United States v. Todd ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,  No. 08-30360
Plaintiff-Appellee,
D.C. No.
v.
 2:07-cr-00395-JLR-
JEROME E. TODD, also known as 1
Rome also known as JT,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the Western District of Washington
James L. Robart, District Judge, Presiding
Argued and Submitted
August 5, 2009—Seattle, Washington
Filed October 20, 2009
Before: Harry Pregerson, John T. Noonan and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Noonan
14639
UNITED STATES v. TODD 14641
COUNSEL
Suzanne Lee Elliott, Esq., Seattle, Washington, for the
defendant-appellant.
Ye-Ting Woo, Assistant United States Attorney, Seattle,
Washington, for the plaintiff-appellee.
14642 UNITED STATES v. TODD
OPINION
NOONAN, Circuit Judge:
Jerome Eugene Todd appeals his conviction of three counts
of sex trafficking in violation of 18 U.S.C. § 1591(a)(1) and
one count of conspiracy to engage in sex trafficking in viola-
tion of 18 U.S.C. § 371.
The sex trafficking statute, captioned the Trafficking Vic-
tim’s Protection Act (TVPA), is a new effort to deal with a
social ill whose international as well as interstate dimensions
have invited federal attention and action. The TVPA was
enacted in December 2000 and amended, as relevant here, in
December 2003, July 2006 and December 2008. The statute
focuses on those (usually men) who make money out of sell-
ing the sexual services of human beings (usually women) they
control and treat as their profit-producing property.
FACTS
We state the facts as to Todd’s treatment of four women:
Todd and Kelsey Kirschman. Just eighteen in January 2005,
Kelsey was still in high school in Bellingham. Todd was not
working but had cash. They dated, going to dinner and to the
movies. In May 2006, Todd suggested they get a place
together. He also told her that they could get rich together if
she worked as a prostitute. He would advertise her in the Seat-
tle Weekly. She agreed. He ran the ad with a picture of her,
offering “full service” for $200. Calls came in from men, and
she responded to them. She gave up a job at Fred Meyer
because Todd wanted her available for prostitution 24/7. Todd
also arranged for her services to be posted on Craigslist. At
Todd’s direction, she also “walked the track,” that is, she
hung out in an area frequented by prostitutes and potential
customers. Todd laid down rules for her to obey. As she testi-
fied, “You had to, basically, do everything he wanted.” Most
UNITED STATES v. TODD 14643
basically, “You had to give him all the money.” Todd allotted
Kelsey $35 each day to pay for condoms, food, and gas.
Todd maintained his rules psychologically by making Kel-
sey feel that she was “nothing.” He maintained his rules phys-
ically by beating her “from head to toe,” blacking one of her
eyes and chipping one of her teeth. When she was 2½ months
pregnant, he demanded that she abort the child, and she com-
plied. She tried to hide some of her earnings as a prostitute
from Todd, but he found them and confiscated them. She did
not leave him because she thought that she “had nowhere else
to go,” was “scared,” and had lived “under this man’s rules”
for a year and a half.
Reduced to this state of dependence, Kelsey performed a
number of acts by agreement with Todd to further his traffic
in the bodies of other women. She “groomed” Whitney T. —
that is, coached her — as to how she should conduct herself
as a prostitute working for Todd. She placed ads in Craigslist
and Seattle Weekly advertising the sexual availability of Whit-
ney and two other women who came to work for Todd as
prostitutes. She rented hotel rooms for these women to use
with customers, provided them with cellphones to receive
calls from customers, and purchased condoms for them to
supply to customers. In these actions, she collaborated with
Todd.
Todd and Whitney T. Whitney T., aged twenty, met Todd
at a party in October 2006. Whitney was the unmarried
mother of a young child. She was unemployed and living with
a girlfriend in Everett. She and Todd liked each other and
began a relationship. Todd had no job but he wore nice
clothes and had cash. Whitney learned eventually that his
income came from Kelsey’s work as a prostitute.
In January 2007, Todd told Whitney that if she too worked
as a prostitute for a couple of years she could have nice cars
and a nice house. In February 2007, Whitney went on her first
14644 UNITED STATES v. TODD
call. She moved into an apartment with Todd and Kelsey.
Todd advertised her services on Craigslist and the Seattle
Weekly. Todd imposed the rules that Whitney earn $500 in a
day and that she turn the money over to him. She believed
that Todd would beat her if she held any money back. She
saw Todd beat Kelsey for violating one of his rules and was
herself beaten by him for breaking his rule against speaking
to black pimps.
Whitney T. twice left Todd and twice voluntarily returned
to him. On July 3, 2007, she left him for good. She continued
to work as a prostitute on her own.
Todd and Whitney E. Todd met Whitney E., aged eighteen,
in June 2007. She had dropped out of high school, had left her
father’s home and her mother’s home, was using drugs, was
living with a boyfriend, and had been working for a week as
a prostitute. The day after she met Todd, her boyfriend sug-
gested that she work for Todd. The next day she began to
work for him as a prostitute. He gave her a cellphone and
clothes from Wal-mart. He advertised her on Craigslist. He
told her that he expected her to service five customers per day
and earn at least $900. He put her in an apartment with a pros-
titute who worked for his cousin, Trent. Trent told her he
would enforce Todd’s rules physically. In July 2007, Todd
himself assaulted her when she questioned one of his rules.
She telephoned her mother for help and later the same day left
the apartment with her mother and reported the assault to the
police.
Todd and Jemelle L. Todd met Jemelle on her twentieth
birthday in July 2007. She was living with her mother and
working as a caregiver. They began to date. Todd had no job
but had cash. In October 2007, she leased a house, and she
and Todd moved in together.
Jemelle had previously engaged in four or five acts of pros-
titution. Todd now told her it would be an easy way to make
UNITED STATES v. TODD 14645
money and have nice things. Todd gave her a phone to take
calls from customers, and she began to respond to them after
initially protesting. Todd advertised her availability in the
Seattle Weekly and on the internet without her knowledge or
consent. Todd told her that his rule was that she provide “full
service,” charge $200 per customer, report the transaction by
telephone and turn all the money over to him. He provided her
with marijuana.
Jemelle was scared seeing Todd beat Kelsey, and she was
scared by his threat that she would regret it if she left him.
Once she attempted to leave and he “pushed me down.” The
indictment covered the use of Jemelle from October 2007 to
November 2007.
PROCEDURE
On November 21, 2007, Todd was indicted. On February
8, 2008, a superseding indictment was returned. Trial began
May 12, 2008. After seven days, the jury found Todd guilty
on all counts. Both before and after the verdict Todd moved
for a judgment of acquittal.
On September 29, 2008, Todd was sentenced to five years
imprisonment for conspiracy to violate the TVPA; to 26 years
to run concurrently on each of the TVPA counts involving
respectively Whitney T., Whitney E., and Jemelle; and to ten
years on the count of transporting a prostitute in interstate
commerce.
Todd does not appeal his conviction or sentence on the
count of transportation of a prostitute. He appeals his convic-
tion on all of the other counts.
ANALYSIS
The Statute.
14646 UNITED STATES v. TODD
Sex trafficking of children or by force, fraud, or
coercion
(a) Whoever knowingly—
(1) in or affecting interstate or foreign commerce, or
within the special maritime and territorial jurisdic-
tion of the United States, recruits, entices, harbors,
transports, provides, or obtains by any means a per-
son; 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 that force, fraud, or coercion described in
subsection (c)(2) 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).
(b) The punishment for an offense under subsection
(a) is—
(1) if the offense was effected by force, fraud, or
coercion or if the person recruited, enticed, harbored,
transported, provided, or obtained 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,
or obtained had attained the age of 14 years but had
not attained the age of 18 years at the time of such
UNITED STATES v. TODD 14647
offense, by a fine under this title and imprisonment
for not less than 10 years or for life.
(c) In this section:
(1) The term “commercial sex act” means any sex
act, on account of which anything of value is given
to or received by any person.
(2) The term “coercion” means—
(A) threats of serious harm to or physical restraint
against any person;
(B) any scheme, plan, or pattern intended to cause a
person to believe that failure to perform an act would
result in serious harm to or physical restraint against
any person; or
(C) the abuse or threatened abuse of law or the legal
process.
(3) The term “venture” means any group of two or
more individuals associated in fact, whether or not a
legal entity.
18 U.S.C. § 1591.
We consider the statutory elements in turn.
Effect on interstate or foreign commerce. The TVPA was
enacted after Congress took a substantial amount of evidence
on the traffic in the sexual services of women by importing
women from around the world by force or fraud. See Victims
of Trafficking and Violence Protection Act of 2000, Pub. L.
No. 106-386, 114 Stat. 1464, 1466 (2000). Congress con-
cluded that prostitution in American cities encouraged and
14648 UNITED STATES v. TODD
enlarged the market for this traffic from abroad. Id. Sex traffic
is a global matter.
In addition to effect on foreign commerce, sex traffic in this
case was conducted by advertising across state lines and so
affected interstate commerce.
[1] The TVPA is unlike the Violence Against Women Act
of 1994, 42 U.S.C. § 13981, which sought to protect women
by making gender-motivated crimes of violence actionable
and was found to be beyond the power of Congress because
its subject matter was not commerce. United States v. Morri-
son, 529 U.S. 598 (2000). The TVPA deals with commerce
within the power of Congress to regulate. The defendant does
not question the act’s constitutionality.
[2] Todd’s knowledge. Here is a crux. Could Todd have
known when he soft-soaked Whitney T., Whitney E., and
Jamelle L. to go to work for him that later “force, fraud, or
coercion would be used” to cause each of them to engage in
commercial sex? How does anyone “know” the future?
[3] What the statute means to describe, and does describe
awkwardly, is a state of mind in which the knower is familiar
with a pattern of conduct. If “to know” is taken in the sense
of being sure of an established fact, no one “knows” his own
or anyone else’s future. As William Shakespeare said in Son-
net 115 of time, its “million’d accidents creep in” and nothing
is completely stable, no plan is beyond alteration. 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. What the statute requires is that the defendant know in the
sense of being aware of an established modus operandi that
will in the future coerce a prostitute to engage in prostitution.
[4] The government’s evidence showed that Todd had such
awareness when he persuaded Whitney T. to work for him.
He had an established practice of living off the earnings of a
UNITED STATES v. TODD 14649
prostitute, doing so by rules controlling her work and payment
of the proceeds to him. The jury could conclude that Todd
knew he would follow the same pattern with Whitney T. and
then with Whitney E. and Jamelle L. Just as a mother who has
had one child in school and prepared his lunch knows that she
will prepare the school lunch for her second child, just as a
judge knows that his law clerks will use Westlaw, so Jerome
Todd knew that he would use coercion to cause his sex work-
ers to make money for him.
The findings of the jury. The jury was instructed:
The defendant is charged with count 2 of the first
superseding indictment with sex trafficking, in viola-
tion of Title 18, United States Code, Sections
1591(a)(1) and 1591(b)(1). In order for the defendant
to be found guilty of that charge, the government
must prove each of the following elements beyond a
reasonable doubt:
First, beginning in or about February 2007, and
continuing through in or about July 2007, the defen-
dant knowingly did recruit, entice, harbor, transport,
provide, or obtain a person, that is, [Whitney T.];
Second, the defendant did so knowing that force,
fraud, or coercion would be used to cause [Whitney
T]. to engage in a commercial sex act; and
Third, the defendant’s actions were in or affecting
interstate commerce.
[5] The jury answered these questions affirmatively as to
Whitney T. and answered the same questions affirmatively as
to Whitney E. and Jamelle L. The evidence of Todd’s knowl-
edge of his own modus operandi in securing an income from
prostitution by a pattern of coercion was sufficient to support
the jury’s verdict.
14650 UNITED STATES v. TODD
[6] The sentence. The statute provides punishment of
imprisonment of fifteen years to life if “the offense was
effected by fraud, force or coercion.” 18 U.S.C. § 1591(b)(1).
If the offense “was not so effected” and the victim was 14 to
18, imprisonment for ten years to life. Id. § (b)(2). The statute
provides no punishment for acts not described in (a) or (b).
The Sentencing Guidelines do provide guidance to a sen-
tence under § 1591 when no fraud, force or coercion have
been found by the jury. U.S. SENTENCING GUIDELINES MANUAL
§ 2G1.1. The Guidelines, however, do not have the force of
a statute. The Guidelines cannot recommend a penalty not
provided by a statute. The hole in the statute cannot be filled
by invoking the Guidelines.
The victims in this case were all over 18. The jury did not
find that the offenses of which they were the victims were
“effected by fraud, force or coercion,” as required by
§ 1591(b)(1).
[7] No person may be subjected to imprisonment unless a
jury finds the facts on which the imprisonment is justified.
United States v. Booker, 543 U.S. 220, 236 (2005). Todd has
been sentenced to three concurrent terms of imprisonment for
26 years. The facts justifying these sentences were not found
by a jury.
In an earlier case in this circuit in which offenses under 18
U.S.C. § 1591(a)(1) were prosecuted, convictions obtained
and sentences imposed, the jury instructions were similar to
those given here. United States v. Chang Liu, 538 F.3d 1078
(9th Cir. 2008). The jury did not find fraud, force or coercion.
Id. at 1085. The omission of such a finding was not raised by
the parties nor noticed by the court affirming the judgment.
Id. Chang Liu thus does not bind us: the issue was not raised
nor decided. See United States v. L.A. Tucker Truck Lines,
Inc., 344 U.S. 33, 37-38 (1952) (prior decision is not binding
UNITED STATES v. TODD 14651
precedent on issue neither “raised in briefs or argument nor
discussed in the opinion of the Court”).
[8] On the other hand, the only other circuit to have
addressed the force, fraud or coercion provision of § 1591,
United States v. Marcus, 538 F.3d 97, 101-102 (2nd Cir.
2008) (per curiam) (vacating the conviction on ex post facto
grounds), found sufficient evidence to convict where the
question of the defendant’s use of fraud, force or coercion had
been submitted to the jury. See United States v. Marcus, 487
F. Supp. 2d 289, 308 (E.D.N.Y. 2007) (“As the court
instructed the jury, the government was required to prove . . .
the defendant knowingly used force, fraud or coercion to
cause the trafficked individual to engage in a commercial sex
act.”). This example illustrates the present problem.
Todd has not raised an argument under the Sixth Amend-
ment. His challenge to the sufficiency overlooks completely
the absence of jury findings to support of the sentence. The
omission was not obvious to the parties or the district judge.
Once noted, however, the omission is now obvious to all. It
is fatal to “the fairness, integrity [and] public reputation of
judicial proceedings.” Silber v. United States, 370 U.S. 717,
718 (1967) (stating the grounds on which an appellate court
may, sua sponte, notice error) (internal quotation marks omit-
ted).
[9] “ ‘The right to have a jury make the ultimate determina-
tion has an impressive pedigree. Blackstone described ‘trial
by jury’ as requiring that ‘the truth of every accusation,
whether preferred in the shape of indictment, information, or
appeal, should afterwards be confirmed by the unanimous suf-
frage of twelve of [the defendant’s] equals and neighbors . . . .
’ 4 W. Blackstone, Commentaries on the Laws of England
343 (1769) (emphasis added).” United States v. Gaudin, 515
U.S. 506, 510-11 (1995). Imposed without the proper jury
findings, Todd’s sentences under counts 2, 3 and 5 cannot
stand.
14652 UNITED STATES v. TODD
[10] Todd was also convicted of conspiracy to engage in
sex trafficking in violation of 18 U.S.C. § 371 and sentenced
to five years imprisonment, and he was convicted of trans-
porting a prostitute in interstate commerce in violation of 18
U.S.C. § 2421 and sentenced to ten years imprisonment. The
sentences are currently concurrent. Todd appeals his convic-
tion for conspiracy, but not his conviction for transporting a
prostitute. Todd’s conviction for conspiracy is a different case
from his conviction for sex trafficking. Sufficient evidence
was presented to show that he entered into agreement with
Kirschman to further a practice of sex trafficking, and the jury
found the necessary facts.
[11] Nevertheless, recognizing that the sentencing of multi-
ple crimes often takes into account the sentencing package as
a whole, we think it advisable to vacate Todd’s sentences for
conspiracy and for transporting a prostitute so that the district
court may be free to consider its resentencing options.
Although we are also vacating Todd’s sentence for sex traf-
ficking, the district court is free to consider his conviction
under 18 U.S.C. § 1591(a) in considering enhancements to the
sentences under § 371 and § 2421.
Todd’s convictions are AFFIRMED. However, Todd’s sen-
tences under counts 1-5 are VACATED, and this matter is
REMANDED for further proceedings in accordance with this
opinion.