United States v. Smith ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
UNITED STATES OF AMERICA,
“ Case No, 19-cr-307 (RCL)
WILLIS PIERRE LEWIS,
BRITTANY JONES, and
DYAMOND SMITH,
Defendants.
_ — <9, Ketan , T/G/2t
MEMORANDUM OPINION Ok
Before the Court are two of defendant Willis Pierre Lewis’s pre-trial motions. Lewis first
moves to dismiss Counts 1-4 and 12 of the Superseding Indictment under Federal Rules of
Criminal Procedure 12(b)(3)(B)(i) & (v), ECF No. 58. He also moves to sever Counts 12, 13, and
15 as improperly and prejudicially joined under Federal Rules of Criminal Procedure 8 and 14,
ECF No. 59. The Government opposes both motions. ECF Nos. 67 & 70. Upon consideration of
the parties’ filings, ECF Nos. 58, 59, 67, 70, the applicable legal standards, and the record herein,
the Court will DENY Lewis’s motion to dismiss, ECF No. 58, and GRANT IN PART and DENY
IN PART Lewis’s motion to sever counts, ECF No. 59.
I. BACKGROUND
In October 2019, a grand jury returned a fifteen-count Superseding Indictment charging
defendants Willis Pierre Lewis, Brittany Jones, and Dyamond Smith for their conduct related to,
and in furtherance of, a conspiracy to sex traffic two minor girls. ECF No. 23 at 2. Count 1 charges
Lewis with sex trafficking a fifteen-year-old girl (“Z.S.”) by force, fraud, and coercion, in violation
of 18 U.S.C. § 1591(a)(1), (a)(2), and (b)(1). Jd. Count 2 charges Lewis with sex trafficking a
seventeen-year-old girl (“T.H.Y.”) by force, fraud, and coercion, in violation of 18 U.S.C.
§ 1591(a)(1), (a)(2), and (b)(1). 7d. at 2-3. Counts 3 and 4 charge Lewis and Jones with sex
trafficking Z.S. and T.H.Y., in violation of 18 U.S.C. § 1591(a)(L), (a)(2), and (b)(2). Ja. at 3~4.
Count 5 charges all three defendants with conspiring to sex traffic minors, in violation of 18 U.S.C,
§ 1594(c). Id at 4. Counts 6 and 7 charge Lewis and Jones with transporting minors (Z.S. and
T.H.Y.) with intent to engage in criminal sexual activity in violation of 18 U.S.C. § 2423(a), Id.
at 5. Count 8 charges Lewis and Jones with conspiring to transport minors (Z.S. and T.H.Y.) with
intent to engage in criminal sexual activity, in violation of 18 U.S.C. § 2423(e). /d. Counts 9 and
10 charge Lewis and Jones with transportation, in violation of 18 U.S.C. § 2421 (a). ld. at 6.
Count 11 charges Lewis and Jones with interstate travel and transportation in aid of racketeering,
in violation of 18 U.S.C. § 1952(a)(3)(A). Jd at 6-7, Count 12 charges Lewis with unlawful
possession of a firearm by a person convicted of a crime punishable by imprisonment for a term
exceeding one year, in violation of 18 U.S.C. § 922(g)(1). Jd. at 7. Count 13 charges Lewis with
attempting to obstruct enforcement of 18 U.S.C. § 1591, in violation of 18 U.S.C. § 1591(d). Jd.
And Count 15 charges Lewis with assault, in violation of D.C. Code § 22-404(a)(1). /@. at 8.
As for the dates of the offenses charged, the Superseding Indictment alleges that Counts 1
through 12 occurred “[b]etween on or about April 25, 2019, and May 11, 2019.” ECF No. 23 at
2-7. It further alleges that Count 13 (attempting to obstruct the enforcement of § 1591) occurred
“TbJetween on or about July 30, 2019, and September 9, 2019.” /d. at 7. Finally, the Superseding
Indictment alleges that Count 15 (assault) occurred “[o]n or about February 1, 2019.” 7d. at 8.
On motion from Lewis, the Court ordered the Government to provide a bill of particulars
clarifying the relationship between Count 15 and the other offenses charged in the Superseding
Indictment. ECF Nos. 36 & 99. In its bill of particulars, the Government provided the following
factual allegations describing the assault charged in Count 15:
pew was one of Lewis’s co-conspirators. According to
, on February 1, 2019, Lewis was working at the Crimson
restauranton LT Street in Washington, D.C. in a security role. Lewis
brought (MM to the Crimson restaurant to engage in picking up a
date for commercial sex, When the interaction between ae and
the potential customer did not go as Lewis directed, Lewis
physically assaulted {i in front of his colleagues at the Crimson
restaurant.
ECF No. 102 at 2.
To clarify Count 15’s relationship to the other charges, the Government added that
Although this spectfic assault occurred three months prior to the sex
trafficking venture related to the other fourteen counts in the
Superseding Indictment, it is related to the conduct charged in
[those] Counts because it shows Lewis’s control over al
Lewis’s role and behavior in relation to the sex trafficking enterprise
more broadly, and leads to Lewis trafficking Z.S. and T.H.Y. a few
months later.
ld.
Presently before the Court are two of Lewis’s pre-trial motions. Lewis first moves to
dismiss Counts 1-4 and 12. ECF No. 58. He argues that Counts 1-4 (the sex-trafficking charges)
are duplicitous and that Count 12 (unlawful possession of a firearm) fails to state an offense. Jd. at
2-4. Lewis also moves to sever Count 12 (unlawful possession of a firearm), Count 13 (attempting
to obstruct the enforcement of § 1591), and Count 15 (assault). ECF No. 59. He argues that Counts
12, 13, and 15 were improperly joined under Rule 8(a) “because the offenses are not of the same
or similar character, are not based on the same transaction, and are not part of a common scheme
or plan.” /d. at 2. He also says that joining Counts 12, 13, and 15 with the other offenses charged
in the Superseding Indictment would prejudice him, so the Court should sever those counts under
Rule 14. /d@. at 3-4. The Government opposes both motions. ECF Nos. 67 & 70.
II, LEGAL STANDARDS
A. Lewis’s Motion to Dismiss
A defendant may raise by pre-trial motion the defense that there is a defect in the
indictment. See Fed. R. Crim. P. 12(b)(B)(}H(¥). Lewis ratses two alleged defects in his motion to
dismiss: duplicity and failure to state an offense. See ECF No. 58 at 1.
i. _Duplicity
An indictment is defective if it joins “two or more distinct and separate offenses” in a single
count. United States v. Klat, 156 F.3d 1258, 1266 (D.C. Cir. 1998); accord Fed. R. Crim. P.
12(b)(3)(B)(i). This defect is referred to as “duplicity.” Fed. R. Crim. P. 12(6)(3)(B)(i). Duplicity
“is unacceptable because it prevents the jury from deciding guilt or innocence on each offense
separately and may make it difficult to determine whether the conviction rested on only one of the
offenses or both.” Wayne R. LaFave, et al., Criminal Procedure, § 19.3(d) (4th ed. 2015), An
indictment is not duplicitous, however, when it alleges alternative means of committing the same
offense. See United States v. Coughlin, 610 F.3d 89, 107 n.10 (D.C. Cir. 2010) (recognizing that
“t]he correct method of pleading alternative means of committing a single crime is to allege the
means in the conjunctive”); see also Fed. R. Crim. P. 7(c)(1) (providing that “a count may allege
that... the defendant committed [an offense] by one or more specified means”).
If a defendant raises a valid duplicity defense, this will not result in dismissal of the
indictment. LaFave, supra § 19.3(d). Instead, “{w]hen presented with a duplicitous count, the
proper remedy is for the Court either to give a unanimity instruction or to require the government
to elect a theory of prosecution.” United States v. Sanford, Lid, 859 F. Supp, 2d 102, 116
(D.D.C. 2012); see Wright & Miller, Federal Practice & Procedure § 146 (Sth ed. 2021).
ii. Failure to State an Offense
An indictment is also defective if it “fail[s] to state an offense[.]” Fed. R. Crim. P.
12(b)(3)(B)(v). Under Federal Rule of Criminal Procedure 7(c)(1), the indictment must “be a plain,
concise, and definite written statement of the essential facts constituting the offense charged[.]”
Fed. R. Crim. P. 7(c)(1). To survive a motion to dismiss, an indictment must (1) allege the essential
facts constituting the offense, (2) allege each element of the offense so as to provide fair notice to
the defendant, and (3) be sufficiently distinct such that a verdict would bar a second prosecution
for the same offense. Sanford, Lid., 859 F, Supp. 2d at 108. When considering a motion to dismiss
an indictment, the court is “limited to reviewing the face of the indictment.” United States v. Payne,
382 F. Supp. 3d 71, 73 (D.D.C. 2019) (quoting United States v, Hillie, 289 F. Supp. 3d 188, 193
(D.D.C. 2018)). “The court must presume that the allegations in the indictment are true” and must
ask whether those allegations, if proven, “are sufficient to permit a jury to find that the crimes
charged were committed.” /d. (quoling Sanford, Lid., 859 F. Supp. 2d at 107).
B. Lewis’s Motion to Sever
Federal Rules of Criminal Procedure 8(b) and 14(a) govern Lewis’s motion to sever.
i. Misjoinder Under Rule 8(b)
An indictment is defective if it improperly joins charges that do not belong in the same
pleading. See Fed. R. Crim. P. 12(b)(3)(B)(iv). Federal Rule of Criminal Procedure 8 sets forth
two standards for joinder, one governing “Joinder of Offenses” and the other governing “Joinder
of Defendants.” Fed. R. Crim. P. 8. Rule 8 reads:
(a) Joinder of Offenses. The indictment or information may charge a
defendant in separate counts with 2 or more offenses if the offenses
charged—-whether felonies or misdemeanors or both---are of the same
or similar character, or are based on the same act or transaction, or are
connected with or constitute parts of a common scheme or plan.
(b) Joinder of Defendants. The indictment or information may charge 2
or more defendants if they arc alleged to have participated in the same
act or transaction, or in the same series of acts or transactions,
constituting an offense or offenses. The defendants may be charged in
one or more counts together or separately. All defendants need not be
charged in each count.
Fed. R, Crim. P. 8.
Though subsection (a) is titled “Joinder of Offenses,” the D.C. Circuit has held that
Rule 8(b) governs the joinder of offenses in a multidefendant case. See, ¢.g., United States v.
Brown, 16 F.3d 423, 427 (D.C. Cir. 1994). For joinder of offenses to be appropriate under
Rule 8(b), there must be “a logical relationship between the acts or transactions within the series.”
United States v. Perry, 731 F.2d 985, 990 (D.C. Cir. 1984). In other words, it is not enough for
offenses to be similar in nature (like two burglaries); they must be reduted. /d. For example, joinder
of offenses under Rule 8(b) is appropriate when “defendants are charged with conspiracy to
conceal a crime that [other defendants] are charged with committing,” or when “some defendants
are charged with transporting stolen goods in interstate commerce and others are charged with
receiving the goods, so stolen and transported.” Jd. (quoting United States v, Jackson,
562 F.2d 789, 794-95 (D.C. Cir. 1977)). Notably, the standard for joinder of offenses under Rule
8(b) is more difficult to satisfy than the Rule 8(a) standard. United States v. Suggs, 531 F. Supp.
2d 13, 27 (D.D.C. 2008). While two offenses “of the same or similar character” may be joined
under Rule 8(a), similarity alone is not enough lo justify joinder of offenses in a multidefendant
case under Rule 8(b). fed. R. Crim. P. 8(a).
ii. Prejudicial Joinder Under Rule 14(a)
Even if a court finds that offenses were properly joined under Rule 8(b), severance may
still be appropriate under Federal Rule of Criminal Procedure 14. That Rule provides that a court
“may order separate trials of counts” if it finds that “the joinder of offenses . . . in an indictment
. appears to prejudice a defendant or the government.” Fed. R. Crim. P. 14(a). A defendant
seeking severance under Rule 14 “carries the burden of demonstrating prejudice resulting from a
failure to sever.” United States v. Gooch, 665 F.3d 1318, 1336 (D.C. Cir. 2012).
In Zafiro v. United States, the Supreme Court articulated the standard for showing prejudice
under Rule 14. 506 U.S. 534 (1993). Recognizing that Rules 8(b) and 14 “are designed ‘to promote
economy and efficiency and to avoid a multiplicity of trials,’” the Supreme Court held that
severance under Rule 14 is appropriate “only if there is a serious risk that a joint trial would
compromise a specific trial right of one of the defendants, or prevent the jury from making a
reliable judgment about guilt or innocence.” Zafiro, 506 U.S. at 539 (quoting Richardson v. Marsh,
481 U.S. 200, 209 (1987)).
Adding further detail to Zafiro’s standard, the D.C. Circuit has identified three specific
types of prejudice that might occur when a defendant is tried for more than one crime by the same
jury: (1) “the jury may cumulate evidence of the separate crimes,” (2) “the jury may improperly
infer a criminal disposition and treat the inference as evidence of guilt,” or (3) “the defendant may
become ‘embarrassed or confounded’ in presenting different defenses to the different charges.”
Gooch, 665 F.3d at 1336 (quoting Blunt v, United States, 404 F.2d 1283, 1288 (D.C. Cir. 1968)).
Certain circumstances, however, mitigate these risks. First, the risk that the jury will
improperly cumulate evidence or infer criminal disposition when a defendant is tried for multiple
crimes is “largely absent” when “evidence of each joined offense[] would be admissible in a
separate trial for the other.” Blunt, 404 F.2d at 1288 (quoting Baker v. United States, 401 F.2d 958,
971 (D.C. Cir. 1968)). In those cases, “the prejudice that might result from the jury’s hearing the
evidence of the other crime in a joint trial would be no different from that possible in separate
trials.” Drew v. United States, 331 F.2d 85, 90 (D.C. Cir. 1964). But “[e]ven where the evidence”
of one crime “would nor be admissible in [a] separate trial” for another crime, severance is
unnecessary if the government can “present the evidence in such a manner that the accused is not
confounded in his defense and the jury will be able 1o treat the evidence relevant to each charge
separately and distinctly.” United States v. Daniels, 770 F.2d 1111, 1117 (D.C. Cir. 1985) (quoting
Drew, 331 F.2d at 91-92 (emphasis added)), When the evidence supporting separate crimes is
“simple and distinct,” we presume that the defendant will not be prejudiced by a joint trial because
the jury “can easily keep such evidence separate in their deliberations.” Drew, 331 F.2d at 91.
Ultimately, in each case, the Court “must weigh prejudice to the defendant caused by the
joinder against the obviously important considerations of economy and expedition in judicial
administration.” Drew, 331 F.2d at 88. “Rule 14 leaves the determination of risk of prejudice and
any remedy that may be necessary to the sound discretion of district courts.” Zafiro, 506 U.S. at
541; accord Fed. R. Crim. P. 14(a) (providing that if joinder of offenses appears to prejudice a
defendant, “the court may order separate trial of counts, sever the defendants’ trials, or provide
any other relief that justice requires”) (emphasis added).
With these legal standards in mind, the Court now turns to the merits of Lewis’s motions.
Il. DISCUSSION
A. The Court Will Deny Lewis’s Motion to Dismiss Counts 1-4 and 12
Lewis first moves to dismiss Counts 1-4 and 12 of the Superseding Indictment. See ECF
No. 58. He argues that Counts 1-4 are duplicitous and that Count 12 fails to state an offense. Id.
at 2-4. For the reasons explained in the sections that follow, the Court agrees with Lewis that
Counts 1-4 are duplicitous. This pleading defect, however, does not warrant dismissal of the
Superseding Indictment. And because Count 12 states an offense, ewis’s second argument for
dismissal fails entirely.
1. Counts 1-4 Are Duplicitous
Counts | and 2 of the Superseding Indictment charge Lewis with “Sex Trafficking by
Force, Fraud, and Coercion” in violation of 18 U.S.C. § 1591(a)(1), (a)(2) & (b)(2). ECF No. 23
at 2-3, Counts 3 and 4 charge Lewis with “Sex Trafficking of Minors” in violation of 18 U.S.C.
§ 1591(a)(1), (a)(2) & (b)(1). Jd. at 3-4. Section 1591(a) reads as follows:
(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
(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, except where the act constituting the violation
of paragraph (1) is advertising, 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).
Lewis argues that Counts 14 are all duplicitous because they charge him with violating
§ 1591 (a)(1) and § 1591(a)(2), which he says are separate offenses. ECF No. 58 at 3. In response,
the Government says that § 1591(a)(1) and § 1591(a)(2) merely provide alternative means of
committing a single offense and thus are not duplicitous. ECF No. 70 at 8-9. In other words, the
Government apparently believes that § 1591(a) is a single offense, which can be violated by the
conduct proscribed in § 1591(a)(1) or § 1591(a)(2). See id. But that is wrong. Contrary to the
Government’s interpretation of the statute, § 1591(a)(1) and § 1591(a)(2) are not “alternative
means of proving a single offense” but rather codify separate offenses. ECF No. 70 at 7.
To resolve Lewis’s duplicity argument, the Court looks to the well-established rule of
criminal law that when a statute “list{s] elements in the alternative,” it “define[s] multiple crimes.”
Mathis v. United States, 136 S. Ct. 2243, 2249 (2016). For example, say that a statute criminalizes
“the lawful or unlawful entry” of a premises with intent to steal. Jd One crime (shoplifting) occurs
when a person (1) lawfully enters a premises (2) with intent to steal. The second crime (burglary)
occurs when a person (1) unlawfully enters a premises (2) with intent to steal. These crimes are
distinct, because each crime requires proof of an element that the other does not. Shoplifting hinges
on proof that the defendant lawfully entered the premises, while burglary hinges on proof that the
defendant unlawfully entered the premises. So while each offense shares an element (intent to
steal), each offense also has an element that the other does not.
That these two offenses are distinct is confirmed by the test that courts apply when
determining whether two crimes are really the same offense in the context of double jeopardy.
There, two crimes are separate offenses when “each requires proof of a fact that the other does
not[.]” Brown v. Ohio, 432 U.S. 161, 166 (1977) (quoting Blockburger v. United States,
284 U.S. 229, 304 (1932)). Applying this test to the Court’s hypothetical statute, we see that the
statute contains two distinct crimes, because establishing shoplifting requires proof of lawful entry,
an clement not contained in burglary. And establishing burglary requires proof of unlawful entry,
an element not contained in shoplifting.
Having established these basic propositions, we can now see how § [591(a) unravels into
at least two distinct offenses. The first offense, codified at § 1591(a)(1), is the crime of sex
trafficking. See 18 U.S.C. § 1591(a)(1). The second, codified at § 1591(a)(2), is the crime of
benefitting from participating in a venture that engaged in sex trafficking. See id. at § 1591(a)(2).
10
The first offense, “sex trafficking,” occurs when a person “recruits, entices, harbors,
transports, provides, obtains, advertises, maintains, patronizes, or solicits by any means a person,”
does so with the requisite »ens rea, and does so in or affecting interstate commerce.) See 18 U.S.C.
§ 1591(a). By contrast, the crime of “benefitting from participating in a venture that engaged in
sex trafficking,” occurs when a person “benefits, financially or by receiving anything of value,
from participation (“assisting, supporting, facilitating’) in a venture which has engaged in” a sex-
trafficking act, does so with the requisite mens rea, and does so in or affecting interstate commerce.
See id.; id. at § 1591(e)(4).
' To satisfy the first element of a § 1591(a)(1) sex-trafficking crime, a person can either recruit, entice,
harbor, transport, provide, obtain, advertise, maintain, patronize, or solicit by any means a person. See
18 U.S.C. § 1591(a). Contrary to the Government’s interpretation of the statute, these actions (recruit,
entice, etc.) are the various “means” by which the trafficking element of a sex-trafficking crime can be
satisfied. See Mathis, 136 S. Ct. at 2249 (explaining that “means” are “various factual ways” of “satisfying
a single element of a single crime”); see also ECF No, 70 at 8 (Government’s opposition arguing that
§ 1591(a)(1) and § 1591 (a)Q) are “alternative means” of committing an offense).
One might argue that the Court’s interpretation of recruits, entices, harbors, etc. as the “means” by which a
defendant may satisfy the trafficking element of a § 1591(a)(1) sex-trafficking crime violates the canon
against surplusage. Under that canon of interpretation, courts should, if possible, give effect to every word
in a statute, Antonin Scalia & Bryan A. Garner, READING LAW 174. That rule of construction is relevant
here because if recruits, entices, harbors, etc. are the exclusive “means” by which the trafficking element
can be committed, the “by any means” language has no effect. See 18 U.S.C. § 159](a)(1) (emphasis
added). The Court’s interpretation does not violate this canon for two reasons. First, as the Supreme Court
has recognized, “the canon against surplusage, ‘assists only where a competing interpretation gives effect
to every clause and word of a statute.” Marx v. General Revenue Corp., 568 U.S. 371, 385 (2013). Here,
the Government’s competing interpretation of § 1591(aj(1) and § 1591(a)(2) as alternative means of
committing the same offense raises the same surplusage issue as the Court’s interpretation. The surplusage
canon thus does not support the Government’s reading. Second, it is possible that Congress used “means”
in § 1591(a)(1) as understood in plain language, not as a term of art referring to the “various factual ways”
of “satisfying a single element of a single crime.” Mathis, 136 8. Ct. at 2249. Under that reading, the “by
any means” language tells us that the types of actions enumerated in § 159](a)(1)---recrutts, entices,
harbors, ete.—can be committed by any method. See Means, NEW OXFORD AMERICAN DICTIONARY 1084
(3d ed. 2009) (defining “means” as “an action or system by which a result is brought about; a method”).
For example, a defendant could transport a sex-trafficking victim by boat, car, or plane, which are various
methods of transporting. This reading gives effect to the “by any means” language, because it reads “by
any means” as making crystal clear that the statute reaches every real-world action that amounts to one of
the statutorily enumerated means of trafficking.
11
These offenses are two distinct crimes because the government can show the commission
of a § 1591(a)(1) sex-trafficking offense without showing that the defendant benefitted from a
venture that engaged in sex trafficking. For instance, a defendant could knowingly transport a sex-
trafficking victim in interstate commerce without receiving anything of value for that conduct.
Conversely, the government can show the commission of a § 1591(a)(2) benefitting-by-
participating offense without showing that the defendant engaged in sex trafficking as defined in
§ 1591(a)(1), A defendant could benefit financially from assisting a venture that engages in sex
trafficking, in or affecting interstate commerce, and with the requisite mens rea, but without
personally recruiting, enticing, harboring, etc. a person. For instance, imagine a defendant who,
knowing of a sex-trafficking venture, bribes a police officer not to investigate said venture and,
for such assistance, receives a kickback from the proceeds of the venture. There, the defendant
participated in and benefited from the venture, but never directly recruited, enticed, harbored, etc.
a sex-trafficking victim.
Another way to illustrate that these are distinct offenses is by envisioning a simple Venn
diagram. In the center of the Venn diagram, where the circles overlap, sits the interstate-commerce
element, the requisite mens rea, and the person sex-trafficked. But on the wings of the circles,
which do not overlap, we would find the elements requisite to a § 1591(a)(1) conviction, but not a
§ 1591(a)(2) conviction, and vice versa. In other words, in the non-overlapping portion of the
§ 1591(a)(1) circle, we would find the requirement that the defendant recruited, enticed, harbored,
etc. a person. By contrast, in the non-overlapping portion of the § 1591(a)(2) circle, we would find
the requirement that the defendant benefitted financially or otherwise in the venture. So because
the government could sustain a conviction for a § 1591(a)(1) sex-trafficking offense without
proving that the defendant benefitted financially from participating in a sex-trafficking venture,
12
and vice versa, § 1591(a) proscribes multiple crimes. See Blockburger, 284 U.S. at 304; Mathis,
136 S. Ct. at 2249.
In fact, the principles the Court just detailed do not end there. Instead, they apply with
equal force to the block paragraph in § 1591(a) beginning with “knowing,” which sets forth two
mens rea requirements. See 18 U.S.C. § 1591 (a). There, the statute provides that a defendant can
either know that “means of force, threats of force, fraud, coercion described in subsection (e)(2),
or any combination of such means will cause the person to engage in a commercial sex act” or
“that the person has not yet attained the age of 18 years and will be caused to engage in a
commercial sex act.” Jd. So § 1591(a) actually contains four combinations of elements (i.e., four
separate crimes) that a defendant could be convicted of:
OFFENSE #1
i) In or affecting interstate or foreign commerce, or within the
special maritime and territorial jurisdiction of the United
States;
ii) The defendant knowingly recruited, enticed, harbored,
transported, provided, obtained, advertised, maintained,
patronized, or solicited by any means a person; and
iii) | Knowing, or, except where the act constituting the violation
of paragraph (1) is advertising, 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.
OFFENSE #2
i) Inor affecting interstate or foreign commerce, or within the
special maritime and territorial jurisdiction of the United
States;
ii) The defendant knowingly recruited, enticed, harbored,
transported, provided, obtained, advertised, maintained,
patronized, or solicited by any means a person; and
iii) | Knowing, or, except where the act constituting the violation
of paragraph (1) is advertising, in reckless disregard of the
13
fact, thal the person has not attained the age of 18 years and
will be caused to engage in a commercial sex act.
OFFENSE #3
i)
ii)
iii)
In or affecting interstate or foreign commerce, or within the
special maritime and territorial jurisdiction of the United
States;
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); and
Knowing, or, except where the act constituting the violation
of paragraph (1) is advertising, 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.
OFFENSE #4
)
ii)
iii)
In or affecting interstate or foreign commerce, or within the
special marilime and territorial jurisdiction of the United
States;
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); and
Knowing, or, except where the act constituting the violation
of paragraph (1) is advertising, in reckless disregard of the
fact, that the person has not attained the age of 18 years and
will be caused to engage in a commercial sex act.
See 18 U.S.C. § 1591(a).
Because § 1591(a) contains multiple crimes, Lewis is correct that Counts 1-4 are
duplicitous. By charging him with violating § 1591(a)(1) and § 1591(a)(2), the Superseding
Indictment joins multiple offenses in the same count. See Fed. R. Crim. P. 12(b)(3)(B)(i). This
pleading defect, however, does not warrant dismissal of the Superseding Indictment. Lal‘ave,
supra § 19,3(d). Instead, one appropriate remedy is for the Court to “instruct the jury that it must
find unanimously that the defendant was guilty with respect to at least one distinct act.” Wright &
14
Miller, supra § 146. Accordingly, to mitigate the risk that the jury will convict Lewis without
reaching unanimity on one of the crimes listed in § 1591(a), the Court will provide a unanimity
instruction at trial.
ii, Count 12 Pleads a Violation of 18 U.S.C. § 922(—)(1)
Lewis next argues that the Superseding Indictment should be dismissed because Count 12
fails to plead an offense. ECF No. 58 at 3-4. Count 12 of the Superseding Indictment charges
Lewis with unlawful possession of a firearm in violation of 18 U.S.C. § 922(g)(1). ECF No. 23 at
7. Section 922(g)(1) makes it “unlawful for any person . . . convicted in any court, of a crime
punishable by imprisonment for a term exceeding one year... to. . . possess in or affecting
commerce, any firearm.” 18 U.S.C. § 922(g)(1). The Superseding Indictment alleges the
§ 922(g)(1) violation as follows:
Between on or about April 25, 2019, and May 11, 2019, in the
District of Columbia and elsewhere, the defendant, WILLIS
PIERRE LEWIS, knowing he had been convicted of a crime
punishable by imprisonment for a term exceeding one year. . . did
unlawfully and knowingly possess a firearm, that is, a black
handgun, which had been possessed, shipped, and transported in and
affecting interstate and foreign commerce.
ECF No. 23 at 7.
Lewis argues that Count 12 should be dismissed because it “does not identify the type of
firearm” he allegedly possessed. ECF No. 58 at 2. Instead, he says, it “states a generic description
of ‘black handgun.’” Jd. But “[nJo firearm was ever recovered” and Lewis is not alleged to have
discharged the gun. Jd. So Lewis argues that “it is not possible for a jury to determine if the alleged
weapon was indeed an operable firearm” or just an “imitation of one.” Jd.
There are two problems with Lewis’s argument. First, the Government was not required to
allege the type of firearm Lewis allegedly possessed because the type of firearm is not an element
of a § 922(g)(1) violation. Section 922(g)(1) requires only that Lewis possessed “any firearm.”
18 U.S.C. § 922(g)(1) (emphasis added). It does not distinguish between any particular type of
firearm, nor does it require possession of a certain type to establish a violation. Cf United States
y. O’Brien, 560 U.S. 218, 227 (2010) (noting that “firearm type is treated as an element” of an
offense when the statute “make[s] substantive distinctions between weapons such as pistols and
machineguns”); see 18 U.S.C. §§ 922(a)(4), (b)(4), (0)(1) (making it illegal to possess specific
types of firearms, including a machinegun, short-barreled shotgun, or short-barreled rifle). Thus,
to give Lewis fair notice of the charge against him, the Government necd only allege that Lewis
was in possession of a firearm. And that is what it did. See ECF No. 23 at 7 (alleging possession
of a “firearm, that is, a black handgun”).
Second, Lewis’s argument that the Superseding Indictment should be dismissed because
the jury will be unable to “determine if the alleged weapon was indeed an operable firearm” or
simply “an imitation of one” is irrelevant at this posture. ECF No. 58 at 2. When a defendant moves
to dismiss an indictment for failure to state an offense under Federal Rule of Criminal Procedure
12(b)(3)(B)(y), the court is “limited to reviewing the face of the indictment” and must presume
that the allegations are true. Payne, 382 F. Supp. 3d at 73 (quoting Millie, 289 F. Supp. 3d at 193).
Thus, at this stage, the Court must assume that Lewis indeed possessed a black handgun, See ECF
No. 23 at 7. Whether this is in fact true is an issue for a jury, not one that can be resolved in a
motion to dismiss. For these reasons, Lewis’s motion to dismiss the Superseding Indictment due
to a pleading defect in Count 12 fails.
B. The Court Will Grant in Part and Deny in Part Lewis’s Motion to Sever Counts 12,
13, and 15
Lewis also moves to sever Count 12 (unlawful possession of a firearm), Count 13
(attempting to obstruct the enforcement of § 1591), and Count 15 (assault). ECT No. 59. He argues
16
that these counts were improperly joined under Rule 8(a) because they are “unrelated,”
“inapposite,” and “separate” from the other crimes charged. Jd. at 2. Lewis also argues that
severance is proper under Rule 14(a) because joining these counts with the others charged in the
Superseding Indictment would cause him prejudice. /d. For the reasons explained below, the Court
holds that Counts 12 and 13 were properly joined under Rule 8(b)’ and that severance of those
counts under Rule 14(a) is unnecessary. Count 15, however, was not properly joined under Rule
8(b) and thus will be severed for a separate trial.
i. Counts 12 and 13 Were Properly Joined Under Rule 8(b)
As explained above, joinder of offenses in a multidefendant case is proper when the
offenses are part of the “same series of acts or transactions.” Fed. R. Crim. P. 8(b). Said differently,
the “acts or transactions” underlying the offenses charged must share “a logical relationship.”
Perry, 731 F.2d at 990. Here, the conduct alleged in Counts 12 and 13 is part of the same series of
acts (ie., the sex trafficking of Z.S. and T.H.Y.) that gave rise to the other charges in the
Superseding Indictment.
First, the charge for unlawfully possessing a firearm under 18 U.S.C. § 922(g)(1) was
properly joined with the others because Lewis is alleged to have used a firearm to carry out his
sex-trafficking venture. In their statements to law enforcement, both Z.S. and T.H.Y. reported that
Lewis “carried a handgun with him in a black backpack that he always had with him.” ECF No.
1-1 at 6; accord id. at 10. T.H.Y. further explained that Lewis used the gun “to threaten and
2 Both parties assume that Rule 8(a) governs Lewis’s claim that Counts 12, 13, and 15 were improperly
joined. See ECF No. 59 at 1-2; ECF No. 67 at 4. As explained above, however, the D.C. Circuit has held
that Rule 8(b), not Rule 8(a), governs the joinder of offenses in a multidefendant case. See, e.g., Brown,
16 F.3d at 427. Yet even if Rule 8(a) did apply, the outcome today would be the same. The D.C. Circuit’s
Rule 8(b) test for joinder of offenses in multidefendant cases is more difficult to mect than the standard for
joinder of offenses set forth in Rule 8(a). See Suggs, $31 F. Supp. 2d at 27. Thus, the Court’s holding that
joinder of offenses is proper under Rule 8(b) means that joinder would likewise be proper under Rule 8(a).
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intimidate” the girls. Jd. at 12. For example, on one occasion, T.H.Y. woke to find that Lewis had
placed the gun under her pillow. /d. at 13. Because Lewis allegedly used a gun to maintain control
over Z.S. and T.H.Y. during the time he trafficked them, the charge for unlawful possession of a
firearm is logically related to the sex-trafficking charges in the Superseding Indictment. Indeed,
Counts 1 and 2 allege that Lewis sex trafficked Z.S. and T.H.Y. by, among other means, “threats
of force.” ECF No. 23 at 2-3. For these reasons, the Court holds that Count 12 was properly joined
under Rule 8(b),
Next, the obstruction-of-enforcement charge was properly joined under Rule 8(b) as well.
Count 13 alleges that approximately two months after the alleged sex trafficking of Z.S. and
T.H.Y. ended, Lewis “attempted to obstruct, interfere with and prevent enforcement of [18 U.S.C.
§ 1591], which prohibits sex trafficking of minors and sex trafficking by force, fraud, or coercion”
in violation of 18 U.S.C. § 1591(d). ECF No. 23 at 7. Lewis’s alleged attempt to obstruct
enforcement of 18 U.S.C. § 1591—the federal law prohibiting sex trafficking—is unmistakably
related to the underlying sex-trafficking charges. In fact, the D.C. Circuit has explicitly recognized
that there is a logical relationship between one charge alleging the attempted concealment of
criminal activity and a second charge alleging the criminal activity itself. See Perry, 731 F.2d at
990. Lewis’s argument that Count 13 was improperly joined because it occurred months after most
of the other charges is thus unpersuasive. See ECF No. 59 at 2.
ii. Severance of Counts 12 and 13 is Not Warranted Under Rule 14
Although the Court finds that joinder of Counts 12 and 13 is proper under Rule 8(b), the
inquiry does not end there. See Zafiro, 506 U.S. at 539. Under Rule 14(a), severance could still be
appropriate if the joinder of offenses causes Lewis prejudice. See Fed. R. Crim, P. 14(a) (“If the
joinder of offenses... in an indictment... appears to prejudice a defendant . . . the court may
order separate trials of counts . . . or provide any other relief that justice requires.”). As the party
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secking severance, Lewis “‘carries the burden of demonstrating prejudice resulting from a failure
to sever.” Gooch, 665 F.3d at 1336.
To meet this burden, Lewis argues that joining Count 12 (unlawful possession ofa firearm)
and Count {3 (attempting to obstruct the enforcement of 18 U.S.C. § 1591) with the other offenses
charged in the Superseding Indictment will prejudice him because of the likelihood that a jury will
impermissibly cumulate all evidence and infer criminal disposition to find guilt. Jd. at 4. Because
of these risks, Lewis says, he will not have a fair trial on Counts 12 or 13 if they are tried alongside
the other charges. /d.
Yet given the nature and circumstances of the offenses charged, neither of these risks is as
great as Lewis suggests. First, if Lewis were tried separately for attempting to obstruct the
enforcement of 18 U.S.C. § 1591, evidence of Lewis’s conduct underlying the alleged violation of
18 U.S.C. § 1591(a) would undoubtedly be admissible. The Superseding Indictment alleges that
“(bJetween on or about July 30, 2019, and September 9, 2019,” Lewis “attempted to obstruct,
interfere with, and prevent enforcement of [18 U.S.C. § 1591(d)].” ECF No. 23 at 7. Section
1591(d), in turn, penalizes any person who “obstructs, attempts to obstruct, or in any way interferes
with or prevents the enforcement of this section.” 18 U.S.C. § 1591(d). To show that Lewis
atlempted to obstruct the enforcement of 18 U.S.C. § 1591(a), then, the Government must
introduce evidence of the underlying violation. Accordingly, “the prejudice that might result from
the jury’s hearing the evidence of the other crime in a joint trial would be no different from that
possible in separate trials.” Drew, 331 F.2d at 90.
As for Count 12 (unlawful possession of a firearm), any risk of prejudice from a joint trial
is mitigated by the fact that a jury will be able to keep the evidence relevant to the firearm charge
separate and distinct from the other offenses. See Daniels, 770 F.2d at 1117. ‘lo show that Lewis
19
unlawfully possessed a firearm in violation of 18 U.S.C. § 922(g)(1), the Government must prove
beyond a reasonable doubt that (1) Lewis knowingly possessed a firearm; (2) the firearm was
transported in interstate commerce; (3) at the time of the possession, Lewis was previously
convicted of a felony; and (4) at the time of possession, Lewis knew of his status as a convicted
felon. United States v. Boyd, 803 F.3d 690, 692 (D.C. Cir. 2015); Rehaif v. United States,
139 S. Ct. 2191, 2200 (2019). The evidence required to establish these elements does not overlap
with evidence of the other crimes charged. Thus, the Court presumes that a jury can keep the
evidence of the firearm charge separate and distinct, which mitigates any prejudice caused by a
joint trial. See Daniels, 770 F.2d at 1117; Drew, 331 F.2d at 91.
For thes¢ reasons, the Court will deny Lewis’s request to sever Counts 12 and 13 from the
other offenses charged in the Superseding Indictment. See ECF No. 59.
ili. Joinder of Count 15 is Improper Under Rule 8(b)
The Court does find, however, that Count 15 was improperly joined under Rule 8(b).
Count 15 alleges that approximately two months before Lewis’s alleged sex trafficking of Z.S. and
T.H.Y. began, Lewis assaulted a woman named GR. who later became one of Lewis’s
co-conspirators in the venture that trafficked Z.S. and T.H.Y. ECF No. 23 at 8; see ECF No, 102
at 2. In its bill of particulars, the Government described the conduct giving rise to Count 15 as
follows:
According to MM, on February 1, 2019, Lewis was working at
the Crimson restaurant on H Street in Washington, D.C. in a security
role. Lewis brought ees) to the Crimson restaurant to engage in
vicking up a date for commercial sex. When the interaction between
aa the potential customer did not go as Lewis directed,
Lewis physically assaulted incall in front of his colleagues,
ECF No. 102 at 3.
20
To establish a logical relationship between the alleged assault and Lewis’s sex trafficking
of Z.S. and T.H.Y., the Government argues that this assault was just another instance of Lewis
using force to further his sex-trafficking business. See ECF No. 67 at 3. As the Government puts
it, “the assault that occurred on February 1, 2019 was part of a continuing pattern of abuse and
intimidation of IMJ by [Lewis].” Jd. “This was not the first time that [Lewis] physically
assaulted ae — and it would not be the last. [Lewis] used ongoing threats and assaultive
behavior to control MM.” Jd Additionally, the Government says, “both minors witnessed
[Lewis] on later occasions continue the assaults of (esi and were aware that if they did not
comply with his demands to engage in commercial sex and demonstrate their loyalty to him, they
would meet the same fate.” Ja.
The problem with the Government’s theory is that the alleged assault has nothing to do
with the sex-trafficking venture charged in the Superseding Indictment, which involved the
defendants’ trafficking of Z.S. and T.H.Y. See ECF No. 23 at 1-8. According to the Government,
Lewis was apparently trafficking [not Z.S. and T.H.Y.—when he assaulted her. See ECF
No. 102 at 3. Had the Government charged Lewis with trafficking GE during the time he was
trafficking Z.S. and T.H.Y., his assault of BR would be logically related to the other counts in
the Superseding Indictment. But without such allegations, Lewis’s use of “assaultive behavior to
contro] J while trafficking WE is merely similar—-but is not related—to his trafficking
of Z.S. and T.H.Y. by means of force. See Perry, 731 F.2d at 990 (holding that Rule 8(b) cannot
be “read to embrace similar or even identical offenses, unless those offenses are related”)
(emphases added). Accordingly, Count 15 docs not share a logical relationship with the other
offenses charged in the Superseding Indictment, which stem from Lewis’s sex trafficking of Z.S.
21
and T.H.Y. See ECF No. 23 at 1-8. Joinder is thus improper under Rule 8(b), so the Court will
grant Lewis’s motion to sever, ECF No. 59, with respect to Count 15.
IV. CONCLUSION
For the reasons explained above, the Court will DENY Lewis’s motion to dismiss Counts
1-4 and 12 of the Superseding Indictment, ECF No. 58. It will further GRANT IN PART and.
DENY IN PART Lewis’s motion to sever Counts 12, 13, and 15 from the other offenses charged
in the Superseding Indictment, ECF No. 59. While Counts 12 and 13 were properly joined,
Count 15 was not. Accordingly, the Court will ORDER that Count 15 be severed from the
Superseding Indictment, ECF No. 23, and tried separately.
A separate Order consistent with this Memorandum Opinion shall follow.
Date: June ft, 2021 "Ae A eet
Hon, Royce C. Lamberth
United States District Judge
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