FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 08-30360
Plaintiff-Appellee, D.C. No.
v.
2:07-cr-00395-
JLR-1
JEROME E. TODD, also known as
Rome also known as JT, AMENDED
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Western District of Washington
James L. Robart, District Judge, Presiding
Argued and Submitted
August 5, 2009—Seattle, Washington
Filed October 20, 2009
Amended November 15, 2010
Before: Harry Pregerson, John T. Noonan and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Noonan;
Concurrence by Judge M. Smith
18505
UNITED STATES v. TODD 18507
COUNSEL
Suzanne Lee Elliott, Esq., Seattle, Washington, for the
defendant-appellant.
18508 UNITED STATES v. TODD
Ye-Ting Woo, Assistant United States Attorney, Seattle,
Washington, for the plaintiff-appellee.
OPINION
NOONAN, Circuit Judge:
Jerome Eugene Todd appeals his conviction of three counts
of sex trafficking in violation of 18 U.S.C. § 1591(a)(1) and
one count of conspiracy to engage in sex trafficking in viola-
tion of 18 U.S.C. § 371. We affirm the convictions.
The statute, captioned the Trafficking Victim’s Protection
Act (TVPA), is a new effort to deal with a social ill whose
international as well as interstate dimensions have invited fed-
eral attention and action. The TVPA was enacted in Decem-
ber 2000 and amended, as relevant here, in December 2003,
July 2006 and December 2008. The statute focuses on those
(usually men) who make money out of selling the sexual ser-
vices of human beings (usually women) they control and treat
as their profit-producing property.
Subtitled “Sex trafficking of children or by force, fraud, or
coercion,” the law strikes at two particularly vicious permuta-
tions of commercialized sex: at the exploitation of minors in
the business of selling sex and at the use of criminal means
to produce the product being sold. This case falls into the sec-
ond slot.
FACTS
We state the facts as to Todd’s treatment of four women:
Todd and Kelsey Kirschman. Just eighteen in January 2005,
Kelsey was still in high school in Bellingham. Todd, age 26,
was not working but had cash. They dated, going to dinner
UNITED STATES v. TODD 18509
and to the movies. In May 2006, Todd suggested they get a
place together. He also told her that they could get rich
together if she worked as a prostitute. He would advertise her
in the Seattle Weekly. She agreed. He ran the ad with a picture
of her, offering “full service” for $200. Calls came in from
men, and she responded to them. She gave up a job at Fred
Meyer because Todd wanted her available for prostitution
24/7. Todd also arranged for her services to be posted on
Craigslist. At Todd’s direction, she also “walked the track,”
that is, she hung out in an area frequented by prostitutes and
potential customers. Todd laid down rules for her to obey. As
she testified, “You had to, basically, do everything he want-
ed.” Most basically, “You had to give him all the money.”
Todd allotted Kelsey $35 each day to pay for condoms, food,
and gas.
Todd maintained his rules psychologically by making Kel-
sey feel that she was “nothing.” He maintained his rules phys-
ically by beating her “from head to toe,” blacking one of her
eyes and chipping one of her teeth. When she was 2½ months
pregnant, he demanded that she abort the child, and she com-
plied. She tried to hide some of her earnings as a prostitute
from Todd, but he found them and confiscated them. She did
not leave him because she thought that she “had nowhere else
to go,” was “scared,” and had lived “under this man’s rules”
for a year and a half.
Reduced to this state of dependence, Kelsey performed a
number of acts by agreement with Todd to further his traffic
in the bodies of other women. She “groomed” Whitney T. —
that is, coached her — as to how she should conduct herself
as a prostitute working for Todd. She placed ads in Craigslist
and Seattle Weekly advertising the sexual availability of Whit-
ney and two other women who came to work for Todd as
prostitutes. She rented hotel rooms for these women to use
with customers, provided them with cellphones to receive
calls from customers, and purchased condoms for them to
18510 UNITED STATES v. TODD
supply to customers. In these actions, she collaborated with
Todd.
Todd and Whitney T. Whitney T., aged twenty, met Todd
at a party in October 2006. Whitney was the unmarried
mother of a young child. She was unemployed and living with
a girlfriend in Everett. She and Todd liked each other and
began a relationship. Todd had no job but he wore nice
clothes and had cash. Whitney learned eventually that his
income came from Kelsey’s work as a prostitute.
In January 2007, Todd told Whitney that if she too worked
as a prostitute for a couple of years she could have nice cars
and a nice house. In February 2007, Whitney went on her first
call. She moved into an apartment with Todd and Kelsey.
Todd advertised her services on Craigslist and the Seattle
Weekly. Todd imposed the rules that Whitney earn $500 in a
day and that she turn the money over to him. She believed
that Todd would beat her if she held any money back. She
saw Todd beat Kelsey for violating one of his rules and was
herself beaten by him for breaking his rule against speaking
to black pimps.
Whitney T. twice left Todd and twice voluntarily returned
to him. On July 3, 2007, she left him for good. She continued
to work as a prostitute on her own.
Todd and Whitney E. Todd met Whitney E., aged eighteen,
in June 2007. She had dropped out of high school, had left her
father’s home and her mother’s home, was using drugs, was
living with a boyfriend, and had been working for a week as
a prostitute. The day after she met Todd, her boyfriend sug-
gested that she work for Todd. The next day she began to
work for him as a prostitute. He gave her a cellphone and
clothes from Wal-mart. He advertised her on Craigslist. He
told her that he expected her to service five customers per day
and earn at least $900. He put her in an apartment with a pros-
titute who worked for his cousin, Trent. Trent told her he
UNITED STATES v. TODD 18511
would enforce Todd’s rules physically. In July 2007, Todd
himself assaulted her when she questioned one of his rules.
She telephoned her mother for help and later the same day left
the apartment with her mother and reported the assault to the
police.
Todd and Jemelle L. Todd met Jemelle on her twentieth
birthday in July 2007. She was living with her mother and
working as a caregiver. They began to date. Todd had no job
but had cash. In October 2007, she leased a house, and she
and Todd moved in together.
Jemelle had previously engaged in four or five acts of pros-
titution. Todd now told her it would be an easy way to make
money and have nice things. Todd gave her a phone to take
calls from customers, and she began to respond to them after
initially protesting. Todd advertised her availability in the
Seattle Weekly and on the internet without her knowledge or
consent. Todd told her that his rule was that she provide “full
service,” charge $200 per customer, report the transaction by
telephone and turn all the money over to him. He provided her
with marijuana.
Jemelle was scared seeing Todd beat Kelsey, and she was
scared by his threat that she would regret it if she left him.
Once she attempted to leave and he “pushed me down.” The
indictment covered the use of Jemelle from October 2007 to
November 2007.
PROCEDURE
On November 21, 2007, Todd was indicted. On February
8, 2008, a superseding indictment was returned. Trial began
May 12, 2008. After seven days, the jury found Todd guilty
on all counts. Both before and after the verdict Todd moved
for a judgment of acquittal.
On September 29, 2008, Todd was sentenced to five years
imprisonment for conspiracy to violate the TVPA; to 26 years
18512 UNITED STATES v. TODD
to run concurrently on each of the TVPA counts involving
respectively Whitney T., Whitney E., and Jemelle; and to ten
years on the count of transporting a prostitute in interstate
commerce.
Todd does not appeal his conviction or sentence on the
count of transportation of a prostitute. He appeals his convic-
tion on all of the other counts.
ANALYSIS
The Statute.
Sex trafficking of children or by force, fraud, or
coercion
(a) Whoever knowingly—
(1) in or affecting interstate or foreign commerce, or
within the special maritime and territorial jurisdic-
tion of the United States, recruits, entices, harbors,
transports, provides, or obtains by any means a per-
son; 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 that force, fraud, or coercion described in
subsection (c)(2) will be used to cause the person to
engage in a commercial sex act, or that the person
has not attained the age of 18 years and will be
caused to engage in a commercial sex act, shall be
punished as provided in subsection (b).
(b) The punishment for an offense under subsection
(a) is—
UNITED STATES v. TODD 18513
(1) if the offense was effected by force, fraud, or
coercion or if the person recruited, enticed, harbored,
transported, provided, or obtained had not attained
the age of 14 years at the time of such offense, by
a fine under this title and imprisonment for any term
of years not less than 15 or for life; or
(2) if the offense was not so effected, and the person
recruited, enticed, harbored, transported, provided,
or obtained had attained the age of 14 years but had
not attained the age of 18 years at the time of such
offense, by a fine under this title and imprisonment
for not less than 10 years or for life.
(c) In this section:
(1) The term “commercial sex act” means any sex
act, on account of which anything of value is given
to or received by any person.
(2) The term “coercion” means—
(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.
(3) The term “venture” means any group of two or
more individuals associated in fact, whether or not a
legal entity.
18 U.S.C. § 1591.
18514 UNITED STATES v. TODD
We consider the statutory elements in turn.
Effect on interstate or foreign commerce. The TVPA was
enacted after Congress took a substantial amount of evidence
on the traffic in the sexual services of women based on
importing women from around the world by force or fraud.
See Victims of Trafficking and Violence Protection Act of
2000, Pub. L. No. 106-386, 114 Stat. 1464, 1466 (2000). Con-
gress concluded that prostitution in American cities encour-
aged and enlarged the market for this traffic from abroad. Id.
Sex traffic is a global matter.
In addition to effect on foreign commerce, sex traffic in this
case was conducted by advertising across state lines and so
affected interstate commerce.
The TVPA is unlike the Violence Against Women Act of
1994, 42 U.S.C. § 13981, which sought to protect women by
making gender-motivated crimes of violence actionable and
was found to be beyond the power of Congress because its
subject matter was not commerce. United States v. Morrison,
529 U.S. 598 (2000). The TVPA deals with commerce within
the power of Congress to regulate. The defendant does not
question the act’s constitutionality.
Todd’s knowledge. Here is a crux. Could Todd have known
when he soft-soaped Whitney T., Whitney E., and Jamelle L.
to go to work for him that later “force, fraud, or coercion
would be used” to cause each of them to engage in commer-
cial sex? How does anyone “know” the future?
[1] What 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. If “to know” is taken in the sense
of being sure of an established fact, no one “knows” his own
or anyone else’s future. As William Shakespeare said of time
in Sonnet 115, its “million’d accidents creep in” and nothing
is completely stable, no plan is beyond alteration. When an
UNITED STATES v. TODD 18515
act of Congress requires knowledge of a future action, it does
not require knowledge in the sense of certainty as to a future
act. What the statute requires is that the defendant know in the
sense of being aware of an established modus operandi that
will in the future cause a person to engage in prostitution.
[2] The government’s evidence showed that Todd had such
awareness when he persuaded Whitney T. to work for him.
He had an established practice of living off the earnings of
Kelsey, doing so by rules controlling her work and payment
of the proceeds to him. The jury could conclude that Todd
knew he would follow the same pattern with Whitney T. and
then with Whitney E. and Jamelle L. Just as a mother who has
had one child in school and prepared his lunch knows that she
will prepare the school lunch for her second child, just as a
judge knows that his law clerks will use Westlaw, so Jerome
Todd knew that he would use coercion to cause his sex work-
ers to make money for him.
The findings of the jury. The jury was instructed:
The defendant is charged with count 2 of the first
superseding indictment with sex trafficking, in viola-
tion of Title 18, United States Code, Sections
1591(a)(1) and 1591(b)(1). In order for the defendant
to be found guilty of that charge, the government
must prove each of the following elements beyond a
reasonable doubt:
First, beginning in or about February 2007, and
continuing through in or about July 2007, the defen-
dant knowingly did recruit, entice, harbor, transport,
provide, or obtain a person, that is, [Whitney T.];
Second, the defendant did so knowing that force,
fraud, or coercion would be used to cause [Whitney
T]. to engage in a commercial sex act; and
18516 UNITED STATES v. TODD
Third, the defendant’s actions were in or affecting
interstate commerce.
[3] The jury answered these questions affirmatively as to
Whitney T. and answered the same questions affirmatively as
to Whitney E. and Jamelle L. The evidence of Todd’s knowl-
edge of his own modus operandi in securing an income from
prostitution by a pattern of coercion was sufficient to support
the jury’s verdict.
[4] The knowledge required of the defendant is such that
if things go as he has planned, force, fraud or coercion will
be employed to cause his victim to engage in a commercial
sex transaction. That required knowledge brings the predict-
able use of force, fraud, or coercion into the definition of the
defendant’s crime.
[5] The sentence. Section (b) is entitled “The punishment
for an offense under subsection (a)”. Section (b), therefore,
does not create a new crime. It specifies the penalties for each
of the crimes set out in (a). Two of these crimes depend on
the age of the victim. The third crime is referenced summarily
as an offense “effected by force, fraud or coercion.” The sum-
mary reference does not enlarge the crime identified in (a).
Section (b) is punishing the act identified in (a). A defendant
who satisfies the elements of subsection (a) “shall be pun-
ished as provided in subsection (b).” 18 U.S.C. § 1591(a)
(emphasis added). This reading comports with Congress’s
desire that the “sentencing provision of section 1591(b) . . .
correspond fully with the language in the substantive offense
provision in section 1591(a).” H.R. Rep. No. 108-264, pt. 1,
at 20 (2003) (emphasis added).
[6] The evidence was enough to support Todd’s conviction
on the counts of sex trafficking.
Other counts.
UNITED STATES v. TODD 18517
[7] Todd was also convicted of conspiracy to engage in sex
trafficking in violation of 18 U.S.C. § 371 and sentenced to
five years imprisonment, and he was convicted of transporting
a prostitute in interstate commerce in violation of 18 U.S.C.
§ 2421 and sentenced to ten years imprisonment. The sen-
tences are concurrent. Todd appeals his conviction for con-
spiracy, but not his conviction for transporting a prostitute.
Sufficient evidence was presented to show that he entered into
agreement with Kelsey Kirschman to further a practice of sex
trafficking, and the jury found the necessary facts. There was
no error.
The judgment of conviction and the sentence are
AFFIRMED.
M. SMITH, Circuit Judge, concurring:
I join in full the panel’s amended opinion affirming Todd’s
convictions and sentence for sex trafficking in violation of 18
U.S.C. § 1591, and conspiracy to engage in sex trafficking in
violation of 18 U.S.C. § 371. I write separately only to
explain my decision to join in the amended opinion. We pre-
viously held, sua sponte, that Todd’s sentence violated United
States v. Booker, 543 U.S. 220, 236 (2005), because the jury
was not asked whether “the offense was effected by force,
fraud, or coercion.” See United States v. Todd, 584 F.3d 788,
793-94 (9th Cir. 2009). Having reconsidered the issue in light
of the government’s petition for rehearing, I have changed my
perspective.1
As I read 18 U.S.C. § 1591, there is no “hole in the statute.”
Contra Todd, 584 F.3d at 793. Rather, 18 U.S.C. § 1591(a)
1
Although the government’s petition gave me the opportunity to recon-
sider my reading of 18 U.S.C. § 1591, I read the statute differently than
does the government.
18518 UNITED STATES v. TODD
covers only those instances of sex trafficking in which force,
fraud, or coercion was actually used, or where the trafficking
involved children under the age of 14 or between ages 14 and
18. Subsection (b)(1) simply establishes the punishment for
those offenses. Where a defendant engages in sex trafficking
without the use of force, fraud, or coercion, or where children
are not involved, his conduct is criminalized by a different set
of statutes. This reading is compelled both by a plain reading
of the statute and by its legislative history.
Title 18, section 1591 is titled “Sex trafficking of children
or by force, fraud, or coercion.” “Although statutory titles are
not part of the legislation, they may be instructive in putting
the statute in context.” Singh v. Gonzales, 499 F.3d 969, 977
(9th Cir. 2007). By using this title, Congress intended to
criminalize two forms of sex trafficking it considered “severe
forms of trafficking in persons”: sex trafficking where the vic-
tim is under 18 years of age, and sex trafficking in which the
act is induced by force, fraud, or coercion. See Pub. L. No.
106-386, 114 Stat. 1464, 1466, 1470 (2000) (explaining that
in passing the Trafficking Victims Protection Act of 2000,
which enacted 18 U.S.C. § 1591, Congress was especially
concerned with these two “severe forms of trafficking in per-
sons”).
Subsection (a) bears this out. A prosecution may be brought
under subsection (a) where a person “recruits, entices, har-
bors, transports, provides, or obtains by any means a person,”
“knowing” either that: (1) “force, fraud, or coercion . . . will
be used to cause the person to engage in a commercial sex
act,” or (2) the victim “has not attained the age of 18 years
and will be caused to engage in a commercial sex act.” 18
U.S.C. § 1591(a) (emphasis added).
The phrase “will be used” in subsection (a) does not leave
open the possibility that force, fraud, or coercion was not
eventually used in committing the offense. Rather, it simply
allows for a conviction even where the defendant did not per-
UNITED STATES v. TODD 18519
sonally use force, fraud, or coercion. In other words, a defen-
dant will only be charged with violating the statute if force,
fraud, or coercion was actually used at some point in commis-
sion of the offense. By using the phrase “will be used” as
opposed to something more speculative such as “could be
used” or “might be used,” the statute describes definitive con-
duct.
Had force, fraud, or coercion not actually been used to
cause the victim to engage in a commercial sex act, Todd
could not have been prosecuted under 18 U.S.C. § 1591. The
appropriate statutes criminalizing sex trafficking not involv-
ing the use of force, fraud, or coercion are 18 U.S.C. §§ 2421
and 2422. Section 2421 proscribes “knowingly transport[ing]
any individual in interstate or foreign commerce, or in any
Territory or Possession of the United States, with intent that
such individual engage in prostitution, or in any sexual activ-
ity for which any person can be charged with a criminal
offense.” Unlike the minimum 15-year term of imprisonment
under section 1591, section 2421 carries a 10-year maximum.
Section 2422 criminalizes “knowingly persuad[ing], induc-
[ing], entic[ing], or coerc[ing] any individual to travel in
interstate or foreign commerce, or in any Territory or Posses-
sion of the United States, to engage in prostitution, or in any
sexual activity for which any person can be charged with a
criminal offense.”2 It carries a 20-year maximum sentence.
The government’s decision to prosecute the case is a
backwards-looking exercise. The use of force, fraud, or coer-
2
Though both sections 1591 and 2422 include a “coercion” element, one
can imagine a situation in which the defendant does not himself coerce the
victim to engage in a commercial sex act, yet coercion is eventually used
by another member of the defendant’s sex trafficking organization.
Indeed, in enacting section 1591 Congress found that “[t]rafficking in per-
sons is increasingly perpetrated by organized, sophisticated criminal enter-
prises.” 114 Stat. at 1467. Such conduct would be prosecuted under
section 1591 but not section 2422, since section 2422 requires the defen-
dant to have personally coerced the victim.
18520 UNITED STATES v. TODD
cion to cause a victim to engage in a commercial sex act
brings the case into the realm of section 1591, and the govern-
ment must then ask whether the defendant “knew” that force,
fraud, or coercion would be used. The only question, and that
which Todd argued in his appeal, is whether the defendant
knew at the time he committed the offense that force, fraud,
or coercion would be used.3 As the panel members now agree,
Todd’s knowledge that force, fraud, or coercion would actu-
ally be used “does not require knowledge in the sense of cer-
tainty as to a future act.” Amended Maj. Op. at 18515. Based
on an established pattern of conduct, Todd knew that force,
fraud, or coercion would be used to cause his victims to
engage in commercial sex acts.
Under this reading of section 1591(a), there is no gap in the
statute. Section 1591(b) provides that “if the offense was
effected by force, fraud, or coercion” the defendant is to be
sentenced to a mandatory 15-year minimum prison term. So
too if no force, fraud, or coercion was involved but the victim
is under 14. If no force, fraud, or coercion was involved, but
the victim is between 14 and 18, the defendant is to be sen-
tenced to no less than 10 years imprisonment.4 If a jury finds
that the defendant knew “force, fraud, or coercion” would be
used to cause a person to engage in a commercial sex act, it
necessarily finds that “the offense was effected by means of
force, fraud, or coercion.” Indeed, a defendant who satisfies
the elements of subsection (a) “shall be punished as provided
in subsection (b).” 18 U.S.C. § 1591(a) (emphasis added).
3
Of course, a defendant could also argue that force, fraud, or coercion
was not actually used at any point. Had Todd made this argument, he
could have asked for, and would have been entitled to, the appropriate jury
instruction. See Conde v. Henry, 198 F.3d 734, 740 (9th Cir. 1999) (“It is
well established that a criminal defendant is entitled to adequate instruc-
tions on the defense theory of the case.”).
4
With respect to children, section 1591 covers a wider range of conduct
than 18 U.S.C. § 2434, which makes it a crime to knowingly transport a
minor with the intent that the minor engage in prostitution. Again, section
1591 targets larger sex trafficking organizations.
UNITED STATES v. TODD 18521
This reading comports with Congress’s desire that the “sen-
tencing provision of section 1591(b) . . . correspond fully with
the language in the substantive offense provision in section
1591(a).” H.R. Rep. No. 108-264, pt. 1 (2003) (emphasis
added).
The record in this case shows that Todd in fact used such
“force, fraud, or coercion” to commit the offense. Whitney T.
testified that once in May 2007, Todd demanded she perform
oral sex on him. After she refused, Todd grabbed her by her
throat, threw her backwards over the bed, and threatened to
hit her with a bottle over her head while “screaming at the top
of his lungs.” On another occasion, Todd woke Whitney T. up
in the middle of the night and began screaming at her for talk-
ing to another pimp. Todd punched her in the back, then
grabbed her by the throat and threw her up against the wall
while calling her an “out-of-pocket bitch.” On a third occa-
sion, Todd beat her because she met with a black male friend
of hers. According to Todd, all black men are potential pimps
and so Todd forbade Whitney T. from any contact with them.
After Whitney T. violated this rule, Todd choked her and
punched her in the chest until she was black and blue.
Because of this evidence, all of which the jury heard, the
government prosecuted and the jury convicted Todd of violat-
ing section 1591(a). Indeed, the jury was asked whether Todd
knew that “force, fraud, or coercion would be used to cause
[Whitney T.] to engage in a commercial sex act.” Amended
Maj. Op. at 18515 (emphasis added). By finding that Todd
knew that force, fraud, or coercion would be used, the jury
necessarily found that force, fraud, or coercion was actually
used.5
5
The example Judge Noonan provides in the panel opinion illustrates
the point. A judge knows that his law clerks “will use Westlaw” based on
the judge having observed the work of previous law clerks over the years.
At the end of one particular law clerk’s term, the judge’s judicial assistant
might be asked whether the judge knew, at the time he hired the law clerk,
18522 UNITED STATES v. TODD
that the law clerk would use Westlaw during his clerkship. If the law clerk
never used Westlaw during his clerkship, the judicial assistant would be
forced to answer “no” because answering “yes” would be contrary to the
facts. The judge could not know that the law clerk “would use” Westlaw
if the law clerk never actually used Westlaw.