did so in the context of requesting
a variance before the sentence was actually imposed. Under any standard of review, however,
there is no merit to Flanders’s Eighth Amendment challenge.
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most, only a narrow proportionality principle.” United States v. Reynolds, 215 F.3d
1210, 1214 (11th Cir. 2000) (per curiam) (quotation marks omitted). We review
the sentence imposed by first determining whether the sentence is “grossly
disproportionate to the offense committed.” Id. If we find that it is, we then
consider sentences imposed on others convicted of the same crime. Id.Flanders’s argument—that his consecutive life sentences violate the Eighth
Amendment because he had no prior convictions and the sentences demonstrate a
lack of mercy and compassion—is wholly without merit. The statutory range for
the sex-trafficking counts is fifteen years to life. See 18 U.S.C. §§ 1591(b)(1),
1594(b). Accordingly, the sentence imposed for each count was within the limits
prescribed by the statute. See United States v. Moriarty, 429 F.3d 1012, 1024
(11th Cir. 2005) (per curiam) (“In general, a sentence within the limits imposed by
statute is neither excessive nor cruel and unusual under the Eighth Amendment.”).
Moreover, for the same reasons that his sentence is not substantively unreasonable,
Flanders’s total life sentence was not so disproportionate to his crimes that it would
be considered cruel and unusual under the Eighth Amendment.
X. Ineffective Assistance of Counsel
Flanders raises numerous ineffectiveness allegations. “Generally, claims of
ineffective assistance of counsel are not considered for the first time on direct
appeal.” United States v. Tyndale, 209 F.3d 1292, 1294 (11th Cir. 2000) (per
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curiam) (noting exception for cases where the record is “sufficiently developed”).
Because we find that the record is not sufficiently developed to facilitate
consideration of Flanders’s ineffectiveness claims, we decline to address the merits
of these claims on direct appeal.
XI. Flanders’s Appeal of the Final Order of Forfeiture
Under appeal number 12-15027, Flanders appeals pro se from the district
court’s final order of forfeiture. After a conviction upon which criminal forfeiture
is sought, the court must determine which property is forfeitable as soon as
practical following the conviction. Fed. R. Crim. P. 32.2(b)(1)(A). The court must
then enter a preliminary order of forfeiture setting forth the money or property that
will be forfeited. Id. R. 32.2(b)(2)(A). The preliminary order of forfeiture
becomes final as to the defendant at sentencing, during which the court must
include the forfeiture when pronouncing sentence and the forfeiture order in the
judgment. Id. R. 32.2(b)(4)(A) and (B). The time for the defendant to file an
appeal from a forfeiture order runs from the entry of the judgment. Id. R.
32.2(b)(4)(C). A final order of forfeiture is entered after the court has had an
opportunity to account for any third-party rights in the forfeited property. Id. R.
32.2(c)(2). The advisory committee notes explain that a defendant’s right to
appeal a forfeiture order runs from the entry of the preliminary order of forfeiture,
because that is when the order becomes final as to the defendant. Id. R. 32.2,
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Advisory Committee Note, Subdivision (b) (2000 Adoption). Because the final
order of forfeiture has no bearing on the defendant’s rights, the defendant has no
right to appeal that order. Id.We previously authorized Flanders to file a separate, pro se brief, only
insofar as he challenged the district court’s “Final Order of Forfeiture,” and
directed that all remaining arguments should be raised and submitted in the
counseled brief. However, we now conclude that Flanders has no standing to
appeal from the final order of forfeiture. See Fed. R. Crim. P. 32.2, Advisory
Committee Note, Subdivision (b). Therefore, we dismiss appeal number 12-15027
for a lack of jurisdiction based on Flanders’s lack of standing. See United States v.
Edwards, 728 F.3d 1286, 1291 (11th Cir. 2013) (explaining that we are obliged to
examine our own jurisdiction, including whether an appellant has standing).
Pursuant to our order, Flanders’s counsel could have raised any challenge to the
preliminary order of forfeiture in its initial appellate brief.
XII. Conclusion
We affirm the Appellants’ convictions and sentences (Appeal No. 12-10995)
as well as the district court’s order denying disclosure of the grand jury transcripts
and materials (Appeal No. 12-15248). Flanders’s pro se appeal of the Final Order
of Forfeiture (Appeal No. 12-15027) is dismissed for lack of jurisdiction.
AFFIRMED IN PART; DISMISSED IN PART.
44