United States v. Justin Williams

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 13-4700
______________
UNITED STATES OF AMERICA
v.
JUSTIN WILLIAMS,
a/k/a NEW YORK ICE,
a/k/a PIMP JUICE
Justin Williams,
Appellant
______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Crim. No. 2-13-cr-00014-001)
Honorable J. Curtis Joyner, District Judge
______________
Argued October 5, 2016
BEFORE: SHWARTZ, GREENBERG, and ROTH, Circuit Judges
(Opinion Filed: December 16, 2016)
______________
Zane David Memeger
Bernadette McKeon
Michelle L. Morgan (ARGUED)
Office of United States Attorney
615 Chestnut St., Suite 1250
Philadelphia, PA 19106
Counsel for Appellee
Richard Coughlin
Office of Federal Public Defender
800-840 Cooper Street
Suite 350
Camden, NJ 08102
Alison Brill (ARGUED)
Office of Federal Public Defender
22 South Clinton Avenue
Station Plaza #4, Fourth Floor
Trenton, NJ 08609
Counsel for Appellant
______________
OPINION*
______________
GREENBERG, Circuit Judge.
I. INTRODUCTION
A jury found defendant-appellant Justin Williams guilty of two counts of sex
trafficking by force, fraud, or coercion under 18 U.S.C. § 1591 arising out of his role as a
pimp for two women. In relevant part, that statute criminalized at the time of the offenses
an individual’s participation in sex trafficking “knowing, or in reckless disregard of the
fact, that means of force, threats of force, fraud, coercion . . . , or any combination of such
means will be used to cause the person to engage in a commercial sex act.” 18 U.S.C.
§ 1591(a). The jury also convicted Williams of one count of witness tampering pursuant
to 18 U.S.C. § 1512 for sending a letter to one of the sex trafficking victims directing her
____________________
*This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
2
to recant her statements to the government about the case.
Williams appeals from his convictions claiming that there were four errors at his
trial entitling him to a reversal on this appeal. First, he argues that the jury instructions
erroneously failed to include the causation element of the sex trafficking offenses linking
the sexual conduct to his use of force. In this regard, he contends that a special verdict
form that the District Court supplied to the jury minimized the statute’s focus on that
element of the offenses and thereby compounded the error. Second, he challenges the
sufficiency of the evidence presented at trial. Third, he claims that the District Court
deprived him of his constitutional right to a complete defense by excluding evidence of a
victim’s prior acts of prostitution pursuant to Federal Rule of Evidence 412. Fourth, he
asserts that the Court committed plain error by not sua sponte giving the jury an
affirmative defense instruction on the witness tampering charge that would have shielded
him from conviction if, by lawful means, he encouraged a witness to testify truthfully.
We will affirm the convictions for the following reasons.
II. JURISDICTION
The District Court had jurisdiction in this case pursuant to 18 U.S.C. § 3231.
Following the jury trial and subsequent timely appeal, we have jurisdiction under 28
U.S.C. § 1291.
III. BACKGROUND
A. Procedural History
3
On January 10, 2013, a grand jury in the Eastern District of Pennsylvania indicted
Williams on two counts of sex trafficking of two women, Talia and Erika, by force,
fraud, or coercion in violation of 18 U.S.C. § 1591.1 App. at 10. In May 2013, during
Williams’s incarceration, he sent a letter to Erika professing his love for her and told her
to “call the lawyer[,] take back the statement and he’ll protect u [sic] from the feds.” Id.
at 812. He additionally wrote that “[Talia] & you are their case.” Id. This letter
prompted the grand jury to issue a superseding indictment adding one count of witness
tampering pursuant to 18 U.S.C. § 1512 to the two counts of sex trafficking. Id. at 753.
Before the trial, Williams unsuccessfully moved in limine for an order providing
that evidence of Erika’s prior commercial sex activity would be admitted at the trial
pursuant to an exception to the basic rule in Fed. R. Evid. 412 which excludes specified
evidence of a person’s prior sexual activity. At the conclusion of the trial the jury found
Williams guilty on all three counts of the indictment. Both prior to and after the jury
returned its verdict, Williams unsuccessfully moved for a judgment of acquittal.
On January 21, 2015, the District Court sentenced Williams to a 360-month
custodial term on each of Counts 1 and 2 and a 240-month custodial term on Count 3,
with all terms running concurrently. Id. at 718. The sentence was within the advisory
guideline range and Williams does not challenge it on this appeal. Id. The Court also
imposed a 10-year supervised release term to follow execution of the custodial terms and
ordered Williams to pay restitution to Talia and Erika and a special assessment. Id. at
719, 722, 738-39. Williams timely filed a notice of appeal.
1
Throughout this opinion, we will refer to the women only by their first names.
4
B. Statement of the Facts as Presented at the Trial
At trial, the government presented evidence that Williams acted as a pimp for a
number of women, a contention that Williams admitted. Three women—Talia, Erika,
and a woman named Ivy whom Williams also controlled—testified about their
interactions with Williams as they engaged in commercial sex acts.2
Erika met Williams at a casino in March 2010 and found him attractive. Id. at
284. She had been a prostitute for 12 years, and she testified that when she met Williams
she wanted “to pay him” and “be with him.” Id. at 286. Erika testified that she worked
voluntarily for Williams until her arrest in May 2012. Id. at 285-87.
Talia also met Williams at a casino. She had moved to Philadelphia in July 2010
to live with her godfather and to attend a community college as an “opportunity to start
over” after her mother found out that she had been dancing at a club in Atlanta. Id. at
123. But she started dancing again in Philadelphia, and in November 2011, when she
was 20 years old, her godfather required her to leave his house. Id. at 126-27. A few
days later, she met Williams at a casino. Id. at 127. She testified that he impressed her
and she made the personal choice to leave with him. Id. at 125, 181-82.
After Talia travelled with Williams to New York and met two other women who
also were working for Williams as prostitutes, he convinced her to do so as well. Id. at
129-31. When she originally considered his proposal, she “burst[] into tears.” Williams,
however, consoled her and “tried to make it seem like it was okay.” Id. at 131. Talia
2
We will focus on Talia’s and Erika’s testimony, as they were the victims listed in
Counts 1 and 2 of the indictment, and we cite Ivy’s testimony only insofar as it concerns
those two counts.
5
claimed that she never previously had been a prostitute. Id. But she had heard Williams
hit Erika, and she testified, “I didn’t feel like I had many options but to do what he said.”
Id. At that time, she provided Facebook photos of herself for use in internet
advertisements. Id. at 183. Talia stated that she did not abandon her situation or call her
mother for a variety of reasons: she was somewhere she never had been before; she did
not know the people around her; she had been forced to leave someone’s home for the
second time and did not know where to go or what to do; she felt ashamed; and she did
not want to tell her mother in Atlanta “like a thousand miles away” that she was in her
situation. Id. at 132. She “just felt stuck.” Id. She testified that she “didn’t feel fully
that it was [her] choice at the time” that she made the decision to become a prostitute. Id.
at 191.
Talia worked for Williams for two or three months. Id. at 132. During that time,
Williams took her and other women to a number of places in New York, Pennsylvania,
New Jersey, Virginia, and Washington, D.C. so that they could work as prostitutes. Id. at
133-34. In Philadelphia they stayed in a crack house, which, at least at the outset, was in
a filthy condition. Id. at 136. The women found clients through postings on Backpage, a
website popular for solicitation, and by walking the streets. Id. at 135. Talia often
created website advertisements and listed her own phone number on them. Id. at 138-42.
Erika and she purchased prepaid cards with which to buy the advertisements. Id. at 144.
When Talia received a call responding to an advertisement, she would tell another
woman whom Williams controlled that there was a potential “date” on the phone. Id. at
188. Talia averaged 5-10 “dates” with clients each day, while Erika had 1-10 per day,
6
and Ivy averaged 8-9 “dates” per day. Id. at 145, 268, 353. Talia testified that Williams
would be in close proximity during these “dates” and stay with them all day, although
Erika denied that he did so. Id. at 133, 148, 312.
Talia, Erika, and Ivy explained Williams’s rules. Id. at 132-33, 273, 352-53.
Talia and Erika originally had a quota of $1000 per day, which Williams reduced to $700
or $750. Id. at 147, 273. Williams set Ivy’s quota at about $500. Id. at 353. Ivy stated
that she was told that she could accept only certain prices for her services and Williams
directed her not to get into a car with younger men. Id. at 352. All three women testified
that Williams required them to give him the money that they received from prostitution,
although Talia stated that Williams allowed them to keep some money for food purchases
and she acknowledged that he purchased other items for her at times. Id. at 133, 145-46,
210, 269. When they were on “dates” with clients, they could not stay for longer than 15-
20 minutes without notifying Williams that they would receive additional payment for
their longer stay. Id. at 133; see id. at 352-53. If they failed to update Williams, Talia
testified that he would call to ask where they were and what they were doing. Id. at 146.
The women needed to shower immediately upon return from a “date” and “wash the
streets off.” Id. at 133. The longest time that Erika worked continuously was around 18
hours, while Ivy’s longest period of working without a break was 15 hours. Id. at 269,
354. But Talia once worked 25 hours straight. Id. at 147. Williams did not give them
regular time off from work, but he would not send them out to work if he was in a good
mood. Id. at 147.
7
Talia and Erika witnessed Williams’s violent behavior towards the women who
worked for him. Talia testified that when she first was with Williams she heard him hit
Erika and that she saw Williams hit Erika at least once every two weeks thereafter. Id. at
150. Talia stated that Williams would punch Erika in the face and middle of the chest
with a closed fist when she “talked back.” Id. at 150-51. Erika also testified that she saw
Williams engaging in other acts of violence. Id. at 255-56. She testified that she watched
him slap two different women. Id. at 255. Erika also observed Williams slap, punch, and
kick another woman under his control named Stevi. Id. at 258. He sent Talia and Erika
out to work the streets after beating Stevi in front of them. Id.The women detailed Williams’s violence against them. Talia testified about a time
when she made a comment to one of Williams’s associates and Williams interjected that
he would “punch the glasses like off of [her] face for talking to him.” Id. at 159. Ivy
acknowledged that Williams punched her in the stomach in front of Talia. Id. at 357.
Talia claimed that Williams used violence and threats as “his main mode of, you know,
trying to keep [them] together, doing what he told [them] to do.” Id. at 158.
Of all the women under his control, Williams most frequently was violent toward
Erika, id. at 259. In this regard, Ivy and Erika agreed that Erika bore the brunt of
Williams’s violence. Id. at 259, 363. Erika explained that Williams sometimes was
violent toward her on a weekly basis, but that at other times he could go for months
without subjecting her to violent acts. Id. at 250. Williams would slap her, punch her in
the ribs and face with his fist, kick her, and shove her, sometimes in front of the other
women working for him. Id. at 250-54. Ivy watched Williams punch Erika in the face
8
and stomach and grab her by her neck and head. Id. at 350-51. She said that she
witnessed that type of violence about ten times, and that she noticed that Erika had
swollen lips, a black eye, and bruises, and was missing teeth multiple times after those
incidents. Id. at 362. At times, Williams would send Erika out to engage in prostitution
after those beatings. Id. at 250-54, 363. Erika’s mother testified that Williams told her
that he had to “physically beat [Erika] or hit her to get her straight” because she almost
had “gotten them both in trouble.” Furthermore, Erika’s mother detailed the black eyes
and bruises she had seen on Erika’s body while Erika was dating Williams. Id. at 71-72.
Another time, he gave Erika a deep cut on her arm with hair clippers because he
attributed the incarceration of a friend of his to her actions. Id. at 252-53. In a recorded
call offered as evidence, Williams told Erika, “I got to come over there and put a slave
trader over top of you to do anything.” Id. at 275. Erika testified that this meant he was
going to send one of his friends to be with her. Id.Talia described a time when Williams acted violently toward Erika, Talia, and
Stevi after the women told Williams about a prospective client who was acting strangely.
Id. at 152. They mentioned to Williams that the prospective client was “acting like kind
of boyfriend-ish.” Id. In response Williams lined up Erika and Talia next to each other
in a hallway and yelled at them, asking about the man. Id. Williams hit Erika, hit Talia
in the face three times, and pushed Talia against the wall. Id. at 153-56. He brought the
women into a downstairs room, where he punched Stevi in the face and body, stomped on
her, kicked her, and pulled her by the hair to throw her head into the edge of the door. Id.Williams then hit Erika right below the sternum, and she fell to the ground gasping for
9
breath. Id. at 153. This incident lasted 10-15 minutes, and immediately afterward
Williams sent the women back outside to continue working on the streets. Id. at 154.
Ivy and Erika detailed another incident in which Williams pulled a phone cord out
of the wall and used it to whip Ivy while she was wearing a towel. Id. at 256, 358. Erika
was in the room at that time but she turned her head to avoid seeing it happen. Id. at 256.
She heard the sound of the cord hitting Ivy, heard Ivy screaming, and witnessed Ivy
crying afterward. Id. at 257. Ivy asserted that Williams hit her with the cord because she
had been kidnapped and when she returned he told her that she would “have to pay for
it.” Id. at 358. Ivy testified that a few days after she returned from the kidnapping, he
told her that “he would beat [her] with a phone cord, and that’s exactly what he did.” Id.Ivy showed the jury many marks on her body from the incident. Id. at 361. One of those
marks was five inches long, while another on her torso had been “split open” and looked
as if it was still swollen. Id. at 361. Erika denied during her second day of testimony that
this incident had happened. Id. at 314.
Williams was incarcerated in December 2011. Id. at 161. In telephone calls from
jail, Williams continued to direct the women’s work and told them to meet their quotas.
Id. at 165-66. Talia and Erika continued working for him while he was incarcerated on
an unrelated charge, helped him find a defense lawyer, and used the money from their
acts of prostitution to meet his bail. Id. at 163, 214, 273. Talia also visited him and told
him that she loved him. Id. at 163. Williams promised Talia to take her to Las Vegas
once he was released, although he never did so. Id. at 167. Talia told him that she
10
wanted to leave while he was incarcerated but stated that “[h]e kind of coerced [her] not
to,” telling her that she “would lose [her] protection.” Id. at 168.
While Williams was incarcerated, the police questioned Talia and Erika. Id. at
162. The women told the police that Williams was Erika’s boyfriend and declined to
mention that he was physically abusive. Id. at 162, 272. Talia lied to the police about
whether he was forcing her to commit acts of prostitution and whether she was giving
him money. Id. at 167, 216. She testified that she lied to the police because, “when [she]
first got there, [she] felt like [she] didn’t have anywhere to go, and at this point [she]
really didn’t feel like [she] had anywhere to go.” Id. at 162. She stated that “[a]t that
point [she] felt like the consequences of ratting out [Williams] and then getting out later
would be worse than lying to the police.” Id.After Williams was released from jail, he hit Talia three times in the face. Id. at
205. He was reincarcerated in January 2012, and Talia continued to try to help him to get
released. Id. at 217-18. Talia testified that when Williams told her that he was going to
be released, she was happy about it. Id. at 220.
Talia was arrested twice for prostitution while working for Williams. Id. at 206.
She eventually left Williams when her mother came to Philadelphia for Talia’s court date
on a prostitution charge. Id. at 168-70. She went home with her mother and never
worked for Williams again. Id. at 170. Talia testified that she finally decided to leave
because her mother and sister were present and she knew it was her chance to do so. Id.
at 175. She asserted that she had wanted to leave before, but “was scared and didn’t for a
lot of reasons.” Id. She later talked on the phone to Williams, who told her he still loved
11
her and asked her why she left. Id. at 170. After that, Williams sent Talia a text message
telling her he loved her, wanted her to return, and would send her money. Id. at 172.
On cross-examination, Erika acknowledged that she still loved Williams, had his
name in her phone as “Sexy,” and was excited for him to be released from jail. Id. at
292, 306. She said that she engaged in prostitution because of her love for Williams and
her desire to pay him. Id. at 292. She said that their relationship was an “interchange of
benefits” and that Williams’s violent conduct did not motivate her to engage in
prostitution. Id. at 293, 299. She claimed that she had testified earlier that Williams hit
her and Talia because the federal government had threatened her. Id. at 308, 317. She
denied that Williams ever used force, threats of force, or coercion to induce her to
commit commercial sex acts. Id. at 308. She also said that she was not insecure around
Williams and that he never had placed her in danger or caused her serious harm. Id. at
308.
Williams testified at the trial. In his version of events, the women asked him to
get involved with him in their acts of prostitution. Id. at 507. He apologized for
accepting money from the women, but contended that he was their security and that they
enjoyed the “fun” they had with him. Id. at 455-58, 508. Williams claimed that the
women cared for him. Id. at 459. He also contradicted their testimony that they received
little from him, stating that the “women eat big lobsters. They wear Louis Vuitton shoes.
They buy bags that cost $1,000.” Id. at 453. Williams testified that he is “pushy” and
has “a big mouth” but does not “bite at all” and denied that he had ever hit, punched,
shoved, or kicked the women. Id. at 456, 492. Williams claimed that he never had met
12
Ivy, asserting that he did not “know [Ivy] from a can of water” or “a can of beans.” Id. at
451, 480. When commenting on recorded evidence in which he sounded angry, he
acknowledged that he sounded “hurtful” but explained that he was like a teacher with an
out-of-control classroom: he needed to be forceful because he was responsible for the
women and they would have gotten hurt without his guidance. Id. at 460. He claimed
that his testimony differed from the women’s because they “were under pressure from the
government” to lie. Id. at 485. Williams also contended that the federal government had
threatened Erika and that he intended in his letter to her to encourage her to testify
truthfully. Id. at 463-64. After considering the testimony that we partially, but
nevertheless at great length, have described, the jury found Williams guilty on all three
counts. Id. at 788-91.
IV. DISCUSSION
A. The Appropriateness of the District Court’s Jury Instructions
Williams contends that the District Court committed reversible error in its use of a
four-element test that separated the statutory language concerning acts of force, fraud, or
coercion from the element of the sex offenses concerning causation in 18 U.S.C. § 1591.
Id. at 616-17. He argues that the District Court’s description of the elements in that
manner constructively amended the indictment because the description allowed the jury
to convict Williams for using force, threats of force, fraud, or coercion against a person
who engaged in commercial sex acts even if his actions did not the cause that person to
engage in those sex acts. These instructions, so Williams’s argument goes, required the
13
jury to convict him, if it found (1) that he used threats of force, force, fraud, or coercion
against someone even if these wrongful acts did not cause that person to engage in a
commercial sex act—e.g., in a situation of domestic abuse—and (2) that a person was
caused to engage in a commercial sex act for any other reason—such as for love or
profit.3 This language, he maintains, is broader than both the indictment and the statute,
so his convictions on the sex trafficking counts should be reversed.
1. The Standard of Review
The parties dispute whether Williams properly raised and preserved his objection
to the jury instructions, and thus whether the harmless error or plain error standard of
review applies in our review of this issue. If an objection is raised and preserved for
appeal and the appellant establishes that there was trial error the burden shifts to the
prosecutor to demonstrate that the error was harmless. On the other hand, if a defendant
does not preserve the issue for appeal by objecting at trial, he has the burden to establish
on appeal that the error meets exacting requirements to show that the error was plain
entitling him to relief on appeal. United States v. Russell, 134 F.3d 171, 178 (3d Cir.
1998).
Federal Rule of Criminal Procedure 30(d) requires a party to object to jury
instructions before the jury retires to deliberate, and at that time provide the court with
the specific objection and the grounds for the objection. When a defendant makes a
3
Williams in his testimony summed up this legal argument succinctly: “I thought this
charge was sex trafficking by force, meaning like the people – when they bring people
from Russia and put them in the basement and make them see a person and put them back
down there. That’s what I thought was going on, not the fact that whoever hits a
prostitute gets 15 years.” App. at 450.
14
timely, but unsuccessful, objection to a jury instruction, an appellate court will exercise
plenary review in considering the objection. United States v. Waller, 654 F.3d 430, 434
(3d Cir. 2011). If the court finds that there were defects in the jury instructions rising to a
constitutional level, it will review the instructions to determine if the error was harmless.
Id.A defendant’s failure to make a timely objection to a jury instruction prevents the
appellate court from conducting a harmless error review. Fed. R. Crim. P. 30. Instead,
the more demanding standard in Federal Rule of Criminal Procedure 52(b), which
permits courts to consider a plain error that affects substantial rights even when a party
failed to raise the issue at trial, must be applied. See United States v. Antico, 275 F.3d
245, 265 (3d Cir. 2001), abrogated on other grounds by Skilling v. United States, 561
U.S. 358, 130 S.Ct. 2896 (2010). We have held that “[a]n error is plain if it is clear or
obvious under current law.” United States v. Tann, 577 F.3d 533, 537 (3d Cir. 2009)
(internal quotation marks omitted). The error affects substantial rights when it “cause[s]
the defendant prejudice, in that it affect[s] the outcome of the district court proceedings.”
Id. at 538 (internal quotation marks omitted). The defendant bears the burden of making
a “specific showing of prejudice” under this rule. Id. With respect to granting relief the
rule is “permissive, not mandatory.” United States v. Olano, 507 U.S. 725, 735, 113
S.Ct. 1770, 1778 (1993). An appellate court may take remedial action if the error
“seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings.”
United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392 (1936). In determining
whether there has been a plain error in jury instructions, a court will “consider the totality
15
of the instructions . . . , not focusing on a particular paragraph in isolation.” United States
v. Kukafka, 478 F.3d 531, 539 (3d Cir. 2007) (citing United States v. Coyle, 63 F.3d
1239, 1245 (3d Cir. 1995)).
A mere request for an instruction is not an objection even if the court does not give
the instruction as such a standard would burden the district court with “speculat[ing] on
what sorts of objections might be implied through a request for an instruction and
issu[ing] rulings on ‘implied’ objections that a defendant never intends to raise.” Jones v.
United States, 527 U.S. 373, 388, 119 S.Ct. 2090, 2101 (1999). We, however, do not
mandate the use of special language to preserve an objection. United States v. Currens,
290 F.2d 751, 759 (3d Cir. 1961) (stating that the appellate court should not take a
“wooden[]” approach to determining whether objections were preserved); see 2A Charles
Alan Wright & Peter J. Henning, Federal Practice & Procedure Federal Rules of Criminal
Procedure § 484 (4th ed. 2009). The objection must be clear enough that “a trial court
[may] correct any instructional mistakes before the jury retires.” Jones, 527 U.S. at 387-
88, 119 S.Ct. at 2101. This requirement “help[s] to avoid the burdens of an unnecessary
retrial.” Id. at 388.
Williams claims that our holding in Russell, 134 F.3d 171, should guide our
review of his counsel’s approach to the jury instructions. In that case, we held that the
defendant’s counsel preserved an objection to the jury instructions even though he failed
to state specifically that he objected to them. Id. at 178. But in Russell there had been a
conference in the district court about those instructions that alerted the court to the
counsel’s argument that the instructions failed to comply with one of our prior decisions.
16
Id. The court responded that it would review that argument. Id. at 179. We held that the
court’s response showed that it recognized that the argument was an objection. Id.Accordingly, Russell is inapposite, as Williams’s counsel did not give an indication
similar to that the defense counsel gave in Russell that would have put the District Court
on notice that Williams was objecting to the instructions.
In the present case, Williams’s counsel did not preserve the objection to the lack
of causation in the elements of the offense. While he objected along those lines during
the discussion of the special verdict form that the District Court sent to the jury, he did
not raise that argument again when discussing the jury instructions detailing the elements
of the offense. App. at 515-21. Moreover, before instructing the jury the Court asked the
parties if they had any objections to Williams’s proposed jury instructions detailing the
elements of the offense. Id. at 519. The government at that time responded that its
proposed jury instructions included four elements rather three elements as Williams
proposed. Id. at 520. Williams’s counsel stated that he “forgot to include the
component” of “the financial aspect” of the offense.4 Id. The following exchange then
ensued:
The Court: And I will give the government’s points for charge with the four
elements in it.
[Counsel for Williams]: With that fourth element of the financial. That’s fine.
The Court: Okay. So you withdraw your three and accept her four?
[Counsel for Williams]: And I understand that the other three that I included –
The Court: Are included within the charge.
4
Williams argues that his counsel was mistaken, as he had not forgotten the “financial
aspect.” Appellant’s reply br. at 1. While that may be true, the counsel’s mistake
concerning his proposed jury instructions failed to put the District Court on notice that
Williams objected to the charge on the causation issue.
17
[Counsel for Williams]: Yes.
The Court: Very well.
Id. at 520.
Even if Williams’s counsel understood this exchange to mean that the District
Court would use his proposed jury instructions on the force and causation elements,
thereby nullifying any need to object on that issue, this exchange did not put the District
Court on notice of his current objection to the Government's proposed instructions. Thus,
once Williams’s counsel later learned that the District Court would not use his exact
formulation, to preserve his objection he was required to object on the grounds that he
now raises and he was given the opportunity to do so. After the District Court finished
reading the instructions to the jury, it gave Williams’s counsel another opportunity to
object as it asked the parties, “[I]s there anything else you want me to include in this
instruction, or anything that I might have misstated that I should correct before I send the
jury out?” Id. at 625. Inasmuch as Williams’s counsel did not object to the four-element
test on the basis that he advances on this appeal, id., the Court could not have been on
notice of that objection, particularly inasmuch as Williams’s counsel explicitly indicated
his satisfaction with the instructions. Hence we review the jury instructions for plain
error.
2. The Jury Instructions and the Verdict Form
Williams claims on this appeal that the jury instructions constructively amended
the indictment by broadening the “possible bases for conviction from that which appeared
in the indictment.” Appellant’s br. at 29 (quoting United States v. Lee, 359 F.3d 194, 208
(3d Cir. 2004)). He argues that the instructions impermissibly omitted the causal link that
18
18 U.S.C. § 1591 requires between force, fraud, or coercion and the commercial sex act.
Id. at 29-32. He therefore argues that the instructions allowed the jury to convict him for
using force or coercion, and, separately, causing the women to engage in commercial sex
acts, perhaps voluntarily, and thus not requiring the jury to find, as the statute requires,
that he used force to cause the women to engage in commercial sex acts. Id. Though, as
we have stated, in a plain error analysis, the defendant bears the burden of demonstrating
prejudice, a constructive amendment of an indictment creates a rebuttable presumption of
prejudice. United States v. Syme, 276 F.3d 131, 154 (3d Cir. 2002).
At the time of the offense,5 the relevant part of the sex trafficking statute involved
here, 18 U.S.C. § 1591 (2008), provided that:
(a) Whoever knowingly –
(1) in or affecting interstate or foreign commerce . . . recruits, entices, harbors,
transports, provides, obtains, or maintains 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 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, . . . shall be
punished . . . .
To violate this statute, a perpetrator must know or recklessly disregard that “means of
force, threats of force, fraud, coercion, . . . or any combination . . . will be used to cause
the person to engage in a commercial sex act.” Id. (emphasis added). The statute defines
“coercion” as
5
The statute was amended after Williams committed his offenses but we are not
concerned with the amendments.
19
(A) threats of serious harm to or physical restraint against any person;
(B) any scheme, plan, or pattern intended to cause a person to believe that failure
to perform an act would result in serious harm to or physical restraint against any
person; or
(C) the abuse or threatened abuse of law or the legal process.
Id. § 1591(e)(2). The statute defines “serious harm” as used in the definition of
“coercion” to mean “any harm, whether physical or nonphysical, including
psychological, financial, or reputational harm, that is sufficiently serious, under all the
surrounding circumstances, to compel a reasonable person of the same background and in
the same circumstances to perform or to continue performing commercial sexual activity
in order to avoid incurring that harm.” Id. § 1591(e)(4).
The District Court provided the following instructions to the jury: “The second
element of each of these Counts . . . is that ‘the defendant knew or recklessly disregarded
the fact that force, threats of force, fraud, or coercion would be used with respect to this
person. . . . Third, ‘that the defendant knew or was in reckless disregard of the fact that
this person would be caused to engage in a commercial sex act.’” App. at 616-17
(emphasis added).
Williams makes a plausible argument that, in an interpretation of these two
statements in isolation, “would be caused” is not directly linked with force, fraud, or
coercion.6 But we hold that, viewing the jury instructions as a whole, the District Court
6
18 U.S.C. § 1591 does not require that there be a direct temporal nexus between the
threats, force, fraud, or coercion and the commercial sex act although the closer the
coercive conduct is to the acts of prostitution, the more likely the causation element of the
offense will be satisfied. Accordingly, a person may be guilty under the statute for
20
did not commit plain error or error at all in giving the instructions.7 As the jurors
examined the verdict forms, the Court informed them that “Count 1 charges both sex
trafficking by force, and also the attempted sex trafficking. . . .” Id. at 604. The Court
told the jurors that the indictment alleged that Williams committed “the offense of sex
trafficking of [sic] force by [sic] Person 1” and connected that to the jury verdict slip,
stating that “you are to first make a determination as to whether or not the government
has proven him guilty of sex trafficking by force of Person 1.” Id. at 605. The verdict
form stated that Count 1 was “[s]ex trafficking by force of Person 1.” Id. at 788. The
portion of the verdict form describing the elements of attempt also used the term “sex
trafficking by force.” Id. at 789. The same applied to Count 2. Id. at 789-90. The Court
read those parts of the verdict form to the jurors. Id. at 607-610.
Furthermore, contrary to Williams’s assertion that the District Court told jurors not
to pay attention to the indictment, the Court alerted the jurors to its exact terms. Id. at
612. The Court told the jury that Williams was charged with two counts of “sex
trafficking by force” and read the statutory language included in the indictment: “that
knowingly creating a pattern of behavior that coerces a victim into committing
commercial sex acts. See United States v. Todd, 627 F.3d 329, 331-34 (9th Cir. 2009), as
amended Nov. 15, 2010 (stating that “[w]hat the statute means to describe, and does
describe awkwardly, is a state of mind in which the knower is familiar with a pattern of
conduct” and upholding a conviction when the defendant imposed rules about daily
earnings and requested that they be given to him, the victim testified that she believed the
defendant would beat her if she kept any earnings from him, the defendant beat a woman
in front of the victim, and the defendant beat the victim for violating the rules).
7
We agree with both parties that the defense instruction was “a bit clearer” by
eliminating the passive voice in the third element. Appellee’s br. at 28.
21
means a [sic] force, threat of force, fraud or coercion, or any combination of such means,
will be used to cause the person to engage in a commercial sex act . . . .” Id. at 613-14.
The District Court recapitulated that “it is a federal crime for anyone in or
affecting commerce” to engage in a number of activities “knowingly or in reckless
disregard of the facts that means of force, threat of force, fraud, or coercion would be
used to cause that person to engage in a commercial sex act.” Id. at 615. Immediately
after that, the Court read the elements at issue here for Counts 1 and 2. Id. at 615-17.
Then the Court explicitly linked language showing causation with the language at issue:
If, as in Count 1 and 2, the government alleges that the defendant engaged
in sex trafficking while knowingly or in reckless disregard of the fact that
force, threat of force, fraud, or coercion would be used to cause a person to
engage in a commercial sex act, then the second element of the offense,
which the government must prove beyond a reasonable doubt, is that the
defendant knew or acted in reckless disregard of the fact that force, threats
of force, fraud or coercion would be used.
Id. at 619. The Court also advised the jury that the third element “is that the defendant
knew that the victim would be engaged in a commercial sex act.” Id. at 620. Despite the
ambiguity in the two elements, the instructions as a whole focused the jury on the
government’s burden to prove the causal link between the unlawful means described and
the commercial sex acts.
Williams argues that Rosemond v. United States, 134 S.Ct. 1240 (2014), a case in
which the elements of the jury instruction were unclear, should inform our decision.
Rosemond concerned jury instructions for aiding and abetting under 18 U.S.C. § 924(c),
which criminalizes the use or carrying of a gun “during and in relation to any crime of
violence or drug trafficking crime.” 134 S.Ct. at 1243. The Supreme Court held that
22
liability for aiding and abetting that offense must include “advance knowledge of a
firearm’s presence.” Id. at 1251. The district court in that case gave the instruction that
the defendant was guilty of aiding and abetting that offense if “(1) [he] knew his cohort
used a firearm in the drug trafficking crime, and (2) [he] knowingly and actively
participated in the drug trafficking crime.” Id. Thus, the additional instruction that a
defendant must “willfully and knowingly seek[] by some act to help make the crime
succeed” did not remedy the absence of “advance knowledge” in that jury instruction.8
Id. at 1252. The aiding and abetting “umbrella instruction” failed to provide any context
to alert the jury that advance knowledge of the gun’s presence was needed.
But the situation in Rosemond differs from that here. Here, the surrounding
instructions require a causal link between the threats of force, force, fraud, or coercion
and the commercial sex acts for Williams to be convicted. In the circumstances, we need
8
The Supreme Court also recognized that the issue with the jury instructions was further
compounded by the prosecutor’s statement to the jury that “a person cannot be present
and active at a drug deal when shots are fired and not know their cohort is using a gun,”
which sent “the message to the jury . . . that it need not find advance knowledge.”
Rosemond, 134 S.Ct. at 1252. That is not the situation here because both parties focused
extensively on the causation element of the sex trafficking offenses in their opening and
closing arguments. See App. at 51, 56-57, 61-62, 545, 548-49. In particular, the
government in closing told the jury to consider if Williams knew “that force, threats or
force of [sic] coercion would be used to cause a person . . . to engage in a commercial sex
act, not every commercial sex act, not the beginning commercial sex act, not most
commercial sex acts, just one. You only have to find that that caused them to engage in
just one commercial sex act.” Id. at 545-46. Williams’s counsel made that element the
crux of his closing: “But under the law, members of the jury, the force, the threats, the
coercion has to cause somebody, a person, to commit a commercial sex act. There has to
be a cause and effect. The force, the beatings, the threats, the coercion, has to cause
that.” Id. at 548-49.
23
not determine whether the use of the special verdict form compounded any error,
inasmuch as there was not a plain error or an error at all.
B. The Sufficiency of the Evidence
Williams contends that the evidence was insufficient to support either of his two
convictions for sex trafficking by force, fraud, or coercion. He makes three primary
arguments: the evidence of his acts of violence toward the two women happened “in the
context of complex relationships,” Appellant’s br. at 42, the evidence at trial at most
showed a temporal but not causal connection between the violent acts and the women’s
commercial sex acts, id. at 44, and the evidence failed to show that he made any threats
or used fraud or coercion that caused the women to engage in commercial sex acts. Id. at
46. The government responds that the evidence was sufficient for a rational juror to
determine that Williams knew that his use of force, threats of force, or coercion would
cause Talia and Erika to engage in commercial sex acts. Appellee’s br. at 45.
It is well established that we must uphold a jury’s verdict if after our review of the
record we conclude that the jury rationally could have found proof of guilt beyond a
reasonable doubt. United States v. Caraballo-Rodriguez, 726 F.3d 418, 430 (3d Cir.
2013) (en banc) (quoting United States v Brodie, 403 F.3d 123, 133 (3d Cir. 2005)
(internal quotation marks omitted)). This standard is “particularly deferential” and we
are cautious not to “act as a thirteenth juror.” Id. at 430-31. In reviewing a claim
concerning the sufficiency of the evidence at trial, we “do not weigh evidence or
determine the credibility of witnesses in making [our] determination.” United States v.
Miller, 527 F.3d 54, 60 (3d Cir. 2008) (quoting United States v. Gambone, 314 F.3d 163,
24
170 (3d Cir. 2003) (internal quotation marks omitted)). Thus, a defendant must “clear a
high hurdle to prevail on [a] challenge to the sufficiency of the evidence.” United States
v. Bailey, 840 F.3d 99, 110 (3d Cir. 2016).
As we detailed above, the statute in relevant part at the time of Williams’s offense
provided that “whoever knowingly . . . recruits, entices, harbors, transports, provides,
obtains, or maintains by any means a person” or “benefits, financially or by receiving
anything of value, from participation in a venture which has engaged” in one of these
acts, “knowing, or in reckless disregard of the fact, that means of force, threats of force,
fraud, coercion . . . , or any combination of such means will be used to cause the person
to engage in a commercial sex act . . . .” is guilty of a criminal offense. 18 U.S.C. § 1591(2013).
Applying the standard that we set forth above, we hold that beyond any question
the evidence was sufficient to support the jury verdict convicting Williams on the two sex
trafficking offenses. According to Talia’s testimony, Williams hit Erika in front of her
the same night he convinced Talia to work as a prostitute for him. Talia testified that she
felt at the time that she had few other options because she was in an unfamiliar location
with people she did not know and had been required to leave the residence at which she
had been staying. Talia turned over to Williams all the money that her “dates” paid her,
and he usually allowed her to keep only some money for food. Williams gave her strict
quotas to meet, dictated how long she could talk to others, determined whether she would
have breaks or days off from work, and prohibited her from talking to certain people.
When she talked to one of Williams’s associates, Williams threatened to punch her in the
25
face if she did it again. Talia described much of the abuse she witnessed, including how
Williams would hit Erika when Erika disagreed with him.
In response to a work-based issue with a prospective client, Williams physically
abused Talia and Erika and immediately sent them back outside to solicit clients on the
street. This testimony itself provided sufficient evidence upon which a reasonable juror
could have found proof that, on that particular day, Williams’s use of force was causally
linked to their commercial sex acts. According to Talia, Williams used physical violence
and threats of violence to ensure that they continued to do what he wanted and to keep
them together. Talia lied to the police about Williams’ conduct because she felt that the
consequences of telling the police the truth about Williams would be worse than the
consequences if she lied to them. When Talia tried to leave Williams, she testified that
he “kind of coerced [her] not to” do so. Talia finally left Williams when her mother came
from Atlanta because she knew she had a chance to leave. There was more than enough
evidence to support the verdict finding Williams guilty on Count 1, the count involving
Talia.
The evidence also supported a conviction with respect to Erika on Count 2, the
count involving her. Although Erika stated that she chose to work for Williams of her
own volition, her testimony showed that of all the women that Williams controlled he
abused her the most. Williams required Erika to meet a monetary quota every day and
demanded that she turn over all the money she received from her acts of prostitution to
him. He abused Erika numerous times for disagreeing with him, cut Erika deeply with
hair clippers because he held her responsible for the arrest of a friend of his, and he beat
26
her after a prospective client acted strangely towards her. Erika often suffered physical
injury from Williams’s abuse and as a result had black eyes, swollen lips, and missing
teeth. Immediately after many of these assaults Williams sent Erika out to solicit clients
on the streets. Erika’s mother testified that Williams told her he had to beat or restrain
Erika because she had “gotten them both in trouble.” Williams also yelled at Erika that
he “got to come over there and put a slave trader over top of [her] to do anything,” which
Erika testified meant that he would send someone to be with her in a physical way. She
acknowledged that her relationship with Williams was verbally abusive and detailed
Williams’s abuse of other women, including his whipping one of them with a telephone
cord he pulled out of the wall. This evidence more than sufficed for a jury to determine
that Williams’s use of force, threats of force, or coercion caused Erika to engage in acts
of commercial prostitution.
C. The Exclusion of Evidence under Federal Rule of Evidence 412
Williams contends that the District Court’s exclusion of evidence concerning
Erika’s prior years of prostitution in accordance with Fed. R. Evid. 412 deprived him of
the right to present a defense under the Fifth and Sixth Amendments to the Constitution.
Appellant’s br. at 52-53. Rule 412 prohibits the admission of “evidence offered to prove
that a victim engaged in other sexual behavior” and “evidence offered to prove a victim’s
sexual predisposition.” He claims that this evidence was admissible under an exception
to the general rule of inadmissibility in Rule 412 for “evidence whose exclusion would
violate the defendant’s constitutional rights.” Rule 412(b)(1)(C). He proposes three
different theories why evidence of Erika’s prior acts of prostitution should have been
27
admitted: (1) the evidence was relevant to show that force was unnecessary to cause her
to engage in commercial sex acts; (2) it rebutted any claims that he created Erika’s and
Talia’s advertisements online; and (3) it provided a logical chain of inference that Erika
chose willingly to work with Williams. Appellant’s br. at 53-54; Appellant’s Reply br. at
17.
We apply an abuse-of-discretion standard on this exclusion of evidence issue but
to the extent that the District Court interpreted the Federal Rules of Evidence our review
is plenary. United States v. Duka, 671 F.3d 329, 348 (3d Cir. 2011). In applying an
abuse-of-discretion standard, we “afford district courts ‘broad discretion on evidentiary
rulings’” because they are familiar “‘with the details’ of the cases in front of them” and
have “‘greater experience in evidentiary matters.’” Bailey, 840 F.3d at 117 (quoting
United States v. Finley, 726 F.3d 483, 491 (3d Cir. 2013)). A reversal is only justified
when the district court’s decision is “arbitrary” or “irrational.” Id. (quoting United States
v. Schneider, 801 F.3d 186, 198 (3d. Cir. 2015)).
Rule 412 applies in cases involving “alleged sexual misconduct,” conduct that is
within the terms of the sex trafficking statute at issue here. See, e.g., United States v.
Roy, 781 F.3d 416, 420 (8th Cir. 2015). The evidence ordinarily barred by Rule 412 is
only admissible “in designated circumstances in which the probative value of the
evidence significantly outweighs possible harm to the victim.” See Rule 412 advisory
committee’s note to the 1994 amendment. There are three exceptions to Rule 412 that
can be applicable in criminal cases, one of which Williams argues applies here: a court
28
may admit “evidence whose exclusion would violate the defendant’s constitutional
rights.” Rule 412(b)(1)(C).
Other courts of appeals in precedential opinions have upheld the exclusion of
evidence of an individual’s prior acts of prostitution in trials for commercial sex
trafficking notwithstanding defendants’ arguments similar to those that Williams
advances here.9 These opinions have held either that the evidence is irrelevant in the
context of the circumstances in which it was offered or that its relevance is so outweighed
by its prejudicial effect with respect to the victim that its exclusion does not violate a
defendant’s constitutional rights. See United States v. Gemma, 818 F.3d 23, 34 (1st Cir.
2016), petition for certiorari docketed, No. 16-6207 (Sept. 27, 2016) (holding that
evidence of prior acts of prostitution “is either entirely irrelevant or of such slight
probative value in comparison to its prejudicial effect that a decision to exclude it would
not violate [the defendant’s] constitutional rights”); United States v. Rivera, 799 F.3d
180, 186 (2d Cir. 2015) (holding that evidence of women’s prior prostitution was
irrelevant as it “does not suggest that appellants did not later threaten them with violence
or deportation in order to coerce them into commercial sex”); Roy, 781 F.3d at 420
(holding that prior acts of prostitution are irrelevant 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”); United States v. Cephus, 684 F.3d 703, 708 (7th Cir. 2012)
9
Williams cites a number of cases that indicate courts have permitted evidence of prior
sex acts, noting that defendants would not appeal a successful motion to admit evidence
of prior sex acts under Rule 412. Appellant’s br. at 56. Those cases provide little
guidance for us because the propriety of the admission of evidence of prior sex acts was
not at issue in any of them.
29
(holding that testimony about a victim’s prior prostitution to show that she was not
coerced or deceived into working for the defendant was irrelevant because it would not
show “that she consented to be beaten and to receive no share of the fees paid by the
johns she serviced” or “suggest that [the defendant] didn’t beat and threaten her”).
We need not determine whether the constitutional exception under Rule 412
applies here because, if the District Court erred on this issue, the error would have been
harmless. After all, Erika admitted that she had been a prostitute for 12 years prior to her
involvement with Williams, stated numerous times that she voluntarily worked as a
prostitute for Williams, and testified that she was not motivated by his use of force,
threats of force, fraud, or coercion to engage in prostitution. Williams’s counsel then
capitalized on her admission of prior acts of prostitution in his closing. The exclusion of
evidence concerning her prior acts therefore did not prevent Williams from making a
defense based on her conduct. See Rivera, 799 F.3d at 189 (noting that even though the
court prohibited cross-examining a witness on her prior commercial sex acts, defendant’s
counsel still was able to use the defense that the victims were not defrauded based on
their testimony).10
D. The Absence of a Sua Sponte Charge on an Affirmative Defense
Williams finally argues that he had a defense to the charge of witness tampering
because his sole intent in sending his letter to Erika on which the tampering charge was
10
We do not discuss Rule 412 with respect to Talia because there was no evidence at trial
that prior to her involvement with Williams that she had engaged in the conduct with
which Rule 412 is concerned.
30
based was to encourage her to testify truthfully. He therefore contends that he was
entitled to an affirmative defense instruction on the witness tampering pursuant to 18
U.S.C. § 1512(e) which instructs that a defendant has an affirmative defense if his
“conduct consisted solely of lawful conduct and that the defendant’s sole intention was to
encourage, induce, or cause the other person to testify truthfully.” Inasmuch as his
counsel did not request this instruction, he argues that the District Court should have
given this instruction sua sponte. He contends that the Court committed plain error when
it did not give the instruction, and that we should reverse his conviction under 18 U.S.C.
§ 1512 for witness tampering. Appellant’s br. at 60.
The tampering statute under which the jury convicted Williams provides, in
relevant part, that “[w]hoever knowingly uses intimidation, threatens, or corruptly
persuades another person, or attempts to do so,” intending to “influence, delay, or prevent
the testimony of any person in an official proceeding” is guilty of witness tampering. 18
U.S.C. § 1512(b). 18 U.S.C. § 1512(e) provides an affirmative defense to a tampering
charge but the defendant bears the burden of proof by a preponderance of the evidence to
show “that the conduct consisted solely of lawful conduct and that the defendant’s sole
intention was to encourage, induce, or cause the other person to testify truthfully.” 18
U.S.C. § 1512(e).
We review the circumstance that the District Court did not sua sponte provide an
affirmative defense in accordance with 18 U.S.C. § 1512(e) for plain error. Fed. R. Crim.
P. 30(d); Gov’t of V.I. v. Lewis, 620 F.3d 359, 364 (3d Cir. 2010). We therefore
determine whether the Court made a “clear” or “obvious” error when it did not give an
31
affirmative defense charge. See Lewis, 620 F.3d at 364 (quoting United States v. Turcks,
41 F.3d 893, 897 (3d. Cir. 1994)). Next, we consider whether the claimed error affected
substantial rights, i.e., whether it prejudiced the defendant by “affect[ing] the outcome of
the trial proceedings.” Id. Moreover, even if a court commits such an error, an appellate
court exercises discretion to correct the error “sparingly” and only will do so if the error
“seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id.(quoting Tann, 577 F.3d at 535).
In general, “a defendant is entitled to an instruction as to any recognized defense
for which there exists evidence sufficient for a reasonable jury to find in his favor.”
Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 887 (1988). In determining
whether a court plainly erred in not instructing the jury on an affirmative defense, an
appellate court reviews the facts in the light most favorable to the defendant and
considers whether there had been sufficient evidence presented at trial to support the
claim of error. See Lewis, 620 F.3d at 364. But “trial courts generally are under no duty
to raise affirmative defenses on behalf of a criminal defendant.” Id. at 370 n.10.
“Indeed, by raising affirmative defenses sua sponte, a trial court might actually harm a
criminal defendant by undermining defense counsel’s strategic decisions.” Id. (citing
United States v. Van Kirk, 935 F.2d 932, 934 (8th Cir. 1991)); see also United States v.
Tyson, 653 F.3d 192, 212 (3d Cir. 2011) (“A defendant’s strategy is his own. It is not for
the district court to sua sponte determine which defenses are appropriate under the
circumstances. In short, if [the defendant] wished to mount [a relevant affirmative
defense], it was incumbent upon him to take the initiative to do so.”).
32
The District Court did not err when it did not sua sponte charge the jury that
Williams was advancing an affirmative defense. After examining the evidence on the
affirmative defense issue in the light most favorable to Williams, we conclude that the
evidence did not require the Court to give an affirmative defense instruction. Williams
testified that he sent Erika the letter to encourage her to tell the truth because the
government was pressuring her to lie. App. at 463-64. We are aware that Erika claimed
that she told the government that Williams had harmed her because the Federal Bureau of
Investigation had threatened to arrest her if she did not do so. Id. at 309. But there was
no other evidence to indicate that Williams was attempting to persuade her to testify
truthfully.
Further, the evidence makes it clear that Williams did not have the “sole” intention
when he wrote Erika to encourage her to tell the truth at trial. After all, Williams testified
that he sent the letter because he was “in a really bad situation and [he] need[ed] some
help.” Id. at 464. Moreover, in his letter to Erika, Williams wrote “you r [sic] my last
hope,” and “[Talia] & you are their case.” Id. at 812. That language implies that his real
concern in sending the letter was his own fate. The evidence does not show that he
wanted Erika to tell the truth even if it harmed his case. Therefore, the District Court did
not commit a plain error or any error at all when it did not give the affirmative defense
instruction sua sponte. See Roper v. United States, 403 F.2d 796, 798 (5th Cir. 1968) (a
district court’s failure to charge an alibi defense sua sponte was not plain error
“especially where as here the factual foundation” for it “seems obscure, to say the least”).
33
Williams’s counsel was free to ask the District Court to include an affirmative
defense instruction in its charge to the jury if he considered it wise to do so. See Lewis,
620 F.3d at 370 n.10; United States v. Atkins, 487 F.2d 257, 259 (8th Cir. 1973) (holding
that the trial court did not commit plain error when it did not give an alibi instruction sua
sponte because “[a] trial court need not give such an instruction in the absence of a
request therefor”); United States v. Sferas, 210 F.2d 69, 71 (7th Cir. 1954) (“[A]ppellate
courts will not, generally speaking, pass upon defenses which have not been previously
brought to the attention of the trial court.”). After our review of the record, we conclude
that the evidence gave little, if any, support for giving the affirmative defense. We can
understand that counsel may have made the determination that it would have been unwise
to ask the Court to charge the jury to consider the affirmative defense as the charge would
have placed the burden of proof on that issue on Williams. In this regard, counsel might
have deemed it strategically wise to keep the jury solely focused on the force or coercion
issues in determining whether the government had proven its case beyond a reasonable
doubt, particularly on the sex trafficking charges. We, of course, recognize that we are
speculating on counsel’s motives in not advancing the affirmative defense. But with or
without the speculative possibilities, the Court did not err, let alone commit plain error,
when it did not give an instruction on the affirmative defense sua sponte.
II. CONCLUSION
For the foregoing reasons, we will affirm the judgment of conviction and sentence
entered on April 8, 2015.
34