United States v. Sergeyi Bazar ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 23 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50180
Plaintiff-Appellee, D.C. No.
3:15-cr-00499-BEN-1
v.
SERGEYI BAZAR, AKA Sergio Bazar, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Argued and Submitted November 6, 2017
Pasadena, California
Before: GILMAN,** WARDLAW, and BERZON,1 Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Ronald Lee Gilman, United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
1
This case was submitted to a panel that included Judge Stephen R.
Reinhardt. Following Judge Reinhardt’s death, Judge Berzon was drawn by lot to
replace him. Ninth Circuit General Order 3.2.h. Judge Berzon has read the briefs,
reviewed the record, and listened to oral argument.
Sergeyi Bazar appeals his convictions for two counts of sex trafficking by
fraud, in violation of 18 U.S.C. § 1591(a), and one count of inducement to travel in
commerce for prostitution, in violation of 18 U.S.C. § 2422(a), arising from his
massage business in San Diego that offered “happy ending” massages.2 We review
de novo the denial of Bazar’s Fed. R. Crim. Pro. 29 motion for judgment of
acquittal, as well as whether the jury instructions omitted or misstated an element
of a crime. See United States v. Niebla-Torres, 847 F.3d 1049, 1054 (9th Cir.
2017); United States v. Aldana, 878 F.3d 877, 880 (9th Cir. 2017); United States v.
Kaplan, 836 F.3d 1199, 1214 (9th Cir. 2016). With regard to challenges to
sufficiency of the evidence, “We ask whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.” Niebla-Torres,
847 F.3d at 1054 (internal quotation marks omitted). We review for abuse of
discretion the district court’s overruling of Bazar’s objection to alleged
prosecutorial misconduct. See United States v. Tucker, 641 F.3d 1110, 1120 (9th
Cir. 2011). We affirm.
1. The district court correctly instructed the jury and properly denied
Bazar’s Rule 29 motion on his convictions for sex trafficking by fraud under 18
2
The parties stipulate that the term “happy ending massage” means “the
manual stimulation of an adult male’s penis until ejaculation.”
2
U.S.C. § 1591(a). Section 1591(a) criminalizes, among other things, the recruiting
of an individual knowing that fraud will be used to cause that person to engage in a
“commercial sex act.” “Commercial sex act” is defined in section 1591(e)(3) as
“any sex act, on account of which anything of value is given to or received by any
person.” 18 U.S.C. § 1591(e)(3).
Bazar argues that the term “commercial sex act” is limited to sexual
intercourse for money. But the “ordinary” and “natural” meaning of “any sex act”
includes happy-ending massages. See Benko v. Quality Loan Serv. Corp., 789 F.3d
1111, 1118 (9th Cir. 2015) (noting that the Supreme Court normally construes
undefined words in a statute in accord with their ordinary and natural meaning,
which can often be discerned by reference to a dictionary); Sex Act & Sexual,
Oxford Dictionary of English (2010) (defining “sex act” as “a sexual act” and
“sexual” as “relating to the instincts, physiological processes, and activities
connected with physical attraction or intimate physical contact between
individuals”); Sex Act, Merriam Webster’s Collegiate Dictionary (11th ed. 2003)
(defining “sex act” as “an act performed with another for sexual gratification”); see
also Boyle v. United States, 556 U.S. 938, 944 (2009) (holding in the context of the
Racketeer Influenced and Corrupt Organizations Act that “[t]he term ‘any’ ensures
that the definition has a wide reach.”). Accordingly, the district court’s instruction
that simply reproduced the statutory definition in section 1591(e)(3) was proper.
3
See United States v. Vazquez-Hernandez, 849 F.3d 1219, 1225 n.3 (9th Cir. 2017)
(holding that district courts’ “failure to define a term that was within the
comprehension of the average juror” is not prejudicial).
We reject Bazar’s argument that we should import the narrower definition of
“sexual act” from 18 U.S.C. § 2246(2) into section 1591(a). Congress expressly
limited the definitions in section 2246 to its chapter, which does not include
section 1591, and chose not to cross reference section 2246 in section 1591.
Furthermore, the “goals and objectives” of the statutes are “not completely
similar.” Fogerty v. Fantasy, Inc., 510 U.S. 517, 524 (1994). Section 2246’s
definitions apply to a chapter criminalizing sexual abuse, which is punished based
on the degree of reprehensibility of the sexual abuse and the type of harm it caused
to the victim. See 18 U.S.C. § 2241–44. Accordingly, section 2246 lays out two
gradations of abusive sexual conduct, the more serious of which is a “sexual act.”
Compare id. § 2246(2) (defining “sexual act”) with id. § 2246(3) (defining “sexual
contact”). In contrast, section 1591 criminalizes sex trafficking, which is punished
based on the trafficker’s conduct. Accordingly, section 1591 specifies numerous
reprehensible means of trafficking, see 18 U.S.C. § 1591(a), and a trafficker can be
convicted under section 1591 even if his victim did not perform a single
commercial sex act, see, e.g., United States v. Hornbuckle, 784 F.3d 549, 554 (9th
Cir. 2015).
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2. The district court did not err in rejecting Bazar’s argument that
insufficient evidence supported his sex-trafficking-by-fraud convictions. To
sustain a conviction under section 1591(a), the government had to prove that Bazar
was “aware of an established modus operandi” of fraud that would cause his
victims to engage in commercial sex acts. See United States v. Todd, 627 F.3d
329, 334 (9th Cir. 2010) (“When an act of Congress requires knowledge of a future
action, it does not require knowledge in the sense of certainty as to a future act.”).
Viewing the evidence most favorably to the prosecution, Niebla-Torres, 847 F.3d
at 1054, Bazar enticed his victims with promises of lucrative employment and told
them that they could choose whether and when to perform happy-ending massages.
But once they were under his control, he took all their earnings and told them that
they had to perform happy-ending massages exclusively. Further, Bazar provided
his victims with the same, pre-printed instruction sheet dictating their answers to
potential clients, and he told one victim that he would “take all the money” and
“break or ruin [her] life” if she left, and that she was “not the first one” and was
“not going to be the last one” because he had had “many like” her. Considering
this evidence “in the light most favorable to the prosecution,” it was “sufficient to
allow any rational trier of fact to find” beyond a reasonable doubt that Bazar
knowingly had an established modus operandi of enticing women with promises of
lucrative employment, in which the women could decide whether to perform
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happy-ending massages, and then misappropriating their earnings while forcing
them to perform happy-ending massages and other sexual acts. See United States
v. Garrison, 888 F.3d 1057, 1064 (9th Cir. 2018) (quotation marks omitted).
3. The district court correctly instructed the jury and properly denied
Bazar’s Rule 29 motion on his conviction for violating 18 U.S.C. § 2422(a), which
criminalizes knowingly persuading, inducing, enticing, or coercing “any
individual” to travel in commerce “to engage in prostitution, or in any sexual
activity for which any person can be charged with a criminal offense.” Bazar
argues that “prostitution” is limited to sexual intercourse for money. But as of
1986, when Congress enacted the current version of section 2422, “prostitution”
encompassed performing happy-ending massages for money. See, e.g., Greene v.
Immigration & Naturalization Serv., 313 F.2d 148, 152 n.5 (9th Cir. 1963)
(defining prostitution as “offering of the body to indiscriminate lewdness for
hire”); Prostitution, Black’s Law Dictionary (5th ed. 1979) (defining “prostitution”
as including “offering or agreeing to perform . . . any unlawful sexual act for
hire”). Accordingly, the district court’s instruction that “prostitution” is
“knowingly engaging in/or offering to engage in a sexual act in exchange for
money or other valuable consideration” was proper.
Pre-1986 cases interpreting “prostitution” in section 2422 narrowly, see,
e.g., Caminetti v. United States, 242 U.S. 470, 487 (1917), do not control because,
6
in 1986, Congress struck out the entirety of section 2422 and rewrote it “in modern
form” “to eliminate its anachronistic features.” § 5(b); H.R. Rep. No. 99-910, at 1,
8 (1986); Child Sexual Abuse and Pornography Act of 1986, H.R. 5560, 99th
Cong., § 5(b) (1986); see United States v. Reza-Ramos, 816 F.3d 1110, 1129 (9th
Cir. 2016) (indicating that statutory terms are defined by their meaning at the time
of reenactment).
4. The district court did not abuse its discretion by concluding that the
prosecutor did not engage in misconduct by arguing in rebuttal that defense
counsel was “blaming the victim.” The prosecutor’s use of the term “victim”
merely summarized the government’s legitimate theory of the case, following a
trial that focused heavily on whether or not women who worked for Bazar were
victims of a fraudulent scheme. The prosecutor’s reference to what the jury might
expect from defense counsel generally simply highlighted how defense counsel’s
closing argument in the present case—that the women were willing and fully
informed participants, not victims—aligned with the rest of the trial, and was not
done to denigrate defense counsel. See Donnelly v. DeChristoforo, 416 U.S. 637,
647 (1974) (We do “not lightly infer that a prosecutor intends an ambiguous
remark to have its most damaging meaning or that a jury, sitting through a lengthy
exhortation, will draw that meaning from the plethora of less damaging
interpretations.”). Finally, a “lawyer is entitled to characterize an argument with
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an epithet as well as a rebuttal,” Williams v. Borg, 139 F.3d 737, 745 (9th Cir.
1998). It was within the district court’s discretion to determine that any
inflammatory impact was blunted because the jury had already received
instructions that, while the prosecutor labeled the women “victims,” they would
have to decide “whether they’re victims or not victims” based on the evidence.
AFFIRMED.
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