United States v. Campbell

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 94-10327
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UNITED STATES OF AMERICA,

Plaintiff-Appellee,

VERSUS

JAMES LYNN CAMPBELL,

Defendant-Appellant.

_________________________

Appeal from the United States District Court
for the Northern District of Texas
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(April 3, 1995)

Before SMITH, BARKSDALE, and PARKER, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

James Campbell appeals his conviction, after a jury trial, of

two violations of the Mann Act, 18 U.S.C. §§ 2421-2424 (1988). He

contends that there was insufficient evidence to submit to the jury

the issue of whether a dominant purpose of his travel was to engage

in prostitution. He also challenges several evidentiary rulings

and the enhancement of his sentence, on account of the use of force

during the offense, under U.S.S.G. §§ 2G1.1(b)(1) and 2G1.2(b)(1).

Because we find that there was sufficient evidence to support a

finding of "purpose," that the district court's evidentiary rulings

were not an abuse of discretion, and that the enhancement comported
with sentencing requirements, we affirm.

I.

The facts here are as simple as they are sordid. Campbell

began "dating" Lourena Wilkins, a drug user and prostitute, in the

spring of 1993 after they met in Albuquerque, New Mexico. Thereaf-

ter, the two traveled from Amarillo, Texas, where they lived to-

gether, to Albuquerque and other nearby cities, where Wilkins would

prostitute herself. Campbell assisted Wilkins with her profession

and provided her with drugs. Campbell, through his powers of

persuasion and access to drugs, later became involved with a

fifteen-year-old girl, "MRH," who exhibited extremely poor judgment

by befriending Campbell.

Shortly after Campbell and MRH met, they and Wilkins decided

to travel to Albuquerque, ostensibly to visit Wilkins's child, who

resided in that city. MRH, who claimed she did not know Wilkins

was a prostitute, simply wanted to go along for the ride. The

trip, however, turned rough at times, when Campbell would lose his

temper and strike MRH and Wilkins. At other times, they indulged

in drugs and alcohol.

In Albuquerque, after checking them into a motel, Campbell

informed MRH that she would have to make some money for him as

Wilkins did. If she did not, he threatened that she would get more

of the same rough treatment.

At first, MRH refused. Campbell and Wilkins, however, gave

MRH a demonstration of what she would have to do. Then Campbell

2
proceeded to have sex with MRH. Wilkins and MRH then hit the

streets.

For a time, the three eked out a living in the city, though

not without some difficulties. MRH and Wilkins were arrested at

different times for prostitution, but no serious repercussions

followed. Campbell also would hit them when he was angry and

threatened MRH so she would not report him to the police. Finally,

however, a call from MRH to her mother led to Campbell's arrest.

Campbell was charged with violations of 18 U.S.C. § 24211

(transportation generally) and 18 U.S.C. § 24232 (transportation of

minors). After a jury trial, he was convicted on both counts. The

district court sentenced him to serve 60- and 115-month concurrent

sentences, with a three-year term of supervised release.

II.

A.

Campbell first challenges the denial of his motion for acquit-

tal. He argues that the evidence was insufficient to allow a

1
§ 2421. Transportation generally

Whoever knowingly transports 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 activity for which any person can be charged with
a criminal offense, shall be fined under this title or imprisoned
not more than five years, or both.
2
§ 2423. Transportation of minors

Whoever knowingly transports any individual under the age of
18 years 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 activity for which any
person can be charged with a criminal offense, shall be fined
under this title or imprisoned not more than ten years, or both.

3
reasonable jury to find that his "dominant" purpose in traveling

was to engage in prostitution. Our standard of review for such

challenges is well-established: We ask whether, "viewing the

evidence and the inferences therefrom in the light most favorable

to the government, a reasonable trier of fact could find that the

evidence establishes guilt beyond a reasonable doubt." United

States v. Willis, 38 F.3d 170, 178 (5th Cir. 1994) (quoting United

States v. Trevino, 720 F.2d 395, 398 (5th Cir. 1983)), petition for

cert. filed (Mar. 20, 1995).3

To establish a violation of the Mann Act, one of the essential

elements is that the defendant transported his victim with the

intent that she engage in prostitution. While this intention to

engage in illicit activity must be a "dominant motive" of such a

trip, Mortensen v. United States, 322 U.S. 369, 374 (1944), this

circuit has interpreted this phrase narrowly, allowing prosecution

when a defendant had several purposes for the travel. We have

stated that

it is not necessary to a conviction under the Act that
the sole and single purpose of the transportation of a
female in interstate commerce was such immoral
practices. It is enough that one of the dominant
purposes was prostitution or debauchery. It suffices if
one of the efficient and compelling purposes in the mind
of the accused in the particular transportation was
illicit conduct of that kind. The illicit purpose
denounced by the Act may have coexisted with other
purpose or purposes, but it must have been an efficient

3
The government incorrectly argues that the issue is whether the evi-
dence of Campbell's intent supporting the conviction is sufficient. Campbell
in fact is challenging the denial of his motion for acquittal. In any case,
for our purpose here, the standard is the same. See United States v. Montoya-
Ortiz, 7 F.3d 1171, 1172-73 (5th Cir. 1993) (stating sufficiency of evidence
review standard).

4
 and compelling purpose.

Forrest v. United States, 363 F.2d 348, 349 (5th Cir. 1966)

(quoting Dunn v. United States, 190 F.2d 496, 497 (10th Cir.

1951)), cert. denied, 386 U.S. 995 (1967).

There is little question that a jury could find beyond

reasonable doubt that one of Campbell's dominant purposes in

transporting the women was illicit activity. Campbell had traveled

before with Wilkins to cities where she would engage in

prostitution. He actively furthered her "work." His act of

befriending MRH fairly could be called recruitment. His actions

upon arriving in New Mexico are consistent with a plan of forcing

MRH into the life of a prostitute. In sum, the evidence was

sufficient for a reasonable jury to find that a purpose of the trip

was to engage in prostitution.

Campbell questions whether a "dominant" purpose can exist

under the Mann Act when an equally compelling but innocent purpose

for traveling exists. This argument is based upon Campbell's

assertion that Wilkins's visit was motivated at least equally by

the desire to visit her child. We again reject))as we have long

rejected))this line of arithmetic hairsplitting. The "dominant"

requirement does not impose a "but for" limitation on the

defendant's intent.

In determining whether a "dominant purpose" exists, we instead

ask whether the illicit behavior is "one of the efficient and

compelling purposes" of the travel. Forrest, 363 F.2d at 349.

Accordingly, many purposes for traveling may exist, but, as long as

5
one motivating purpose is to engage in prostitution, criminal

liability may be imposed under the Act. When no dominant purpose

exists, it is because any such purpose was either non-existent or

"incidental." See, e.g., Mortensen, 322 U.S. at 375 (sole purpose

of travel was innocent holiday); United States v. Hon, 306 F.2d

52, 55 (7th Cir. 1962) (prostitution was not a purpose of trip, but

incidental result);4 Smart v. United States, 202 F.2d 874, 875

(5th Cir. 1953) (sole purpose of trip was to take care of legal

matters in another state).

While it is true that Wilkins did have a child in the area,

and they could have been traveling in order to visit the child,

this fact is not inconsistent with the prostitution plan. A

reasonable jury could find beyond a reasonable doubt that the group

was traveling to New Mexico to visit Wilkins's daughter and engage

in prostitution. Accordingly, the district court properly denied

the motion for acquittal and allowed the jury to determine this

question of fact.

B.

Campbell next argues that the court erred in allowing the

prosecution to introduce, over the defendant's objections,

irrelevant and prejudicial evidence on drug use and Campbell's

4
Even this limited expansion of Mortensen suggested in Hon has been
questioned seriously by the Seventh Circuit and this circuit. See United
States v. Snow, 507 F.2d 22, 26 (7th Cir. 1974) (expressly disavowing Hon);
Forest v. United States, 363 F.2d 348, 350 n.1 (5th Cir. 1966) ("The Hon case
drew a vigorous dissent, and seems to stand alone even in the Seventh
Circuit."), cert. denied, 386 U.S. 955 (1967).

6
violent outbursts. He also argues that the prosecutor made

numerous improper comments in both his opening and closing

statements, which the court should have excluded. The government

counters by claiming that the evidence of drug use and violence was

relevant intrinsic evidence of Campbell's relationship with the

women and also extraneous FED. R. EVID. 404(b) evidence of his

intent to use the relationship. It also argues that Campbell has

taken parts of its closing and opening statements out of context,

and considerable evidence supported its statement of facts or

reasonable inferences drawn from these facts.

On the issue of the violence and drug use, the district court

considered the motion in limine and determined that the evidence

was admissible. The basic prosecution theory was that Campbell, at

least in part, used drugs and violence to control the women and

make them prostitute for him. As such, the court found that the

evidence was relevant to how Campbell transported the women and

what his intent was. Once the court determined that the evidence

was relevant, a fact that Campbell does not challenge on appeal,

the court determined that its probative value outweighed its

prejudicial effect. We review this finding for abuse of

discretion. See United States v. Shaw, 920 F.2d 1225, 1129 (5th

Cir.), cert. denied, 500 U.S. 926 (1991).

The ruling was not an abuse of discretion. The evidence

admitted showed that Campbell supported Wilkins in her drug use.

A reasonable inference is that he used this "carrot" to induce or

entice Wilkins into prostituting for him. Similarly, he lured MRH

7
with drugs as well as money and clothes. On Campbell's acts of

seemingly random violence, a reasonable inference is that they were

the "stick." Campbell used force to intimidate the women and make

them think twice before turning him over to the police. This

evidence, while prejudicial, was highly important to the

prosecution in light of Campbell's defense that his relationship

was entirely innocent. The incidents that happened during the

course of the trip were, accordingly, relevant intrinsic evidence

of how the actual violation occurred.

Such evidence not so closely related to the actual

transportation of the women was admissible as "other crimes"

evidence on Campbell's intent in traveling from Texas to Mexico,

again a hotly disputed issue. Rule 404(b) states that evidence of

other crimes, wrongs, or acts "may . . . be admissible for other

purposes [besides proving character] such as proof of motive,

opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident." Here the court followed the

procedure required by United States v. Beechum, 582 F.2d 898, 911

(5th Cir. 1978), cert. denied, 440 U.S. 920 (1979), and, moreover,

gave a strong jury instruction on the limited use of such evidence.

It was not an abuse of discretion to admit such evidence.

Campbell cites numerous "errors" in the opening and closing

arguments, most based upon the prosecutor's presentation and

exposition of the government's view of the evidence. Because

Campbell failed to object to all but one of the statements,

however, he must show "plain error." See FED. R. CRIM. P. 52(b).

8
In order for the plain error doctrine to be applicable, we must

find that (1) there was error, (2) the error was plain, and (3) it

affects substantial rights. United States v. Calverley, 37 F.3d

160, 162-64 (5th Cir. 1994) (en banc). Only upon finding these

elements may we, in our discretion, correct the error. Id. at 164.

In making that determination, we ask whether the error "seriously

affect[s] the fairness, integrity, or public reputation of judicial

proceedings." Id. (quoting United States v. Atkinson, 297 U.S.

157, 160 (1936)).

For the one objection that Campbell made))that the government

in its close improperly suggested Campbell's state of mind in

"recruiting" MRH without building an evidentiary foundation))we ask

whether the remarks were both "inappropriate and harmful." United

States v. Iredia, 866 F.2d 114, 117 (5th Cir.) (quoting United

States v. Lowenberg, 853 F.2d 295, 301 (5th Cir. 1988), cert.

denied, 489 U.S. 1032 (1989)), cert denied, 492 U.S. 921 (1989).

Campbell's claims are meritless. The district court had

decided, in limine, that it would allow proof relating to

Campbell's violence and drug use with the women. The prosecutor

was allowed to mention this relevant and admissible evidence in his

statements. Contrary to Campbell's assertion on appeal, a fair

reading of the prosecutor's remarks is that he either was

summarizing the evidence as he saw it or was asking the jury to

make logical inferences from that evidence. The use of such

statements was not error.

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 C.

Campbell asserts that the district court erred in limiting his

cross-examination of MRH when he attempted to ask her about her

sexual behavior before and after her encounter with Campbell.

Campbell believes the court's limitation on the scope of the

questioning violated his Sixth Amendment right of confrontation.

The government argues that the cross-examination allowed was

adequate, and Campbell has failed to show the deprivation of a

substantial right.

We review limitations on the scope of cross-examination for

clear abuse of discretion. United States v. Duncan, 919 F.2d 981,

988 (5th Cir. 1990), cert. denied, 500 U.S. 926 (1991). "[T]rial

judges retain wide latitude insofar as the Confrontation Clause is

concerned to impose reasonable limits on such cross-examination

based on concerns about, among other things, harassment, prejudice,

confusion of the issues, the witness' safety, or interrogation that

is repetitive or only marginally relevant." Delaware v. Van

Arsdall, 475 U.S. 673, 679 (1986). Accordingly, "[t]he relevant

inquiry is whether the jury had sufficient information to appraise

the bias and motives of the witness." United States v. Tansley,

986 F.2d 880, 886 (5th Cir. 1993).

Here, the court was well within its discretion to find that

behavior after the crime was of little relevance to MRH's prior

activities. If anything, such activity was relevant only in the

same sense that the "other crimes" evidence that occurred during

the trip was probative; it was either inadmissible character

10
evidence or extrinsic evidence. The court did not abuse its

discretion in finding that such evidence of actions occurring after

the criminal acts was of insufficient relevance to be admitted as

extrinsic proof.

Because such character evidence relating to events that

occurred before the trip was potentially probative as extrinsic

evidence, the court gave Campbell greater leeway on that line of

questioning. The court stated that it "was not going to let you

[Campbell] go into detail on her whole history, but I think the))I

think that she has previous drug use, I think, is relevant, and

that))I don't think you should go into it all, but you can ask her

if she had previous sexual experience before." Campbell then

proceeded to question MRH on these topics. Campbell's questioning

was sufficient to allow a jury to appraise MRH's credibility as a

witness.

D.

The final issue is whether the court erred in including a

four-level increase in Campbell's offense level for sentencing

because of the evidence of his violent outbursts directed at the

women. In making its enhancement, the court relied upon U.S.S.G.

§§ 2G1.1(b)(1) and 2G1.2(b)(1) (Nov. 1993), which state that "[i]f

the offense involved the use of physical force, or coercion by

threats or drug use or in any manner, increase by 4 levels."

Campbell argues that the women's travel was not the result of

coercion but was voluntary, and the violence was not part of the

11
offense. The government argues that the physical violence that

occurred was sufficiently related to the base offense to be

considered "involved" under the sections.

Our standard of review mandates the result in this case: We

examine the sentence to ascertain whether it was imposed in

violation of the law, as a result of a misapplication of the

sentencing guidelines, or outside the guideline range and was

unreasonable. United States v. Fair, 979 F.2d 1037, 1040 (5th Cir.

1992), cert. denied, 114 S. Ct. 1374 (1994). Findings of fact are

accepted if they are not clearly erroneous. Id.

Here, the court specifically found as a factual matter that

Campbell used force during the trip to further his purpose in

transporting the women across state lines for prostitution. This

finding, of course, is contrary to Campbell's argument that the

violence was merely incidental to the underlying crime or occurred

only after the alleged offenses were committed. Nonetheless,

sufficient evidence was presented to support the finding that

Campbell began using violence during the trip in order to

intimidate the women. Once they had arrived in Albuquerque, the

level of violence escalated, as Campbell used force and the threat

of force to induce MRH into prostitution and prevent her from

reporting him. As the record supports the court's finding, it was

not clearly erroneous.

Campbell, moreover, incorrectly argues that the physical force

must be used to coerce. See, e.g., U.S.S.G. §§ 2G1.1, comment.

(n.3), 2G1.2, comment. (n.3) (defining "coercion" as "any form of

12
conduct that negates the voluntariness of the behavior of the

person being transported"). The plain language of the sections

requires only that "the offense involved the use of physical

force . . . ."

Campbell's reading of the sections, however, confuses this

first clause with the second clause, which allows an enhancement

where "the offense involved . . . coercion by threats or drugs or

in any manner . . . ." Accordingly, Campbell's reading contradicts

the well-established canon of construction named the "doctrine of

the last antecedent," which requires that "qualifying words,

phrases, and clauses are to be applied to the words or phrases

immediately preceding, and are not to be construed as extending to

or including others more remote." Quindlen v. Prudential Ins. Co.,

482 F.2d 876, 878 (5th Cir. 1973); see also General Motors

Acceptance Corp. v. Whisnant, 387 F.2d 774, 778 (5th Cir. 1968)

(holding that the canons of construction mandate that courts give

effect, when ever possible, to all parts of a statute and avoid

interpretation that makes a part redundant or superfluous).

Under our interpretation of these sections, an enhancement is

justified if a court finds that the offense only "involved the use

of physical force," even if the force was not used to coerce.5

5
We note that one First Circuit case could be read to interpret § 2G1.1
differently. In United States v. Sabatino, 943 F.2d 94, 104 (1st Cir. 1991),
the court overturned a § 2G1.1 enhancement because, in part, the "violent acts
were not used as coercive elements to force the girls to participate in the
criminal venture." This language suggests no distinction between use of force
and coercion. We find Sabatino easily distinguishable, however, as the court
immediately qualified its statement: "To the contrary, the only rational
effect they could have had was to persuade the girls to abandon this line of
work." Id. While not deciding the issue for this circuit, we thus read
Sabatino to hold that where the defendant's violent acts are contrary to

13
Thus, if a Mann Act perpetrator physically restrained a strong-

willed woman and transported her over state lines for the purpose

of forcing her into prostitution, an enhancement would be justified

even if the woman's spirit was never broken and she thus was not

"coerced." Here, Campbell did not "coerce" his victims, but

nonetheless, as found by the district court, he used force to

further his scheme. We conclude that the enhancement of Campbell's

criminal offense level was justified under the district court's

factual findings and our interpretation of the guidelines.

AFFIRMED.

RHESA HAWKINS BARKSDALE, concurring:

I concur. But, in my opinion, it is most arguable that we

should review the motion for acquittal/element of the offense

issue only for plain error, because Campbell did not later object

to the jury instruction on this point. Cf. United States v.

Graves, 5 F.3d 1546, 1551-53 (5th Cir. 1993) (reviewing for plain

error where defendant did not make contemporaneous objection to

admission of evidence that was subject of earlier ruling on motion

in limine).

furthering his Mann Act purposes, they can be said to be neither coercive nor
of use to him. As this holding applies to both clauses of § 2G1.1, Sabatino's
application of that section is not predicated upon an interpretation different
from the one we employ today.

14