United States v. Ronnie Cosby

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 18-2053
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
RONNIE CORNELL COSBY,
Defendant-Appellant.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 2:15-cr-0031 — Philip P. Simon, Judge.
____________________
ARGUED APRIL 11, 2019 — DECIDED MAY 9, 2019
____________________
Before SYKES, SCUDDER, and ST. EVE, Circuit Judges.
ST. EVE, Circuit Judge. A jury found Ronnie Cosby guilty of
several sex-related offenses, including transporting T.L., a mi-
nor, from Illinois to Indiana with the intent that she engage in
prostitution. On appeal, Cosby seeks a new trial based on sev-
eral claims of error. We see none and therefore affirm the
judgment of the district court.
2 No. 18-2053
I. Background
A. Factual Background
Our description of the offense focuses on the facts most
relevant to this appeal and established at trial. On February 5,
2015, Cosby exchanged text messages with an individual
identified as “Cool.” Cosby arranged a prostitution call for
Cool in exchange for $120. The next morning, Cool texted
Cosby and asked him to “find me some white girls.”
At that time, T.L. was a 15-year old Caucasian minor fe-
male living with her mother in Indiana. On February 7, 2015,
T.L. met a man identified as S.B. and told him that she had
problems at home and was into drugs. The next night, S.B.
brought T.L. to Cosby’s apartment in Hammond, Indiana.
T.L. told Cosby that she was a 15-year old runaway. Cosby
gave T.L. drugs and alcohol and told her that she had to repay
him by prostituting herself. Cosby used his cell phone to take
pictures of T.L., telling her how to pose. Then on February 11,
2015, Cosby posted the pictures on the website Backpage to
find individuals who would pay for sex. Cosby did not show
T.L’s face because she was underage and had been reported
as missing. T.L. thereafter had oral and vaginal sex with five
individuals in Cosby’s living room. Cosby negotiated prices
with the individuals and kept all of the money.
One day before the Backpage post, on February 10, 2015,
Cool texted Cosby saying he would pay $140 for a white girl
on February 12, 2015. Cosby responded “I got u” and that the
girl was “White.” At 5:17 p.m. on February 12, 2015, Cool
texted “I[]am here” to Cosby. Twenty-five minutes later, Cool
texted, “She was good.” Cosby and Cool began to negotiate
“another round,” but decided to wait until the next week.
No. 18-2053 3
That same night, Cosby told T.L. that they were traveling
to a motel for T.L. to engage in further prostitution. Cosby
drove T.L. and his girlfriend, Tamika Murphy, from Indiana
to a Howard Johnson motel in Lansing, Illinois. Around 8:00
p.m., Murphy checked in and, once inside the room, Cosby
took more pictures of T.L. that he posted on Backpage. Over
the next four days, T.L. had sex with many individuals in the
motel room. Cosby negotiated the prices but left before any-
one arrived.
Cosby, Murphy, and T.L. checked out of the Lansing motel
at 10:30 a.m. on February 15, 2015, which was a Monday. Cool
texted Cosby shortly after noon and asked if he was “Set for
Thursday,” to which Cosby replied, “Yep.” Cosby took T.L.
from the motel to Murphy’s Indiana apartment for two days,
during which T.L. did not engage in prostitution. He then
took T.L. back to his apartment in Hammond where T.L. had
sex with a few more individuals.
On February 18, 2015, S.B. told Cosby that the police were
looking for T.L. Cosby called his neighbor, Michael Locke, to
say he had a family emergency and Locke agreed to let T.L.
stay with him. The next day, Hammond police arrived at
Locke’s apartment, arrested him, and interviewed T.L. Cool
texted that afternoon to say he was on his way. Cosby told
him not to come because the police were on his block. On Feb-
ruary 23, 2015, Cosby left his cell phone with a girlfriend
named Ariel McBounds. The police later recovered the phone
from her apartment.
B. Procedural History
Hammond police eventually arrested Cosby and on
March 17, 2015, obtained a state search warrant to search
4 No. 18-2053
McBounds’ apartment. The warrant authorized the police to
seize electronic devices, including “a black in color touch
screen cellular telephone which belongs to COSBY.” The war-
rant also authorized the police to seize passwords and data
security devices “in order to facilitate the search of the com-
puter systems/computer system components/computer sys-
tems storage media named above.”
On March 19, 2015, a federal grand jury first indicted
Cosby on one count of knowingly transporting a minor in in-
terstate commerce with the intent that she engage in prostitu-
tion, in violation of 18 U.S.C. § 2423(a). The court set a trial for
May 2015. Following a superseding indictment, on Cosby’s
motion, the district court continued the trial to September
2015. The government filed a second superseding indictment
in June 2015 and then a ten-count third superseding indict-
ment in August 2015. Thereafter, Cosby moved for a compe-
tency examination and to again continue the trial date. The
court granted both requests and reset the trial for April 2016.
After he was found competent in March 2016, Cosby
sought a third continuance to examine Rule 16 materials. The
court granted the motion and reset the trial for December
2016. Then, on November 22, 2016, based on pro se letters from
Cosby regarding his then-counsel, the judge appointed new
counsel for Cosby. In December 2016, on Cosby’s motion, the
court continued the trial for the fourth time to April 2017. That
same month, the government produced discovery materials
and informed Cosby that electronic evidence was available for
inspection at the U.S. Attorney’s Office. On February 24, 2017,
the court granted Cosby a fifth continuance over the govern-
ment’s objection, resetting the trial to September 7, 2017.
No. 18-2053 5
On July 20, 2017, the government filed a seven-count
fourth superseding indictment, which dropped three counts
and reorganized the remaining counts. Pertinent here, the in-
dictment charged Cosby in Count III with knowingly trans-
porting T.L. from Illinois to Indiana with the intent that she
engage in prostitution, in violation of 18 U.S.C. § 2423(a). This
count was previously charged in the third superseding indict-
ment as Count II.
On August 11, 2017, Cosby filed his sixth motion to con-
tinue the trial, pointing to forthcoming discovery from the
government and explaining that his counsel had to spend
time on an unrelated case. The government again objected
and the district court denied the continuance, reasoning that
the case had been pending for almost two and a half years and
was not particularly complicated. The court found that
Cosby’s counsel was capable and “had ample time for trial
preparation.” The court observed that “very little of the [gov-
ernment’s] recent production is actually new” and that mate-
rials had been available to counsel for many months. The
court also found that “the impact on the victims of the sex
trafficking charges weighs heavily against further delay.”
Cosby then moved to suppress all evidence seized from
his cell phone pursuant to the state search warrant. He argued
that the warrant authorized seizure only of the cell phone,
and that the police exceeded the warrant’s scope by extract-
ing, downloading, and reviewing the phone’s contents. The
district court rejected the motion, finding that the warrant
did, in fact, authorize the seizure of the phone’s contents, and
regardless, the search was authorized by our decision in
United States v. Fifer, 863 F.3d 759, 766 (7th Cir. 2017). The
6 No. 18-2053
court alternatively held that the independent source and in-
evitable discovery doctrines applied in light of a subsequent
federal search warrant.
At trial, the government’s first witness was FBI Agent Car-
rie Landau, who provided expert testimony on sex trafficking,
including how pimps attract young women. She also testified
that during the relevant time period, pimps and prostitutes
generally met individuals through Backpage and set up meet-
ings via text message. Agent Landau further testified that she
did not “participate in the investigation of this case in partic-
ular,” had “no knowledge of the facts,” and was unaware that
the case involved a Lansing motel.
That testimony prompted Cosby to move for a mistrial,
claiming that Agent Landau testified falsely. Cosby had iden-
tified a previously disclosed report stating that Agent Landau
and Agent Philip Conduti had met with the manager of the
Howard Johnson motel in Lansing on the day T.L. was lo-
cated. The court was “troubled” by this revelation and held
an evidentiary hearing, at which Agents Landau and Conduti
testified.
Agent Conduti testified that before going to the motel on
February 19, 2015, he contacted Agent Landau because of her
familiarity with this type of investigation. The agents met at
the motel and Agent Landau introduced Agent Conduti to the
manager, who provided Agent Conduti with evidence in-
cluding Murphy’s check-in receipt and surveillance footage.
Agent Landau remembered Agent Conduti calling her for as-
sistance on a case in Lansing, but she could not recall any facts
that Agent Conduti obtained that day.
No. 18-2053 7
The district court ultimately denied Cosby’s motion for a
mistrial. Although Agent Landau incorrectly testified that she
was not involved with the investigation, the court could not
say that she had lied, rather than merely misremembered.
And regardless, the court concluded that any harm could be
remedied by the government recalling the agent to testify,
which the government did. Before the jury a second time,
Agent Landau testified to the above facts on direct and cross-
examination. She stated that she learned only after her initial
testimony that the encounter related to Cosby’s case and she
acknowledged that her previous testimony was inaccurate.
The agent testified that her new awareness of this information
did not change any of her prior expert opinions. Cosby’s
counsel examined Agent Landau on this testimony.
After the government rested, Cosby moved for a judgment
of acquittal on Count III, which charged him with transport-
ing T.L. from Illinois to Indiana with the intent that she en-
gage in prostitution. The district court denied the motion. The
jury ultimately found Cosby guilty on Count III and several
other charges, but not guilty on other charges. Cosby renewed
his motion for a judgment of acquittal as to Count III follow-
ing the verdict. The court denied the motion and this appeal
followed.
II. Discussion
Cosby seeks a new trial based on five claims of error. Spe-
cifically, he challenges the district court’s denial of his sixth
motion for a continuance; denial of his motion for a judgment
of acquittal on Count III; denial of his motion for a mistrial
based on Agent Landau’s false testimony; failure to take ap-
propriate precautions for a government witness’s dual-capac-
8 No. 18-2053
ity testimony; and denial of his motion to suppress. As we ex-
plain below, Cosby’s claims of error fail, and we therefore af-
firm the judgment of the district court.
A. Motion to Continue Trial Date
Cosby contends that the district court abused its discretion
in denying his sixth motion for a continuance. But “[n]ot
every restriction on counsel’s time or opportunity to investi-
gate or to consult with his client or otherwise to prepare for
trial violates a defendant’s Sixth Amendment right to coun-
sel.” Morris v. Slappy, 461 U.S. 1, 11 (1983) (citation omitted).
A court has broad discretion in scheduling trials, see id., and
while a court cannot have a “‘myopic insistence upon expedi-
tiousness in the face of a justifiable request for delay,’” United
States v. Robbins, 197 F.3d 829, 846 (7th Cir. 1999) (citation
omitted), a court may adhere to a set trial date unless there
are compelling reasons to grant a continuance, United States v.
Volpentesta, 727 F.3d 666, 679 (7th Cir. 2013).
Many factors are relevant to a district court’s ruling on a
request for a continuance, including (1) the amount of time
available for preparation and the defendant’s role, if any, in
shortening that time; (2) the likelihood of prejudice from de-
nial; (3) the complexity of the case; (4) the status of discovery;
and (5) the public interest, including inconvenience to the dis-
trict court and fairness to the victims. See United States v.
Shields, 789 F.3d 733, 748 (7th Cir. 2015); United States v.
Chiappetta, 289 F.3d 995, 999 (7th Cir. 2002); United States v.
Avery, 208 F.3d 597, 602 (7th Cir. 2000).
Here, the district court properly exercised its discretion to
deny Cosby’s sixth motion to continue the trial date. To begin,
No. 18-2053 9
regarding preparation time, although counsel had other obli-
gations, the court granted counsel two prior continuances and
counsel had over nine months to prepare for trial. Also, the
July 2017 fourth superseding indictment simplified the case
by eliminating counts. Though Cosby alludes to prejudice, he
did not show any likelihood of prejudice below nor does he
on appeal. See United States v. Crowder, 588 F.3d 929, 936 (7th
Cir. 2009) (observing that the party seeking a continuance
should identify the specific risk of prejudice because vague
and conclusory assertions of prejudice are not enough).
Moreover, the district court reasonably concluded that
this six-day trial was not substantively complex; most of the
evidence consisted of victim narratives and information from
Cosby’s cell phone. Although the government alerted Cosby
to forthcoming discovery in August 2017, only a handful of
those materials produced were actually new. The remaining
materials were anticipated trial exhibits that the government
previously described and had made available to Cosby in De-
cember 2016.
Finally—and significantly—the district court reasonably
concluded that fairness to the minor victims weighed strongly
in favor of denying Cosby’s request for a sixth trial continu-
ance. Not only would another continuance cause a significant
delay given the court’s schedule, but it would exact an emo-
tional toll on the victims including T.L. and G.P., the latter of
whom was the alleged victim in charges not relevant to this
appeal but who would nonetheless have likely endured addi-
tional time in custody on a material-witness warrant. This
case had been pending for about two and a half years and was
trial ready. Fairness to the victims, especially here, minors
who had been sexually exploited, is a weighty and proper
10 No. 18-2053
consideration that the district court relied on to deny Cosby’s
sixth motion to continue.
B. Sufficiency of the Evidence on Count III
Cosby next contends that there was insufficient evidence
for the jury to convict him on Count III, which charged him
with violating 18 U.S.C. § 2423(a). He faces a high bar. “In an
appellate challenge to the sufficiency of the evidence support-
ing a criminal conviction, we view all evidence in the light
most favorable to the prosecution.” United States v. Snyder, 865
F.3d 490, 493 (7th Cir. 2017) (citing, inter alia, Jackson v. Vir-
ginia, 443 U.S. 307, 319 (1979)). Section 2423(a) prohibits any
individual from knowingly transporting a minor in interstate
commerce with the intent that the individual engage in pros-
titution or criminal sexual activity. The government need not
show that prostitution was the sole reason for the transporta-
tion, so long as it was a “dominant or a compelling and effi-
cient purpose.” United States v. Vang, 128 F.3d 1065, 1072 (7th
Cir. 1997); see also United States v. Berg, 640 F.3d 239, 248–49
(7th Cir. 2011) (stating that the jury may draw reasonable in-
ferences about the defendant’s purpose or intent).
As Cosby sees it, the government failed to prove that he
intended T.L. to engage in prostitution when he transported
her from the motel in Illinois to Murphy’s apartment in Indi-
ana, because T.L. did not engage in prostitution for two days
after they returned to Indiana. Cosby’s argument fails. De-
spite the two-day gap, the jury could have reasonably inferred
that Cosby’s reason for transporting T.L. from Illinois to Indi-
ana was for her to engage in prostitution. Not only did Cosby
and Cool exchange text messages about Cool having sex with
T.L. both before and after Cosby and T.L. crossed state lines,
No. 18-2053 11
but the jury heard extensive evidence about Cosby’s relation-
ship with T.L. and his prostituting of her immediately before
returning to Indiana. Indeed, the evidence established that the
only relationship Cosby had with T.L. was one of pimp to
prostitute. Viewing the evidence in the light most favorable
to the prosecution, ample evidence existed to convict Cosby
on Count III.
C. Motion for a Mistrial
Cosby next argues that the district court erred in denying
his motion for a mistrial based on the testimony of Agent Lan-
dau, who initially testified that she had no involvement in the
case, but later acknowledged that she did. A district court has
broad discretion to declare a mistrial, and we review its deci-
sion to deny a mistrial for abuse of discretion. United States v.
Maclin, 915 F.3d 440, 444 (7th Cir. 2019).
The government violates a defendant’s due process rights
when it obtains a conviction through the knowing use of false
testimony. Napue v. Illinois, 360 U.S. 264, 269 (1959). A defend-
ant seeking a new trial based on perjured testimony has the
burden to show that “‘(1) the prosecution’s case included per-
jured testimony; (2) the prosecution knew, or should have
known, of the perjury; and (3) there is a likelihood that the
false testimony affected the judgment of the jury.’” United
States v. Coleman, 914 F.3d 508, 512–13 (7th Cir. 2019) (citation
omitted). If the defendant is aware of the falsity and corrects
it, the defendant is not necessarily entitled to a new trial. See
United States v. Rebolledo-Delgadillo, 820 F.3d 870, 877–78 (7th
Cir. 2016).
The district court did not abuse its discretion in denying
Cosby’s motion for a mistrial. Although we, like the district
12 No. 18-2053
court, are troubled by the government’s failure to immedi-
ately correct the agent’s testimony, there is no evidence that
Agent Landau deliberately lied about her rather inconsequen-
tial involvement in introducing Agent Conduti to the man-
ager of the Howard Johnson motel in Lansing that Cosby used
to prostitute T.L. Following an evidentiary hearing, the dis-
trict court reasonably concluded that the testimony could be
corrected by recalling Agent Landau and giving Cosby the
opportunity to thoroughly examine her about it. And that is
what happened—the government recalled the agent and she
explained her minor role in the case and the inaccuracy in her
testimony. Cosby then had a full opportunity to impeach
Agent Landau in this regard and to let the jury determine the
impact of the testimony.
By the time the jury retired to deliberate, it was fully aware
of the facts and circumstances of Agent Landau’s testimony
and had heard Cosby’s arguments regarding the impact of
her testimony. The district court appropriately concluded that
there is no reasonable likelihood that Agent Landau’s mis-
statement regarding her minimal involvement in the case af-
fected the jury verdict. Agent Landau was an expert who pro-
vided background about sex trafficking during the relevant
time period and was not a pivotal witness to the govern-
ment’s case. Nothing that the agent omitted from her initial
testimony calls into question her earlier expert opinions and,
even if it did, the district court did not err in letting the jury
determine what weight to give her testimony, rather than de-
claring a mistrial. See Rebolledo-Delgadillo, 820 F.3d at 877–78.
No. 18-2053 13
D. Dual Testimony
Cosby argues that Agent Landau testified in a “dual ca-
pacity,” both as an expert and a fact witness, and that the dis-
trict court took inadequate precautions in allowing the jury to
hear her dual testimony. Cosby admittedly did not raise this
claim below, so we review for plain error. See United States v.
Corrigan, 912 F.3d 422, 427 (7th Cir. 2019). There was none.
Initially, it is not plain that Agent Landau even testified as
a fact witness. That she had a firsthand connection to the in-
vestigation does not necessarily mean that she offered fact tes-
timony about it. See United States v. Boliaux, 915 F.3d 493, 496–
97 (7th Cir. 2019) (explaining that the jury understood the wit-
ness to be testifying only as an expert). The government re-
called Agent Landau to clarify her earlier testimony and to
enable Cosby to impeach her on it, not to elicit factual support
of its case.
Regardless, even if Agent Landau were a fact witness, the
circumstances below ameliorated any risks associated with
dual testimony—for example, the agent’s supposed factual
testimony occurred several days after her expert testimony
and the court instructed the jury about proper consideration
of the agent’s expert opinion. See United States v. Jett, 908 F.3d
252, 268 (7th Cir. 2018). Moreover, even if there were plain er-
ror, it did not affect Cosby’s substantial rights. To the extent
Agent Landau offered any facts regarding her minor investi-
gation in the case, those facts were corroborated throughout
trial and undisputed by the defendant himself when he testi-
fied, and the evidence of guilt was “convincing,” making any
error harmless. Id. at 270.
14 No. 18-2053
E. Motion to Suppress
Finally, Cosby argues that the district court erred in deny-
ing his motion to suppress evidence seized from his cell
phone. He argues that the warrant, though authorizing sei-
zure of the device, did not authorize the agents to view its
contents. But Cosby recognizes that his argument is fore-
closed by this court’s decision in United States v. Fifer, 863 F.3d
759 (7th Cir. 2017), on which the district court relied. Fifer held
that a state warrant that explicitly authorized the police to
seize an electronic device additionally “implicitly authorized
them to search those devices as well.” Id. at 766. Cosby’s cita-
tion to out of circuit precedent is unavailing.
III. Conclusion
The judgment of the district court is AFFIRMED.