United States v. Footman

United States Court of Appeals
For the First Circuit

No. 99-1558

UNITED STATES OF AMERICA,

Appellee,

v.

TROY FOOTMAN,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy Gertner, U.S. District Judge]

Before

Selya, Boudin, and Lynch,
Circuit Judges.

Jonathan Shapiro, with whom Stern, Shapiro, Weissberg & Garin was
on brief, for appellant.
Paula J. DeGiacomo, Assistant U.S. Attorney, with whom Donald K.
Stern, United States Attorney, and Diana K. Lloyd, Assistant U.S.
Attorney, were on brief, for appellee.
 June 16, 2000

LYNCH, Circuit Judge. A jury convicted Troy Footman

of various federal crimes on evidence that he was a pimp,

running a ring of prostitutes who were transported across state

lines from Massachusetts to Delaware. Footman was convicted of

one count of conspiring to transport women, including three

minors, across state lines for the purpose of prostitution, in

violation of 18 U.S.C. § 371; four counts of transporting minors

across state lines for the purpose of prostitution, in violation

of 18 U.S.C. §§ 2, 2423(a); one count of transporting an adult

across state lines for the purpose of prostitution, in violation

of 18 U.S.C. §§ 2, 2421; and twelve counts of using an

interstate facility to distribute the proceeds of prostitution

activities, in violation of 18 U.S.C. §§ 2, 1952(a)(1). He was

tried alone, although Kimyou Tes, one of the women involved in

the prostitution ring, was described as a co-conspirator.1

1 The government originally charged Tes with conspiracy and
charged her under a number of the substantive offense counts but
dropped the charges after Footman was convicted.

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 Footman, ably represented by counsel, says his

conviction must fall because the evidence was not sufficient to

prove guilt beyond a reasonable doubt, the jury was not properly

instructed, and some evidence -- Footman's own bragging and

threatening statements in recorded telephone conversations from

prison -- was improperly obtained. He also complains about the

district court's sentencing that resulted, through several

upward departures, in a sentence of 15 years, about twice the

mandatory minimum. Counsel's arguments are not frivolous; but

neither are they sufficient, and we affirm both the verdict and

the sentence.2

This appeal requires that we resolve for the first time

the issue of whether the Massachusetts prison system's practice

of intercepting and recording inmate telephone calls violates

Title III of the Omnibus Crime Control and Safe Streets Act, 18

U.S.C. § 2510 et. seq. ("Title III"). It also requires further

delineation of the distinction between being a mere victim of a

conspiracy and being a co-conspirator.

I

2 Footman has also filed a pro se brief, raising arguments that
have no merit. We have considered them and there is no need to extend
the discussion beyond the issues raised by counsel.

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 We recite the essential facts as a reasonable jury

could have found them and in the light most favorable to the

government. See United States v. Bartelho, 71 F.3d 436, 438

(1st Cir. 1995). A fuller description of the facts may be found

in the district court's sentencing opinion. See United States

v. Footman, 66 F. Supp. 2d 83 (D. Mass. 1999).

Footman, assisted by Tes and another prostitute, Rita

Boykins, ran a prostitution business that included three minors,

S.O., age seventeen, A.M., age seventeen, and J-3, who was only

fourteen years old.3 Footman recruited S.O. from a Massachusetts

state courtroom, where he told her that, in order to get back

custody of her infant daughter, she would need to earn money.

She went to work as a prostitute in Chinatown and gave her money

to Footman. A.M. became a prostitute for Footman when she was

sixteen years old and worked at the trade in Boston. J-3, the

14 year old, was trained in how to be a prostitute in 1996 by

another woman in Footman's menagerie, on his instructions "just

to show her what to do and tell her it was fun." J-3 could not

3 We refer to the eldest two girls using their initials, as the
district court did. We refer to the youngest girl as J-3 (the term
used to describe her in the indictment), as the district court did upon
a motion by the United States to protect her identity.

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go through with her first attempt at prostitution, and one of

the other prostitutes told Footman she didn't feel that J-3 was

right for it. Footman urged patience, and eventually J-3

successfully worked as a prostitute. Boykins, who was an adult

during the periods relevant to Footman's convictions, also

worked as a prostitute for Footman.

Beginning in the summer of 1996, the young women were

transported to New Castle, Delaware, where they worked their

trade at a truck stop and gave their earnings to Footman. They

received about $10 a day for condoms and food. There were

multiple trips to Delaware from late June or early July 1996 to

March 1997, each trip typically lasting a few weeks. Although

Footman did not always accompany the young women to Delaware, he

would make appearances there for a few days at a time.

Different prostitutes wired Footman the collective receipts,

unless Footman was in Delaware, in which case the money was

handed to him directly.

The June 1996 Trip

In late June or early July 1996 Footman told A.M. that

they would be going to Delaware to work at a truck stop because

things had gotten "hot" with the police in Boston. Footman

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drove in one car, and A.M., Tes, and other prostitutes followed

behind in a second car. Footman registered for rooms at the

Budget Motel near the truck stop and took the young women to the

truck stop to begin working. Footman told them what to charge

for different sex acts, and they gave the money they earned to

him.

The July/August 1996 Trip

A.M. and other prostitutes went to Delaware in late

July or early August 1996, at Footman's direction. A.M. drove

down in Footman's car with Tes. Footman did not accompany them

on this trip. Tes registered the young women at the Budget

Motel, listing Footman's car as their car. A.M. wired the money

they made back to Footman. On one occasion, A.M. also wired

money back to Tes.

After they had returned to Massachusetts, A.M.

attempted to leave Footman. Footman responded by dragging A.M.

out of her house into the backyard, beating her, and throwing

her over a fence. He then forced her into a car driven by Tes

and took the money she had made working for an escort service.

They eventually ended up at Boykins's apartment, where Footman

explained that things would be the "old way" -- that A.M. would

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stay where Footman put her, would not have a boyfriend, would

not speak to other pimps, and would give Footman all the money

she made.

The October 1996 Trip

A.M., J-3, Tes, and other prostitutes drove to Delaware

in October 1996. A.M. testified that they drove in Footman's

car, but Boykins, who arrived later by bus, registered for rooms

at the Budget Motel and listed Tes's Chevy Celebrity as the car

they were driving.4 Footman had told Boykins that the police

weren't so bad in Delaware.

The night before A.M.'s birthday, Footman drove S.O.

and another prostitute down to Delaware and dropped S.O. off.

As he had previously done with A.M., Footman had told S.O. that

things were "hot" in Boston with the police and that they would

be going to Delaware to work at a truck stop. At Footman's

direction, A.M. wired Footman the money she and the other young

women had earned from prostitution. Boykins also wired money to

Footman.

4 Tes later transferred title of this car to Footman.

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 Although the date is not clear from the record, at

some point A.M. and J-3, at Footman's direction, traveled by bus

to Delaware to work at the truck stop. Footman paid for the bus

tickets, and A.M. gave the money they made to Footman.

The November 1996 Trip

A.M., J-3, Tes, and other prostitutes traveled to

Delaware in November 1996. Footman, Tes, and Boykins registered

for rooms for different dates during the period from November 3

to December 16, 1996. A.M., Tes, and Boykins wired money to

Footman during this time.

Some time in November, while in Delaware, S.O. tried

to escape from Footman. At one point she was chased down by Tes

and Footman, with Tes driving the car. Footman brought S.O. to

a motel room and brutally beat and raped her.

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The January 1997 Trip

A.M. and other prostitutes drove to Delaware again in

January 1997. A.M. wired Footman the money they made from

prostitution. Boykins also wired money to Footman from Delaware

in January 1997.

A.M. left Delaware for about a month, traveling "down

south" with a truck driver. When she returned to Delaware in

February, she attempted to leave Footman to go to work for

another pimp. When Footman found out, he beat A.M. She again

agreed to work for him.

The March 1997 Trip

Boykins drove to Delaware with Footman in March 1997

and worked at the truck stop as a prostitute. They traveled in

Footman's car, and Footman registered for the motel rooms.

Recorded CB transmissions from March 14, 1997, show Boykins

directing prostitution at the Delaware truck stop.

II

A. Sufficiency of the Evidence

Footman makes several arguments that the government's

evidence was insufficient. The arguments require a careful

roadmap of the counts of conviction. In addition to conspiracy

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(count one of the indictment), Footman was convicted of five separate

substantive transportation offenses (counts three through seven of the

indictment). Specifically, he was convicted on count three

(transportation of A.M. in or about late July 1996, to in or about

early August 1996); count four (transportation of A.M. in or about

October 1996); count five (transportation of S.O. in or about October

1996); count six (transportation of J-3 in or about October 1996 and

November 1996); and count seven (transportation of Boykins in or about

March 1997).5 In reviewing Footman's sufficiency claims, we view

the evidence in the light most favorable to the government,

drawing all legitimate inferences and resolving all credibility

conflicts in its favor. See United States v. Sabatino, 943 F.2d

94, 97 (1st Cir. 1991).6

1. Conspiracy (Count One)

Footman argues, correctly, that a conspiracy of one

person is no conspiracy at all. The government had charged him

5 Footman was acquitted on count two of the indictment
(transportation of A.M. in or about late June 1996 to in or about early
July 1996). He does not raise sufficiency of the evidence claims with
regard to his convictions on counts five and six.
6 The government argues that Footman failed to preserve his
sufficiency claims and that, as a result, our review is for "clear and
gross" injustice. United States v. Upham, 168 F.3d 532, 537 (1st Cir.
1999). Because we are able to affirm Footman's convictions under the
standard less burdensome to Footman, we do not address the issue of
whether Footman adequately preserved these claims for appeal.

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with conspiring with Kimyou Tes, one of the prostitutes, to

transport adults and three minors across state lines for the

purpose of prostitution. But Tes was never tried and the

charges against her were dismissed.7 Footman says Tes was a mere

victim and that a woman who simply prostitutes herself under the

control of a pimp and consents to being transported across state

lines cannot be a co-conspirator under the Mann Act. There is

law to this effect. See Gebardi v. United States, 287 U.S. 112,

123 (1932) ("[W]e perceive in the failure of the Mann Act to

condemn the woman's participation in those transportations which

are effected with her mere consent, evidence of an affirmative

legislative policy to leave her acquiescence unpunished.").

Specifically, Footman argues that there was insufficient

evidence that Tes ever entered any agreement with him to

accomplish the goals of the conspiracy. See United States v.

Colon-Munoz, 192 F.3d 210, 226 (1st Cir. 1999).

7 Footman also complains about the government's "cynical"
tactics in naming Tes as a co-conspirator and then dismissing the
charges against her. The government's reasons, whether admirable,
tactical, or cynical, were the stuff of prosecutorial discretion and do
not raise any additional issues for consideration on appeal.

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 In support of the conclusion that "Tes was a mere

victim," Footman relies most heavily on statements made by the

trial judge at sentencing. The judge said:

In the instant case, none of the women, with
exception of Tes, was included in the indictment.
Plainly, the indictment and the proof offered by the
government, characterized the women and girls instead
as victims, not participants. Everything I heard
confirms this fact.
Furthermore, although Tes was originally
included in the indictment with Footm[a]n, charges
against her were subsequently dismissed. Nothing I
heard in the trial, or read in the parties'
submissions persuades me that Tes was in a different
category than the other women or girls. Thus, I find
that there were no "participants" involved with
Footman in these crimes . . . .

Footman, 66 F. Supp. 2d at 93. This argument based on the

district judge's comments at sentencing is largely beside the

point. The question of guilt was for the jury to decide, and to

focus on what the trial judge said is to focus on the wrong

actor at trial. See United States v. Pitocchelli, 830 F.2d 401,

403 (1st Cir. 1987).

The real question is whether the jury had adequate

evidence to conclude that Tes was more than a victim -- that she

was in fact a co-conspirator. The dividing line is an important

one. There is an inherent policy judgment in the Mann Act not

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to prosecute women who do no more than consent to being

transported across state lines for the purpose of prostitution.

But that policy simply does not apply when the women assume

roles in running the business. Thus, in Sabatino this court

upheld the conspiracy conviction of a wife who played an active

role in two prostitution businesses her husband ran: an "escort

service" and a "health club." Sabatino, 943 F.2d at 97-98; see

also United States v. Anderson, 139 F.3d 291, 295-96, 298-99

(1st Cir. 1998) (affirming, in an appeal based upon other

grounds, conviction of an adult prostitute for transporting a

minor where the adult prostitute's car was used in

transportation and where the adult prostitute purchased a train

ticket for the minor). Footman says there is no evidence that

Tes was a partner, received any income, made any agreements, or

committed any acts in furtherance of the conspiracy. There was

no evidence, he says, that she acted any differently from the

others who were under his dominion and thrall. In particular,

Footman says that the other prostitutes also registered for

rooms and sent money back to him, as Tes did, and so she is

indistinguishable.

It is true that many of Tes's actions were of the same

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nature as the actions of some of the other prostitutes. That is

not the crux; the issue is whether she agreed to further the

conspiracy and took steps to do so, beyond her working as a

prostitute herself and crossing state lines. There is ample

evidence from which a jury could conclude that she acted as

Footman's agent and co-conspirator. Tes, who lived with

Footman, acted on Footman's behalf as transporter of the women,

arranger of the details of the business, occasional money

handler, and enforcer.

Tes transported A.M. and J-3 to Delaware. She

registered for dozens of nights of stays by the group at motels

in Massachusetts and Delaware. This was far in excess of the

number of room registrations by the others. Importantly, unlike

most of the other prostitutes, Tes had a driver's license and an

ID. Footman himself did not have a driver's license until

February of 1997. The license was important to the

transportation scheme of driving the women to Delaware. A

driver with a license was needed to continue the trip if they

were stopped by the police. In addition, Tes owned (or, at

least, allowed to be registered in her name) two of the

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automobiles used for transportation -- a Chevy Celebrity and a

Chrysler LeBaron.

Further, Tes acted as an enforcer. When A.M. attempted

to free herself from Footman's control in September 1996, Tes

assisted Footman in coercing her back into his employ. She also

chased down S.O. in a motel parking lot in Delaware when S.O.

was attempting to escape from Footman. This evidence, in the

aggregate, was adequate to support the finding that Tes had

agreed to the criminal scheme and had committed overt acts in

furtherance of it.

2. Substantive Counts Three, Four, and Seven

Footman also argues that the evidence was insufficient

to prove that he transported A.M. (counts three and four) or

Boykins (count seven) across state lines for the purpose of

prostitution.

As to A.M.'s several trips to Delaware, Footman says

there is no evidence that he went with her or arranged for

anyone else to transport her. But the evidence supports a

finding that Tes was Footman's agent in transporting A.M. A.M.

testified that she and other prostitutes went to Delaware in

late July, with Tes, at Footman's direction. The women traveled

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in Footman's car, and Tes registered for the motel rooms. A.M.

wired money back to both Footman and Tes.

A.M. testified that she, J-3, and other prostitutes

drove to Delaware with Tes in October 1996. The record evidence

is that the group drove down either in Footman's car or in Tes's

car. Moreover, not long before this trip, Footman had beaten

A.M., thrown her over a backyard fence, taken the money she

earned working for an escort service, and told her that, from

then on, she would stay where Footman put her and would give him

all the money she made.

As to Boykins, she testified that Footman traveled with

her to Delaware in March 1997. Footman says there is no

evidence that he exercised any control over her or that she went

to engage in prostitution. The trip was made in his car, and he

registered for the rooms at the motel. Boykins had prostituted

for Footman in Delaware before this trip. A jury could easily

infer that this trip was for similar purposes. Indeed, recorded

CB transmissions show she was directing prostitution at the

Delaware truck stop.

Overall, the evidence was sufficient to support the

verdict.

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B. Jury Instructions

Footman's argument that the jury instructions were

legally erroneous is pertinent to his convictions on the

substantive transportation counts. Our review is de novo. See

United States v. Woodward, 149 F.3d 46, 68 (1st Cir. 1998).8

Footman was charged under two theories -- that he was

a direct participant in the Mann Act violations and that he was

an aider and abetter. Each theory has somewhat different

requirements. For example, the direct theory under §§ 2421 and

2423(a) requires that Footman "knowingly transport[ed]" the

women across state lines. 18 U.S.C. § 2421, 2423(a). The

statutory language does not literally extend to "causing" the

transportation. See Sabatino, 943 F.2d at 99. Under the aiding

and abetting theory, by contrast, it would suffice that Footman

"caused" the women to be transported across state lines for the

purpose of prostitution. See 18 U.S.C. § 2(b).

The trial judge initially explained to the jury that

it could convict Footman under either a direct participation

8 The government argues that Footman failed to object to the
district court's final instructions and that, as a result, our review
is for plain error. Because we find, upon de novo review, that the
instructions given did not cause prejudice to Footman, we do not
address the issue of whether Footman preserved this claim.

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theory or an aider and abetter theory. She then defined

"transport" under § 2421 as "to move or carry or cause someone

to be moved or carried from one state to another." Moments

later, the judge defined "knowing transportation" to include

"cause to be transported."

The judge then went on to instruct that the § 2423(a)

counts required proof of the same elements as § 2421, with the

additional element that "the transportation needs to involve a

minor." In giving the § 2423(a) instruction, the judge

distinguished liability under the direct participant theory from

liability for aiding and abetting. The instruction was as

follows:

In addition, then, to the two elements that I
have described, that the defendant did knowingly
transport or did counsel, command, induce, procure or
cause the transportation of an individual, a named
individual, in interstate commerce -- that's what I've
summarized as the knowing transportation or causing to
transport prong; two, that the defendant did so with
the intent that the individual engage in prostitution
or other illegal sexual activity . . . .

Footman claims that the judge's instructions allowed the jury to

convict Footman "for conduct that was not criminalized by

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§§ 2421 and 2423(a)." This argument is to no avail.9 The trial

judge properly instructed the jury on the difference between

direct participation liability and liability as an aider and

abetter. Any confusion generated by the judge's having defined

"knowing transportation" under § 2421 to include "cause to be

transported" was corrected by her proper instruction regarding

§ 2423(a).

Even if the earlier instructions defining "knowing

transportation" were in error, there was no prejudice to

Footman, as there is no "pure" theory of direct liability.10

9 In his brief, Footman points to the trial judge's last
instruction (the one including the "counsel, command, induce" language)
in his claim that the trial judge erred in instructing the jury. That
last instruction was a correct statement of the law, and it clearly
articulated the elements for both the direct participation and the
aiding and abetting theories of criminal liability. We assume
Footman's argument that the trial judge committed error is really in
response to her having defined "knowing transportation," on a number of
occasions, to include "cause to be transported." These statements did
not correctly describe the elements of § 2421. As already noted,
"transport" in § 2421 does not include "causing" the transportation of
an individual. See Sabatino, 943 F.2d at 99.
Footman may also be claiming that it was improper to instruct
the jury on aiding and abetting liability at all. If so, this argument
is without merit. Footman was charged under both the substantive
statutory sections and the aiding and abetting statute, and the
evidence put on by the government sufficed to allow the issue to go to
the jury.
10 A different situation might arise in a case where the
prosecution's theory was that the defendant "caused" the prostitute to
transport herself across state lines by persuading her to do so,
whether by sweet talk, for a bonus, or the like. In such a case, the

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"[A]n aider and abettor charge is implicit in all indictments

for substantive offenses, so it need not be specifically pleaded

for an aiding and abetting conviction to be returned."

Sabatino, 943 F.2d at 99-100. As the revisor's note to § 2

states, "one who puts in motion or assists in the illegal

enterprise . . . is guilty as a principal even though he

intentionally refrained from the direct act constituting the

completed offense." 18 U.S.C. § 2 revisor's note. When aiding

and abetting is involved, then, the "counsels, commands,

induces, or procures" and "cause" language from § 2 is properly

part of the jury's instruction. Cf. United States v. Leppo, 177

F.3d 93, 95 (1st Cir.), cert. denied, 120 S. Ct. 501 (1999)

(harmless error for trial judge to include "willfully causes"

language from § 2(b) as part of definition of "transport" under

statute criminalizing "transport[]" of stolen goods).

C. Admission of Footman's Recorded Telephone Calls

The district court admitted evidence in the form of

recordings of telephone calls Footman made from prison to Tes

question of whether the "causation" involved would suffice to
constitute knowing transportation under the substantive statutory
sections is a real question. That was not the evidence or the
government's theory here, and so we do not need to explore this nuanced
meaning of the phrase "knowingly transport."

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and others. In those calls, Footman described himself as a

pimp, threatened the women with harm if they revealed any

information, and made statements that supported the government's

version of the facts. Footman says these calls were recorded in

violation of Title III and that they should have been excluded

as evidence. We review the district court's fact findings for

clear error and review its conclusions of law de novo. See

United States v. Beras, 183 F.3d 22, 25 (1st Cir. 1999).

At the state prison in Concord, Massachusetts, all

inmate calls, except calls to designated attorneys, are recorded

and subject to monitoring. See Mass. Regs. Code tit. 103, §

482. In order to use the phones, inmates are required to sign

a form stating that they understand that their calls will be

monitored and recorded. Large stickers on the phones remind

inmates that their calls are being recorded. A third notice

comes at the start of each call, when a pre-recorded message

tells both parties to the call that "[a]ll call detail and

conversation, excluding approved attorney calls, will be

recorded." Footman's calls were made in this context.

In civil prison conditions cases, this court has

alluded to but not decided the issue of whether the interception

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(and recording) of inmate calls violates Title III. See Gilday

v. Dubois, 124 F.3d 277, 296-98 (1st Cir. 1997); Langton v.

Hogan, 71 F.3d. 930, 935-37 (1st Cir. 1995).

The government introduced the calls on the theory that

they were consensual and so admissible under 18 U.S.C.

§ 2511(2)(c), which refers to "prior consent to such

interception."11 The government claimed that there was valid

consent from both parties to the telephone calls. Footman had

signed the form giving his consent to recording as a condition

of making the calls, and, the argument went, the recipients of

the calls consented by accepting the calls after listening to

the recorded warning that the calls could be recorded.

It is settled law that only one party need consent to

the interception of the calls. See United States v. Pratt, 913

F.2d 982, 986-87 (1st Cir. 1990). The district court held that

the recipient's consent was valid, but that the consent of the

prisoner was not. See United States v. Footman, 33 F. Supp. 2d

60, 64 (D. Mass. 1998). The result -- that there was a valid

11 The government had another theory of admissibility: that the
calls were placed on telephone equipment being used in the ordinary
course of their duties by investigative or law enforcement officers.
See 18 U.S.C. § 2510(5)(a)(ii). We do not reach this argument.

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consent -- is correct, but our reasoning is different. In our

view, the consent of the prisoner is valid and there is no need

to go further. We do not reach the question of whether the

other party to the call consented.

The question of consent, either express or implied, may

vary with the circumstances of the parties. See Griggs-Ryan v.

Smith, 904 F.2d 112, 116-17 (1st Cir. 1990). Footman does not

make a Fourth Amendment argument, but raises a statutory

question under Title III. Here, Footman expressly acknowledged

his understanding that his use of the prison telephones was

conditioned on his calls being monitored and recorded. Even

express consents, though, may be treated as invalid under some

circumstances, such as where they result from overriding

coercion. See 2 Wayne R. LaFave et al., Criminal Procedure

§4.3(c), at 361 n.87 (2d ed. 1999). In Langton, this court

questioned whether consent could be premised upon an inmate's

having to choose between making no phone calls and agreeing to

have his phone calls recorded. See 71 F.3d at 936. Footman

argues that this is the position he was in, and that it is

Kafkaesque to say his consent was voluntary. Footman urges that

the government may not "condition access to even a gratuitous

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benefit or privilege it bestows upon the sacrifice of a

constitutional right." Blackburn v. Snow, 771 F.2d 556, 568

(1st Cir. 1985).

In literal terms, Blackburn -- which involved consent

to strip searches and thus violations of bodily integrity --

does not apply here. Prisoners have no per se constitutional

right to use a telephone, and the violation urged here is of a

statute, not the Constitution. Nonetheless, the argument by

analogy must still be addressed as to whether extracting consent

as a condition of access to a telephone call by a prisoner means

the consent is not voluntary, and so is invalid.

Whatever the merits of that argument outside of the

prison context, where privacy interests are stronger,12 it has

little force when the person giving consent is in confinement.

Prison inmates have few expectations of privacy in their

communications. Cf. Hudson v. Palmer, 468 U.S. 517, 526-28

(1984). There is no reason to think that Congress would not

12 Title III itself explicitly considers that those engaged in
oral communications may have reduced privacy expectations and assumes
that there are protectable privacy interests in wire communications.
See 18 U.S.C. § 2510(1), (2). We do not address whether those privacy
interests are given up by a person, outside of the prison context,
merely because she accepts a call that has been preceded by a phone
company announcement that the call is being recorded.

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have included within the meaning of consent a prison inmate's

express acceptance of having his calls recorded as a condition

of using the telephone.13 This is particularly so given the

"deference and flexibility" federal courts afford state

officials in managing prisons.14 Sandin v. Conner, 515 U.S. 472,

482 (1995).

Other circuits have reached this same conclusion --

that prison inmates in Footman's position have given their

consent for purposes of Title III. See United States v.

Workman, 80 F.3d 688, 692-94 (2d Cir. 1996); United States v.

Van Poyck, 77 F.3d 285, 292 (9th Cir. 1996); United States v.

Horr, 963 F.2d 1124, 1126 (8th Cir. 1992). But see United States

v. Daniels, 902 F.2d 1238, 1244-45 (7th Cir. 1990) (expressing

reservations about finding Title III's consent requirement satisfied in

this context).

13 In passing the legislation, Congress was concerned with
protecting the privacy of individual citizens while providing for the
effective use of electronic surveillance to combat organized crime.
See S. Rep. No. 90-1097 (1968), reprinted in 1968 U.S.C.C.A.N. 2112,
2153-63. There is little reason to believe that Congress was concerned
with the privacy interests of prison inmates.
14 There may, of course, be "occasional applications that might
raise hard questions." Langton, 71 F.3d at 941 (Boudin, J.,
dissenting).

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 There was no violation of Title III and no error in

admitting the evidence.

D. Sentencing

Footman argues that the district court erred in

departing upward under two provisions of the Sentencing

Guidelines in determining his sentence.

1. Departure under U.S.S.G. § 4A1.3

The district court departed upward, at the government's

request, under U.S.S.G. § 4A1.3 on the ground that Footman's

Criminal History Category (CHC) of III did not "adequately

reflect the seriousness of the defendant's past criminal conduct

or the likelihood that the defendant will commit other crimes."

U.S.S.G. § 4A1.3 Footman's adjusted CHC was VI.

Footman says that the district court erred in adjusting

his CHC upward based upon six unscored convictions for offenses

he committed prior to age 18 and based upon five unscored adult

convictions from more than 10 years before commencement of the

present offenses.15 We understand Footman to be arguing that the

15 Under U.S.S.G. §§ 4A1.2(d) and 4A1.2(e), Footman's juvenile
convictions and his adult convictions from more than ten years prior to
the present offenses (and that resulted in sentences of thirteen months
or less) were not included in his initial CHC calculation.

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district court committed an error of law by considering improper

factors in making the departure. Our review is plenary. See

United States v. Snyder, 136 F.3d 65, 67 (1st Cir. 1998).

In an attempt to provide guidance on this issue, the

Sentencing Commission amended the Commentary to U.S.S.G. § 4A1.2

in 1992 to provide:

If the court finds that a sentence imposed outside
this time period is evidence of similar, or serious
dissimilar, criminal conduct, the court may consider
this information in determining whether an upward
departure is warranted under § 4A1.3 (Adequacy of
Criminal History Category).

U.S.S.G. app. C, amend. 472 (amending application note 8 of the

commentary to § 4A1.2). According to the Sentencing Commission,

"[t]his amendment clarifies that dissimilar, serious prior

offenses outside the applicable time period may be considered in

determining whether an upward departure is warranted under

§ 4A1.3." Id.

Footman says that despite this clear guidance from the

Sentencing Commission, the district judge made no finding that

the six juvenile and five adult convictions upon which she based

the upward departure represented "similar, or serious

dissimilar, criminal conduct."

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 Footman's argument does not capture what the district

court actually did in its careful and attentive sentencing

decision. The court observed that Footman's offenses were, in

large part, serious; that they escalated; and that recidivism

was characteristic. These were certainly adequate bases,

permitted by the law, to conclude that his CHC was too low.

Moreover, the Guidelines Commentary on which Footman relies is

exemplary, not exclusive. For that reason, § 4A1.3 explains

that evidence of an inadequate CHC "may include, but is not

limited to," specifically enumerated categories. U.S.S.G.

§ 4A1.3; see also United States v. Brewster, 127 F.3d 22, 26

(1st Cir. 1997). All the section actually requires is that the

judge's finding that the CHC is too low be based upon "reliable

information." U.S.S.G. § 4A1.3. "[A] court should not infer

from inexplicit Guidelines language, or from language that

authorizes use of a particular factor as a basis for departure

in some cases, an absolute barrier in principle against using

certain other factors as grounds for departure in other unusual

circumstances." United States v. Doe, 18 F.3d 41, 47 (1st Cir.

1994).

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 In addition to analyzing Footman's prior, unscored

convictions, the trial judge focused on two other sources of

information in determining whether the initial CHC was

representative. First, the trial judge considered Footman's own

bragging about how he had beaten previous charges and his plans

to "pimp up again" after he beat the present charges. Second,

the trial judge considered A.M.'s testimony regarding how

Footman had intimidated her into not testifying against him

after he had been charged with deriving support from a minor

prostitute (A.M.). A.M. had even brought intimidation charges

against Footman while he was in pre-trial detention for this

offense and had sought a restraining order against him. The

trial judge credited A.M.'s testimony that Footman had

intimidated her into dropping her request for the restraining

order and not testifying against him.

This is one area of the Guidelines where individualized

attention to the defendant is encouraged. That this

individualized attention worked to Footman's detriment is a

function of his incorrigibility, not of an error by the district

court.

2. Departure Under U.S.S.G. § 5K2.4

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 Footman separately argues that a second upward

departure, pursuant to U.S.S.G. § 5K2.4, was error because the

abductions of A.M. and S.O. (the rape and beating of S.O. in

November 1996 and the beating of A.M. in February 1997) were not

committed to facilitate the commission of an offense of

conviction.

Whether the abductions were committed to facilitate the

offenses for which Footman was convicted is a question of fact.

We review the district court's fact findings at sentencing for

clear error. See United States v. Li, 206 F.3d 78, 85-86 (1st

Cir. 2000). We otherwise review the district court's decision

to depart from the sentencing guidelines for abuse of

discretion. See id.

The abductions postdate the transportation offenses

forming the basis for the 18 U.S.C. § 2423(a) charge, Footman

argues, and so cannot be counted. Because the trial judge could

reasonably conclude that the abductions did facilitate criminal

conduct for which Footman was charged and convicted, we need not

decide whether an abduction that clearly postdates the criminal

act for which a defendant is convicted could support a departure

under § 5K2.4.

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 Footman was charged with and convicted of conspiracy

to transport women (including minors) across state lines for the

purpose of prostitution from in or about June 1996 until in or

about April 1997. The abductions occurred during this period

and clearly "facilitated" the commission of the conspiracy. Cf.

United States v. Uccio, 940 F.2d 753, 760 (2d Cir. 1991)

(affirming § 5K2.4 departure for kidnaping and assault of

coconspirator). Further, Footman was charged with and

convicted of a substantive transportation offense that occurred

in March 1997. Because the abductions occurred prior to the

commencement of that offense, the trial judge could reasonably

conclude that they facilitated that offense. Footman did not

commit either of the acts in private. The record evidence is

more than sufficient to have allowed the trial judge to conclude

that Footman carried out these attacks in front of other

prostitutes in order to send a message. The district court

committed no abuse of discretion in deciding to depart upward on

this basis.

III

We affirm Footman's conviction and sentence.

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