IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 17, 2009
No. 07-20467 Charles R. Fulbruge III
Clerk
UNITED STATES OF AMERICA
Plaintiff - Appellee
v.
GEORGE ANDERSON, III
Defendant - Appellant
Appeal from the United States District Court
for the Southern District of Texas
Before HIGGINBOTHAM, BENAVIDES, and STEWART, Circuit Judges.
PATRICK E. HIGGINBOTHAM:
George Anderson appeals his conviction and sentence for two counts of sex
trafficking of children.1 The Government’s case at trial showed that Anderson
induced two minor females to work for him as prostitutes, that they gave him all
the money they made, and that in return Anderson paid for the girls’ hotel
rooms, cell phones, clothes, and food.
I
Anderson raises five points of error which we address in turn.
1
18 U.S.C. § 1591.
No. 07-20467
A
Anderson first argues that the phrasing of the jury instruction on the
interstate commerce element of sex trafficking allowed the jury to convict
without finding beyond a reasonable doubt that interstate commerce was
actually affected. The interstate commerce portion of the charge used in this
case, in its entirety, reads:
The offense of sex trafficking requires that the act of
harboring a person for commercial sex acts must be “in or
affecting interstate commerce.” I instruct you that acts and
transactions which affect the flow of money in the stream of
commerce to any degree, however minimal, are acts and
transactions “in or affecting interstate commerce.”
The Government is not required to prove that the
defendant knew that his conduct would affect interstate
commerce. It is not necessary for the Government to show
that the defendant actually intended or anticipated an effect
on interstate commerce by his actions or that commerce was
actually affected. All that is necessary is that the natural and
probable consequence of the acts the defendant took would be
to affect interstate commerce. If you decide that there would
be any effect at all on interstate commerce, than that is
enough to satisfy this element. The effect can be minimal.
So, if the Government proves beyond a reasonable doubt
that any of the acts of harboring a person who had not
attained the age of eighteen years for commercial sex acts
affected the flow of money, goods or services in interstate
commerce to any degree, you may find that the interstate
commerce requirement has been satisfied.
We review a jury instruction for abuse of discretion and ask “whether the
instruction, taken as a whole, ‘is a correct statement of the law and whether it
clearly instructs jurors as to the principles of law applicable to the factual issues
confronting them.’”2
2
U.S. v. Fuchs, 467 F.3d 889, 901 (5th Cir. 2006) (quoting U.S. v. Freeman, 434 F.3d
369, 377 (5th Cir. 2005)). The Government in this case casts some doubt on whether
Anderson’s objection to the jury charge at trial was specific to the interstate commerce portion
2
No. 07-20467
The principle of law at issue here is the jurisdictional hook in the sex
trafficking statute. Because the statute requires that the prohibited act itself
be “in or affecting interstate or foreign commerce,” the Government must prove
the jurisdictional nexus on a case-by-case basis, as compared with other federal
statutes, similarly enacted under the commerce power, but which rely on a
finding that the regulated activity substantially affects interstate commerce in
the aggregate.3
Noting this principle of law, Anderson points to the second paragraph of
the interstate commerce instruction, specifically the sentence: “It is not
necessary for the Government to show that the defendant actually intended or
anticipated an effect on interstate commerce by his actions or that commerce
was actually affected.” Anderson argues that the last clause of the sentence—“or
that commerce was actually affected”—relieved the prosecution of the burden of
proving that interstate commerce was actually affected by the sex trafficking in
this case.
We agree that, taken out of context, the last clause of the quoted sentence
would be a misstatement of the law; the interstate commerce element does
require the prosecution to prove that interstate commerce was actually affected.
However, our review is of the jury instruction as a whole. Viewing the charge
holistically, the suspect phrase occurs in the second paragraph, which plainly
discusses the scienter requirement as it relates specifically to the jurisdictional
hook element. The paragraph’s first sentence conveys the subject of the
paragraph, stating the rule, as we have held in a variety of contexts, that no
of the charge. Without a proper objection, we would review for plain error. Because we find
no abuse of discretion, we need not debate the sufficiency of Anderson’s objection.
3
See Controlled Substances Act, 21 U.S.C. § 801 et seq.; Gonzales v. Raich, 545 U.S. 1
(2005).
3
No. 07-20467
mens rea attaches to the interstate nexus element.4 With this subject in mind,
the second sentence then continues as explanation. The beginning of the
sentence correctly states that “[i]t is not necessary for the government to show
that the defendant actually intended or anticipated an affect on interstate
commerce by his actions.” But then appears the unhappy phrase “or that
commerce was actually affected.” While the stray language was best deleted,
when taken in context—its location in a paragraph discussing intent—the last
phrase “that commerce was actually affected” is best read as relating back to
what the “defendant actually intended or anticipated.” In other words, the
sentence was not meant to say that the Government need not show an actual
affect on commerce, but that“[i]t is not necessary for the Government to show
that the defendant actually intended or anticipated . . . that commerce was
actually affected.”
Of course the effort of all is to use sentences in a jury instruction that do
not require jurors to tease out the best reading. But when it happens we
confront it directly. We do not assume that the jury correctly interpreted the
charge’s ambiguous sentence. We find no error. The instruction as a whole
clarified that the Government must prove an affect on interstate commerce. The
suspect sentence was contained in a paragraph whose subject was limited to
intent, sandwiched between two other paragraphs reinforcing that the
Government must prove at least a de minimis affect on interstate commerce.
The last paragraph offered a summary—signaling this by beginning with the
word “So”—which clearly reiterated that the Government must prove some
degree of affect on interstate commerce. This conclusion is strengthened by
4
See U.S. v. Richards, 204 F.3d 177, 208 (5th Cir. 2000) (no specific intent requirement
as to interstate nature of wire fraud); U.S. v. Kelly, 569 F.2d 928, 934 (5th Cir. 1978); U.S. v.
Thrasher, 569 F.2d 894, 895 (5th Cir. 1978).
4
No. 07-20467
placing the charge in the full context of the trial, with focus upon the
construction given to it by counsel in their argument to the jury.
Our question is the message given to the jury. This makes it significant
that the Government did not exploit the weakness in the charge in its trial
argument.5 To the contrary, in closing argument the Government emphasized
to the jury the evidence that it had presented—hotel bills, cell phone bills, and
clothing purchases—to prove an actual affect on interstate commerce:
Did it have an affect on interstate commerce? Well, Mr.
Anderson is paying about $50 a day for this hotel room. I
suggest to you, ladies and gentlemen, he’s putting money into
interstate commerce. In part, we base this upon the testimony
of the owner of this hotel who says, “I’m a chain. My
headquarters are in Atlanta, Georgia[.]” [I]nterstate commerce.
We are persuaded that the charge as a whole and as framed by the jury
arguments correctly conveyed the law—the Government had to prove Anderson’s
illegal activities had some degree of affect on interstate commerce.
B
Anderson next argues that his equal protection rights were violated when
the testimony of an FBI special agent regarding the culture of prostitution turned
racial. The relevant testimony reads:
Government lawyer: Okay. Are you familiar with the term
“pimp rules?”
Agent: Yes, I am.
Government lawyer: And what does that mean to you, in this
culture?
5
See Estelle v. McGuire, 502 U.S. 62, 72 (1991) (“It is well established that the
instruction ‘may not be judged in artificial isolation,’ but must be considered in the context of
the instructions as a whole and the trial record.”) (quoting Cupp v. Naughten, 414 U.S. 141,
147 (1973)).
5
No. 07-20467
Agent: In this culture, there’s a number of rules
that the girls have to abide by. One of-
Government lawyer: What are those rules, ma’am?
Agent: One of the rules is that a girl is told not
to look at or make eye contact with any
young Black male because he might be
another pimp.
The Court: Well what about potential customers?
How does that jibe with the - that rule?
Agent: Most of the girls will not have a date
with a young Black male. They will
avoid that. A lot of them avoid all Black
males in general.
The Court: Why is that? Is there a reason for that?
Agent: The reason is mainly they’re afraid that
that’s going to be a pimp-
Testimony from a prosecution witness stating or implying that persons of
the same race as the defendant are more likely to commit certain crimes is
impermissible, both on constitutional grounds 6 and because its probative value
is outweighed by its danger of unfair prejudice.7 The Government contends that
the FBI agent’s testimony was elicited for the innocuous purpose of explaining
the behavior of prostitution victims. The testimony turned racial, however, the
impetus behind this particular line of questioning being that all pimps are black
males, or at least this may well have been the implication to a reasonable juror.
The testimony should have been excluded.
6
See McCleskey v. Kemp, 481 U.S. 279, 310 n.30 (1987) (“The Constitution prohibits
racially biased prosecutorial arguments.”).
7
See FED . R. EVID . 403; U.S. v. Vue, 13 F.3d 1206, 1213 (8th Cir. 1994).
6
No. 07-20467
We conclude, however, that the error was harmless. Because the error
implicated Anderson’s constitutional rights we “must be able to declare a belief
that it was harmless beyond a reasonable doubt.” 8 The impermissible testimony
was limited to a few moments from a single witness that occurred in the course
of a five day trial, the testimony was not mentioned again, and the Government
did not allude to the testimony in its closing argument. The Government’s
admissible evidence against Anderson, on the other hand, was overwhelming.
Former prostitutes testified regarding Anderson’s activity as a pimp. Physical
evidence, including hotel bills and cell phones, was introduced. And a police
officer testified that when he pulled Anderson over for a traffic violation and
asked him what his occupation was, Anderson replied that he was a pimp.
C
Anderson also contends that the district court abused its discretion by
admitting the expert testimony of a Government witness who testified to the
typical characteristics of adolescent prostitutes and to the behavior of pimps.
Anderson argues that the expert, Frank Quattrochi, was not qualified to testify
as an expert and that his testimony was not relevant.
Mr. Quattrochi was qualified as an expert based on his experience.9 He is
the director of a center that provides services for runaways and high-risk
adolescent victims and that specializes in serving victims of sexual exploitation.
The position provided Mr. Quattrochi unique experience on which to base his
testimony.
8
Chapman v. Cal., 386 U.S. 18, 24 (1967).
9
See FED . R. EVID . 702 (“ . . . a witness qualified as an expert by knowledge, skill,
experience, training, or education, may testify . . .”) (emphasis added).
7
No. 07-20467
The testimony was also relevant. In U.S. v. Anderson,10 the D.C. Circuit,
reviewing a conviction for interstate transportation of minors for prostitution,
held that a sociologist’s expert testimony on “pimping patterns and the pimp-
prostitute relationship” was relevant because it “might have shed light on
critical issues in the case—for example, whether the appellant was in fact a
pimp or rather, as [appellant] claims, merely a gambler with a flashy lifestyle
and a penchant for travel; and whether the government's young witnesses
traveled with him quite independently, or as part of a pimp-prostitute
relationship.” Additionally, the court also found the testimony, “could have
helped the jury to determine the credibility of the government's
prostitute-witnesses, which counsel for appellant had sought to undermine on
cross-examination by pointing out the inconsistencies in the witnesses'
testimonies, and by intimating that they would not have remained with
[appellant] if he had mistreated them as they claimed.” 11 The issues in this case
are nearly identical. Mr. Quattrochi’s testimony was both reliable and relevant;
the district court did not abuse its discretion in allowing it.
D
Anderson next argues that the district court erred in granting a motion to
quash the subpoena for Judge Mark Atkinson. In preparation for trial,
Anderson subpoenaed Harris County Criminal Court Judge Mark Atkinson.
Judge Atkinson, in an unrelated case, had accepted a plea on a failure to identify
charge from one of the girls that allegedly worked for Anderson. Anderson
sought to elicit Judge Atkinson's testimony that he did not suspect the girl was
a juvenile when he accepted her plea. Anderson argues such testimony would
10
851 F.2d 384, 392–93 (D.C. Cir. 1988).
11
Id. at 393.
8
No. 07-20467
have been material to his defense that he did not know the girl was a minor.
Judge Atkinson filed a motion to quash, which the district court granted.
A district court has broad discretion to grant or deny a request for a
subpoena and may consider factors including materiality, relevancy, and
competency.12 This case also implicates the “mental process rule.” This rule
protects the mental process of government agents and judges from compelled
testimony; “such an examination of a judge would be destructive of judicial
responsibility.”13 This Court has explained, quoting a Virginia district court:
While a judge enjoys no special privilege from being subpoenaed
as a witness, it is imperative when he is called to testify as to
action taken in his judicial capacity, to carefully scrutinize the
grounds set forth for requiring his testimony. Should a judge be
vulnerable to subpoena as to the basis of every action taken by
him, the judiciary would be open to frivolous attacks upon its
dignity and integrity, and interruption of its ordinary and proper
functioning.14
In light of this rule, the district court did not abuse its discretion in
granting the motion to quash the subpoena. The testimony that Anderson
sought related to Judge Atkinson's acceptance of a plea from a girl he did not
suspect to be a minor—a point that Judge Atkinson need not defend on collateral
attack in an unrelated proceeding. It is true that the testimony would have been
material to Anderson's defense that he did not know the girl’s age. However,
there was already ample evidence that Anderson did know the girl was under
eighteen. The girl herself testified that Anderson did not believe her when she
12
See U.S. v. Masat, 948 F.2d 923, 933 (5th Cir. 1991); U.S. v. Johnson, 495 F.2d 1097,
1102 (5th Cir. 1974).
13
Gary v. L.A., 861 F.2d 1366, 1368 (5th Cir. 1988) (quoting U.S. v. Morgan, 313 U.S.
409, 422 (1941)).
14
Gary, 861 F.2d at 1369 (quoting U.S. v. Dowdy, 440 F. Supp. 894, 896 (W.D. Va.
1977)) (citations omitted).
9
No. 07-20467
told him she was eighteen. Mr. Quattrochi, a government expert witness,
testified that adolescent prostitutes frequently lie about their age. And, the
girl’s mother and friend both testified that they told Anderson of the girl’s true
age and that she had to return to high school. Moreover, Anderson could have
refuted this evidence in a number of ways without subpoenaing Judge Atkinson,
for example, by adducing testimony from others that thought the girl was older
than she was. Quashing the subpoena was not an abuse of discretion.
E
Lastly, Anderson challenges his sentence. The district court sentenced
Anderson to 262 months imprisonment and lifetime supervised release. Because
Anderson raised his objections to the sentence at the district court, we review
the sentence for abuse of discretion.15
Anderson first challenges the district court’s application of three
enhancements to his base offense level of 24. The district court applied
enhancements for undue influence, for the offense involving a commercial sex
act, and for obstruction of justice, which together increased Anderson’s offense
level to 30.16 In order to apply an enhancement, the district court must find
evidence supporting the enhancement to a preponderance of the evidence.17 We
review the district court’s factual determinations for clear error.18
15
U.S. v. Williams, 517 F.3d 801, 808 (5th Cir. 2008).
16
Grouping the two counts together further raised the total offense level to 32. See
U.S.S.G. § 3G.
17
Williams, 517 F.3d at 808.
18
U.S. v. Gonzales, 163 F.3d 255, 263 (5th Cir. 1998). “A factual finding is not clearly
erroneous as long as it is plausible in the light of the record read as a whole.” U.S. v. Lowder,
148 F.3d 548, 552 (5th Cir.1998) (quoting U.S. v. Cluck, 143 F.3d 174, 180 (5th Cir.1998)).
10
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Regarding the undue influence enhancement,19 Anderson contends that his
victims were already engaging in prostitution before they associated with him.
This, however, ignores evidence in the record that Anderson’s victims were
afraid to leave him. Moreover, the application note for § 2G1.3 provides for a
rebuttable presumption of undue influence “[i]n a case in which a participant is
at least 10 years older than the minor.” The district court stated at sentencing
that Anderson was 29 years old. His victims were minors, at least under 18,
though evidence at trial suggested they were considerably younger. Thus, undue
influence was both presumed and supported by evidence.
Anderson next challenges the enhancement for the offense involving the
commission of a sex act 20 on the grounds that the underlying offense
incorporated the element of commercial sex and thus the enhancement would
constitute double counting. The base offense level in § 2G1.1, however, applies
to a variety of crimes, some of which do not involve commercial sex acts. Thus,
it is not double counting for an enhancement to apply to the crimes that do, as
opposed to those that do not, involve commercial sex acts.
The final enhancement, for obstruction of justice,21 was based on the
district court’s finding that Anderson communicated from jail in a letter to one
of his minor victims seeking her help. The letter stated “you need to be trying
to help me, to help you, to help us.” This letter reasonably could be read as an
attempt to influence the victim’s testimony. In light of this evidence, obstruction
was plausible, and thus the enhancement was not clearly erroneous.
Finally, Anderson challenges the overall reasonableness of his sentence.
The district court departed from the guidelines in this case by the addition of
19
U.S.S.G. § 2G1.3(b)(2)(B).
20
§ 2G1.3(b)(4).
21
§ 3C1.1.
11
No. 07-20467
three offense levels.22 The guideline range for the resulting offense level of 35,
given Anderson’s criminal history category of III, was 210 to 262 months.
Anderson was sentenced to 262 months.
The sentence was not an abuse of discretion and is supported by the
factors in 18 U.S.C. § 3553(a). The district court explained at sentencing the
serious nature of the offense and the harm it brought on the victims. The court
expressed its concern that Anderson was likely to commit future crimes, noting
that Anderson was on supervised release when he engaged in the current illegal
activity. Based on the sentencing judge’s unique position to understand the
evidence against Anderson and given his statements supporting a departure
pursuant to the sentencing statute, we find that the sentence was not an abuse
of discretion.
Anderson’s conviction and sentence are AFFIRMED.
22
See § 5K2.0.
12