United States v. Martavious Keys ( 2018 )

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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 17-10746 August 20, 2018
Lyle W. Cayce
UNITED STATES OF AMERICA, Clerk
Plaintiff - Appellee
v.
MARTAVIOUS DETREL BANKS KEYS, also known as Cheese, also known
as Matt,
Defendant - Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:16-CR-244-1
Before CLEMENT, HIGGINSON, and HO, Circuit Judges. *
PER CURIAM:*
Martavious Detrel Banks Keys was convicted by a jury of two counts of
sex trafficking of a child and one count of sex trafficking through force, fraud,
or coercion in violation of 18 U.S.C. § 1591. Keys appeals, contending that
Count One and Count Three of the indictment were multiplicitous and that the
* Judge Ho concurs in the judgment only.
** Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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district court erred in admitting the testimony of two law enforcement officers.
For the reasons stated below, we AFFIRM.
I
On March 13, 2015, Jane Doe 1 and Jane Doe 2 left the Nexus Recovery
Center, a substance abuse treatment facility in Dallas, Texas. The girls were
15 years old and 14 years old, respectively. At a gas station they reached on
foot, Jane Does 1 and 2 met an adult male they identified as “Black,” who
offered to take them back to his apartment and provide them with narcotics.
Jane Doe 1 told Black that the girls were both 15 years old. The girls stayed at
Black’s apartment for approximately three days. During that time, Black and
another man provided Jane Does 1 and 2 with methamphetamine and crack
cocaine, and the girls engaged in sex acts with the two men. While staying at
Black’s apartment, Jane Does 1 and 2 also met another friend of Black’s, later
identified as Keys or “Cheese.” Black later drove the girls to an abandoned area
and sold them to Keys. 1
Keys took the girls back to his apartment, where he created a
Backpage.com 2 ad inviting potential patrons to engage in commercial sex with
an apparently fictional individual named “Kacy.” Using a number of prepaid
cell phones, Keys arranged for men to come to his apartment to engage in sex
acts with the girls in exchange for money. When the men would arrive at Keys’s
apartment, Jane Doe 1 would greet them at the door and lead them to a
bedroom where she would instruct them to choose between herself and Jane
Doe 2. Both girls would be naked. After the men chose Jane Doe 1, Jane Doe 2,
1 Jane Doe 1 told investigators that Keys purchased Jane Doe 1 for $240 and Jane Doe
2 for $47.
2 Backpage.com “is Craigslist for the sex trade.” In 2018, Backpage.com pleaded guilty
to human trafficking in Texas. See
https://www.texasattorneygeneral.gov/news/releases/backpage.com-pleads-guilty-to-human-
trafficking-in-texas.
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or both girls, Jane Doe 1 would collect the cash and pass it under the bathroom
door to Keys, who would be waiting on the kitchen side. Jane Doe 2 estimates
that she engaged in commercial sex acts roughly ten times total while at Keys’s
home. Jane Doe 1 testified that, on average, she engaged in commercial sex
acts sixteen times per day. On at least one occasion, her vagina was so swollen
and bleeding that Keys suggested she insert cosmetic sponges inside herself
or, alternatively, have anal sex so that she could continue to entertain
customers. Keys kept all of the money the girls earned.
At some point, Jane Doe 1 and Jane Doe 2 told Keys that they were only
15 and 14 years old. He continued to have the girls engage in commercial sex
acts with men. Keys also raped Jane Doe 1 on multiple occasions and Jane Doe
2 at least once. While both girls were still at his home, Keys left for several
days, apparently to pick up a Chevrolet Tahoe he was able to purchase with
the money earned by the girls. His friends monitored the girls while he was
gone. Keys and his friends provided Jane Does 1 and 2 with a constant supply
of crack cocaine. Though Jane Doe 2 initially wanted to use drugs, she
eventually became uncomfortable and wanted to stop and “get out of there.”
Keys and Jane Doe 1 pressed her to continue using, and Keys became violent.
Jane Doe 2 testified that when she told Keys she no longer wanted to engage
in commercial sex acts, Keys choked her, slammed her against the wall and
said: “If you don’t do what you’re supposed to do, we’re going to have a
problem.”
Jane Doe 2 was able to leave Keys’s apartment approximately two weeks
after he purchased her from Black. After Keys threatened her, Jane Doe 2
asked the next customer who came to the apartment if he would help her get
out. The customer apparently paid Keys to let him leave with Jane Doe 2. Jane
Doe 1 remained with Keys for roughly two weeks after Jane Doe 2 left, during
which time Keys began shuttling her between various motels. She continued
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to engage in sex acts with various customers and Keys collected the money.
But the character of the relationship between Keys and Jane Doe 1 shifted.
Keys became more violent and controlling. Keys regularly abused Jane Doe 1
and pointed a gun at her; she testified that she did not feel free to leave. Jane
Doe began to fear for her life. She believed, however, that if she ran away, Keys
would come after her. At one point, Keys posted an ad offering commercial sex
to customers in Houston on Backpage.com and drove Jane Doe 1 there in his
Tahoe. The trip was cut short when Keys got into a physical altercation with a
friend and beat him severely.
Though Jane Doe 1 was afraid Keys would find her if she attempted to
leave him, an older prostitute ultimately convinced her that leaving Keys was
the safest choice. The woman took Jane Doe 1 to another apartment. Keys
showed up less than a day later with three friends and a gun, which he pointed
in Jane Doe 1’s face. A man staying at the apartment with Jane Doe 1 and the
older prostitute came out with a large gun and forced the men to leave without
Jane Doe 1. For the next week, she could not leave the house alone because
Keys had friends patrolling the street. Jane Doe 1 was recovered by the police
roughly one week later, on May 4, 2015. She was severely sleep-deprived,
malnourished, and suffering from sexually transmitted diseases.
On May 5, officers executed a search warrant of Keys’s residence. Among
other items, officers retrieved a semiautomatic pistol, sex toys, a laptop, and
multiple cell phones. The officers interviewed Jane Does 1 and 2 extensively,
and they were able to locate several Backpage.com ads posted by Keys that fit
the description provided by Jane Doe 1. Records subpoenaed by law
enforcement from motels identified by Jane Doe 1 confirmed that Keys had
paid for several rooms during the relevant time frame. In May 2015, Detective
Kevin Halbert called Keys for an interview, and Keys initially agreed to meet.
Keys did not show up for the meeting, and law enforcement spent the next year
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attempting to locate him. Halbert interviewed Keys in person for the first time
in May 2016. Keys admitted to Halbert that he knew the girls, that they had
stayed with him for a period of time, that they engaged in prostitution, and
that he discovered at some point that they were underage. He claimed that
when he found out Jane Does 1 and 2 were only 15 and 14 years old, he had
them leave his apartment. Keys also admitted that he had set up the
Backpage.com ads. Keys maintained, however, that he was a passive observer
and was simply “trying to take care of [the girls]”—he denied that he facilitated
their engagement in commercial sex. At first, Keys denied taking any money
from the girls; eventually, he admitted that he accepted money from them,
though he claimed it was only so that he could feed and house them.
Keys was ultimately indicted on three counts of sex trafficking. Count
One charged Keys with sex trafficking of children under 18 U.S.C. § 1591(a)
and (b)(2) for causing Jane Doe 1, who was under 18 years of age, to engage in
commercial sex acts. Count Two charged Keys with sex trafficking of children
under § 1591(a) and (b)(2) for causing Jane Doe 2, also a minor, to engage in
commercial sex acts. Count Three charged Keys with sex trafficking Jane Doe
1 through force, fraud, or coercion under § 1591(a)(1) and (b)(1)–(2).
Prior to trial, the defense filed a motion to dismiss Count One to avoid
multiplicity, arguing that Counts One and Three punish the same criminal
offense in violation of the Double Jeopardy Clause. The district court carried
the motion with the case, and ultimately submitted all three counts to the jury.
Several law enforcement witnesses testified, including Halbert and Special
Agent Phillip Campbell, who explained how the hotel, cell phone,
Backpage.com ads, and social media records obtained during the investigation
corroborated the girls’ account of their experience. Both law enforcement
officers testified that they believed Keys had a reasonable opportunity to
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observe the girls and that he caused or compelled them to engage in
commercial sex acts. The defense did not object to the testimony at trial.
Keys was found guilty of all three sex trafficking counts. The district
court sentenced Keys according to the applicable guideline range to life in
prison and imposed a mandatory special assessment of $300.00. Keys did not
reassert his multiplicity objection at sentencing, though the defense did object
that Presentence Report applied numerous, overlapping enhancements and
resulted in Keys being “punished over and over again for the same conduct and
the same idea.” Keys appeals and presents two issues for review: 1) whether
the district court erred in denying Keys’s motion to dismiss Count One for
multiplicity; and 2) whether the district court plainly erred in allowing Halbert
and Campbell’s testimony at trial. Specifically, Keys contends that Halbert and
Campbell improperly opined that Keys was guilty of the offenses charged and
that he was lying during his interview when he denied direct involvement in
the crime.
II
This court reviews issues of multiplicity de novo. United States v. Dupre,
117 F.3d 810, 818 (5th Cir. 1997).
Because Keys did not object to the officers’ testimony at trial, this court
reviews the district court’s admission of that testimony only for plain error.
United States v. Garcia-Flores, 246 F.3d 451, 457 (5th Cir. 2001). Under plain
error review, the court may remedy the alleged error only if: (1) there is an
error or defect; (2) the error is clear or obvious; and (3) the error affected the
appellant’s substantial rights. See Puckett v. United States, 556 U.S. 129, 135
(2009). “An error is plain if it is at least clear under current law.” United States
v. Gonzalez-Rodriguez, 621 F.3d 354, 363 (5th Cir. 2010) (internal quotations
omitted). The error must be “so clear or obvious that the trial judge and
prosecutor were derelict in countenancing it, even absent the defendant’s
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timely assistance in detecting it.” United States v. Trejo, 610 F.3d 308, 319 (5th
Cir. 2010) (internal quotations omitted). For the error to have affected the
appellant’s substantial rights, “the error must have been prejudicial,” meaning
that “[i]t must have affected the outcome of the district court proceedings.”
United States v. Olano, 507 U.S. 725, 734 (1993). To demonstrate prejudice, “a
defendant must show a reasonable probability that, but for [the error claimed],
the result of the proceeding would have been different.” United States v.
Holmes, 406 F.3d 337, 365 (5th Cir. 2005) (alteration in original) (internal
quotations omitted). In regards to potentially improper witness testimony, this
court has stated: “[E]ven if we were to find the existence of plain error, we could
find it harmless if there is sufficient evidence, aside from any potentially
impermissible testimony, from which the jury could find the Defendant[]
guilty.” United States v. Espino-Rangel, 500 F.3d 398, 400 (5th Cir. 2007). “[I]f
the above three prongs are satisfied, the court of appeals has the discretion to
remedy the error—discretion which ought to be exercised only if the error
seriously affect[s] the fairness, integrity, or public reputation of judicial
proceedings.” Puckett, 556 U.S. at 135 (alteration in original) (internal
quotations omitted).
III
Keys first contends that Count One and Count Three of the indictment
are multiplicitous because they charge him twice for trafficking the same
person—Jane Doe 1.
The relevant criminal statute reads:
(a) Whoever knowingly–
(1) in or affecting interstate or foreign commerce, or within
the special maritime and territorial jurisdiction of the United
States, recruits, entices, harbors, transports, provides, obtains,
advertises, maintains, patronizes, or solicits by any means a
person; or
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(2) benefits, financially or by receiving anything of value,
from participation in a venture which has engaged in an act
described in violation of paragraph (1),
knowing, or . . . in reckless disregard of the fact, that means of
force, threats of force, fraud, coercion described in subsection (e)(2), or
any combination of such means will be used to cause the person to engage
in a commercial sex act, or that the person has not attained the age of 18
years and will be caused to engage in a commercial sex act, shall be
punished as provided in subsection (b).
18 U.S.C. § 1591(a). Subsection (b) prescribes different mandatory minimum
sentences for sex trafficking of a child between the ages of fourteen and
eighteen, sex trafficking of a child under age 14, or sex trafficking by force:
(b) The punishment for an offense under subsection (a) is–
(1) if the offense was effected by means of force, threats of
force, fraud, or coercion described in subsection (e)(2), or by any
combination of such means, or if the person recruited, enticed,
harbored, transported, provided, obtained, advertised, patronized,
or solicited had not attained the age of 14 years at the time of such
offense, by a fine under this title and imprisonment for any term
of years not less than 15 or for life; or
(2) if the offense was not so effected, and the person
recruited, enticed, harbored, transported, provided, obtained,
advertised, patronized, or solicited had attained the age of 14 years
but had not attained the age of 18 years at the time of such offense,
by a fine under this title and imprisonment for not less than 10
years or for life.
18 U.S.C. § 1591(b). Subsection (c) provides that in a prosecution for trafficking
any individual under eighteen, if “the defendant had a reasonable opportunity
to observe” the victim, “the Government need not prove that the defendant
knew, or recklessly disregarded the fact, that the person had not attained the
age of 18 years.” 18 U.S.C. § 1591(c).
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The government charged Keys with two separate counts of sex
trafficking Jane Doe 1 under the statute: Count One) a violation of 18 U.S.C. §
1591(a)(1) and (b)(2) by causing Jane Doe 1, who was under 18 years of age, to
engage in commercial sex acts; and Count Three) a violation § 1591(a)(1) and
(b)(1) for sex trafficking Jane Doe 1 through force, fraud, or coercion. The
government maintains that Subsections (b)(1) and (b)(2) enumerate two
separate crimes which contain different elements, proof requirements for
intent, and penalties. Further, the government argues that, even if (b)(1) and
(b)(2) are not separate crimes, Keys committed two distinct prohibited acts
during the relevant time period. Keys contends that Subsection (a)(1)
enumerates only one crime that can be committed in one of two ways: causing
an individual to engage in a commercial sex act through force, fraud, or
coercion or causing an individual under eighteen years of age to engage in a
commercial sex act. He asserts that because Count One and Count Three are
predicated on a single, continuous course of criminal conduct involving the
same victim, the government cannot charge both simultaneously.
Indictments are multiplicitous if they charge a single offense in two or
more separate counts. United States v. Ogba, 526 F.3d 214, 232–33 (5th Cir.
2008). Such indictments implicate, for obvious reasons, Double Jeopardy
concerns. United States v. Sanjar, 876 F.3d 725, 737 (5th Cir. 2017), cert.
denied sub nom. Main v. United States, No. 17-8107, 2018 WL 1317751 (U.S.
Apr. 16, 2018). They punish the defendant twice for the same conduct “where
Congress has not authorized cumulative punishment.” See Ogba, 526 F.3d at
232–33. “The chief danger raised by a multiplicitous indictment is the
possibility that the defendant will receive more than one sentence for a single
offense.” United States v. Swaim, 757 F.2d 1530, 1537 (5th Cir. 1985). At
bottom, the multiplicity inquiry is a question of statutory construction—
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whether Congress intended to permit cumulative punishment for one instance
or pattern of conduct. See Ogba, 526 F.3d at 232–33.
This court applies the test laid out in Blockburger v. United States, 284
U.S. 299 (1932) to discern whether Congress has prescribed multiple
punishments for the same conduct. See Ogba, 526 F.3d at 233; See United
States v. Davis, 656 F.2d 153, 156 n.1 (1981) (citing United States v. Goodman,
605 F.2d 870 (5th Cir. 1979)); Normandale v. United States, 201 F.2d 463 (5th
Cir.), cert. denied 345 U.S. 999 (1953)). “The applicable rule is that where the
same act or transaction constitutes a violation of two distinct statutory
provisions, the test to be applied to determine whether there are two offenses
or only one is whether each provision requires proof of a fact which the other
does not.” United States v. Nguyen, 28 F.3d 477, 485 (5th Cir. 1994) (citing
Albernaz v. United States, 450 U.S. 333, 336–38 (1981); see also Blockburger,
284 U.S. at 304; Davis, 656 F.2d at 156 n.1 (noting that Blockburger “applie[s]
to several offenses enumerated in one statutory section as well as to offenses
named in separate sections”). As long as each statutory provision requires
proof of a fact the other does not, “the Blockburger test is satisfied,
notwithstanding a substantial overlap in the proof offered to establish the
crimes.” Nguyen, 28 F.3d at 485 (quoting Brown v. Ohio, 432 U.S. 161, 166
(1977)).
Keys’s indictment passes muster under Blockburger. Count One and
Count Three charge Keys under two separate subsections of 18 U.S.C. § 1591—
subsections (b)(1) and (b)(2). Each subsection requires proof of a fact that the
other subsection does not. Subsection (b)(1) requires the government to prove
that the defendant knew or recklessly disregarded the fact that the offense
would be effected by means of force, fraud, or coercion. See 18 U.S.C. 1591(b)(1).
Trafficking by force can be charged irrespective of the victim’s age. Subsection
(b)(2) requires that the government prove that the defendant knew or
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recklessly disregarded the fact that the victim was under 18 years old. 18
U.S.C. § 1591(b)(2). Moreover, under subsection (b)(2), the government can
satisfy the intent requirement by demonstrating that the defendant had a
reasonable opportunity to observe the victim—it need not demonstrate that
the defendant actually knew or recklessly disregarded her age. See 18 U.S.C.
§ 1591(c). In other words, subsection (c) imposes strict liability on defendants
regarding a victim’s age. United States v. Copeland, 820 F.3d 809, 813 (5th Cir.
2016). Subsection (c) does not so alter the intent requirement for force under
subsection (b)(1). See 18 U.S.C. § 1591(c). 3 In sum, the subsections require the
government to prove different elements, each of which requires different
evidence. Despite the fact that Keys engaged in a single, continuous course of
unbroken criminal conduct, he can properly be charged separately with
violating both statutory subsections.
When assessing two subsections within a single statutory scheme,
however, courts are generally more reluctant to rely on Blockburger alone to
allow punishment under both provisions. See United States v. McLaughlin, 164
F.3d 1, 15 (D.C. Cir. 1998); cf. United States v. Munoz-Romo, 989 F.2d 757, 759
(5th Cir. 1993). Accordingly, it is often helpful to examine other indicia of
congressional intent. For example, the fact that Congress has prescribed
different penalties for violations of subsections (b)(1) and (b)(2)—a minimum
of 10 years’ imprisonment for a violation of subsection (b)(2) and a minimum
of 15 years for a violation of subsection (b)(1)—is a strong indication that it
intended to allow for multiple punishments. See, e.g., United States v.
Winchester, 916 F.2d 601, 605–08 (11th Cir. 1990) (holding multiple
convictions under § 922(g) multiplicitous because, among other things, the
3Subsection (c) would apply to a charge under subsection (b)(1) for trafficking a victim
under the age of 14. See 18 U.S.C. § 1591(c); Copeland, 820 F.3d at 813.
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statute “did not list separate penalties for the separate subdivisions of
subsection (g)”).
Moreover, the legislative history indicates that Congress sought to
punish trafficking aggressively. It has amended Section 1591 several times to
allow more extensive prosecution of exploitative crimes. See Pub. L. No. 110-
457, 122 Stat. 5044 (2008); Pub. L. No. 114-22, 129 Stat. 247 (2015). The
legislative record accompanying the Trafficking Victims Protection Act of 2000,
which encompasses Section 1591, states that human trafficking is a “degrading
institution of slavery” and “an evil requiring concerted and vigorous action.”
Pub. L. No. 106-386, 114 Stat. 1464, Sec. 102(b)(1), 21 (2000). In short, the
history of the statute supports construing subsections (b)(1) and (b)(2) as
distinct crimes that can be charged separately.
Counts One and Three of Keys’s indictment are not multiplicitous.
Accordingly, we AFFIRM Keys’s convictions on all three Counts. 4
IV
We now turn to Keys’s challenge to the admissibility of law enforcement
testimony. Keys alleges two overarching problems with Halbert and
Campbell’s testimony. First, Keys contends that both officers improperly
opined that Keys was guilty of the offenses charged. Second, Keys claims that
Halbert was erroneously allowed to offer his opinion that Keys was not telling
the truth during his police interview.
Both Halbert and Campbell testified as lay witnesses—neither was
qualified as an expert. Accordingly, Federal Rules of Evidence 701 and 704(a)
4 We note that each individual violation of Section 1591 charged in the indictment
allows for a life sentence. See 18 U.S.C.§ 1591(b)(1), (2). At sentencing, the district court
stated: “I’m going to sentence at the Guideline range and sentence the Defendant to life in
prison. That sentence is on each of Counts 1, 2, and 3 to run concurrently.” This language
indicates that the district court would have sentenced Keys to life in prison on any one of the
charges. All of the conduct would still be relevant to the Guidelines computation in the PSR.
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govern the propriety of their opinion testimony. FED R. EVID. 701, 704(a). Rule
701 provides that non-expert opinion testimony must be: “(a) rationally based
on the witness’s perception; (b) helpful to clearly understanding the witness’s
testimony or to determining a fact in issue; and (c) not based on scientific,
technical, or other specialized knowledge within the scope of Rule 702.” FED R.
EVID. 701. Rule 704 clarifies that “[a]n opinion is not objectionable just because
it embraces an ultimate issue.” FED R. EVID. 704(a); see also Espino-Rangel,
500 F.3d at 400 (stating that while lay witnesses may not offer legal
conclusions, “testimony in the form of an opinion or inference otherwise
admissible is not objectionable simply because it embraces an ultimate fact
issue to be determined by the factfinder”). 5 Rule 704 was, however, intended
to preserve the effect of other evidentiary provisions meant to “assur[e] against
the admission of opinions which would merely tell the jury what result to
reach.” FED R. EVID. 704 advisory committee’s note to 1972 proposed rules.
Thus, under Rule 704(a), testimony that amounts to a legal conclusion is
improper. See United States v. Williams, 343 F.3d 423, 435 (5th Cir. 2003); see
also United States v. McGee, 821 F.3d 644, 648–49 (5th Cir.), cert denied, 137
S. Ct. 251 (2016). 6 In evaluating challenged testimony, the court must
5 Keys cites Rule 704(b) for the proposition that “an expert witness must not state an
opinion about whether the defendant did or did not have a mental state or condition that
constitutes an element of the crime charged or of a defense. Those matters are for the trier of
fact alone.” “[B]ut neither [Halbert] nor [Campbell] was called as an expert witness, so FRE
704(b) has no application in the instant case.” Espino-Rangel, 500 F.3d at 400. Moreover,
“[l]ay witnesses [] may give opinion testimony about a defendant’s mental state.” United
States v. Diaz, 637 F.3d 592, 599 (5th Cir. 2011); see also United States v. Heard, 709 F.3d
413, 422 (5th Cir. 2013).
6 Rule 704(a) is the source of the general limitation on opinion testimony on ultimate
legal issues. See, e.g., McGee, 821 F.3d at 649; United States v. Izydore, 167 F.3d 213, 218
(5th Cir. 1999); Owen v. Kerr-McGee Corp., 698 F.2d 236, 240 (5th Cir. 1983). This limitation
applies equally to both lay witness and expert witness testimony. Compare Izydore, 167 F.3d
at 218 and Williams, 343 F.3d at 435 (discussing the limitation when evaluating lay witness
testimony) with United States v. Buchanan, 70 F.3d 818, 833 n.20 (5th Cir. 1995) and United
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distinguish “between an impermissible opinion on an ultimate legal issue and
‘a mere explanation of the [witness’s] analysis of facts which would tend to
support a jury finding on the ultimate issue.’” United States v. Buchanan, 70
F.3d 818, 833 n.20 (5th Cir. 1995) (quoting United States v. Speer, 30 F.3d 605,
610 (5th Cir. 1994)).
Again, the defense did not object to the admission of the testimony at
trial and therefore we review only for plain error. Garcia-Flores, 246 F.3d at
457.
1. Opinion testimony relevant to Keys’s ultimate guilt
As this court has explained, “determinations of guilt or innocence are
solely within the province of the trier of fact.” United States v. Izydore, 167 F.3d
213, 218 (5th Cir. 1999); see also United States v. Buchanan, 70 F.3d 818, 833
n.20 (5th Cir. 1995). Accordingly, a lay witness’s opinion that a defendant is
guilty of the crime charged would be improper trial testimony. See id.; see also
United States v. Thomas, 847 F.3d 193, 206 (5th Cir. 2017).
Relatedly, “questions which would merely allow the witness to tell the
jury what result to reach are not permitted.” Owen v. Kerr-McGee Corp., 698
F.2d 236, 240 (5th Cir. 1983). Of course, “separating impermissible questions
which call for overbroad or legal responses from permissible questions is not a
facile [task].” Id. The Advisory Committee Notes to the Federal Rules of
Evidence offer the following example: While the question (1) “Did T have
capacity to make a will?” would be improper, the question (2) “Did T have
sufficient mental capacity to know the nature and extent of his property and
the natural objects of his bounty and to formulate a rational scheme of
States v. Speer, 30 F.3d 605, 610 (5th Cir. 1994) (discussing the limitation when evaluating
expert witness testimony).
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distribution?” would be allowed. FED R. EVID. 704 advisory committee’s note to
1972 proposed rules.
Attempting to shed light on why the first formulation is problematic, this
court explained that it “is phrased in such broad terms that it could as readily
elicit a legal as well as a fact based response. A direct response, whether it be
negative or affirmative, would supply the jury with no information other than
the [witness’s] view of how its verdict should read.” Owen, 698 F.2d at 240. The
second formulation is permissible because it is not explicitly framed as a
request for an opinion “phrased in terms of inadequately explored legal
criteria.” FED R. EVID. 704 advisory committee’s note to 1972 proposed rules.
Rather, it breaks down the question of testamentary capacity—a question that
has a specific legal meaning—into its discrete elements. See 1 McCormic On
Evid. §12 (7th ed.). Stated differently, questions (1) and (2) capture the
distinction “between an impermissible opinion on an ultimate legal issue and
‘a mere explanation of the [witness’s] analysis of facts which would tend to
support a jury finding on the ultimate issue.’” Buchanan, 70 F.3d at 833 n.20
(quoting Speer, 30 F.3d at 610).
Halbert engaged in the following exchanges with the prosecutor at trial:
1) when asked, “[b]ased on all the information that you learned during your
investigation, the entirety of it, did you believe that Jane Doe 1 had been
compelled to engage in commercial sex acts through force, fraud, or coercion?”
he responded, “[a]bsolutely”; 2) when asked “did you believe that the
defendant, based on your investigation, had an opportunity to observe these
girls?” he responded, “[a]bsolutely”; 3) when asked “did you believe, based on
your investigation, that Jane Doe 2, being 14 at the time, was compelled to
engage in commercial sex acts?” he responded, “[s]he was”; and 4) when asked
“who do you believe compelled them to engage in those commercial sex acts?”
he responded “[t]he defendant, Mr. Keys.”
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Similarly, Campbell had the following exchange with the prosecutor: 1)
when asked, “[b]ased on your investigation in this case, do you believe that the
defendant . . . caused Jane Doe 1 and Jane Doe 2 to engage in commercial sex
acts in the Northern District of Texas?” he responded “I do”; 2) when asked “do
you believe that the defendant either knew or had a reasonable opportunity to
observe Jane Doe 1 and Jane Doe 2 during that time period?” he responded “I
believe he did”; and 3) when asked “[d]o you believe that the defendant caused
Jane Doe 1 to engage in commercial sex acts by force, fraud, or coercion?” he
responded “[a]bsolutely.”
The district court did not plainly err in admitting the above testimony.
The formulations of the questions closely track the language of individual
elements of the charged sex trafficking counts. See 18 U.S.C. § 1591(a), (c). For
example, Counts One and Two required the government to prove that Keys: 1)
knowingly recruited, enticed, harbored, transported, provided, obtained, or
maintained by any means Jane Doe 1 and Jane Doe 2; 2) in or affecting state
commerce; 3) that he did so knowing or in reckless disregard of the fact that
Jane Doe 1 and 2 had not attained the age of 18 years or that he had a
reasonable opportunity to observe them; and 4) that he did so knowing or in
reckless disregard of the fact that they would be caused to engage in a
commercial sex act. See 18 U.S.C. § 1591(a), (c). In isolating discrete elements
of the crime of sex trafficking of a child, the questions conform to the
formulation approved by the Advisory Committee Notes. See FED R. EVID. 704
advisory committee’s note to 1972 proposed rules. The government did not ask
Halbert or Campbell “do you believe that the defendant committed the offense
of sex trafficking of a child?” Such a question is “phrased in terms of
inadequately explored legal criteria.” FED R. EVID. 704 advisory committee’s
note to 1972 proposed rules. Rather, the government asked Halbert and
Campbell for their opinion regarding specific factual building blocks of the
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ultimate crime. In that sense, the questions are eliciting “a mere explanation
of the [witness’s] analysis of facts which would tend to support a jury finding
on the ultimate issue.” Speer, 30 F.3d at 610. 7
To the extent the district court erred in admitting the above testimony,
such an error was not “so clear or obvious that the trial judge and prosecutor
were derelict in countenancing it, even absent the defendant’s timely
assistance in detecting it.” Trejo, 610 F.3d at 319 (internal quotations omitted).
While it is well-settled law in this circuit that lay witness opinions amounting
to legal conclusions are inadmissible, the line between an impermissible legal
conclusion and “explanation of a [witness’s] analysis of facts” is somewhat
blurry. The example provided by the Advisory Committee Notes to Rule 704 is
helpful but not always conclusive. Moreover, the distinction is rarely dealt with
in depth in the case law, as these types of challenges are often reviewed
following a jury trial for plain error and can be disposed of on the third or fourth
prong. See, e.g., McGee, 821 F.3d at 649; Izydore, 167 F.3d at 218.
Furthermore, Keys has not shown a “reasonable probability that, but for
[the error claimed], the result of the proceeding would have been different.”
Holmes, 406 F.3d at 365 (alteration in original) (internal quotations omitted).
The volume and quality of the evidence against Keys is staggering. See Espino-
Rangel, 500 F.3d at 400 (explaining that even if the admission of the testimony
was plainly erroneous, the error is harmless if the remaining evidence at trial
was sufficient to support the jury’s verdict). Both victims testified at length
about their experiences at trial, and the record indicates that their live
testimony was consistent with their previous accounts. Their accounts were
7 The testimony was also “(a) rationally based on the witness’s perception; (b) helpful
to clearly understanding the witness’s testimony or to determining a fact in issue; and (c) not
based on scientific, technical, or other specialized knowledge within the scope of Rule 702.”
FED R. EVID. 701. The defendant does not challenge the admissibility of the testimony under
Rule 701.
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corroborated by hotel, phone, and internet records. Keys admitted to a
substantial amount of the conduct in his police interview. Given the evidence
presented at trial, it is difficult to imagine Keys would have obtained a more
favorable outcome absent the challenged testimony.
The district court did not err in admitting Halbert and Campbell’s
testimony. Even if the testimony was admitted in error, Keys has not met his
burden to demonstrate that the error was obvious or that, absent the error,
there is a reasonable probability the result of his trial would have been
different.
2. Opinion testimony pertaining to Keys’s truthfulness
Halbert’s testimony regarding the veracity of Keys’s statement to police
is not an impermissible legal conclusion—it is an opinion of fact. It therefore
does not run afoul of Rule 704(a)’s proscription of opinion testimony on an
ultimate legal issue. 8 Accordingly, the source of the alleged problem with this
subset of Halbert’s testimony must be Rule 701. See, e.g., United States v.
Churchwell, 807 F.3d 107, 118–19 (5th Cir. 2015) (assessing non-expert
testimony regarding the defendant’s veracity under Rule 701). Keys incorrectly
objects to the admission of Halbert’s testimony on the basis of Rule 704(b).
Accordingly, Keys has likely waived any Rule 701-specific challenges to the
testimony for failure to adequately brief the issues. See Williams v. Parker, 843
F.3d 617, 622 n.14 (5th Cir. 2016). Regardless, Halbert’s testimony meets the
requirements of Rule 701, and it was therefore properly admitted.
Keys objects to Halberts’ testimony that: 1) Keys minimized his role in
facilitating the girls’ prostitution; 2) Keys was not completely honest during
8 To the extent Keys objects on the basis that Halbert’s opining Keys lied during his
interview is an indirect way of testifying to Keys’s guilt or innocence, he identifies no
authority that indicates this type of “veracity” testimony is improper because of some
hypothetical, twice-removed, downstream effect on that ultimate legal conclusion.
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his interview; 3) he believed Keys was lying when he said that he got rid of the
girls after learning that they were underage; and 4) he believed Keys was lying
when he stated that he made contact with Jane Doe 1 after she left him to tell
her to stop engaging in the lifestyle and to warn the apartment’s residents that
she was underage. For these opinions to be admissible, they must be rationally
related to Halbert’s perception, helpful to understanding his testimony or to
determining a fact in issue, and not based on scientific, technical, or other
specialized knowledge. See FED R. EVID. 701. Again, an opinion is not
objectionable merely because it encompasses an ultimate issue of fact for the
jury’s determination such as the veracity of a defendant’s prior statements. See
FED R. EVID. 704(a); Churchwell, 807 F.3d at 118. 9
It was not error to admit Halbert’s testimony. First, the testimony was
certainly based on his personal perceptions. Halbert was one of the three
agents present when law enforcement interviewed Keys. He participated
actively in the questioning and he was able to observe, over some time, Keys’s
demeanor and the inconsistencies in his story. Moreover, Halbert’s testimony
was helpful. His opinion based on his observations gave context to Keys’s
statements and assisted the jury in understanding Halbert’s interview
tactics—which the defense sought to use against him on cross-examination.
The defense also attempted to highlight the fact that Halbert had admitted
Keys had told the truth about some things during his interview. To the extent
that the defense wanted to capitalize on Halbert’s admissions that Keys had
been partially honest, Halbert’s testimony that he did not think Keys was
being truthful about a number of critical facts was undoubtedly beneficial to
9 In the only case cited by Keys that speaks directly to testimony regarding the
truthfulness of a defendant’s statements, the First Circuit held that the district court abused
its discretion in admitting the testimony because, in that particular circumstance, it was not
helpful—not simply because it touched on an ultimate issue in the case. See United States v.
Sanabria, 645 F.3d 505, 516 (1st Cir. 2011).
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the jury. See Churchwell, 807 F.3d at 119 (stating that the challenged
testimony was “appropriate, especially after the defense elicited testimony
from [the witness] that [the defendant] was truthful at some point”). Lastly, it
is clear that Halbert’s opinion was not based on scientific, technical, or other
specialized knowledge. Accordingly, the district court did not err in admitting
Halbert and Campbell’s testimony at trial. 10
V
For the foregoing reasons, we AFFIRM.
10 Even if admitting the testimony was error, and even if that error was clear or
obvious, Keys has failed to meet his burden to demonstrate that, absent the alleged error,
the result of his trial would have been different for the same reasons as outlined in Section
IV(1), supra.
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