United States v. Justin Cephus , 684 F.3d 703 ( 2012 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 10-3838, 10-3840, 11-1098
U NITED S TATES OF A MERICA,
Plaintiff-Appellee,
v.
JUSTIN C EPHUS, JOVAN D. S TEWART, and
S TANTON L. C EPHUS,
Defendants-Appellants.
Appeals from the United States District Court
for the Northern District of Indiana, Hammond Division.
No. 2:09-cr-00043-RL-PRC—Rudy Lozano, Judge.
A RGUED M AY 30, 2012—D ECIDED JULY 6, 2012
Before E ASTERBROOK, Chief Judge, and B AUER and
P OSNER, Circuit Judges.
P OSNER, Circuit Judge. The defendants were tried to-
gether for conspiring to entice underage girls, often
runaways, to engage in prostitution, to transport them
(along with adult women who also worked for the ring)
in interstate commerce to engage in prostitution, to
2 Nos. 10-3838, 10-3840, 11-1098
use force and fraud to coerce adult women to engage
in prostitution, and to commit related offenses. The
defendants were also charged with the underlying of-
fenses. See 18 U.S.C. §§ 1591, 2421, 2423. The jury con-
victed all three defendants on all counts. The judge sen-
tenced both the ringleader, Justin Cephus, and Jovan
Stewart to life in prison (without parole, which has been
abolished in federal sentencing) and Justin’s brother
Stanton Cephus to 324 months in prison.
The facts are simple and largely uncontested—and
indeed incontestable. Justin Cephus inveigled dozens
of girls and young women into joining his “escort” agen-
cies, assuring them that if they didn’t want to engage in
sex with the agencies’ customers they could just
answer the phone or drive other girls to “calls” (sexual
assignations). Those who went on calls were told they
could keep a portion of the money paid by the johns.
But usually Cephus (unless otherwise indicated, all
references in this opinion to “Cephus” are to Justin
Cephus) would appropriate the entire fee. Any
resistance to his orders, which included orders to have
sex with customers even if the girl or woman didn’t
want to, were met with threats, and with violence in
the form of whipping, beating, or choking. One woman
he beat with his fists, an extension cord, a dog bar
(we don’t know what “dog bars” are—we’re guessing
they’re metal bars for dog cages), and a broomstick,
which he broke on her back. When the beating
was over, she looked, according to a witness to the
beating, “like she got hit by a train.” The defendants
operated out of northwest Indiana and often transported
Nos. 10-3838, 10-3840, 11-1098 3
their prostitutes across the state line to Illinois to
answer “calls.”
The defendants argue that the indictment was “duplici-
tous.” In ordinary English the word means “inten-
tionally deceptive.” But it is used in the law to
characterize an indictment that charges two or more
different offenses in a single count. E.g., United States v.
Hassebrock, 663 F.3d 906, 916 (7th Cir. 2011); United States v.
Pungitore, 910 F.2d 1084, 1135 (3d Cir. 1990). And why is
that bad? Because a “jury cannot in a general verdict
render its finding on each offense, making it difficult
to determine whether a conviction rests on only one of
the offenses or both. Adverse affects [sic] on a defendant
may include improper notice of the charges against
him, prejudice in the shaping of evidentiary rulings, in
sentencing, in limiting review on appeal, in exposure
to double jeopardy, and of course the danger that a con-
viction will result from a less than unanimous verdict as
to each separate offense.” United States v. Marshall, 75
F.3d 1097, 1111 (7th Cir. 1996), quoting United States v.
Blandford, 33 F.3d 685, 699 n. 17 (6th Cir. 1994).
The defendants did not contend in the district court that
any of the counts were duplicitous, and having shown
no good excuse (“good cause”) for the oversight they
have waived the issue, Fed. R. Crim. P. 12(e), and so are
barred from arguing even “plain error” in our court. United
States v. Acox, 595 F.3d 729, 731-34 (7th Cir. 2010); United
States v. Walker, 665 F.3d 212, 227-28 (1st Cir. 2011). Any-
way none of the counts was likely to be thought duplici-
tous by the jurors. The first alleged the conspiracy and
4 Nos. 10-3838, 10-3840, 11-1098
described as acts in furtherance of it the acts charged as
substantive violations in the 20 subsequent counts. Each of
those counts first “incorporated by reference” the allega-
tions in the first count and then alleged a substantive
violation of the federal criminal code. Only if read literally
would each count be alleging two offenses: conspiracy and
a substantive offense. No reasonable person would read
them literally. None of them mentions conspiracy. A
normal reader would understand each subsequent count’s
invocation of the first count to mean that the substan-
tive offense alleged (identified in the count by the section
of the federal criminal code that created the offense)
in the subsequent count was one of the offenses
the defendants had conspired to commit. The jury was
instructed that a “verdict of guilty or not guilty of an
offense charged in one count should not control your
decision as to that defendant in any other count.” A
reasonable juror would not understand this to mean
that having decided that the defendants were guilty of
count one he would have to decide they were guilty of
the other 20 counts as well because each of those
counts mentioned the charge of conspiracy.
So much for duplicity. Stanton Cephus argues (alone
among the three defendants) that the evidence of his guilt
was insufficient to convict him. He argues that he had just
helped out his brother from time to time, motivated by
family loyalty. But an innocent or even noble motivation
for committing a crime, as distinct from lack of intent to
commit it, is not a defense. United States v. Cullen, 454 F.2d
386, 390-92 (7th Cir. 1971); United States v. Rosado, 728 F.2d
89, 93 (2d Cir. 1984); 1 Wayne R. LaFave, Substantive
Nos. 10-3838, 10-3840, 11-1098 5
Criminal Law § 5.3, pp. 358-64 (2d ed. 2003). A person
prosecuted for mass murder for having blown up a packed
747 in flight could not defend by testifying however
convincingly that his motive had not been to kill anyone,
though he knew that to be an inevitable consequence of the
bombing, but to save lives in the long run by inducing
greater efforts at preventing terrorist attacks. United States
v. Snow, 670 F.2d 749, 753-54 (7th Cir. 1982); United States v.
Cullen, supra, 454 F.2d at 389-90; United States v. Platte, 401
F.3d 1176, 1180-81 (10th Cir. 2005); United States v. Kabat,
797 F.2d 580, 587-88 (8th Cir. 1986). Although Stanton
didn’t commit all the substantive offenses charged in
the indictment, he participated in the conspiracy by
driving girls and women to their “calls” and collecting
money from the johns for his brother. He did not beat
any of the prostitutes but he watched them being
beaten and so was aware of the scope of the conspiracy
he had joined. The Pinkerton doctrine therefore made
him liable for criminal acts committed by the other con-
spirators within that scope. Pinkerton v. United States,
328 U.S. 640, 646-47 (1946); United States v. Colon, 549 F.3d
565, 572 (7th Cir. 2008).
All the defendants complain strenuously about the
government’s frequently posing leading questions to its
witnesses. The judge sustained many of the objections and
criticized the government repeatedly. A leading question
is a question phrased in such a way as to hint at the answer
the witness should give. Jas Brar, Note, “Friend or Foe?
Responsible Third Parties and Leading Questions,” 60
Baylor L. Rev. 261, 264-67 (2008). The question is calculated
to “lead” the witness to the answer desired by the lawyer.
6 Nos. 10-3838, 10-3840, 11-1098
There is no blanket prohibition of such questions. They are
permissible when used against adverse witnesses, usually
in cross-examination, or when used with friendly witnesses
to move direct examination along rather than to elicit
testimony damaging to the opposing party that the witness
might not have given in response to a neutral question.
Fed. R. Evid. 611(c).
The judge was too hard on the prosecution. He
should not, for example, have sustained the objection
by Cephus’s lawyer to the following question asked one
of the prostitutes by the prosecutor: “Did he [Cephus]
ever tell you what P-I-M-P stood for?” That was not a
leading question. “Did Cephus ever tell you that P-I-M-P
stands for ‘power in manipulating pussy’?” would
have been a leading question, but it was not asked.
Eventually, after a protracted sidebar, the judge
relented and allowed the prosecutor to ask the question in
a different form, eliciting at last the answer
that Cephus had told the witness that “PiMP” was
indeed an acronym for “power in manipulating pussy.”
Similarly the prosecutor was not leading when he asked
a witness: “Did you ever have a phone conversation
when someone else was listening in?” The question
did not signal the answer the lawyer expected or hoped
for, in contrast to asking: “Didn’t you ever have a phone
conversation when someone else was listening in?
Think carefully before answering.” Or: “Isn’t it true that
you sometimes have phone conversations when some-
one else is listening in?”
An objectionably leading question asked a friendly
witness was the prosecutor’s asking one of the girls
Nos. 10-3838, 10-3840, 11-1098 7
whether one of her first two “calls” took place in Illinois—a
question designed to establish that she had been trans-
ported across state lines to engage in prostitution,
because she was living in Justin Cephus’s home in Indi-
ana. She responded that both calls were in Indiana (thus
indicating that she hadn't been “led” by the question)
but that later she had calls in Illinois as well. The
question was improper, but innocuous because it failed to
lead her and because there is no dispute that she had calls
in both states.
To one of the witnesses the prosecutor said: “You
mentioned that he [Cephus] had a cord. Was he
whipping her with the cord?” She answered “yes.” Since
whipping a person is unusual, the question would be
unlikely to be asked unless an affirmative answer was
expected. The question may also have been loaded (a
loaded question is a question that contains an assertion,
the classic example being “When did you stop beating
your grandmother?”), as it might have been understood
to mean: “Was he whipping her with a cord or some-
thing else?” Instead of mentioning whipping the pros-
ecutor should just have asked her what she had seen
Cephus doing with the cord.
The prosecutor asked other inappropriate leading
questions, and sustaining objections to questions is proba-
bly not a very effective way of pulling their sting, because
jurors can guess the answer that the interrogating lawyer
expects to a leading question—that’s the nature of such a
question. But the leading questions in this case could not
have affected the verdict of a reasonable jury, given the
overwhelming evidence of the defendants’ guilt.
8 Nos. 10-3838, 10-3840, 11-1098
Rule 412(a)(1) of the federal evidence rules provides
that in a case involving allegations of sexual misconduct,
“evidence offered to prove that a victim engaged in
other sexual behavior” is inadmissible. (The prostitutes
working for Cephus were engaged in criminal activity,
but they were also his victims.) If admissible, such evi-
dence would deter many victims of sexual abuse from
testifying, as mentioned in the Committee Note to 1994
Amendments to Rule 412. There are exceptions to the
exclusion, but the only one argued by the defendants is
“evidence whose exclusion would violate the defendant’s
constitutional rights,” Fed. R. Evid. 412(b)(1)(C), namely a
defendant’s right to confront the witnesses against him.
Specifically the defendants wanted to cross-examine one of
the adult call girls in Cephus’s stable (Cassandra by name)
about her having worked as a prostitute before he
recruited her. They wanted to suggest that having
already been a prostitute she would not have been de-
ceived by Cephus and therefore her testimony that she
was coerced into working for him—an element of one
of the charged offenses when the prostitute is not
a minor, 18 U.S.C. § 1591(a)—should be disbelieved.
But the testimony sought to be elicited by the cross-ex-
amination would have been irrelevant. Even if no
promises were made to Cassandra, this would not be
evidence that she consented to be beaten and to receive
no share of the fees paid by the johns she serviced.
And even if she knew going in, from her prior
experience, that Cephus probably would beat her, it was
still a crime for him to do so. And finally the fact that
she’d been a prostitute before does not suggest that he
didn’t beat and threaten her—that was his modus
Nos. 10-3838, 10-3840, 11-1098 9
operandi and there’s no evidence that he would have
made an exception for Cassandra.
The defendants also argue that her testimony that
she’d seen Cephus beat a dog—and that the next morning
the dog was seen hanging, dead, from a cord in the
garage and that Cephus and Stewart joked about the
beating and killing of the dog—was both irrelevant
and prejudicial, and on both grounds should have been
excluded from the trial. Fed. R. Evid. 402, 403. The evi-
dence was relevant to show a method by which
Cephus coerced his recruits into obeying his illegal com-
mands and was not unduly prejudicial in light of the
extensive evidence that Cephus beat women who
worked for him.
A witness who had once worked for him but hadn’t
seen him for three years before the trial could not
identify him in the courtroom. So she was shown photo-
graphs taken around the time she had last seen him
and she identified him from those photos. The photos
were mug shots, and, the defendants argue, prejudiced
the jury by revealing that Cephus had been arrested at
least once before his arrest for the crimes for which he
was being tried. But there was nothing in the photos
to distinguish them from ordinary head-and-shoulders
shots, and neither the witness nor the jury was told
they were mug shots. There was thus no error in
allowing them to be used to identify Cephus as the man
she had worked for.
The defendants challenge their sentences. Cephus
and Stewart contend that life sentences without parole
10 Nos. 10-3838, 10-3840, 11-1098
violate the cruel and unusual punishments clause of the
Eighth Amendment unless the crime for which the sen-
tences are imposed is murder. Yet Harmelin v. Michigan,
501 U.S. 957 (1991), upheld a life sentence without possi-
bility of parole for possession of a modest quantity of
cocaine. Subsequently the Court held that the Eighth
Amendment forbids imposing a life sentence without
parole on a juvenile for a crime other than murder, Graham
v. Florida, 130 S. Ct. 2011, 2030 (2010), and, more re-
cently, that mandatory life sentences for juvenile mur-
derers are also prohibited. Miller v. Alabama, 2012 WL
2368659 (S. Ct. June 25, 2012). Neither opinion over-
rules Harmelin; both, indeed, distinguish it explicitly. Our
defendants were not juveniles and their crimes were
more serious than the crime in Harmelin. Even if we
thought Harmelin inconsistent with Graham and Miller
and likely to be overruled, the Supreme Court has, as we
noted recently in Grayson v. Schuler, 666 F.3d 450, 453
(7th Cir. 2012), told the lower courts in no uncertain
terms to leave the overruling of its precedents to it.
Stanton Cephus’s argument that his 324-month
sentence is grossly disproportionate to his role in the
offenses is frivolous, and that brings us to the last issue:
whether defendant Stewart is entitled to a remand
because of an ambiguity in his sentence. At the sen-
tencing hearing the judge imposed life sentences on him
on seven counts for which the jury convicted him, and
on the other seven counts of conviction imposed
sentences ranging from 5 to 10 years. The judge added
that the sentences are “all to be served consecutively
to each other.” The written judgment, however, states
that all the sentences are “to be served concurrently.”
Nos. 10-3838, 10-3840, 11-1098 11
What the judge says in sentencing a defendant takes
precedence over the written judgment. United States v.
McHugh, 528 F.3d 538, 539 (7th Cir. 2008); United States
v. Daddino, 5 F.3d 262, 266 and n. 5 (7th Cir. 1993) (per
curiam) (citing cases from other circuits). This seems an
odd rule. As remarked in United States v. Weathers, 631
F.3d 560, 561-62 (D.C. Cir. 2011), “If the concern is with
accuracy, one wonders why a court’s oral pronounce-
ment of a sentence would ever take precedence over
its written judgment. It is commonly understood that
the written word is usually more precise than the
spoken word. The writer can be more deliberate and
careful in his choice of language, he can edit his
writing before publishing it and he may have more
time to formulate what he wishes to convey . . . . Yet the
law is settled that the oral sentence controls . . . . One
supporting theory is that the defendant has a right to
be present at sentencing and that permitting the
written judgment to control would be tantamount to
sentencing the defendant in absentia.” That’s a pretty thin
theory. No matter; the rule is well settled.
Yet it’s hard to make sense of sentencing a defendant
to consecutive sentences some of which are life sen-
tences without possibility of parole and the others
term sentences. Imprisonment for life without parole
can neither exceed nor fall short of the prisoner’s life,
and therefore the fact that term sentences are to run
consecutively, or for that matter concurrently, with a
life sentence cannot—one might think—affect the length
of imprisonment. But this is not quite correct. Suppose
that Stewart mounts a collateral attack on his life sen-
tences and succeeds in getting all of them vacated, but not
12 Nos. 10-3838, 10-3840, 11-1098
the term sentences. Then it would make a difference
whether the term sentences ran consecutively to one
another or concurrently; in the latter event the total
period of imprisonment would be shorter.
Maybe it was because of this possibility that the judge
made all the sentences run consecutively to each other.
But he didn’t say this, and his intentions are suf-
ficiently muddy in light of the written judgment
(which may have been intended to correct a slip of the
tongue at the sentencing hearing, rather than being a
clerk’s error) to move us to remand for clarification. See
United States v. Spells, 537 F.3d 743, 754-55 (7th Cir.
2008); United States v. Hopson, 39 F.3d 795, 803 (7th
Cir. 1994); United States v. Jewel, 947 F.2d 224, 234-35
(7th Cir. 1991). For “when an orally pronounced sentence
is ambiguous, . . . the judgment and commitment order is
evidence which may be used to determine the
intended sentence.” United States v. Villano, 816 F.2d
1448, 1451 (10th Cir. 1987) (en banc).
The ambiguity in the judge’s oral sentence in this case
was extrinsic—“latent” as distinct from “patent,” the latter
meaning that the ambiguity is apparent from the
text, without the reader’s having to delve into the cir-
cumstances, the former that the ambiguity emerges only
when the circumstances surrounding the creation of the
text are considered. Cf. Knutson v. UGS Corp., 526 F.3d 339,
342 (7th Cir. 2008); Utica Mutual Ins. Co. v. Vigo Coal Co., 393
F.3d 707, 712-13 (7th Cir. 2004); Charter Oil Co. v. American
Employers’ Ins. Co., 69 F.3d 1160, 1167-68 (D.C. Cir. 1995).
But as in contract law so in sentencing, a latent ambiguity
invites further inquiry.
Nos. 10-3838, 10-3840, 11-1098 13
It’s true that the Bureau of Prisons, in deciding how
long to imprison a person who has been sentenced to
federal prison, looks to the written judgment. U.S. Depart-
ment of Justice, Federal Bureau of Prisons, Legal Resource
Guide to the Federal Bureau of Prisons 10 and n. 5 (2008);
Wilkins-El v. Marberry, 340 Fed. Appx. 320, 321 (7th Cir.
2009) (“The Bureau of Prisons ordinarily implements
written judgments, not oral pronouncements”). But that’s
just for the convenience of the Bureau’s staff, to spare its
having to read the transcript of the sentencing hearing: “no
matter what form was used to memorialize this . . . sen-
tence, the BOP must read it as intended and pronounced
by the sentencing court.” Id. at 323. Yet, it might seem that
since Stewart’s written judgment is more lenient than
the spoken one, he has nothing to gain from chal-
lenging it by seeking a remand. But we can’t be certain
of that. Again suppose that in a collateral proceeding
Stewart’s life sentences are voided and he is resentenced;
the judge might follow his original oral pronouncement
(if we had not questioned it) and make the term sen-
tences consecutive; and the Bureau of Prisons would
be bound. So Stewart’s judgment should be remanded to
enable the district judge to reconcile the discrepancy
between his written and oral sentences.
In all other respects the judgments are affirmed.
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