[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 8, 2010
No. 09-13070 JOHN LEY
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 08-00415-CR-LSC-PWG
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
PRINCE KNIGHT,
Defendant-Appellant.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(June 8, 2010)
Before BIRCH, WILSON and ANDERSON, Circuit Judges.
PER CURIAM:
Prince Knight appeals his convictions for traveling in interstate commerce
for the purpose of engaging in illicit sexual activity with a minor, in violation of 18
U.S.C. § 2423(b) (count one), and transporting a minor in interstate commerce with
the intent that the minor engage in sexual activity, in violation of 18 U.S.C.
§ 2423(a) (count two). He contends there was insufficient evidence to support his
convictions. Additionally, he submits that the repeated use of the word “rape” by
the prosecutor and victim during his trial violated his due process rights. After
careful review of the record, we AFFIRM.
I. BACKGROUND
In December 2007, when S.S. was 15 years old, she asked 37-year-old
Knight, a family friend she had known for eight years, to take her from Kansas to
California at some point in the near future to visit her ailing biological father.
Knight, who was in Kansas visiting his children, frequently contacted S.S. after he
returned to his home in Alabama. During the last two weeks of January 2008,
Knight called S.S. 107 times.
On 28 January 2008, Knight picked up S.S. in Kansas as planned. S.S.
thought Knight was going to drive her to California. Once she got into the car,
though, Knight told her that “the plans have changed.” Doc. 55 at 33. Knight said
he was taking her back to Alabama to live with him because he had “feelings” for
her. Id. at 34-36. Upon Knight’s instruction, S.S. threw her cell phone out the
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window so that it could not be tracked by the police. Knight pulled out his gun and
said it was for protection. S.S. felt panicked and scared. Knight warned S.S. that
they would both go to jail if caught and she would never see her family again.
S.S.’s mother or stepfather never gave Knight permission to take S.S. anywhere.
Upon arriving at Knight’s apartment in Alabama, Knight threw S.S. on the
bed, took off her clothes, and “raped” her by having sexual intercourse. Id. at 38-
40. S.S. told him no and tried to push him off. Afterwards, Knight left to return a
rental car. Knight moved S.S. to his mother’s home two days later after a detective
called him. Knight had non-consensual sex with S.S. a total of six to eight times
before police rescued her from his mother’s home on 8 February 2008.
A search of Knight’s vehicle yielded a camera containing photos of Knight
and S.S. kissing during Knight’s December 2007 visit to Kansas. S.S. testified she
never wanted to kiss Knight or have sex with him. Rental car receipts reflected
that Knight picked up a rental car on 26 January 2008, to be returned on 29 January
2008. The total miles driven were approximately the same miles required for a
round trip between Knight’s home city in Alabama and S.S.’s residence in Kansas.
Following a jury trial and guilty verdict on counts one and two,1 the court
sentenced Knight to 327 months of imprisonment on each count, to run
1
The jury acquitted Knight of a third count of knowingly inveigling and carrying away a
minor, in violation of 18 U.S.C. §§ 1201(a), (g).
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concurrently, and supervised release for life.
This appeal followed.
II. DISCUSSION
A. Sufficiency of the Evidence
Knight first contends there was insufficient evidence to support his
convictions under 18 U.S.C. §§ 2423(a), (b) because the government failed to
establish that he intended to have illicit sexual relations with S.S. before he arrived
in Alabama. Knight points out that S.S. described him as a family friend, and he
asserts they never had a sexual relationship in Kansas. Furthermore, Knight argues
there was no evidence to corroborate S.S.’s testimony that they had sexual
intercourse in Alabama.
We review de novo whether there is sufficient evidence in the record to
support a jury’s verdict. United States v. Maxwell, 579 F.3d 1282, 1299 (11th Cir.
2009). We will affirm if “a reasonable trier of fact could find that the evidence
established guilt beyond a reasonable doubt.” Id. (quotation marks and citation
omitted). “A federal conviction . . . can be based on the uncorroborated testimony
of a single witness.” United States v. Hoskins, 628 F.2d 295, 296 (5th Cir. 1980)
(per curiam). Since the jury is free to choose among reasonable constructions of
the evidence, we must accept any credibility determination it makes that is
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reasonable. United States v. Garcia, 447 F.3d 1327, 1334 (11th Cir. 2006).
However, we may reverse a conviction if testimony credited by the jury “is so
inherently incredible, so contrary to the teachings of basic human experience, so
completely at odds with ordinary common sense, that no reasonable person would
believe it beyond a reasonable doubt.” United States v. Chancey, 715 F.2d 543,
546, 548 (11th Cir. 1983).
18 U.S.C. § 2423 prohibits the following transportation of minors:
(a) Transportation with intent to engage in criminal sexual
activity. – A person who knowingly transports an individual who has
not attained the age of 18 years in interstate or foreign commerce . . .,
with intent that the individual engage in . . . any sexual activity for
which any person can be charged with a criminal offense, shall be
fined under this title and imprisoned not less than ten years or for life.
(b) Travel with intent to engage in illicit sexual conduct. – A
person who travels in interstate commerce . . . , for the purpose of
engaging in any illicit sexual conduct with another person shall be
fined under this title or imprisoned not more than 30 years, or both.
18 U.S.C. § 2423 (2009). “The statute does not require that the government prove
that actual sexual activity took place,” only that the defendant “formed the intent to
engage in sexual activity with a minor when he crossed state lines.” United States
v. Hersh, 297 F.3d 1233, 1245-46 (11th Cir. 2002). However, a defendant’s intent
may be bolstered by evidence that the defendant did engage in sexual activities
with the minor after crossing state lines. See id. at 1247 (concluding that
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defendant’s intent “was further established by the fact that upon returning from
Honduras to Florida, he continued to engage in sexual activities with Juan, a
minor”).
Contrary to Knight’s contention, the evidence sufficiently established his
intent to engage in sexual activity with S.S. before he completed his interstate
journey. The government introduced photographs depicting Knight and S.S.
kissing in December 2007, something which S.S. said she did not want to do.
Phone records showed that he called S.S. approximately 100 times in the weeks
leading up to their planned trip. Although Knight agreed to drive S.S. to
California, rental car receipts indicated that he only rented a car from Alabama for
a three-day period. He immediately told her upon picking her up that “plans have
changed” and he would be taking her back to Alabama to live with him because he
had feelings for her. He instructed her to throw away her cell phone so she could
not be tracked by the police and warned her that they would go to jail if caught.
All of this evidence demonstrated that, prior to their arrival in Alabama, Knight
had formed the intent to have illicit sexual relations with S.S.
Moreover, Knight’s intent to have sexual relations with S.S. was bolstered
by S.S.’s testimony that as soon as they arrived at his residence in Alabama,
Knight pushed her on the bed, took off her clothes, and had sexual intercourse with
her despite her protests and attempts to fight him off. These non-consensual sexual
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activities continued until she was rescued by the police. Such evidence supports a
finding of intent. See id. Although Knight disputes S.S.’s testimony on appeal, it
was up to the jury to assess her credibility. See Chancey, 715 F.2d at 546. Her
description of what happened is not inherently incredible or contrary to common
sense. See id. Accordingly, viewing the evidence in the light most favorable to
the verdict, we conclude there was sufficient evidence to establish Knight’s
requisite intent on counts one and two.
B. Due Process Violation
Knight next asserts that his due process rights were infringed when the
prosecutor repeatedly used the word “rape” and encouraged S.S. to do so as well.
The disputed testimony occurred during direct examination of S.S.:
Q. After he took off your clothes, what happened?
A. He raped me.
Q. When you say he raped you, did there come a time where he put
his fingers inside your vagina?
A. Yes.
Q. Did there come a time where he put his penis inside your vagina?
A. Yes.
Q. Is that what you mean when you say he raped you?
A. Yes.
Q. Did you want him to put his fingers or his penis in your vagina?
A. No.
....
Q. After Prince Knight raped you, what happened?
A. We went to sleep.
Q. Do you know if he ever left to return the car?
A. Yes, he did.
Q. When did he leave to return the car?
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A. After.
Q. After he raped you?
A. Yes.
Mr. Williams: Objection, your Honor. Using the term rape, it’s
a legal term for the jury to decide.
The Court: Overruled.
Q. Did he return the car before he went to sleep?
A. Yes.
Q. How long do you think you were in the defendant’s apartment
before he raped you?
A. Ten to [fifteen] minutes.
Doc. 55 at 39-41. According to Knight, the prosecutor’s repeated use of the word
“rape” was designed to inflame the jury and prevent a rational assessment of the
evidence.
We review this issue for plain error as Knight did not object at trial on the
ground asserted here. See United States v. Rodriguez, 398 F.3d 1291, 1298 (11th
Cir. 2005) (“Because Rodriguez did not object on this basis in the district court,
our review is only for plain error.”). Under this standard, Knight must show there
is: “(1) error, (2) that is plain, and (3) that affects substantial rights.” Id.
(quotation marks and citation omitted). Additionally, the error must seriously
affect “the fairness, integrity, or public reputation of judicial proceedings.” Id.
(quotation marks and citation omitted). This test is difficult to satisfy and requires
an appellant to overcome a “daunting obstacle.” Id. (quotation marks and citation
omitted).
A prosecutor’s statements may justify a reversal of a conviction only if “they
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undermined the fairness of the trial and contributed to a miscarriage of justice.”
United States v. Jacoby, 955 F.2d 1527, 1541 (11th Cir. 1992) (quotation marks
and citation omitted). Prosecutorial misconduct requires a showing that a
prosecutor made improper remarks, and that those remarks prejudicially affected
the defendant’s substantial rights. United States v. Merrill, 513 F.3d 1293, 1307
(11th Cir. 2008). Prejudice is demonstrated if there is a reasonable probability
that, but for the remarks, the trial’s outcome would have been different. Id. If
there is sufficient independent evidence of guilt, however, any error is harmless.
Id. We must consider the whole record in determining whether prosecutorial
misconduct occurred. See Jacoby, 955 F.2d at 1541.
The prosecutor’s repeated use of the word “rape” was neither improper nor
unduly prejudicial in this case. As the trial transcript reflects, the prosecutor
initially used the term in order to clarify what S.S. meant when she said Knight
“raped” her. After S.S. explained that Knight had forced her to have sex with him,
the prosecutor continued to use the word “rape” when referring to her sexual act
with Knight. Under Alabama law, a person over the age of 16 commits the crime
of rape in the second degree if he has sexual intercourse with a female between the
ages of 12 and 16, and he is at least two years older than she is.2 See Ala. Code
2
The jury was instructed on this definition of rape prior to its deliberations. Doc. 56 at
256.
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§ 13A-6-62(a) (2005). Given that the term “rape” correctly characterized S.S.’s
testimony, Knight has not shown that the prosecutor’s (or S.S.’s) use of that word
was improper. Furthermore, Knight has failed to establish that the prosecutor’s
conduct prejudicially affected his substantial rights. See Merrill, 513 F.3d at 1307.
Knight does not argue that a reasonable probability exists that the outcome of the
proceeding would have been different but for the prosecutor’s use of the word
“rape.” There was also ample independent evidence, as previously discussed, to
support Knight’s convictions. Viewed in the context of the entire record, the
repeated use of the word “rape” did not “undermine the fairness of the trial or
result in a miscarriage of justice.” Jacoby, 955 F.2d at 1541. Accordingly, no
error, plain or otherwise, has been shown.
III. CONCLUSION
We conclude that there was sufficient evidence to support Knight’s
convictions and that his due process rights were not violated by the use of the term
“rape” at his trial. We therefore AFFIRM Knight’s convictions.
AFFIRMED.
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