FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 17-10059
Plaintiff-Appellee,
D.C. No.
v. 2:14-cr-00264-APG-
VCF-2
SHA-RON HAINES,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Nevada
Andrew P. Gordon, District Judge, Presiding
Argued and Submitted January 17, 2019
San Francisco, California
Filed March 14, 2019
Before: J. Clifford Wallace and Michelle T. Friedland,
Circuit Judges, and Lynn S. Adelman, * District Judge.
Opinion by Judge Adelman
*
The Honorable Lynn S. Adelman, United States District Judge for
the Eastern District of Wisconsin, sitting by designation.
2 UNITED STATES V. HAINES
SUMMARY **
Criminal Law
The panel affirmed the district court’s judgment in a case
in which the defendant was convicted of conspiracy to
commit sex trafficking of a minor, sex trafficking of a minor,
conspiracy to transport a minor to engage in prostitution, and
transporting a minor to engage in prostitution.
At trial, the defendant sought to question minor J.C.
about her prior prostitution activities (which apparently did
not involve a pimp), arguing that this evidence was relevant
to, among other things, whether he recruited or encouraged
her to engage in prostitution on this occasion. The panel held
that the district court did not err by excluding the testimony
under Fed. R. Evid. 412, the “rape shield” rule. The panel
rejected the defendant’s contention that evidence of J.C.’s
prior prostitution activities should have been admitted under
the exception in Rule 412(b)(1)(C) for “evidence whose
exclusion would violate [his] constitutional rights”—here,
his due process right to present a complete defense and his
Sixth Amendment right to confront witnesses. The panel
saw no reason to depart from persuasive authorities holding
that a defense such as the one the defendant sought to
present—that he had no intent to, and did not, pimp out
J.C.—triggers the exception. The panel also held that the
applicability of Rule 412 should not depend on the alleged
victim’s desire to testify. The panel concluded that even if
the district court misapplied Rule 412, any error would be
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
UNITED STATES V. HAINES 3
harmless. The panel held that the defendant’s arguments that
the government opened the door to testimony about J.C.’s
prior activities lacked merit.
The panel addressed other arguments in a separate
memorandum disposition.
COUNSEL
Karen A. Connolly (argued), Karen A. Connolly, Ltd., Las
Vegas, Nevada, for Defendant-Appellant.
Vijay Shanker (argued), United States Department of
Justice, Criminal Division, Appellate Section, Washington
D.C., for Plaintiff-Appellee.
OPINION
ADELMAN, District Judge:
Sha-Ron Haines appeals his convictions for conspiracy
to commit sex trafficking of a minor, sex trafficking of a
minor, conspiracy to transport a minor to engage in
prostitution, and transporting a minor to engage in
prostitution. We have jurisdiction under 28 U.S.C. § 1291.
We affirm.
I.
The government alleged that Haines and his friend Tyral
King transported two minor females, J.C. (age 15) and A.S.
(age 17), from Nevada to California to prostitute them, with
J.C. working for Haines and A.S. working for King. The
4 UNITED STATES V. HAINES
girls found “dates” by walking a “track” where men picked
up prostitutes and through ads posted on a website called
“Backpage.com.” King and Haines would drop the girls off
at their dates and return to pick them up afterwards.
J.C. initially cooperated with the government’s
investigation, albeit reluctantly. She testified before the
grand jury that ultimately indicted Haines and King that she
worked for Haines and gave him the money she earned from
prostitution. Prior to trial, however, her account changed.
J.C. then claimed that she initially implicated Haines due to
pressure from the investigating detective to testify in
exchange for release from juvenile detention. This change
may have been prompted by a jailhouse phone call in which
Haines advised J.C. to make herself unavailable to testify at
trial, of which the government later found a recording.
Whatever the reason, at trial J.C. testified that she
worked independently, that she kept her earnings, and that
her prior grand jury testimony to the contrary was false. The
government impeached J.C. with her previous testimony.
See Fed. R. Evid. 801(d)(1)(A) (authorizing the admission
of prior inconsistent statements by testifying witnesses as
substantive evidence if the prior statements were given under
oath). The government also presented testimony from King,
who pleaded guilty and agreed to cooperate with the
government, that J.C. worked for Haines and gave Haines
her prostitution earnings.
The jury convicted Haines on all counts. The district
court sentenced him to 156 months in prison.
II.
Haines’s defense at trial was that he was merely along
for the ride and did not act as J.C.’s pimp. In support of that
UNITED STATES V. HAINES 5
defense, he sought to question J.C. about her prior
prostitution activities (which apparently did not involve a
pimp), arguing that this evidence was relevant to, among
other things, whether he recruited or encouraged her to
engage in prostitution on this occasion. The district court
excluded the testimony under Federal Rule of Evidence 412,
the “rape shield” rule.
We review a district court’s evidentiary rulings for abuse
of discretion, though we review de novo the district court’s
interpretation of the Federal Rules of Evidence. United
States v. Kahre, 737 F.3d 554, 565 (9th Cir. 2013). We also
review de novo whether a district court’s evidentiary rulings
violated a defendant’s constitutional rights. United States v.
Laursen, 847 F.3d 1026, 1031 (9th Cir. 2017).
Rule 412 provides, in pertinent part:
(a) Prohibited Uses. The following evidence
is not admissible in a civil or criminal
proceeding involving alleged sexual
misconduct:
(1) evidence offered to prove that a victim
engaged in other sexual behavior; or
(2) evidence offered to prove a victim’s
sexual predisposition.
(b) Exceptions.
(1) Criminal Cases. The court may admit
the following evidence in a criminal case:
(A) evidence of specific instances of
a victim’s sexual behavior, if offered
6 UNITED STATES V. HAINES
to prove that someone other than the
defendant was the source of semen,
injury, or other physical evidence;
(B) evidence of specific instances of
a victim’s sexual behavior with
respect to the person accused of the
sexual misconduct, if offered by the
defendant to prove consent or if
offered by the prosecutor; and
(C) evidence whose exclusion would
violate the defendant’s constitutional
rights.
Fed. R. Evid. 412.
The district court correctly determined that the Rule
applied. As our sister circuits have noted, sex trafficking
cases involve “alleged sexual misconduct,” see United States
v. Wardlow, 830 F.3d 817, 820 (8th Cir. 2016) (applying
Rule 412 in § 2423 prosecution); United States v. Elbert, 561
F.3d 771, 776 (8th Cir. 2009) (applying Rule 412 in § 1591
prosecution), and evidence of a trafficking victim’s pre- or
post-indictment involvement in prostitution implicates her
“other sexual behavior” or “sexual predisposition,” see
United States v. Lockhart, 844 F.3d 501, 509 (5th Cir. 2016).
Consistent with this construction of the Rule, courts have
routinely barred evidence of a sex trafficking victim’s other
prostitution activities. See, e.g., United States v. Betts, 911
F.3d 523, 528–29 (8th Cir. 2018); United States v. Groce,
891 F.3d 260, 267–68 (7th Cir. 2018); United States v.
Carson, 870 F.3d 584, 593 (7th Cir. 2017), cert. denied, 138
S. Ct. 2011 (2018); United States v. Gemma, 818 F.3d 23,
34–35 (1st Cir. 2016); Lockhart, 844 F.3d at 510; Elbert, 561
F.3d at 777; cf. United States v. Backman, 817 F.3d 662, 670
UNITED STATES V. HAINES 7
(9th Cir. 2016) (affirming exclusion for failure to comply
with the Rule’s procedural requirements but expressing
“doubt that evidence that the victim engaged in commercial
sex acts after she had been coerced into prostitution has a
bearing on whether Defendant earlier took coercive
actions”).
Haines argues that evidence of J.C.’s prior prostitution
activities should have been admitted under the exception to
Rule 412 for “evidence whose exclusion would violate the
defendant’s constitutional rights”—here, his due process
right to present a complete defense and his Sixth
Amendment right to confront witnesses. But in cases
involving adult victims forced or coerced into prostitution,
courts have rejected such arguments, concluding that
evidence of other prostitution activity has little or no
relevance. Courts have reasoned that just because a victim
agreed to engage in sex for money on other occasions does
not mean she consented to, e.g., being beaten or having her
earnings confiscated by the defendant. See United States v.
Rivera, 799 F.3d 180, 185–86 (2d Cir. 2015); United States
v. Cephus, 684 F.3d 703, 708 (7th Cir. 2012).
Haines argues that his case is different because his
defense was not consent but rather that he had no intent to,
and did not, pimp out J.C. However, he makes no attempt to
distinguish Elbert, a case, like his, involving a minor victim
(as to which the government need not show force, fraud, or
coercion to prove a violation). The Elbert court rejected the
argument that evidence of a child-victim’s other sexual
behavior should be admitted to rebut the allegation that the
defendant recruited the victim to engage in commercial sex
acts. The court explained:
8 UNITED STATES V. HAINES
What Elbert fails to recognize is the evidence
he wishes to admit does not provide a defense
for the crime with which he was charged and
convicted. Elbert repeatedly argues evidence
of the victims’ prior acts of prostitution
demonstrates he did not cause them to engage
in commercial sex acts. This argument relies
upon an improper construction of the phrase
“caused to engage.” 18 U.S.C. § 1591(a).
Because the victims were minors and could
not legally consent, the government did not
need to prove the elements of fraud, force, or
coercion, which are required for adult
victims. Id. Instead, the government was only
required to prove Elbert knowingly recruited,
enticed, harbored, transported, provided, or
obtained a minor, knowing the minor would
be caused to engage in commercial sex acts.
Id. Whether the children engaged in acts of
prostitution before or after their encounters
with Elbert is irrelevant, and would only
prove other people may be guilty of similar
offenses of recruiting, enticing, or causing
these victims to engage in a commercial sex
act.
561 F.3d at 777. The court thus rejected Elbert’s argument
that this was “evidence [whose] exclusion . . . would violate
the defendant’s constitutional rights” and thus within the
exception contained in Rule 412. Id. at 776–77 (quoting
Fed. R. Evid. 412(b)(1)(C)).
That J.C. may have prostituted on other occasions on her
own does not change the result. In United States v.
Shamsud-Din, No. 10 CR 927, 2011 U.S. Dist. LEXIS
UNITED STATES V. HAINES 9
124449, at *3 (N.D. Ill. Oct. 27, 2011), the defendant sought
to admit evidence that the alleged victims prostituted at other
times without a pimp. In a passage that applies equally to
this case, the court, ruling pre-trial, stated:
Defendant contends that his defense is
broader than that in Elbert because his
proffered evidence here offers a complete
defense to the charges. He specifically asserts
that he is arguing that the proffered evidence
shows that Victims A and B engaged in the
prostitution on their own and without his
involvement or knowledge. His argument is a
distinction without a difference. Defendant is
free to explore whether the Victims engaged
in the prostitution activities at issue in this
case on their own, rather than with his
assistance. He can also question the Victims
about their computer skills and whether or
not they are familiar with Craigslist, without
asking about using it for advertising prior or
subsequent prostitution activities. Defendant
cannot, however, inquire into other
prostitution activities. Such evidence of prior
and post prostitution activities is the
equivalent of propensity evidence and
irrelevant to the charges.
Id. at *11.
Haines cites no case holding that a defense such as the
one he sought to present here triggers the exception in Rule
10 UNITED STATES V. HAINES
412. And we see no reason to depart from the persuasive
authorities set forth above that held to the contrary. 1
What does make this case somewhat different from those
cited above is J.C.’s posture at trial. As Haines notes, Rule
412 aims to “safeguard the alleged victim against the
invasion of privacy, potential embarrassment and sexual
stereotyping that is associated with public disclosure of
intimate sexual details.” See Fed. R. Evid. 412, Advisory
Committee’s Notes to 1994 Amendments (“Advisory
Committee Notes”). Haines contends that in his case J.C.
actually wanted to testify about her prior acts of prostitution,
and that the government used Rule 412 not as a shield to
protect a cooperative victim’s privacy, but as a sword to
obtain a conviction by precluding him from eliciting
favorable testimony from a recalcitrant witness. The parties
do not cite—and we have not found—a case discussing
applicability of the Rule to a witness hostile to the
government.
For several reasons, however, we conclude that the
applicability of the Rule should not depend on the alleged
victim’s desire to testify. First, Rule 412 is a rule of
exclusion containing three specific exceptions in criminal
cases; the victim’s desire to testify or waive the protections
of the Rule is not one of them. Second, to the extent that
Rule 412 also serves the purpose of keeping irrelevant,
1
For the same reasons, we reject Haines’s argument that his right to
present a defense was violated when, after the government challenged
the credibility of J.C.’s trial testimony, he was not permitted to
“rehabilitate” her with irrelevant and otherwise inadmissible evidence
about her prior sexual behavior. See United States v. Scheffer, 523 U.S.
303, 308 (1998) (explaining that the right to present a defense is not
unfettered, and law-makers retain broad latitude to establish rules
excluding evidence from criminal trials).
UNITED STATES V. HAINES 11
prejudicial, and/or inflammatory evidence from the jury, it
should not matter whether the witness wants its protection;
the district court enforces the Rule to ensure that the jury
decides the case based on proper considerations. See
Advisory Committee Notes (noting that the Rule prevents
“the infusion of sexual innuendo into the factfinding
process”); Privacy of Rape Victims: Hearing Before the
Subcomm. on Crim. J. of the H. Comm. on the Judiciary on
H.R. 14666 and Other Bills, 94th Cong. 41 (1976) (statement
of Mary Ann Largen, National Organization of Women)
(“[Proposed Rule 412] assures that highly inflammatory and
arguably irrelevant matters will not be injected.”). Third,
allowing the victim’s wishes to control opens the door to
mischief. Indeed, in this case the government suspected that
J.C. changed her testimony based on pressure from Haines.
Finally, even if the district court misapplied Rule 412
here, and we do not believe it did, any error would be
harmless. See United States v. Preston, 873 F.3d 829, 835
(9th Cir. 2017) (noting that evidentiary rulings are subject to
harmless error review); United States v. Nielson, 371 F.3d
574, 581 (9th Cir. 2004) (“Confrontation Clause violations
are subject to harmless error analysis[.]”); see also United
States v. Torres, 794 F.3d 1053, 1062–63 (9th Cir. 2015)
(holding that an evidentiary ruling excluding evidence
desired by the defense did not violate the right to present a
complete defense because the evidence would not have
substantially furthered the defense’s trial theories). Haines
was able to present his theory of the case through J.C.’s
testimony that he was not her pimp during the trip to
California, that she engaged in the charged acts of
prostitution on her own and without his encouragement or
involvement, and that she kept the money she earned.
Haines was also able to argue to the jury in closing that this
trip to California was not J.C.’s “first rodeo,” that she knew
12 UNITED STATES V. HAINES
where the track was, and that she knew how to place ads on
Backpage. The district court also gave the jury a “mere
presence” instruction in support of the defense, explaining
that to convict in this case “[t]he defendant must be a
participant and not merely a knowing spectator,” which
Haines incorporated into his argument. It is hard to see how
additional testimony about J.C.’s other “solo” prostitution-
related activities would have materially aided the defense.
See United States v. Hofus, 598 F.3d 1171, 1180 (9th Cir.
2010) (holding that limitation on testimony from key witness
did not violate the defendant’s ability to present a defense,
where counsel was still able to argue his theory of the case).
We have considered Haines’s additional arguments that
the government opened the door to testimony about J.C.’s
prior activities, but none has merit. The government did not
elicit testimony suggesting that Haines introduced J.C. to
prostitution or that she was, in the district court’s words, “an
innocent lamb led to the slaughter.” The district court took
the issue seriously, warning the government that it could
open the door depending on how it presented its case. We
hold there was no abuse of discretion in its rulings.
Haines argues that his defense was prejudiced by the
district court’s refusal to allow him to recall J.C. to ask her
about her prior prostitution activities after King testified that
Haines, A.S., and J.C. came up with the idea to prostitute
while they were at a pool party together. As the district court
noted in denying Haines’s request, J.C. had already testified
that she and A.S. came up with the idea, without Haines’s
involvement, and the jury would have to decide who was
telling the truth, J.C. or King. The government did not open
the door simply by presenting evidence contrary to J.C.’s
trial testimony.
UNITED STATES V. HAINES 13
III.
For the foregoing reasons, and those stated in our
separate memorandum disposition addressing Haines’s other
arguments, we affirm the district court’s judgment.
AFFIRMED.