United States v. Anthony Donte Collier , 932 F.3d 1067 ( 2019 )

United States Court of Appeals
For the Eighth Circuit
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No. 18-1025
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United States of America
lllllllllllllllllllllPlaintiff - Appellee
v.
Anthony Donte Collier
lllllllllllllllllllllDefendant - Appellant
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Appeal from United States District Court
for the District of North Dakota
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Submitted: May 15, 2019
Filed: August 1, 2019
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Before BENTON, WOLLMAN, and GRASZ, Circuit Judges.
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GRASZ, Circuit Judge.
Anthony Donte Collier was convicted in the district court1 of five counts of sex
trafficking and attempted sex trafficking, in violation of 18 U.S.C. §§ 1591(a)(1),
1
The Honorable Ralph R. Erickson, Circuit Judge, United States Court of
Appeals for the Eighth Circuit, sitting by designation at the time of judgment, was a
United States District Judge for the District of North Dakota during the trial in this
matter.
1591(b)(1), and 1594(a); and one count of conspiracy to commit an offense against
the United States, specifically facilitating the promotion and management of a
business enterprise involving prostitution, in violation of 18 U.S.C. § 371. Collier
filed an appeal and we affirm.
I. Background
Collier was on supervised release in Minnesota for a prior state crime when his
supervising officials learned he was engaging in the business of prostitution. Collier
was arrested at the request of a supervising official, who then conducted a warrantless
search of Collier’s cell phone. Local police later secured a warrant to search all of
Collier’s electronic devices. Further investigation led officials to believe that Collier
had been forcing several women to engage in commercial sex acts and give him the
proceeds from those acts. Following a jury trial, Collier was convicted of conspiracy,
interstate and foreign travel or transportation in aid of racketeering enterprises, sex
trafficking, and attempted sex trafficking.
II. Analysis
Collier raises numerous issues on appeal, including denial of his motion to
suppress; improper jury instructions; denial of his right to counsel; various
evidentiary and witness errors; violation of due process rights; judicial bias; and the
denial of his motion to dismiss based on the sufficiency of the evidence. For the
reasons discussed below, we find each contention ultimately fails.
A. Search of Collier’s Cell Phone
Collier alleges the district court erred in denying his motion to suppress
evidence gained from the search of his cell phone. The phone was searched without
a warrant during Collier’s arrest. In reviewing the denial of a motion to suppress
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evidence, “[w]e review the district court’s findings of fact under the clearly erroneous
standard, and the ultimate conclusion of whether the Fourth Amendment was violated
is subject to de novo review.” United States v. Williams, 777 F.3d 1013, 1015 (8th
Cir. 2015) (quoting United States v. Stephenson, 924 F.2d 753, 758 (8th Cir. 1991)).
“A warrantless search is per se unreasonable under the Fourth Amendment
absent a recognized exception.” United States v. Brooks, 715 F.3d 1069, 1075 (8th
Cir. 2013). Courts “‘examin[e] the totality of the circumstances’ to determine
whether a search is reasonable within the meaning of the Fourth Amendment.”
Samson v. California, 547 U.S. 843, 848 (2006) (quoting United States v. Knights,
534 U.S. 112, 118 (2001)). “[T]o determine whether the Fourth Amendment forbids
a search, we weigh the degree to which a search intrudes upon an individual’s
reasonable expectation of privacy against the degree to which the government needs
to search to promote its legitimate interests.” United States v. Brown, 346 F.3d 808,
811 (8th Cir. 2003).
The district court denied Collier’s motion to suppress evidence discovered as
a result of the warrantless search of his phone. As to the cell phone search by the
supervising official (Agent Welle), the district court held that Collier had a reduced
expectation of privacy while on supervised release and was subject to Standard
Condition of Supervised Release No. 13, which provided that Collier “must submit
at any time to an unannounced visit and/or search of [his] person, vehicle, or premises
by the agent/designee.” The district court found that Welle was not acting as an agent
for the police. Collier’s computer and other cell phones were also permissibly seized
the following day, given that these items could have been searched because of
Collier’s reduced expectation of privacy.
Collier argues the Supreme Court’s decision in Riley v. California, 573 U.S.
373 (2014), forbade the warrantless search of his cell phone at the time of his arrest.
Although Riley held that police officers must generally obtain a warrant before
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searching a cell phone seized incident to arrest, see id. at 386, this court has
recognized “Riley addressed privacy interests of an arrestee, not the circumscribed
interests of an offender serving a term of supervised release.” United States v.
Jackson, 866 F.3d 982, 985–86 (8th Cir. 2017). This court has said “supervised
release . . . involves ‘the most circumscribed expectations of privacy.’” Id. at 985
(quoting United States v. Makeeff, 820 F.3d 995, 1001 (8th Cir. 2016)). Searches of
a person on supervised release further “substantial interests in preventing recidivism
and facilitating an offender’s reentry into the community.” Id.
On the night of the search, Agent Welle requested an arrest warrant after failing
to find Collier at the location where he was supposed to be and called the Moorhead
police to arrest him. Additionally, Agent Welle testified he searched the phone to
verify Collier’s whereabouts that evening and he conducted the search on his own
volition.
We hold Agent Welle’s search was reasonable under these circumstances,
where Collier was on restrictive supervised release2 and suspected of engaging in
illicit activities. In Knights, the Supreme Court explained that “reasonable suspicion”
of a probationer’s criminal activity can justify searching even a probationer’s home,
and that part of the government’s justified concern is that a probationer “will be more
likely to engage in criminal conduct than an ordinary member of the community.”
534 U.S. at 121. Collier was also on sufficient notice, due to the conditions of his
supervised release.3 See Jackson, 866 F.3d at 985 (noting Jackson “was on clear
2
Although Collier was under state supervised release, we see no reason to
distinguish this search from one conducted while on federal supervised release. We
note Collier was on Minnesota’s “Intensive Supervised Release” program and subject
to 24-hour supervision by multiple supervised release agents.
3
Agent Welle also testified he transported Collier to a Minnesota Department
of Corrections (“DOC”) house following incarceration and that it was his common
practice to inform persons on supervised release that supervising agents could search
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notice that he was subject to the suspicionless search” while on supervised release).
Therefore, under the totality of circumstances Collier did not have a reasonable
expectation of privacy in the cell phone. As this search did not violate the Fourth
Amendment, the district court did not err in denying Collier’s motion to suppress.
B. Jury Instructions
Collier raises two main issues with respect to the jury instructions: first, he
argues the court’s jury instructions did not properly reflect the statute’s mens rea
requirements and they constructively amended the indictment; second, he argues the
district court improperly included a willful blindness jury instruction. We find both
of these claims are without merit.
Collier acknowledges that because he failed to object to the jury instruction for
the first claim, this court reviews for plain error. United States v. Fast Horse, 747
F.3d 1040, 1041 (8th Cir. 2014) (reviewing for plain error when the defendant “did
not explicitly object to the relevant jury instruction”). Plain error exists where there
is “ (1) an error, (2) that was ‘plain,’ (3) ‘affects substantial rights,’ and (4) ‘the error
seriously affects the fairness, integrity or public reputation of judicial proceedings.’”
Id. at 1042 (quoting United States v. Rush-Richardson, 574 F.3d 906, 910 (8th Cir.
2009)).
Collier argues that jury instructions for his federal sex trafficking offenses
(which must be committed “knowingly”) failed to include a mens rea requirement for
the criminal element requiring the conduct be committed “in or affecting interstate
their computers and cell phones. Furthermore, Minnesota DOC Division Directive
201.017 expressly authorized a search of Collier’s cell phone if there were
“reasonable grounds” to believe he was violating a condition of his supervised
release.
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or foreign commerce.” 18 U.S.C. § 1591(a)(1). “The Supreme Court has stated that
courts ‘ordinarily read a phrase in a criminal statute that introduces the elements of
a crime with the word “knowingly” as applying that word to each element.’” United
States v. Bruguier, 735 F.3d 754, 758 (8th Cir. 2013) (en banc) (quoting Flores-
Figueroa v. United States, 556 U.S. 646, 652 (2009)). However, “[t]he Supreme
Court has [also] explained “that situations where the term ‘knowingly’ does not apply
to all elements that follow it ‘typically involve special contexts or . . . background
circumstances that call for such a reading.’” Id. (quoting same).
A number of other circuits4 have already rejected the proposition that
“knowingly” in 18 U.S.C. § 1591(a)(1) modifies “interstate or foreign commerce,”
and no circuit holds to the contrary. We join these circuits in concluding that
“knowingly” does not apply to the interstate commerce element. This is consistent
with our precedent holding that a mens rea requirement does not apply to the
interstate commerce element in 18 U.S.C. § 922(g) (prohibiting felons from
possessing firearms or ammunition). See United States v. Garcia-Hernandez, 803
F.3d 994, 997 (8th Cir. 2015). In Garcia-Hernandez, we noted “[t]he interstate
commerce nexus . . . merely provides the basis for federal jurisdiction, and knowledge
of this element is not required.” Id. (quoting United States v. Thompson, 365 F.
App’x 42, 43 (8th Cir. 2010) (unpublished)). Therefore, we find the district court
4
See United States v. Baston, 818 F.3d 651, 662 (11th Cir. 2016); United
States v. Chang Ru Meng Backman, 817 F.3d 662, 667 (9th Cir. 2016) (noting the
interstate nexus element grammatically does not tie to “knowingly”); United States
v. Sayer, 733 F.3d 228, 230 (7th Cir. 2013) (“[T]his court and others have concluded
time and again that the interstate and foreign commerce elements in many other
criminal statutes have no mens rea requirements.”); see also United States v. Corley,
679 F. App’x 1, 6 (2d Cir. 2017) (unpublished); United States v. Phea, 755 F.3d 255,
265 (5th Cir. 2014) (holding jury instruction not requiring knowledge of the interstate
nexus element in § 1591(a)(1) was not plainly erroneous).
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correctly declined to apply knowingly to “interstate or foreign commerce” under 18
U.S.C. § 1591(a)(1).
Relatedly, Collier argues the jury instructions constructively amended his
indictment. “A constructive amendment occurs when the essential elements of the
offense charged in the indictment are altered in such a manner . . . that the jury is
allowed to convict the defendant of an offense different from or in addition to the
offenses charged in the indictment.” United States v. Whirlwind Soldier, 499 F.3d
862, 870 (8th Cir. 2007). Since the indictment did not apply the mens rea element to
the interstate nexus phrase, the jury instructions were consistent and thus no
constructive amendment occurred.
Collier also argues the district court erred by instructing the jury that 18
U.S.C. § 1591 merely required it to find Collier knew means such as force or coercion
“would cause” his victims to engage in commercial sex acts without requiring it to
find Collier himself used such means. This argument is meritless. The district court’s
instruction accurately reflected the statute’s text — phrased in the present tense —
prohibiting a person from “recruit[ing], entic[ing], harbor[ing], etc., a victim
“knowing” means such as force or coercion “will be used to cause” victims to engage
in such acts. 18 U.S.C. § 1591(a). Both the instruction and the statute require that
Collier, who “recruit[ed], entic[ed], harbor[ed],” etc., his victims under §1591(a)(1),
knew such means would be an instrumental cause in requiring his victims to engage
in commercial sex acts, whether it was Collier himself or a third party who would use
such means. Regardless, even if the jury instructions’ use of the phrase “would
cause” was technically erroneous, under plain error review Collier has not shown the
error was plain or affected his substantial rights.5
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We also reject Collier’s argument that this instruction constructively amended
the indictment because Collier acknowledges the indictment accurately reflected the
statute in this respect, and, as we have explained, the jury instructions were consistent
with the statute.
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As to Collier’s claim challenging the district court’s willful blindness
instruction, we review for abuse of discretion and will affirm “[i]f the instructions,
taken as a whole, fairly and adequately submitted the issues to the jury.” United
States v. Whitehill, 532 F.3d 746, 751 (8th Cir. 2008) (quoting United States v. Lalley,
257 F.3d 751, 755 (8th Cir. 2001)) (alteration in original). Collier argues that “[i]n
this case, the evidence pointed only to actual knowledge or no knowledge” and that
the government did not show he deliberately failed to make further inquiries with the
intent to remain ignorant. Collier contends without such deliberate failures, the
willful blindness instruction should not be given. However, “[a] willful blindness
instruction is appropriate when the defendant asserts a lack of guilty knowledge, but
the evidence supports an inference of deliberate ignorance.” Id. (quoting United
States v. Gruenberg, 989 F.2d 971, 974 (8th Cir. 1993)). Where there is sufficient
evidence to support the instruction, “the jury may consider willful blindness as a basis
for knowledge.” Id. Here, Collier asserted a lack of knowledge and the evidence the
government presented was sufficient to support a willful blindness instruction.
Victims testified that Collier instructed them to perform “extra” services for money,
he took the money they received for these acts, and he would watch customers grab
the victims’ private parts to ensure the customers were not undercover police. This
evidence supports at least an inference of deliberate ignorance, if not knowledge.
Given these facts, the district court did not abuse its discretion in instructing the jury
it could find the knowledge element satisfied by a finding of willful blindness.
C. Right to Counsel
Collier argues the district court erred in denying his motion to continue the trial
for the purpose of obtaining new counsel and asserts his waiver of counsel was
therefore involuntary. We review this issue for abuse of discretion. United States v.
Buck, 661 F.3d 364, 372 (8th Cir. 2011). A criminal defendant is not entitled to an
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attorney of his choosing. Id. at 372. And “last minute requests to substitute counsel
must not be allowed to become a tactic for delay.” United States v. Cordy, 560 F.3d
808, 816 (8th Cir. 2009) (quoting United States v. Swinney, 970 F.2d 494, 499 (8th
Cir. 1992)). Collier claims that his attorney’s remark, “I end up so distracted that I’m
missing things,” suggests he was not prepared. However, this remark is quoted out
of context. His attorney explained to the court he was distracted by Collier’s
behavior during trial and consequently was missing the witnesses’ testimony. Collier
did not request a continuance for the purpose of obtaining new counsel until the third
day of the trial (even though a week before the trial Collier moved for continuance
so he could act as co-counsel). Therefore, the district court did not abuse its
discretion by denying Collier’s motion to continue.
While we review de novo a district court’s decision to allow a defendant to
proceed pro se, United States v. Turner, 644 F.3d 713, 720 (8th Cir. 2011), the record
clearly establishes Collier voluntarily waived his right to counsel under the Sixth
Amendment. A defendant’s “decision to represent himself [will not be] rendered
involuntary simply because the court required him to choose between qualified
counsel and self-representation.” Buck, 661 F.3d at 373 (quoting United States v.
Mentzos, 462 F.3d 830, 839 (8th Cir. 2006)). Multiple Faretta6 hearings were held
where the court repeatedly warned Collier of the dangers in proceeding pro se, but
Collier maintained a desire to represent himself on each occasion. There was no
“Hobson’s choice” since Collier’s counsel was prepared to try the case. Although
Collier’s counsel wondered how long he could continue doing “these kind of long
trials” and this case had “taken way more time” than all but one of his previous cases,
he stated he was prepared and ready to go. As there is no challenge to the district
6
Faretta v. California, 422 U.S. 806, 835 (1975) (requiring a hearing following
a request to proceed pro se to ensure the defendant is “knowingly and intelligently”
waiving counsel and is informed of the “dangers and disadvantages of self-
representation”).
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court’s conduct of the Faretta hearings, Collier’s waiver of his Sixth Amendment
right to counsel was not involuntary.
D. Other Alleged Trial Errors
Collier argues the district court committed a number of other errors at trial,
including: failing to take remedial steps after a violation of a sequestration order,
improperly excluding evidence, violating his due process rights when the court seized
his computer, and showing judicial bias. These alleged errors are reviewed for abuse
of discretion. See Akins v. Knight, 863 F.3d 1084, 1086 (8th Cir. 2017) (reviewing
recusal decisions); Buck, 661 F.3d at 372 (reviewing a denial of a request for
substitute counsel); United States v. Camacho, 555 F.3d 695, 702 (8th Cir. 2009)
(reviewing sequestration orders); United States v. Elbert, 561 F.3d 771, 775 (8th Cir.
2009) (reviewing evidentiary rulings); Executive Air Taxi Corp. v. City of Bismarck,
518 F.3d 562, 569 (8th Cir. 2008) (reviewing discovery matters). Collier also argues
there was insufficient evidence to support convictions on two of his sex-trafficking
counts, and we review this issue de novo. United States v. Paul, 885 F.3d 1099, 1101
(8th Cir. 2018). We turn to the alleged discretionary errors first.
1. Sequestration Order
Collier argues the government violated the district court’s sequestration order
and failed to take corresponding remedial steps when a government witness and the
government’s designated representative allegedly talked to a third government
witness, Victim 3, during a break in the latter’s direct testimony. While Federal Rule
of Evidence 615 authorizes the district court to sequester witnesses, “sequestration
orders . . . do not forbid all contact with all trial witnesses at all times,” unless
otherwise specified. United States v. Engelmann, 701 F.3d 874, 877 (8th Cir. 2012).
Even if Collier could prove the government violated the sequestration order, Collier
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has not shown he was actually prejudiced as a result. See United States v. Kindle, 925
F.2d 272, 276 (8th Cir. 1991) (“We will only reverse” a district court’s failure to
remedy a party’s violation of a sequestration order “if evidence of clear prejudice
indicates the trial court’s ruling was an abuse of discretion”). While Collier argues
Victim 3’s testimony changed tracks after the break, the record contradicts this
argument. Victim 3’s testimony before and after the break concerned Collier’s
abusive treatment toward her for failing to meet his standards and does not indicate
her conversations with government officials prejudiced Collier. Cf. id. (“There was
no showing made that the contact resulted in the tailoring of witness testimony to that
of earlier witnesses or the development of less than candid testimony which Rule 615
seeks to prevent.”). Therefore, the district court did not abuse its discretion in
refusing to find a violation of the sequestration order.
2. Exclusion of Evidence
Collier asserts the district court improperly excluded evidence regarding
Victim 2’s previous involvement in prostitution. However, Rule 412 and previous
Eighth Circuit precedent forecloses this argument. See Fed. R. Evid. 412; United
States v. Roy, 781 F.3d 416, 420 (8th Cir. 2015) (holding a “victim’s participation in
prostitution either before or after the time period in the indictment has no relevance
to whether [the defendant] beat her, threatened her, and took the money she made
from prostitution in order to cause her to engage in commercial sex”). Under Rule
412 and Roy, the district court properly excluded this evidence.
3. Due Process
Collier intermittently represented himself throughout the course of the trial.
He claims he was denied due process in that his ability to cross examine witnesses
was impaired when the district court seized his computer during trial. We conclude
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the district court did not abuse its discretion. The computer was only seized after the
court became aware Collier was using the computer to record witness testimony. Due
to allegations of witness tampering7 and threatening of witnesses, the court reasoned
the witness’s “safety may be in jeopardy.” After the seizure, the court made
arrangements for Collier to access e-discovery files on his standby counsel’s
computer and on his own hard drive in the presence of a marshal. Further, Collier has
not shown how the district court’s action impeded his ability to examine witnesses.
See United States v. Kind, 194 F.3d 900, 905 (8th Cir. 1999) (finding a pro se
defendant’s due process rights were not violated because the defendant could not
show his defense at trial was prejudiced). The district court properly balanced those
interests here and did not abuse its discretion in seizing Collier’s computer.
4. Judicial Bias
Collier argues the district court erred in denying a motion for mistrial and not
recusing himself from the sentencing proceeding after Collier alleged judicial bias.
To support the bias claim, Collier cites moments in the transcript where the district
court “was speaking harshly to Collier.” However, in Liteky v. United States, the
Supreme Court held “judicial remarks during the course of a trial that are critical or
disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do
not support a bias or partiality challenge.” 510 U.S. 540, 555 (1994). An opinion
that derives from an “extrajudicial source” or reflects favoritism or antagonism to
such a high degree that makes “fair judgment impossible” could support a bias
challenge. Id. However, Liteky specifically states “expressions of impatience,
dissatisfaction, annoyance, and even anger” do not establish bias or partiality. Id. at
555–56. Here, the judge’s comments, at most, fall under the category of impatience,
dissatisfaction, and annoyance. Following a comment about Collier’s case being
7
A witness tampering charge was included in the second indictment, but the
jury found Collier not guilty of that charge.
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“stupid” the Judge apologized and stated he had lost his patience and was frustrated.
Collier provides no evidence the district court’s opinion derives from an extrajudicial
source, and the comments were not to such a degree that would make fair judgment
impossible. Therefore Collier’s judicial bias claim fails.
5. Sufficiency of Evidence
Collier claims there was insufficient evidence to support convictions for
Counts Five (sex trafficking of Victim 4, a minor) and Six (sex trafficking of Victim
5). In reviewing this issue de novo, we “view[] the evidence in the light most
favorable to the jury’s verdict, resolv[e] conflicts in the government’s favor, and
accept[] all reasonable inferences that support the verdict.” Paul, 885 F.3d at 1101
(quoting United States v. Tillman, 765 F.3d 831, 833 (8th Cir. 2014)).
As to Count Five, sex trafficking of a minor, Collier argues there was
insufficient evidence because the victim said she never actually engaged in
commercial sex. However, this court has previously rejected an identical argument,
explaining that 18 U.S.C. § 1591(a) “criminalizes knowingly undertaking activities,
such as harboring and transporting a minor . . . knowing that a person under the age
of eighteen will be caused to engage in a commercial sex act.” Paul, 885 F.3d at
1103. As the statute requires knowing only that a person “will be caused to engage
in a commercial sex act” at some point in the future, the fact the victim never actually
engaged in commercial sex is irrelevant. 18 U.S.C. § 1591(a). Therefore, there was
sufficient evidence supporting Collier’s conviction for sex trafficking a minor under
Count Five.
As to Count Six, Collier notes Victim 5 testified she engaged in commercial
sex voluntarily. However, multiple pieces of evidence show Collier used physical
force against Victim 5 to cause her to engage in commercial sex including: a client’s
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testimony that Victim 5 showed up with a black eye, the victim’s own text messages
to Collier asking him not to beat her up because she had more money for him, jail
calls from Collier ordering her to continue prostitution activities to help fund his jail
account, and jail calls Collier made to his brother telling him to keep tabs on Victim
5 and beat her up if necessary. The jury found Victim 5’s personal testimony to the
contrary to be incredible, and findings as to witness credibility are virtually
unassailable on appeal. United States v. Jones, 600 F.3d 985, 990 (8th Cir. 2010).
Therefore, there was sufficient evidence to support the jury’s conviction on Count
Six.
III. Conclusion
For the reasons set forth herein, we affirm.
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