United States v. Dontavious M. Blake

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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-13395
________________________
D.C. Docket No. 9:13-cr-80054-KAM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DONTAVIOUS M. BLAKE,
TARA JO MOORE,
Defendants-Appellants.
________________________
Appeals from the United States District Court
for the Southern District of Florida
________________________
(August 21, 2017)
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Before ED CARNES, Chief Judge, FAY, and PARKER, * Circuit Judges.
ED CARNES, Chief Judge:
After a nine-day trial, a jury found Dontavious Blake and Tara Jo Moore
guilty of child sex trafficking for managing a prostitution ring involving at least
two girls under the age of eighteen. Blake and Moore challenge numerous rulings
the district court made before and during trial, and at sentencing.
I. FACTUAL BACKGROUND
A. Pre-Trial
Blake and Moore had a system for running their prostitution ring. One of
them would post ads for prostitution services on the classifieds website Backpage.
Moore would then take phone calls from potential customers who were responding
to the ads. And Blake would give the prostitutes rides to their appointments and
provide muscle. The money was split 50/50 between the working prostitute on the
one hand and Blake and Moore on the other.
Through a variety of leads, the FBI discovered Blake and Moore’s
prostitution ring. It learned that the Backpage ads had been posted using an email
address (hereafter the “S.B. email address”), which the FBI determined belonged
to Moore. And it found out that at least two girls, known as T.H. and E.P., had
*
Honorable Barrington D. Parker, Jr., United States Circuit Judge for the Second Circuit,
sitting by designation.
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been under the age of eighteen when they engaged in prostitution for Blake and
Moore.
In the wake of those discoveries, the FBI arrested Blake and Moore. It
continued the investigation, executing four post-arrest search warrants relevant to
this appeal. First, it executed a warrant to seize and search electronics in Blake and
Moore’s townhouse, including an “Apple iPad tablet[ ].” Once in possession of
that iPad tablet, however, the FBI found itself unable to access any of the device’s
data due to its security features. So the FBI requested and received a district court
order, issued under the All Writs Act, 28 U.S.C. § 1651(a), requiring the iPad’s
manufacturer, Apple Inc., to assist the FBI in bypassing the iPad’s passcode lock
and other security measures. With Apple’s help, the FBI was able to successfully
unlock the device and download its data.
The second relevant search warrant the FBI executed directed Microsoft,
which owns Hotmail, to turn over emails from two of Blake and Moore’s email
accounts, including the S.B. email account. The Microsoft warrant did not seek all
emails in those two email accounts; instead, it was limited to certain categories of
emails in them that were linked to the sex trafficking charges against Blake and
Moore. For example, the warrant required Microsoft to turn over all “[e]mails,
correspondence, and contact information for Backpage.com” and all “[e]mails and
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correspondence from online adult services websites” that were contained within
the two email accounts.
Finally, the FBI also applied for and received two almost identical search
warrants for Moore’s Facebook account. Because that account was associated with
the S.B. email address and Moore’s phone number, the FBI knew it belonged to
her. At the time it executed the Facebook warrants, the FBI had extensive
evidence linking Moore to the prostitution ring, including statements by T.H.
inculpating her. And Moore’s Facebook account was suggestive of criminal
conduct: the publicly viewable version of the account listed Moore’s occupation
as “Boss Lady” at “Tricks R [U]s.”
The two warrants required Facebook to “disclose” to the government
virtually every type of data that could be located in a Facebook account, including
every private instant message Moore had ever sent or received, every IP address
she had ever logged in from, 1 every photograph she had ever uploaded or been
“tagged” in, every private or public group she had ever been a member of, every
search on the website she had ever conducted, and every purchase she had ever
made through “Facebook Marketplace,” as well as her entire contact list. The
disclosures were not limited to data from the period of time during which Moore
managed the prostitution ring; one warrant asked for all data “from the period of
1
Law enforcement officials can generally use an IP address to determine the physical
location from which an individual logged into Facebook.
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the creation of the account” and the other did not specify what period of time was
requested. The warrants did state that the only information that would be “seized,”
after all that data had been “disclosed” to the FBI, was data that “constitute[d]
fruits, evidence and instrumentalities” of a specified crime.
After the execution of those four warrants, a third superseding indictment
charged Blake and Moore with six violations of 18 U.S.C. § 1591: substantive
child sex trafficking of T.H. (Count 1); substantive child sex trafficking of E.P.
(Count 2); conspiracy to sex traffic children –– T.H. and E.P. (Count 3); two
substantive counts of sex trafficking adults by coercion (Counts 4 and 5); and one
count of conspiracy to sex traffic by coercion (Count 6).
Blake and Moore filed several pre-trial motions relevant to this appeal.
Moore moved to sever Counts 1 through 3, which involved sex trafficking of
children, from Counts 4 through 6, which involved sex trafficking of adults by
coercion. Blake and Moore moved to suppress evidence obtained from the iPad.
And they moved to suppress all the evidence gathered as a result of the search
warrants served on Microsoft and Facebook. The district court denied all of those
motions.
B. Trial and Sentencing
At trial T.H. testified about her time prostituting for Blake and Moore,
starting when she was sixteen years old. To explain why she turned to prostitution,
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T.H. described her difficult upbringing. She explained that her great uncle had
sexually abused her when she was between the ages of five and eight. During that
same period, her parents separated, her father left her life, and her mother fell into
a deep depression, leaving T.H.’s older sister to raise her. That older sister was a
drug addict who physically abused her.
E.P. testified as well. She stated that she called Blake after she found his
business card and started prostituting for him soon thereafter. She was sixteen
when she started — young enough that Blake had to buy her cigarettes. On cross
examination she admitted that she saw Moore only six times “at most.” One of
those times was when Moore spent about twenty minutes taking pictures of her for
a Backpage ad.
The government also called Khrystyna Trejo, an adult prostitute who had
spent time working alongside T.H. and E.P. She testified that, although E.P. had
told her that she was eighteen, E.P.’s way of “approach[ing] certain things” and her
interest in children’s television shows made her seem “younger than what . . . she
said she was.”
In addition to testimony related solely to the child sex trafficking charges,
the government called several witnesses in an attempt to prove its theory that Blake
and Moore “coerced” adult prostitutes by controlling their drug supply, evidence
that went to Counts 4 through 6. Several adult prostitutes testified both to the
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general structure of the prostitution ring and the fact that almost all the money the
prostitutes made was immediately spent buying drugs from Blake. The
government also called an addiction expert who testified about the physical and
neurological characteristics of drug dependency and withdrawal.
At the close of the government’s case in chief, the district court granted
Blake and Moore’s motion for a judgment of acquittal on the adult sex trafficking
by coercion charges (Counts 4 through 6), after finding that the government had
not proven the “coercion” element of the offense. The court instructed the jury not
to “draw any conclusions or inferences one way or the other because [Counts 4
through 6] are no longer involved in the case.”
Blake and Moore did not present any evidence of their own. The jury found
them guilty of the remaining charges — two substantive counts of child sex
trafficking and one count of conspiracy to sex traffic children, and the district court
entered judgment of conviction on those counts.
After applying a number of enhancements, the district court sentenced Blake
to 324 months imprisonment, followed by supervised release for a term of life.
And it sentenced Moore to 180 months imprisonment followed by 240 months
supervised release.
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II. ANALYSIS
A. Severance of Charges
Blake and Moore first challenge the district court’s denial of their motion to
sever the child sex trafficking charges from the sex trafficking by coercion charges.
We review the denial of a motion to sever charges only for an abuse of discretion.
United States v. Barsoum, 763 F.3d 1321, 1336 (11th Cir. 2014). We will not
reverse the district court’s decision unless Blake and Moore “demonstrate that
[they] received an unfair trial and suffered compelling prejudice.” United States v.
Slaughter, 708 F.3d 1208, 1213 (11th Cir. 2013) (quotation marks omitted).
That is a “heavy” burden, id., and Blake and Moore have not carried it. First
of all, a significant part of the testimony underlying the sex trafficking by coercion
charges was also relevant to the child sex trafficking charges. For example, in
closing arguments Blake’s counsel argued that the only T.H. Backpage ad
presented at trial was posted under the category of “body rubs” (as opposed to
under the “escorts” category), indicating that T.H. had not engaged in prostitution.
But given the testimony of some of the adult prostitutes that Blake and Moore
generally used Backpage to advertise prostitution, the jury could have inferred that
the T.H. ad was actually for commercial sex acts, whatever category it was posted
under. Similarly, the testimony of the adult prostitutes that Moore handled
interactions with customers undermined her argument that she was not a co-
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manager of the conspiracy. Because much of the evidence presented in connection
with the sex trafficking by coercion charges could have been and likely would have
been presented even if the trial had involved only the child sex trafficking charges,
Blake and Moore did not suffer “compelling prejudice” from having the charges
tried together. 2
Blake and Moore argue that, even if the evidence was generally relevant to
both sets of charges, the inflammatory nature of the sex trafficking by coercion
charges resulted in compelling prejudice. We disagree. Sex trafficking by
coercion is an abhorrent crime, but so is child sex trafficking. And there is no
compelling prejudice where both sets of charges are inflammatory. See United
States v. Hersh, 297 F.3d 1233, 1243 (11th Cir. 2002) (holding that there was no
compelling prejudice where “a reasonable jury undoubtedly would have found
both the evidence of [the defendant’s] child molestation and the evidence of [his]
child pornography very inflammatory”). The district court’s denial of Blake and
Moore’s motion to sever was not an abuse of discretion.
B. The Bypass Order
Blake and Moore next contend that the order requiring Apple to assist in
bypassing the iPad’s security features — what we will call the “bypass order” —
2
The government concedes that the addiction expert’s testimony may not have been
relevant to the child sex trafficking charges. That testimony, however, did not cause compelling
prejudice and did not make Blake and Moore’s trial “unfair.” See Slaughter, 708 F.3d at 1213.
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exceeded the authority granted by the All Writs Act. As a threshold matter, we
must address whether Blake and Moore have standing to make this challenge.
They satisfy the three requirements of constitutional standing because they
“(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct
. . . and (3) that is likely to be redressed by a favorable judicial decision.” Spokeo
v. Robins, 578 U.S. __, 136 S. Ct. 1540, 1547 (2016). Specifically, they were
injured because the evidence gathered as a result of the bypass order was used to
convict them. That injury is fairly traceable to the government’s request for and
the district court’s issuance of the bypass order. And if a court ruled in their favor
on the All Writs Act issue, and if a court further ruled that suppression was the
proper remedy for the violation of the All Writs Act, Blake and Moore’s injury
would be redressed.3
In addition to the three constitutional standing requirements, “the Supreme
Court has held that prudential requirements pose additional limitations on
standing.” Wolff v. Cash 4 Titles, 351 F.3d 1348, 1353 (11th Cir. 2003). One of
those prudential limitations is the rule that a litigant “generally must assert his own
legal rights and interests, and cannot rest his claim to relief on the legal rights or
3
It is an open question whether suppression would have been the proper remedy if the
district court had found that the bypass order violated the All Writs Act. But as long as a litigant
has a nonfrivolous claim that a requested remedy could be awarded by the court, he has satisfied
the redressability prong of constitutional standing if that remedy would redress his injury. See
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 108 n.9, 118 S. Ct. 1003, 1019 n.9 (1998).
Whether or not they would ultimately be entitled to suppression, Blake and Moore’s request for
that remedy if they prevail is not frivolous.
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interests of third parties.” Warth v. Seldin, 422 U.S. 490, 499, 95 S. Ct. 2197,
2205 (1975); see also Craig v. Boren, 429 U.S. 190, 193, 97 S. Ct. 451, 455 (1976)
(explaining that the limitation on asserting third parties’ rights is not
“constitutionally mandated” but instead “stem[s] from a salutary rule of self-
restraint”) (quotation marks omitted). Here, Blake and Moore are attempting to
invoke All Writs Act protections, such as its restriction that any burden imposed on
a third party not be “unreasonable,” that shield third parties like Apple, not
criminal defendants. See United States v. N.Y. Tel. Co., 434 U.S. 159, 171, 98 S.
Ct. 364, 372 (1977). In other words, they are attempting to assert Apple’s legal
rights, not their own. 4
There are exceptions to the rule that a litigant can’t assert a third party’s
rights, see, e.g., Craig, 429 U.S. at 192–94, 97 S. Ct. at 454–55 (holding that a beer
4
The government couches its argument on this point in terms of “Fourth Amendment
standing,” a similar but analytically distinct limitation that applies only when a defendant is
challenging a search or seizure on Fourth Amendment grounds. See Rakas v. Illinois, 439 U.S.
128, 139, 99 S. Ct. 421, 428 (1978) (explaining that Fourth Amendment standing is part of
substantive Fourth Amendment law and is “separate” from the more general concept of
standing). To the extent that Fourth Amendment standing applies to Blake and Moore’s All
Writs Act challenge, they do have it. In order to have the standing required to claim protection
of the Fourth Amendment, “the person invoking the protection must have an objectively
reasonable expectation of privacy in the place searched or item seized.” Rehberg v. Paulk, 611
F.3d 828, 842 (11th Cir. 2010). Blake and Moore had a reasonable expectation of privacy in the
password-locked iPad, which was owned by one of them, used by one or both of them, and kept
inside the house they both lived in. See, e.g., United States v. Heckenkamp, 482 F.3d 1142,
1146 (9th Cir. 2007) (holding that a college student had a reasonable expectation of privacy in
his dorm room computer); United States v. Lifshitz, 369 F.3d 173, 190 (2d Cir. 2004)
(“Individuals generally possess a reasonable expectation of privacy in their home computers.”);
Guest v. Leis, 255 F.3d 325, 333 (6th Cir. 2001) (“Home owners would of course have a
reasonable expectation of privacy in their homes and in their belongings — including computers
— inside the home.”).
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vendor had third-party standing to assert the equal protection rights of beer
buyers), and whether there is an exception that would allow Blake and Moore to
assert Apple’s rights is a thorny question. But “because prudential standing is
flexible and not jurisdictional in nature,” and deciding that issue will not affect the
result in this case, we can bypass it and reach the less difficult issue of whether the
bypass order violated the requirements of the All Writs Act. See Am. Iron & Steel
Inst. v. OSHA, 182 F.3d 1261, 1274 n.10 (11th Cir. 1999). Our decision to move
straight to the merits of Blake and Moore’s claim does not imply any view about
whether they could meet the prudential standing requirements for challenging the
All Writs Act order.
On the merits, Blake and Moore contend that the district court did not have
the authority to issue the bypass order, and, as a result, it should have suppressed
any evidence resulting from Apple’s compliance with that order. 5 We review de
novo the basic premise of that contention, which is that the order exceeded the
court’s authority under the All Writs Act. See Midrash Sephardi, Inc. v. Town of
Surfside, 366 F.3d 1214, 1223 (11th Cir. 2004) (holding that the construction of a
statute is a question of law that we review de novo); United States v. Perry, 360
5
As we have mentioned, it is not settled whether suppression would have been the proper
remedy if the district court had ruled that its authority under the All Writs Act had been
exceeded. In view of our decision that the order was proper, we need not decide what, if any,
remedy would have been appropriate if it had not been.
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F.3d 519, 533 (6th Cir. 2004) (“Appellate courts review a district court’s assertion
of jurisdiction under the All Writs Act de novo.”).
The All Writs Act provides in full:
The Supreme Court and all courts established by Act of Congress may
issue all writs necessary or appropriate in aid of their respective
jurisdictions and agreeable to the usages and principles of law.
28 U.S.C. § 1651(a). The Supreme Court has recognized five requirements that
must be met before a court can compel under the All Writs Act the assistance of a
third party in a criminal investigation: (1) the order must be necessary or
appropriate to effectuate a previously issued order, (2) it must not be covered by
another statute, (3) it must not be inconsistent with the intent of Congress, (4) the
third party must not be too far removed from the underlying case, and (5) the
burden imposed on the third party must not be unreasonable. See United States v.
N.Y. Tel. Co., 434 U.S. 159, 172–78, 98 S. Ct. 364, 372–75 (1977).
1. Necessary or Appropriate
The first requirement for use of the All Writs Act is that the use be necessary
or appropriate to carry out an issued order. See id. at 172, 98 S. Ct. at 372 (“This
Court has repeatedly recognized the power of a federal court to issue such
commands under the All Writs Act as may be necessary or appropriate to
effectuate and prevent the frustration of orders it has previously issued . . . .”). The
bypass order in this case was necessary or appropriate because there was no other
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way for the FBI to execute the district court’s order to search the contents of the
iPad. See In re Grand Jury Subpoena Duces Tecum Dated March 25, 2011, 670
F.3d 1335, 1346–49 (11th Cir. 2012) (holding that compelling a defendant to
produce data protected by his password without providing constitutionally
sufficient immunity violates the Fifth Amendment).
2. Not Otherwise Covered by Statute
The authority granted by the All Writs Act is broad but not boundless. The
Act “is a residual source of authority” that permits issuing writs only if they “are
not otherwise covered by statute.” Penn. Bureau of Corr. v. U.S. Marshals Serv.,
474 U.S. 34, 43, 106 S. Ct. 355, 361 (1985). It is a gap filler. “Where a statute
specifically addresses the particular issue at hand, it is that authority, and not the
All Writs Act, that is controlling.” Id. And where Congress has proscribed a
certain type of judicial action, the Act cannot overcome that proscription. See id.
The bypass order meets this requirement because no statute expressly permits or
prohibits it.
3. Not Inconsistent with Intent of Congress
Even where, as here, no statute expressly permits or prohibits a particular
judicial action, the court cannot always use the Act to fill the gap. Any order
issued under the All Writs Act must still be “consistent with the intent of
Congress.” See N.Y. Tel., 434 U.S. at 172, 98 S. Ct. at 372. To determine if a
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judicial action is consistent with congressional intent, it is not enough to ask
whether there is an on-point statute. We must also look at laws that are not directly
on point but that speak to similar issues in order to determine whether the proposed
judicial action is in line with congressional intent. See id. 172, 176–78, 98 S. Ct. at
372, 374–75. If the legislative context bearing on the proposed action suggests that
Congress did not intend for the court to have a given power, taking the action
under the All Writs Act is inconsistent with congressional intent and cannot be the
basis for the action. See id.
The Supreme Court’s decision in New York Telephone illustrates this
principle. In that case the district court had issued an order under the All Writs Act
requiring a phone company to assist the FBI in installing pen registers on certain
phone lines. Id. at 161–62, 98 S. Ct. at 367. The Supreme Court held the order
was consistent with congressional intent for two reasons. Id. at 176–78, 98 S. Ct.
at 374–75. First, the legislative history of Title III of the Omnibus Crime Control
and Safe Streets Act, which governs the issuance of wiretaps, makes clear that
Congress intended for courts to be able to order the installation of pen registers.
See id. at 176–77, 98 S. Ct. at 374. Second, amendments to Title III had
authorized courts to compel assistance in installing wiretaps, though they did not
specifically mention pen registers. Id. at 176–77, 98 S. Ct. at 374–75. The Court
reasoned that Congress likewise intended for courts to be able to compel assistance
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in installing pen registers when assistance was necessary. Id. at 177–78, 98 S. Ct.
at 374–75. As a result, the Court held that the district court’s order was within the
authority granted by the All Writs Act. Id. at 177–78, 98 S. Ct. at 375.
Blake and Moore argue that the New York Telephone case is distinguishable
because, unlike the pen register order involved in that case, the issuance of the
bypass order in this case is contrary to congressional intent. They rely on the
Communications Assistance for Law Enforcement Act (CALEA), 47 U.S.C.
§§ 1001–1010, for that proposition. Section 1002, which is part of CALEA,
requires “telecommunications carrier[s]” to provide certain forms of assistance to
law enforcement, while exempting “information services” companies — a category
that includes Apple — from those same requirements. 6 See id. §§ 1001(6),
1002(a), (b)(2). Blake and Moore assert that the “information services” exemption
in § 1002 shows that Congress intends for companies like Apple to be insulated
from court-ordered law enforcement cooperation through bypass orders.
The problem is that the § 1002 requirements are all about design choices and
ensuring that telephone networks “are capable of” delivering evidence to law
enforcement. See id. § 1002(a). If this case were about a court order forcing
Apple to initially design its devices so that law enforcement would be capable of
accessing them in the future, § 1002’s exemption of information services
6
CALEA defines “telecommunications carrier[s]” as common carrier phone companies
such as AT&T. See id. § 1001(8)(A).
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companies would be relevant. But that is not what this case is about. It is, instead,
about a device that has already been designed, manufactured, sold, and used, and
about how to access the information on that device. In light of the distinction
between initial design and later access, § 1002 does not show that bypass orders
are inconsistent with congressional intent.
4. Third Party Not Too Far Removed from Underlying Case
The fourth requirement for use of the All Writs Act, at least for compelling a
non-party in a criminal case, is that the non-party not be “so far removed from the
underlying controversy that its assistance could not be permissibly compelled.”
N.Y. Tel., 434 U.S. at 174, 98 S. Ct. at 373. Blake and Moore argue that “Apple’s
connection to the case [is] merely that it . . . originally manufactured the iPad,” so
it is too far removed for its assistance to be compelled. That argument misstates
the technology. Apple continued being connected to Blake and Moore’s use of the
iPad even after they bought it: the iPad ran on an operating system owned by
Apple (Blake and Moore were only licensing it); Apple servers conveyed messages
sent from the iPad; and Apple servers backed up the iPad’s data. See Apple, Inc.,
Apple iOS Software License Agreement 1 (2016), http://apple.co/2nl946W; Greg
Kumparak, Apple Explains Exactly How Secure iMessage Really Is, TechCrunch
(Feb. 27, 2014), http://tcrn.ch/2kNxy3q. Apple’s continued connection to the case
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means that it was not so far removed from the underlying controversy that its
assistance could not be compelled.
5. Not Unreasonable Burden on Third Party
The final New York Telephone requirement is that any burden imposed on
the compelled party must not be “unreasonable.” N.Y. Tel., 434 U.S. at 172, 98 S.
Ct. at 372. To comply with the bypass order, Apple simply had to have an
employee plug the iPad into a special computer and then transfer the iPad’s data to
a thumb drive. That is not an unreasonable burden, especially in light of the fact
that Apple did not object to the bypass order’s requirements.
6. Summary
The bypass order was necessary or appropriate to carry out the search
warrant the district court had issued, the assistance sought was not specifically
addressed by another statute, the bypass order was not inconsistent with Congress’
intent, Apple was not too far removed from the underlying controversy, and the
burden the order imposed on it was not unreasonable. See id. at 172–74, 98 S. Ct.
at 372–73. It follows that the bypass order did not exceed the district court’s
authority and the evidence gathered as a result of that order did not have to be
suppressed.
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C. The Microsoft and Facebook Searches
Moore also contends that the district court erred in not excluding evidence
gathered as a result of the FBI’s search of her email and Facebook accounts
because the search warrants were flawed. “We review a district court’s denial of a
defendant’s motion to suppress evidence as a mixed question of law and fact. We
review only for clear error the court’s findings of fact, but we review de novo the
court’s application of the law to those facts.” United States v. Noriega, 676 F.3d
1252, 1259 (11th Cir. 2012) (citation omitted).
Moore argues that the search warrants were flawed in two ways. First, she
asserts that the government lacked probable cause to search her Facebook account.
That assertion is meritless. By the time the FBI applied for the Facebook warrants,
it had collected a wealth of evidence, which was set out in the affidavits supporting
the warrants, showing that she was part of the prostitution conspiracy. Moore’s
argument that there was no probable cause to believe that evidence of her
participation would be found in her Facebook account is refuted by the fact that in
it she listed her occupation as “Boss Lady” at “Tricks R [U]s,” thereby linking her
Facebook account to the conspiracy.
Second, Moore asserts that the Microsoft warrant and the Facebook warrants
were so broad that they violated the Fourth Amendment’s particularity
requirement. The Fourth Amendment requires that “those searches deemed
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necessary should be as limited as possible.” Coolidge v. New Hampshire, 403
U.S. 443, 467, 91 S. Ct. 2022, 2038 (1971). The “specific evil” that limitation
targets “is not that of intrusion per se, but of a general, exploratory rummaging in a
person’s belongings.” Id. That type of rummaging was permitted during the
colonial era by the “general warrant,” an instrument “abhorred by the colonists.”
Id. The Fourth Amendment is intended to preclude “general warrants” by
“requiring a ‘particular description’ of the things to be seized.” Id. at 467, 91 S.
Ct. at 2038–39.
Viewed against that constitutional history, the Microsoft warrant complied
with the particularity requirement. It limited the emails to be turned over to the
government, ensuring that only those that had the potential to contain incriminating
evidence would be disclosed. Those limitations prevented “a general, exploratory
rummaging” through Moore’s email correspondence. The Microsoft warrant was
okay. 7
The Facebook warrants are another matter. They required disclosure to the
government of virtually every kind of data that could be found in a social media
account. See p. 4, above. And unnecessarily so. With respect to private instant
7
It is somewhat troubling that the Microsoft warrant did not limit the emails sought to
emails sent or received within the time period of Moore’s suspected participation in the
conspiracy. Nevertheless, the warrant was appropriately limited in scope because it sought only
discrete categories of emails that were connected to the alleged crimes. As a result, the lack of a
time limitation did not render the warrant unconstitutional.
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messages, for example, the warrants could have limited the request to messages
sent to or from persons suspected at that time of being prostitutes or customers.
And the warrants should have requested data only from the period of time during
which Moore was suspected of taking part in the prostitution conspiracy.
Disclosures consistent with those limitations might then have provided probable
cause for a broader, although still targeted, search of Moore’s Facebook account.
That procedure would have undermined any claim that the Facebook warrants were
the internet-era version of a “general warrant.” See Coolidge, 403 U.S. at 467, 91
S. Ct. at 2038; cf. Riley v. California, 573 U.S. __, 134 S. Ct. 2473, 2488–91
(2014) (“The sum of an individual’s private life can be reconstructed through a
thousand photographs labeled with dates, locations, and descriptions . . . .”).
We are not convinced that the cases the government relies on, which involve
seizing an entire hard drive located in the defendant’s home and then later
searching it at the government’s offices, are applicable in the social media account
context. See, e.g., United States v. Evers, 669 F.3d 645, 652 (6th Cir. 2012);
United States v. Stabile, 633 F.3d 219, 234 (3d Cir. 2011). The means of hiding
evidence on a hard drive — obscure folders, misnamed files, encrypted data — are
not currently possible in the context of a Facebook account. Hard drive searches
require time-consuming electronic forensic investigation with special equipment,
and conducting that kind of search in the defendant’s home would be impractical,
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if not impossible. By contrast, when it comes to Facebook account searches, the
government need only send a request with the specific data sought and Facebook
will respond with precisely that data. See generally Information for Law
Enforcement Authorities, Facebook, http://bit.ly/QkrAHX (last visited July 27,
2017). That procedure does not appear to be impractical for Facebook or for the
government. Facebook produced data in response to over 9500 search warrants in
the six-month period between July and December 2015. United States Law
Enforcement Requests for Data, Facebook, http://bit.ly/2aICDHg (last visited July
27, 2017).
That said, we need not decide whether the Facebook warrants violated the
Fourth Amendment because, even if they did, the district court did not err in
allowing the government to use evidence gathered as a result of them. The
Facebook warrants fall into the “good-faith exception” to the exclusionary rule
established by United States v. Leon, 468 U.S. 897, 104 S. Ct. 3405 (1984). See
United States v. Herring, 492 F.3d 1212, 1215 (11th Cir. 2007) (“[W]hether to
apply the exclusionary rule is an issue separate from the question [of] whether the
Fourth Amendment . . . [was] violated by police conduct.”) (quotation marks
omitted), aff’d, 555 U.S. 135, 129 S. Ct. 695 (2009).
In Leon the Supreme Court held that “evidence obtained in objectively
reasonable reliance on a subsequently invalidated search warrant” should generally
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not be excluded. 468 U.S. at 922, 104 S. Ct. at 3420. The Court noted two
circumstances that could justify exclusion in a case like this one: (1) if the warrant
was based on an affidavit “so lacking in indicia of probable cause as to render
official belief in its existence entirely unreasonable” or (2) if the warrant was “so
facially deficient — i.e., in failing to particularize the place to be searched or the
things to be seized — that the executing officers c[ould not have] reasonably
presume[d] it to be valid.” Id. at 923, 104 S. Ct. at 3421.
The Facebook warrants do not fall within either category of excludable
warrants. As we have already explained, probable cause supported issuance of the
warrants. And while the warrants may have violated the particularity requirement,
whether they did is not an open and shut matter; it is a close enough question that
the warrants were not “so facially deficient” that the FBI agents who executed
them could not have reasonably believed them to be valid. As a result, we affirm
the district court’s decision not to suppress the evidence gathered as a result of
Microsoft warrant and the Facebook warrants.
D. Trial Issues
Moore raises two issues with respect to her trial.
1. T.H.’s Testimony About Her Upbringing
Moore first contends that the district court should not have permitted T.H. to
testify about her difficult childhood, which are events that occurred before T.H.
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joined the prostitution ring. Moore argues that testimony was not relevant under
Federal Rule of Evidence 401, or if it was relevant, that it was inadmissible under
Federal Rule of Evidence 403 because its probative value was substantially
outweighed by its danger of unfair prejudice. “We review evidentiary rulings for
abuse of discretion.” United States v. Wilk, 572 F.3d 1229, 1234 (11th Cir. 2009).
There was none.
T.H.’s statements about her upbringing were relevant under Rule 401
because they tended to make the fact that she ran away from home to prostitute
herself more probable. See Fed. R. Evid. 401 (providing that evidence is relevant
if “it has any tendency to make a fact more or less probable than it would be
without the evidence”). And her testimony was not so inflammatory that the
“extraordinary remedy” of Rule 403 exclusion was appropriate. See United States
v. Alfaro-Moncada, 607 F.3d 720, 732 (11th Cir. 2010).
Moore relies on United States v. Hands, 184 F.3d 1322 (11th Cir. 1999), in
which we stated that the district court should have excluded testimony about the
defendant’s history of abusing his partner. Id. at 1328. But there the challenged
testimony was that the defendant was the abuser, creating a risk that the jury may
have convicted him for abusing his partner, not for the unrelated crime he had been
charged with. See id. at 1328–29. By contrast, it was clear that Blake and Moore
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did not inflict the abuse T.H. suffered at home. There was no unfair prejudice, and
Rule 403 exclusion was not necessary.
2. Sufficiency of Evidence as to Count 2
Moore also contends that the government presented insufficient evidence to
sustain her conviction on Count 2, which was the substantive charge that she sex
trafficked E.P., because the evidence did not establish that she interacted with E.P.
enough to satisfy the knowledge element of 18 U.S.C. § 1591(a). “[W]e review
the sufficiency of evidence de novo, viewing the evidence in the light most
favorable to the government and drawing all reasonable inferences and credibility
choices in favor of the jury’s verdict.” United States v. Lumley, 135 F.3d 758, 759
(11th Cir. 1998).
Under 18 U.S.C. § 1591(c), in order to prove knowledge for the purposes of
§ 1591(a) the government did not need to prove that Moore had actual knowledge
that E.P. was underage; it needed to prove only that Moore had a “reasonable
opportunity” to observe E.P. E.P. testified that she came into contact with Moore
“at most” six times. At least one of those encounters involved considerable
interaction between the two of them — when Moore spent twenty minutes taking
photographs of E.P. for her Backpage ad. Furthermore, Trejo, an adult prostitute
who spent time with E.P., testified that E.P.’s manner of talking and
“approach[ing] certain things” made her seem younger “than what she said she
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was.” In light of that, the jury could have reasonably concluded that five or six
interactions were “a reasonable opportunity” for Moore to have observed E.P.,
which, under § 1591(c), satisfied § 1591(a)’s knowledge requirement. There was
sufficient evidence to convict her on Count 2.
E. Sentencing Issues
Blake and Moore also raise several challenges to their sentences. “We
review the district court’s interpretation and application of the sentencing
guidelines de novo and its findings of fact for clear error.” United States v. Bane,
720 F.3d 818, 824 (11th Cir. 2013).
1. The Calculation of Blake’s Sentence
Because the victims were over the age of fourteen but below the age of
eighteen, the presentence investigation report noted that Blake’s base offense level
was 30. See United States Sentencing Guidelines § 2G1.3(a)(2) (Nov. 2014)
(citing 18 U.S.C. § 1591(b)(2)). After applying a number of enhancements, the
PSR calculated his adjusted offense level as 51, but it was reduced to 43 because
that is the maximum offense level permitted by the guidelines. See id. § 5A cmt.
n.2. With a criminal history category of IV, the advisory guidelines range was life.
See id. § 5A.
Blake made several objections to his PSR, including two that are relevant to
his appeal. First, he contended that the PSR should not have applied a two-level
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enhancement under U.S.S.G. § 2G1.3(b)(2)(B) because he did not “unduly
influence” T.H. and E.P. to engage in “prohibited sexual conduct.” Second, he
contended that the PSR had erroneously applied a two-level enhancement under
§ 2G1.3(b)(4), which applies to offenses “involv[ing] the commission of a sex act
or sexual conduct.”
At the sentence hearing the district court sustained some of Blake’s
objections but overruled his objections to the § 2G1.3(b)(2)(B) and § 2G1.3(b)(4)
enhancements. The result was that Blake’s adjusted offense level remained at 43
and his criminal history score stayed at IV, so his advisory guidelines range was
still life. The district court then discussed and applied the sentencing factors
contained in 18 U.S.C. § 3553(a). It noted that the case was “horrific,” that
Blake’s actions were “despicable,” and that his “history and characteristics aren’t
the most favorable.” But it also found that the advisory guidelines range for
Blake’s crimes of conviction was “excessive.” On that basis, the court granted
Blake a downward variance, sentencing him to 324 months imprisonment,
followed by supervised release for a term of life.
2. Blake’s Sentencing Issues
Blake contends that the district court erred in applying the two-level
§ 2G1.3(b)(2)(B) enhancement, which applies where the defendant “unduly
influenced a minor to engage in prohibited sexual conduct.” See U.S.S.G.
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§ 2G1.3(b)(2)(B). Blake argues that because T.H. and E.P. sought him out, he did
not “unduly influence[ ]” them; if anything, he says, they influenced him. As
§ 2G1.3’s commentary shows, however, because Blake was more than ten years
older than the victims he had to overcome a presumption that he unduly influenced
them. See id. § 2G1.3 cmt. n.3(B). He did not overcome that presumption. In
determining whether a defendant used undue influence, courts may consider
whether his conduct “displaye[d] an abuse of superior knowledge, influence and
resources.” United States v. Root, 296 F.3d 1222, 1234 (11th Cir. 2002),
superseded on other grounds by Amend. 732, U.S.S.G. App. C (2009). Blake
abused his superior knowledge and resources by managing the prostitution ring,
posting ads on Backpage using his personal electronic devices, and using his car to
drive T.H. and E.P. to their prostitution appointments. Considering the
presumption of undue influence and Blake’s facilitation of T.H. and E.P.’s
prohibited sexual conduct, the district court did not clearly err in finding that Blake
unduly influenced T.H. and E.P.
Blake contends that the district court’s application of a two-level
enhancement under U.S.S.G. § 2G1.3(b)(4)(A) after his base offense level was set
by § 2G1.3(a)(2) amounted to impermissible double counting. “Impermissible
double counting occurs only when one part of the Guidelines is applied to increase
a defendant’s punishment on account of a kind of harm that has already been fully
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accounted for by application of another part of the Guidelines.” United States v.
Matos-Rodriguez, 188 F.3d 1300, 1309 (11th Cir. 1999). That did not happen
here.
Section 2G1.3(a)(2) sets the base offense level for convictions under 18
U.S.C. § 1591 where the child sex trafficking victims were older than fourteen but
younger than eighteen. See 18 U.S.C. § 1591(b)(2). The guideline incorporates
the elements of § 1591, which applies where a defendant knows or acts in reckless
disregard of the fact that the victim “has not attained the age of 18 years and will
be caused to engage in a commercial sex act.” Meanwhile, § 2G1.3(b)(4)(A)
applies where the offense “involved the commission of a sex act or sexual
contact.” Blake asserts that an element of § 1591 is that the victim committed a
sex act, and for that reason applying both § 2G1.3(a)(2) and the § 2G1.3(b)(4)(A)
“commission of a sex act” enhancement double counted engagement in sex acts.
The assertion underlying Blake’s argument cannot be squared with our
decision in United States v. Mozie, 752 F.3d 1271 (11th Cir. 2014), which held
that the commission of a sex act is not an element of § 1591. Id. at 1286–87; see
also United States v. Garcia-Gonzalez, 714 F.3d 306, 312 (5th Cir. 2013) (“The
future verb tense of the phrase ‘will be caused’ . . . indicates that a sex act does not
have to occur to satisfy the elements of the child-sex-trafficking offense.”). Put
another way, to be criminally liable under § 1591, and thus to be subject to
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§ 2G1.3(a)(2), a defendant need only put the victim in a position where a sex act
could occur, regardless of whether a sex act eventually did occur. See Mozie, 752
F.3d at 1286–87 (“It is enough that Mozie ‘recruited’ the victims . . . to engage in
commercial sex acts even though they did not actually do so.”). By contrast, the
§ 2G1.3(b)(4)(A) enhancement reaches only offenses where a sex act or sexual
conduct actually did occur. It follows that § 2G1.3(a)(2) and § 2G1.3(b)(4)(A)
punish different harms. And because they do, applying both of them did not
amount to impermissible double counting. See Matos-Rodriguez, 188 F.3d at
1309.
Finally, Blake contends that his sentence is substantively unreasonable. We
review the substantive reasonableness of a sentence only for an abuse of discretion.
United States v. Irey, 612 F.3d 1160, 1188–89 (11th Cir. 2010) (en banc). “That
familiar standard allows a range of choice for the district court, so long as that
choice does not constitute a clear error of judgment.” Id. at 1189 (quotation marks
omitted). “A district court abuses its discretion when it (1) fails to afford
consideration to relevant factors that were due significant weight, (2) gives
significant weight to an improper or irrelevant factor, or (3) commits a clear error
of judgment in considering the proper factors.” Id. “In the context of sentencing,
the proper factors” for the district court to consider “are set out in 18 U.S.C.
§ 3553(a).” Id.
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The district court carefully considered the § 3553(a) factors before it handed
down Blake’s sentence. It granted him a downward variance from a guideline
range of life imprisonment to 324 months because it considered the guidelines
range “excessive.” Given all of the facts and circumstances, it is not an
unreasonable sentence.
3. The Calculation of Moore’s Sentence
The PSR stated that Moore’s base offense level was 30, and after applying
the relevant enhancements it calculated her total offense level to be 49. Like
Blake’s, Moore’s offense level was then readjusted to the maximum permissible
level, 43. See U.S.S.G. § 5A cmt. n.2. With a criminal history category of I, her
guidelines range was life. See id. § 5A. She made a number of objections to the
PSR, including adopting Blake’s arguments with respect to the double-counting
issue.
After overruling the § 2G1.3(b)(4) objection and resolving her other
objections, the district court calculated Moore’s adjusted offense level as 41, with a
corresponding advisory guidelines range of 324 to 405 months imprisonment. See
id. § 5A. In applying the § 3553(a) factors to Moore, the district court explained
that Moore “[was] a victim of Mr. Blake” and that Blake had “s[een] a vulnerable,
undereducated, insecure, weak individual who had a troubled past, just like the
victims, used her as a victim of prostitution, and then used her as his right-hand
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person to perpetrate the crimes that we’re here for.” The court balanced Moore’s
victimization with her culpability, sentencing her to 180 months imprisonment
followed by 240 months supervised release. That term of imprisonment was a
downward variance 144 months below the low end of Moore’s advisory guidelines
range.
2. Moore’s Sentencing Issues
Moore raises two issues about her sentence. The first one is the same
impermissible double-counting issue as Blake, and we reject her arguments for the
same reasons we rejected Blake’s identical arguments on that issue.
Like Blake, Moore challenges the substantive reasonableness of her
sentence, which was 180 months imprisonment. As we have just pointed out, that
sentence resulted from a 144-month downward variance from the bottom of her
guideline range of 324 to 405 months. Given that substantial downward variance
and all of the other facts and circumstances in the case, we cannot conclude that
Moore’s sentence amounts to an abuse of discretion or a clear error of judgment on
the part of the district court.
AFFIRMED.
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