The Rules of the “Game”:
Defending Sex Trafficking Cases
CJA Training – May 9, 2014
Baltimore, MD
The Relevant Statutes
• 18 U.S.C. § 1591(a) – sex trafficking
– Force, fraud, and coercion
– Minor victims
• 18 U.S.C. § 1594(a) - attempt of § 1591(a) is
punished the same as the completed crime
• 18 U.S.C. § 1594(c) – conspiracy to commit sex
Other Related Charges
• § 2423(a) - transportation of minors with the intent to engage in
“criminal sexual activity”
• § 2423(b) - travel with the intent to engage in “illicit sexual
– AD of reasonable belief that victim was > 18 , § 2423(g)
• § 2422(a) - coercion or enticement of adults to travel to engage in
prostitution or other criminal sexual activity
• § 2422(b) – use of an interstate facility to coerce or entice a minor
to engage in prostitution or other criminal sexual activity
• § 2421 – transportation of any individual to engage in prostitution
or other criminal sexual activity
• § 1592(a) – withholding ID in relation to sex trafficking, or (c)
obstructing enforcement of same
• § 1952(a)(1) or (a)(3) – travel or use of interstate facility to
distribute proceeds or promote or facilitate “any unlawful activity”
18 U.S.C. § 1591(a)
• (a) Whoever knowingly—
• (1) in or affecting interstate or foreign commerce, or within the special
maritime and territorial jurisdiction of the United States, recruits, entices,
harbors, transports, provides, obtains, or maintains by any means a
person; or
• (2) benefits, financially or by receiving anything of value, from
participation in a venture which has engaged in an act described in
violation of paragraph (1),
• knowing, or in reckless disregard of the fact, that means of force, threats
of force, fraud, coercion described in subsection (e)(2), or any combination
of such means will be used to cause the person to engage in a commercial
sex act, or that the person has not attained the age of 18 years and will be
caused to engage in a commercial sex act, shall be punished as provided in
subsection (b).
• U.S. v. Afyare, 2013 WL 2643408 (M.D. Tenn. 2013)(outlier decision, with
multiple contrary decisions, but this decision found that § 1591(a) only
applies to minors and cannot be used to charge adults).
“Whoever knowingly. . .”
• “knowingly” has been interpreted to apply to the act of
transportation, enticement, etc. of a person, or to the
fact of financial benefit therefrom, and not to the
interstate aspect of the offense.
• U.S. v. Sawyer, 733 F.3d 228, 229-30 (7th Cir. 2013)
• U.S. v. Evans, 476 F.3d 1176, 1180 (11th Cir. 2007)
• Cf. United States v. Darby, 37 F.3d 1059, 1067 (4th Cir.
1994) (“Numerous cases have held that criminal statutes
based on the government’s interest in regulating
interstate commerce do not generally require that an
offender have knowledge of the interstate nexus of his
actions.”), cert. denied, 514 U.S. 1097 (1995).
Whoever “benefits”
• (a) Whoever knowingly—
• (2) benefits, financially or by receiving anything of
value, from participation in a venture which has
engaged in an act described in violation of
paragraph (1),
• knowing, or in reckless disregard of the fact, that:
- Means of force, threats of force, fraud,
coercion . . . will be used to cause the person
to engage in a commercial sex act OR
- That the person is under 18
Benefits financially
• Low threshold needed to establish financial
benefit - U.S. v. Jennings, 280 Fed. Appx. 836,
844 (11th Cir. 2008)(gas money on one car trip
and covering cost of hotel room paid for with
prostitution proceeds sufficient).
“Benefits . . . by receiving anything of
• Construed broadly. See U.S. v. Cook, 2013 WL
3039296, *13 (W.D. Mo. 2013 (pornographic
images found to constitute a thing of value), codefendant charged with receiving things of value
such as cigarettes, clothing, and meat
• Refer to cases interpreting “thing of value” in CP
cases under § 2G2.2.
• Note: This provision has been applied to
purchasers of sex from minors, not just suppliers.
See U.S. v. Jungers, 702 F.3d 1066, 1072-74 (8th
Cir. 2013)
“Force, fraud or coercion”
• (a) Whoever knowingly—
(1) in or affecting interstate or foreign
commerce. . .recruits, entices, harbors,
transports, provides, obtains, or maintains by
any means a person
knowing, or in reckless disregard of the fact,
that means of force, threats of force, fraud,
coercion described in subsection (e)(2), or any
combination of such means will be used to
cause the person to engage in a commercial
sex act . . .
• The Force, Fraud or Coercion may occur at any
point during the relevant time period, as long as
the defendant “knows” that FFC will be used to
cause a person to engage in a commercial sex act
• The government may argue that a prostitute who
started working willingly for a pimp can
nonetheless be later subjected to force or fraud
• But see United States v. Roy, 13-PWG-0249 (jury
apparently rejected this argument in its verdict)
Sex Trafficking of Minors
• (a) Whoever knowingly—
(1) in or affecting interstate or foreign
commerce, or within the special maritime and
territorial jurisdiction of the United States,
recruits, entices, harbors, transports,
provides, obtains, or maintains by any means
a person
knowing, or in reckless disregard of the fact . .
. that the person has not attained the age of
18 years and will be caused to engage in a
commercial sex act. . . .
Knowing vs. Reckless Disregard
• § 1591(a) applies to defendants who act
“knowingly” or “in reckless disregard of the
fact” that:
• Force, fraud or coercion will be used to cause
a person to engage in a commercial sex act
• That the victim was under 18 and will be
caused to engage in a commercial sex act
“Knowing” that FFC will be used
• “Knowing” does not require absolute
certainty. Past practice can be sufficient to
establish knowledge for future prostitutes.
See U.S. v. Todd, 627 F.3d 329, 334 (9th Cir.
2010) (“The evidence of Todd's knowledge of
his own modus operandi in securing an
income from prostitution by a pattern of
coercion was sufficient. . .”)
“Knowing” that a person is < 18
• 12/23/2008, § 1591 was amended:
1. to include reckless disregard § 1591(a)
2. added “reasonable opportunity to
observe” provision § 1591(c)
• For conduct prior to 12/23/2008, the government
needs to prove that the defendant knew the person
was under 18.
• For conduct after 12/23/2008, the government can
prove guilt through (1) knowledge or (2) reckless
disregard with (3) sufficient opportunity to observe.
(although sufficient opportunity to observe may be
“Knowing” that a sex act will occur
• The government does not have to prove that
an actual commercial sex act occurred.
• The statute speaks in terms of knowledge that
FFC “will be used to cause…” or knowledge
that a person under 18 “will be caused to
engage in” a commercial sex act.
• See, e.g., U.S. v. Willoughby, 742 F.3d 229, 241
(6th Cir, 2014); U.S. v. Garcia–Gonzalez, 714
F.3d 306, 312 (5th Cir. 2013).
“Reckless Disregard”
• “Reckless Disregard” has been defined to mean “to be aware of,
but consciously and carelessly ignore, facts and circumstances
clearly indicating that the person” had not yet achieved the age of
majority. U.S. v. Wilson, 2010 WL 2991561, *6 (S.D. Fla. 2010).
• U.S. v. Tutstone, 525 Fed. Appx. 298 (6th Cir. 2013)(being told by codefendant that a minor would be made available for commercial
sex acts and then accepting money from a person who then left
with minor was sufficient to establish reckless disregard to the fact
that the minor would engage in a commercial sex act)
• A defendant may not keep himself “willfully blind” of the use of FFC
or a prostitute’s age without drawing instruction. U.S. v. Lighty, 616
F.3d 321, 378-79 (4th Cir. 2010)(“It is appropriate to give such an
instruction when the defendant claims lack of guilty knowledge in
the face of evidence supporting an inference of deliberate
ignorance. A willful blindness instruction should be given only in
‘rare circumstances.’”).
“Reasonable opportunity to observe”
§ 1591(c) – “In a prosecution under subsection (a)(1) in which the defendant had a reasonable
opportunity to observe the person so recruited, enticed, harbored, transported, provided, obtained
or maintained, the Government need not prove that the defendant knew that the person had not
attained the age of 18 years.
Definition appears to be open issue. Two cases that have found sufficient opportunity to observe
involved protracted involvement and sexual encounters with the victim. United States v. Robinson,
702 F.3d 22, 27-29 (2nd Cir. 2012)(defendant recruited a 17-year-old victim to engage in
prostitution; she testified that the defendant was her “boyfriend” and “lover” whom she had dated
for two-and-a-half years); United States v. Paris, 2007 WL 3124724, at *9 (D. Conn. Oct. 24, 2007)
(under 2000 version of 1591, jury found that the defendant consciously avoided knowing the
victim's age based on evidence that the defendant had seen the minor's naked body when she was
fourteen years of age, had sex with her at that age, and knew that she had “young friends who
were still in high school” and defendant caused the victim to engage in commercial sex acts for
approximately one-and-a-half years).
U.S. v. Wilson, 2010 WL 2991561, *6 (S.D. Fla. 2010)(government must prove a defendant had a
reasonable opportunity to observe AND acted with reckless disregard to age).
But see U.S. v. Robinson, 702 F.3d 22, 32 (2nd Cir. 2012)(Under a “plain reading of § 1591(c) . . . the
only interpretation that preserves any meaning, is that the provision creates strict liability where
the defendant had a reasonable opportunity to observe the victim.”)
If the indictment does not allege the “reasonable opportunity to observe” prong in the indictment,
consider a challenge to that language being included in the jury instructions.
Other Definitions
• “coercion” means:
– “threats of serious harm” OR “physical restraint”
– “any scheme, plan or pattern intended to cause a person to believe that
failure to perform an act would result in” in the above
– “the abuse or threatened abuse of law or the legal process”
18 U.S.C. § 1591(e)(2)
• “serious harm” can be physical or nonphysical (including psychological,
financial, or reputational) that is “sufficiently serious, under all the
surrounding circumstances, to compel a reasonable person of the same
background and in the same circumstances to perform or to continue
performing commercial sexual activity” 18 U.S.C. § 1591(e)(4)
• “commercial sex act” is “any sex act, on account of which anything of
value is given to or received by any person.” 18 U.S.C. § 1591(e)(3).
• “venture” is “any group of two or more individuals associated in fact,
whether or not a legal entity” 18 U.S.C. § 1591(e)(5)
Adult vs. Minor Prostitutes
• With adult prostitutes, the focus likely will be on their
willingness to engage in commercial acts
• Depending on the evidence, you may have to concede
Mann Act violation but can contest FFC.
• With minors, the focus will be on disputing their age, see
U.S. v. Adan, 913 F.Supp.2d 555 (M.D. Tenn. 2012)(granting
new trial based on evidence that victim was over 18 at the
time of the offense); whether client knew that commercial
sex acts would occur; or that defendant did not know
person was a minor, or did not have a reasonable
opportunity to observe
• Even with minors, still contest FFC because of lower MM
(assuming victim is >14)
Types of Defendants
• Three Main Types:
1. The Pimp
2. The “Bottom”
3. The “Hanger on”
• Challenges of representation, a/k/a “You’re
• Managing client expectations (witnesses
appearing, effect of prior inconsistent
statements, impact of FRE 412, plausible
deniability “they were just giving massages for all
I knew”)
• How to humanize your client in front of the jury,
or judge, and preparing your client to testify
• Learn the rules of the game
• Will your client be treated as a “victim” or codefendant, or a bit of both?
• Cooperation is the name of the game, but
expect resistance at first
• Dealing with inconsistent statements
• Creating distance from the pimp and
sympathy for your client
• Protecting your client under FRE 412
Hangers On
• Did your client have knowledge, or act with
reckless disregard?
• Did your client really have an opportunity to
• Minimizing the damage (e.g., § 1952)
• Cooperation
• If very marginal involvement, explore a nonprosecution agreement
• Investigation into Prostitutes/Witnesses
• Dealing with Large Volumes of Discovery
• Expert Witnesses
• Prostitute’s Criminal Records
– Look for convictions involving dishonesty (Misdemeanor solicitation
charges probably will not come in, see U.S. v. Walker, 613 F.2d 1349
(5th Cir. 1980); U.S. v. Wright, 564 F.2d 785 (8th Cir. 1977), although
may be room to argue if crime was committed in a way involving
– Request early production of out of state records
– Look for detectives helping prostitute with release and disposition of
local charges
• Social Media Search -, Facebook,, sites
advertising services
• Digital Communications – Emails, text messages
• Records Available Via Subpoena – Hotel, credit card records
• Interviews of Family and Friends
Backpage ad
Escorts in college
Search for More Ads
by Phone Number
Hotel Reservation Records
Records of Hotel Stays
Social Media Investigation
• Need to get all discovery in unredacted format – make
a formal demand
• Locations of prostitutes = criminal history
• Phone numbers often remain the same - these are key
- it’s how johns contact them
• Social media references and allusions – the celebration
of the life
• Don’t accept that the government has given you
everything you need – as opposed to everything they
think is important
• Research websites: backpage,,, Facebook, Tagged
Strategies for Managing Large Volumes
of Discovery Effectively
• Get another set of hands
• Make the Court aware of the difficulties
involved = translate as “cost”
• Motion for paralegal over cap expenditure
• Get SMS dumps into Excel format
• Don‘t accept that the government has given
you everything you need – as opposed to
everything they think is important
Sample Discovery Index
Discovery Index p.2
Discovery Index p.3
Discovery Index p. 4
Discovery Index p.5
Protective Orders
• Authorized by FRCP 16(d)(1) for “good cause” (Advisory
notes cite as reasons danger or perjury or witness
• Showing requires “clearly defined and serious injury” to
party seeking protection, as well as “specificity. “Broad
allegations of harm, unsubstantiated by specific examples
or articulated reasoning” are insufficient. U.S. v. Wecht, 484
F.3d 194, 212 (3rd Cir. 2007)
• Must be “narrowly tailored” to address particular harm to
be protected against. U.S. v. W.R. Grace, 401 F.Supp.2d
1093 (D.Mont. 2005); U.S. v. Davis, 809 F.2d 1194 (6th Cir.
1987); U.S. v. Barbeito, 2010 WL 1439510 (S.D.W.Va. 2010);
U.S. v. Cerna, 2010 WL 1459444(N.D. Cal. 2010); U.S. v.
Annabi, 2010 WL 1253221 (S.D.N.Y. 2010).
Protective Orders cont’d.
• Aside from restrictions on giving copies of discovery to anyone outside
legal team or not allowing defense team to receive private information
such as addresses or SSN’s, orders may:
– Preclude defense from being given names of prostitutes
– Apply to all discovery even discovery for which there is no security concern
including public records and information from defendant
– Preclude defense from disclosing in any manner protected discovery material
without court approval (which might apply to filings with the court such as
motions and questions during interviews of witnesses)
– Preclude defendant from possessing written material with protected
information learned from discovery – e.g., letter from defense counsel
summarizing evidence or a defendant’s own notes taken during a discovery
review session with defense counsel
• Examples of Protective Order and Motion to Clarify and Modify Protective
Order are included in training materials.
Expert Witnesses
The government may call an expert witness on vulnerability/coercion of sex
trafficking victims and pimp/prostitute relationship
Specific purposes:
– Nature of relationship and how prostitution business operates
– Prostitutes generally come from broken homes and unstable lives and are dependent on
– Pimps will use promises of a better life and even affection and gifts to entice prostitutes to
join them
– Pimps use threats, violence, and intimidation against prostitutes to prevent them from leaving
– “fear of flight” syndrome
– Pimps will collect all or most of proceeds and control prostitutes’ ID’s and personal belongings
as means to control them and keep them from leaving
– Prostitutes frequently will leave their pimp and and come back; this is part of the control
pimps have over them
– Prostitutes will frequently lie and say they were treated OK or may give inconsistent
statements about their experience with a pimp; this is explained by the control pimps have
over them
Expert Witnesses cont’d
Examples in which the admission of testimony from “victimology” experts has been
– U.S. v. Anderson, 851 F.2d 384, 392-93 (D.C. Cir. 1988) (interstate transportation of
minors for prostitution case, held that a sociologist's expert testimony on “pimping
patterns and the pimp-prostitute relationship” was relevant to (1) fact def. was a pimp
rather than, as def. claimed, merely a gambler with a flashy lifestyle and penchant for
travel, and whether prostitutes traveled with him quite independently, or as part of a
pimp-prostitute relationship”; (2) helping jury determine the credibility of the
prostitute-witnesses and explain inconsistencies in their testimonies and why they
remained with him even though mistreated)
– U.S. v. Anderson, 560 F.3d 275 (5th Cir. 2009) (same ruling re: director of a center that
provides services for runaways and high-risk adolescent victims and that specializes in
serving victims of sexual exploitation)
– U.S. v. Taylor, 239 F.3d 994, 998 (9th Cir. 2001) (same ruling re: forensic pediatrician in
sex trafficking case)
– U.S. v. Williams, 2007 WL 3118306 (M.D. Penn. 2007) (same)
– U.S. v. King, 703 F.Supp.2d 1063 (D. Hawaii 2010) (same)
– U.S. v. Shamsud-Din, 2012 WL 280702 (N.D. Ill. 2012) (same)
Expert Witnesses cont’d.
Challenging expert testimony
Start with FRCP 16(a)(1)(G)– Adequate notice? Rule requires “summary of testimony,” opinions, “bases and
reasons for those opinions,” and qualifications
FRE 702 and Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)
Specific challenges
Qualifications of expert
Testimony must consist of reliable “scientific knowledge”
Testimony must be relevant (FRE 401)
If force, fraud or coercion is not at issue, is the testimony relevant?
Argue that without appropriate clinical examinations of the prostitutes by the expert the expert cannot give an opinion regarding
these particular prostitutes and the expert’s testimony is therefore not relevant.
The expert is not qualified (e.g., police officer)
The expert is not appropriate to the case (e.g., an expert re: labor trafficking may not have sufficient experience with prostitutes
to give an opinion)
The expert’s testimony does not “fit” the facts relevant to the prostitutes (e.g., the prostitutes have not been shown to have
come from broken homes or their ID’s and other items were not taken from them)
At least attempt to minimize to what the expert can testify
Always object to any testimony re: explaining why prostitutes will minimize pimp’s culpability or why they might lie for pimp or
why they may have given inconsistent statements as this is more appropriate for argument and treads on the jury’s role
Testimony re: effects of prostitution rings on society at large or extreme levels of violence used by pimps beyond what is
necessary to show how pimps use fraud, force or coercion over prostitutes should never be allowed. U.S. v. King, 703 F.Supp.2d
1063 (D. Hawaii 2010).
Not proper is testimony on the medical and mental-health effects on the prostitutes. U.S. v. Williams, 2007 WL 3118306 (M.D.
Pa. 2007).
Expert Witnesses cont’d.
• When you have a witness who is a “bottom,”
consider calling an expert yourself on the
“trauma bond” for their “bottom” client,
either at trial or sentencing
• Samples of CVs, articles, and crossexamination outlines provided in the training
FRE 412
To Whom Does it Apply?
Ways to Get Around the Rule
FRE 412 – What is Prohibited/Allowed
(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 to prove that
someone other than the defendant was the source of semen, injury, or other physical
(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.
FRE 412 – Procedures for Admission
(c) Procedure to Determine Admissibility.
(1) Motion. If a party intends to offer evidence under Rule 412(b), the party must:
(A) file a motion that specifically describes the evidence and states the purpose
for which it is to be offered;
(B) do so at least 14 days before trial unless the court, for good cause, sets a
different time;
(C) serve the motion on all parties; and
(D) notify the victim or, when appropriate, the victim’s guardian or
(2) Hearing. Before admitting evidence under this rule, the court must conduct an in
camera hearing and give the victim and parties a right to attend and be heard. Unless the
court orders otherwise, the motion, related materials, and the record of the hearing must
be and remain sealed.
FRE 412 – Defense Requirements
Don’t assume its like FRE 404 - in essence, who cares?
Specific requirements you should aim to meet
Be aware – the burden is on defense
Exclusion for failure to meet requirements does NOT violate defendants
constitutional rights
U.S. v. Ramone, 218 F.3d 1229, 1234-1237 (10th Cir.), cert. denied, 531 U.S.
1026 (2000)
U.S. v. Rouse, 111 F.3d 561, 569 (8th Cir), cert. denied, 522 U.S. 905 (1997)
But see LaJoie v. Thompson, 217 F.3d 633 (9th Cir. 2000) (violation of
defendant’s constitutional rights by exclusion under state rape shield law)
14 days before trial, file a specific sealed recitation setting out evidence plus
purpose/theory of admissibility
The bases for the use of the material for impeachment purposes should be
See Behler v. Hanlon, 199 F.R.D. 553, 556-560 (D. Md. 2001, Grimm, MJ)
Notification of victims? – usually through USAO
Sealed hearing required
Scope of FRE 412 prohibition
Applies in all cases alleging sexual misconduct (which includes sex trafficking prosecutions)
Rule relates to other sexual behavior or predisposition by victim
Such inquiry has been termed “harassing or irrelevant,”
U.S. v. Saunders, 943 F.2d 388, 392 (4th Cir. 1991).
Acts of prostitution excluded, whether prior to, or after, a relationship with a defendant
U.S. v. Culver, 598 F.3d 740, 749-50 (11th Cir. 2010)
Other Acts of prostitution “irrelevant” when the victim is a minor, and therefore cannot consent to
engage in commercial sex acts U.S. v. Elbert, 561 F.3d 771, 777 (8th Cir. 2009).
U.S. v. Cephus, 684 F.3d 703, 708 (7th Cir. 2012) (see this case for some bad language)
But, some courts rule evidence admissible where exclusion would violate defendant’s constitutional rights to
confrontation or due process, so be ready with these to support your defense.
See Olden v. KY, 488 U.S. 227 (1988) U.S. v. Bear Stops, 997 F.2d 451, 454-457 (8th Cir. 1993)
“A rape shield statute cannot constitutionally be employed to deny the defendant an opportunity
to introduce vital evidence, and impeaching evidence can be vital.” Sandoval v.
Acevedo, 996 F.2d 145, 148-149 (7th Cir. 1993); see Washington v. Texas, 388 U.S. 14, 18-19 (1967).
“[s]uch discretion does not, however, extend to the exclusion of crucial relevant evidence
necessary to establish a valid defense.” U.S. v. Kelly, 888 F.2d 732, 743 (11th Cir. 1989).
Must establish conditional relevancy under FRE 104
U.S. v. Platero, 72 F.3d 806 (10th Cir. 1995)
FRE 412 applies to use of information at sentencing too. U.S. v. Law, DKC-11-0489
cf. FRE 404(a)(2)(B) which permits victim character evidence
Who is a “victim?”
• FRE 412(d) defines victim as simply including an
“alleged victim.”
• Advisory committee notes state: “The revised rule
applies in all cases involving sexual misconduct without
regard to whether the alleged victim or person accused
is a party to the litigation.”
• If you represent a cooperating “bottom,” argue that the
rule applies to your client.
• If you represent a pimp, argue that FRE should not
apply to a co-defendant. Cf. U.S. v. Sabatino, 943 F.2d
94 (1st Cir. 1991).
Ways to Get Around FRE 412
• Exceptions within the Rule
(b)(1)(A) – specific sexual behavior re source of
semen or injury [phys evid]
U.S. v. Begay, 937 F.2d 515, 519-523 (10th Cir. 1991)
(b)(1)(B) -- specific sexual behavior re consent w/
• these probably are of little help in a sex trafficking
case, but....
(b)(1)(C) – exclusion would violate constitutional
rights [confrontation/defense]
Other Ways to Get Around FRE 412
• Prior conduct which led to association with defendant - met
her while she was hooking
• Locations of witness over time
• Subsequent conduct to impeach witness statements
• Sexual behavior intrinsic to the alleged sexual misconduct is
not “other”
• Prior false claims are not sexual behavior, therefore
Redmond v. Kingston, 240 F.3d 590, 592 (7th Cir. 2001)
• But these still must be tested under FRE 404/405/608
Boggs v. Collins, 225 F.3d 728, 736-743 (6th Cir. 2000),
cert. denied, 532 U.S. 913 (2001)
Other Ways to Get Around 412, cont’d
Argue that publicly disclosed information = diminished harm, since public postings are not
(e.g., Backpage), as the Rule speaks to the privacy interest of the victim
Postings on Backpage, etc., are not sexual in nature – or they wouldn’t be posted
(Backpage witness testified to that very proposition in Roy)
Analogize to “reputation in controversy” under (b)(2) - victim has placed reputation in
controversy by conduct
Admissions against interest (i.e., inculpatory in criminal activity)
Codefendant statements in furtherance of the conspiracy, admissible under FRE 801(d)(2)(E)
The government sought this very kind of information from codef endant before the GJ,
thereby drawing on her considerable experience with prostitution
Bias or interest in the outcome of the proceeding (cooperating codefendant)
Contradiction, in that she has made statements before the grand jury which are contradicted
by her electronic record, texts, etc., which include 412 material
Prior inconsistent statement, made differing statements about the same subject
Prior bad acts, FRE 608, as she has engaged in prostitution both prior and subsequent
FRE 412 – Final Thoughts
§ 1591 (e)(2) defines “coercion” as a threat of “serious harm” and § 1591 (e)(4) uses “reasonable
person of similar background” standard re “serious harm”, so does this person/victim regard this as
serious harm?
The problem boiled to its essentials, and an idea to think about:
Meritor Svgs. Bank FSB v. Vinson, 477 U.S. 57, 69 (1986)
“Sexually provocative speech or dress” may be admissible in workplace harassment suit,
as bearing on whether victim found particular sexual advances unwelcome
U.S. v. Cephus, 684 F.3d 703, 708 (7th Cir. 2012) the government will be sure to quote this language:
“[Defendants] wanted to suggest that having already been a prostitute she would not have
been deceived by Cephus and therefore her testimony that she was coerced into working
for him—an element of one of the charged offenses when the prostitute is not a minor, 18
U.S.C. § 1591(a)—should be disbelieved. But the testimony sought to be elicited by the
cross-examination would have been irrelevant. Even if no promises were made to
Cassandra, this would not be evidence that she consented to be beaten and to receive no
share of the fees paid by the johns she serviced. And even if she knew going in, from her
prior experience, that Cephus probably would beat her, it was still a crime for him to do so. “
Other Crimes or Bad Acts Evidence
Pictures that make the client look bad
Hoping your client does not write rap songs
about pimping…
…or even worse write explicit lyrics
When we don’t like Facebook
(nor does the manufacturer of Ken and Barbie dolls)
Government may argue evidence is “intrinsic” to charged crime
Requires other crimes be “inextricably intertwined” with charged crime
Different standards used:
– Broad standard: Admissible if other crimes complete the story, absence would create a
void in the story or they are so blended or connected that they “incidentally involve,
explain the circumstances surrounding, or tend to prove any element of, the charged
crime.” U.S. v. Cooper, 482 F.3d 658, 663 (4th Cir. 2007).
– Narrow standard: Just because evidence proffered by the government has some minimal
relevance or helps explain the charged crime does not mean that the evidence becomes
intrinsic to the charged crime. U.S. v. Bowie, 232 F.3d 923 (D.C.Cir. 2000)
Why does this matter? If evidence is “intrinsic” the government need not provide
notice under Rule 16, no limiting instruction is necessary and no balancing under
FRE 403 is required
Admissibility of other crimes evidence as intrinsic evidence
• Bad examples
– U.S. v. Robinson, 702 F.3d 22 (2nd Cir. 2012) – Evidence of defendant’s
control of other prostitutes was “instrinsic” to story of crime since
defendant claimed victim was his girlfriend and did not control her
– U.S. v. Ventura, 2013 WL 1455278 (D. Md. 2013) – Claim by defendant
he was responsible for murder of other pimps relevant to “means” of
and intrinsic to conspiracy
• Good examples
– U.S. v Jackson, 2014 WL 1631933 (W.D. Mich. 2014) – Analyzed as “res
gestae” but applies “inextricably intertwined” standard with “severe
limitations” and ruled that assault on another prostitute admissible
only if prostitute in indictment witnessed it and had intimidating effect
– U.S. v. Afyare, 2013 WL 2643408 (M.D. Tenn. 2013) - Excluding
evidence of other joint criminal activity based on finding that the
definition of “venture” for §1591(a)(2) limits the proof to acts
involving sex trafficking.
• Testimony from other prostitutes about def’s other
prostitution activities
– U.S. v. Willoughby, 742 F.3d 229 (6th Cir. 2014) (relevant to
show def. knew that charged prostitute “would be caused
to engage in commercial sex act”)
– U.S. v. Jennings, 280 Fed.Appx. 836 (11th Cir. 2008)
(relevant to show intent to have women commit
commercial sex acts especially in view of claim defendants
were merely present)
• Prior convictions
– U.S. v. Curtis, 481 F.3d 836 (D.C. Cir. 2007) (prior
conviction for promoting prostitution of a minor)
• Emails
– U.S. v. Cooke, 675 F.3d 1153 (8th Cir. 2012)
(sexually explicit emails with another minor
admissible to show intent to arrange sex with a
• Use restricted by FRE 412
• Unsuccessful attempts
– U.S. v. Mack, 2014 WL 462861 (N.D. Ohio 2014)
(although testimony by other prostitutes admissible to
refute specific claims by victims, they cannot testify he
did not coerce them)
– U.S. v. Cephus, 684 F.3d 703 (7th Cir. 2012)
(evidence of prior prostitution irrelevant to consent to
being beaten); U.S. v. Jackson, 2014 WL 166062
(W.D. Mich. 2014) (minor prostitutes’ predisposition or
consent to engage in prostitution not admissible)
• But keep trying!
Negotiating Plea Agreements
• Exploring alternative charges
• For “bottoms” and “hangers on,” consider
returning to state charges or negotiating nonprosecution agreements
• Consider the full range of consequences for
your client with each possible charge
Alternatives for Pleas
• If your victim is a minor over the age of 14, ask the
government to drop the coercion allegations – MM drops
from 15 to 10 years. 18 U.S.C. § 1591(b)(2), or for any age
minor 18 U.S.C. §§ 2423(a) or 2422(b) - both 10 year MM
• If your victim is an adult, and FFC is charged, seek charges
to straight Mann Act violations, that carry no MM, and do
not require sex offender registration. 18 U.S.C. §§ 2421,
• If your client is a “bottom” or “hanger on”, consider 18
U.S.C. § 1594(c) (conspiracy to violate § 1591, carries a
maximum life sentence but no MM), § 1592 (withholding
documents to further sex trafficking, with a stat max of 5
years), or § 1952(a)(3)(use of interstate facility to further
prostitution, stat max of 5 years)
Penalties for Alternative Pleas
• § 1591(a) – 15-year MM, max life, SO registry
• § 2423(a) (transportation of minors with the intent to engage in “criminal
sexual activity”) – 10-year MM, max life, SO registry
• § 2423(b) (travel with the intent to engage in “illicit sexual conduct”, AD of
reasonable belief that > 18) – 30-year max, SO registry if minor involved
• § 2422(a)(coercion and enticement of adults) – 20-year max, no SO
• § 2422(b)(coercion and enticement of minors) – 10-year MM, max life, SO
• § 2421(transportation generally) – 10-year max, no SO registry if adult
• § 1594(c) – no MM, max life, no SO registry if adult
• § 1592 – 5-year max, no SO registry
• § 1952(a)(3)(A) – 5-year max, SO registry may depend on underlying
Base Offense Levels for
Alternative Pleas
§ 1591(b)(1) – 34 (§ 2G1.3(a)(1))(minor)/ 34 ((§ 2G1.1(a)(1))(adult)
§ 1591(b)(2) – 30 (§ 2G1.3(a)(2)) (minor w/o FFC)
§ 2423(a)(minors) – 28 (§ 2G1.3(a)(3))
§ 2423(b)(adults) – 14 (§ 2G1.3(a)(3))
§ 2422(b)(minors) – 28 (§ 2G1.3(a)(3))
§ 2422(a)(adults) – 14 (§ 2G1.1(a)(2))
§ 2421 (minors) – 24 (§ 2G1.3(a)(4))
§ 2421 (adults) – 14 (§ 2G1.1(a)(2))
§ 1594(c) – Gov. position – 34 – United States v. Li, 2013 WL 638601
(D.N.Mar.Is. F2b. 21, 2013)(faulty analysis, easy to distinguish)
Under a plain reading of statute and GLs, BOL = 14
• § 1592 – 18 (§ 2H4.1(a)(2))
• § 1952(a)(3)(A) – 14 (§ 2E1.2(a)(2)), unless underlying conduct in your plea
calls for a higher cross-referenced BOL.
Sentencing Issues
§§ 2G1.1 and 2G1.3
Chapter 3 Enhancements
Use of Acquitted Conduct
Mitigation Strategies
Comparison to other cases in the district
§ 2G1.1. Promoting a Commercial Sex Act or Prohibited Sexual
Conduct with an Individual Other than a Minor
• Base Offense Level: 34 if the offense of conviction is 18 U.S.C. § 1591(b)(1)
(force, fraud or coercion OR victim under age 14) and 14 otherwise (e.g.,
violation of 2421, Mann Act violation).
• Specific Offense Characteristic: If not convicted under § 1591(b)(1) but
“offense involved fraud or coercion,” increase by 4 levels.
• Cross Reference: If the offense involved conduct described in 18 U.S.C.
§2241(a) or (b) or 18 U.S.C. § 2242, apply § 2A3.1 (Criminal Sexual Abuse;
Attempt to Commit Criminal Sexual Abuse).
Sex Trafficking of Minors, Transportation of Minors to Engage in a
Commercial Sex Act, etc.
Variable Base Offense Level:
• 34 if the defendant was convicted under 18 U.S.C. § 1591(b)(1)
(force, fraud or coercion)
• 30 if the defendant was convicted under 18 U.S.C. § 1591(b)(2)
(no force, fraud or coercion)
• 28 if the defendant was convicted under 18 U.S.C. § 2422(b) or
§ 2423(a) (enticing or transporting minor to engage in
• Otherwise, 24.
§ 2G1.3 Specific Offense Characteristics
Defendant was parent, relative, or legal guardian of minor
Minor in the custody, care, or supervisory control of defendant
Offense involved knowing misrepresentation of participant’s identity to persuade
minor to travel, etc.
Participant unduly influenced minor to engage in prohibited sexual conduct.
The offense involved the use of a computer or an interactive computer service to
persuade minor to travel, etc. OR solicit, etc. a person to engage in prohibited
sexual conduct with minor.
If the offense involved the commission of a sex act or sexual contact OR if
convicted under 18 U.S.C. § 2422(b) or § 2423(a) and the offense involved a
commercial sex act.
If convicted under 18 U.S.C. § 2422(b) or § 2423(a) and offense involved minor
under age 12.
§ 2G1.3 Cross-References
• If the offense involved advertisement of minor apply § 2G2.1 if the
resulting offense level is greater than under § 2G1.3
• If minor was killed under circumstances that would constitute murder
under 18 U.S.C. § 1111, apply § 2A1.1 if the resulting offense level is
greater than under § 2G1.3 under § 2G1.3
• If the offense involved sexual abuse (as described under 18 U.S.C. § 2241
or § 2242, apply § 2A3.1 if the resulting offense level is greater than under
§ 2G1.3
• If the offense involved interstate travel with intent to engage in a sexual
act with a minor or knowingly engaging in a sexual act with a minor who
had not attained the age of 12 years, § 2A3.1 shall apply, regardless of the
"consent" of the minor
Custody, Care or Supervisory Control –
§ 2G1.3(b)(1)
• Application Note 2 —
– Intended to have “broad application”
– Includes offenses where minor was entrusted to defendant
whether temporarily or permanently
– Examples: teachers, day care providers, baby-sitters, or
other temporary caretakers
• U.S. v. Brooks, 610 F.3d 1186 (9th Cir. 2010)
– Does not apply to where relationship between defendant
and minor arose from crime itself
Unduly Influenced Minor –
§ 2G1.3(b)(2)(B)
• Application Note 3(B)
– Question is whether a participant’s influence over the minor
compromised the voluntariness of the minor’s behavior
– Where a participant is at least 10 years older than minor, there is a
rebuttable presumption the increase applies
• U.S. v. Willoughby, 742 F.3d 229 (6th Cir. 2014)
– Rejects claim that § 1591(b) takes this into account since the
enhancement can involve more than force, fraud or coercion (so argue
more is required)
– Preying on minor’s homeless and runaway status supported increase
• U.S. v. Jones, 546 Fed. Appx. 946 (11th Cir. 2013)
– Fact that minors were previously involved in prostitution does not
preclude enhancement and enhancement justified based on
defendant’s use of affection, control and violence
Misrepresentation of Identity –
§ 2G1.3(b)(2)(A)
• Application Note 3(A)
– Applies only to misrepresentations made directly to a minor or to a person who
exercises custody, care, or supervisory control of the minor.
• Example: Increase does not apply to misrepresentation to an airline representative
in the course of making travel arrangements for the minor
– Includes misrepresentation of a participant’s name, age, occupation, gender, or status
– Requires an intent to persuade, induce, entice, coerce, or facilitate the travel of, a minor
to engage in prohibited sexual conduct.
• Example: Use of a computer screen name, without such intent, would justiify
Use of Computer – § 2G1.3(b)(3)
• Application Note 4
– Applies only to the use of a computer to communicate directly with a minor or
with a person who exercises custody, care, or supervisory control of the minor
• Increase does not apply to use of a computer to obtain airline tickets on
the Internet for the minor
• Bad decisions
– U.S. v. Royal, 442 Fed. Appx. 794 (4th Cir. 2011) (telling prostitute to send
message on MySpace to minor after defendant saw her picture and said he
“wanted her” sufficient to warrant enhancement even if message not sent as
computer “facilitated” crime)
– U.S. v. Jackson, 697 F.3d 1141 (9th Cir. 2012) (court relies on alleged
inconsistency between Guideline language and application note – former does
not include “communicate directly” language -- to uphold adjustment)
Sex Act, CSA - § 2G1.3(b)(4)
• Requires commission of a sex act or sexual contact OR if
defendant convicted under § 2422(b) or § 2423(a) (enticing or
transporting minor to engage in prostitution), a commercial
sex act (CSA)
• Since a sex act or sexual contact is not required for a violation
of § 1591 – it just requires certain actions by participants
knowing that the victim “will be caused” to engage in a CSA –
this enhancement is not assumed in the Guideline offense
level. See U.S. v. Willoughby, 742 F.3d 229 (6th Cir. 2014) and
cases cited in opinion.
Vulnerable Victim – § 3A1.1(b)(1)
• Application Note 2
– Can apply to victim not included in charged offense (see relevant conduct
provisions of §1B1.3)
– Requires that victim be “unusually vulnerable”
– Where age is incorporated in offense guideline, (e.g., for violations of sections
1591(b), 2422(b), 2423), enhancement does not apply merely because of
victim’s age
• Other circumstances justifying enhancement
– U.S. v. Scott, 529 F.3d 1290 (10 Cir. 2008) – Victim was small and frail and
unusually naïve and immature for her age
– U.S. v. Williams, 291 F.3d 1180 (9th Cir. 2002) – Victim was psychologically
• However, knowledge of vulnerability is required
– US v. Scott -- Evidence did not show defendant was aware of victim’s drug
usage or mental illness
Vulnerable Victim – § 3A1.1(b)(1)
Disagreement re: whether homelessness, drug usage alone sufficient for
U.S. v. Willoughby, 742 F.3d 229 (6th Cir. 2014) – Victim was homeless runaway with
history of abuse and neglect
• U.S. v. Royal, 442 Fed. Appx. 794 (4th Cir. 2011) – Defendant took advantage of victims’
drug dependence
• U.S. v. Evans, 272 F.3d 1069 (8th Cir. 2001) – Same
• U.S. v. Amedeo, 370 F.3d 1305 (11th Cir. 2004) Same
• U.S. v. Scott -- Unstable personal life or victim’s runaway status not sufficient as such
factors are “sufficiently common” among prostitutes
• U.S. v. Williams – Victim’s runaway status and drug use not sufficient
• U.S. v. Sabatino; 943 F.3d 94, 103 (1st Cir. 1991) – reversing enhancement based on
insufficient evidence distinguishing victims from “the typical individuals who would fall
prey to a Mann Act violator.”)
• Also, in § 1591 cases, point out that Application Note 2, in defining “coercion” for
purposes of the § 2G1.3(b)(1) enhancement, states that impairment by drugs or
alcohol does not justify the enhancement when the drug or alcohol was voluntarily
Restraint of Victim – § 3A1.3
• § 1B1.1, Application Note 1(K)
– "Physically restrained" means the forcible restraint of the victim such as by
being tied, bound, or locked up
• Example: U.S. v. Townsend, 521 Fed. Appx. 904 (11th Cir. 2013)
– Rejects claim that enhancement is intrinsic to § 1591(a) offense
– Rules that examples in § 1B1.1 definition are not exclusive
– Finds sufficient evidence that defendant forced victims to engage in sex with
him and each other by pinning them down, pulling their hair and forcing their
heads down
• But restraint must “add to basic crime”
– U.S. v Mikalajunas, 936 F.3d 153 (4th Cir. 1991) – The Guidelines did not intend
an enhancement for something other than a brief holding as part of a stabbing
Aggravated Role – § 3B1.1
• Does not apply to a defendant’s supervision over prostitutes
– Application Note 1 -- A "participant" is a person who is criminally
responsible for the offense
– Prostitutes are “victims” under § 1591 et seq.
– Accord: U.S. v. Jarrett, 956 F.3d 864 (8th Cir. 1992)
• But see –
– U.S. v. Tavares, 705 F.3d 4 (1st Cir. 2013) – Prostitutes who received
immunity could be considered “participants”
– U.S. v. Smith, 719 F.3d 1120 (9th Cir. 2013) – Use of bottom justified
role enhancement even if she was not guilty of same offense as
Multiple Victims – § 3D1.1
Each victim will be counted as a separate
offense under § 3D1.1
• § 2G1.1(d)
– Under Application Note 5, this also applies to
victims not contained in a count of conviction
• § 2G1.3(d)
– Under Application Note 6, this also applies to
victims not contained in a count of conviction
Use of Acquitted Conduct
• Challenge viability of U.S. v. Watts, 519 U.S. 148 (1997) in light
of U.S. v. Booker, 543 U.S. 220 (2005)
• Support –
– U.S. v. Pimenthal, 367 F.Supp.2d 143 (D.Mass. 2005)
– U.S. v. Coleman, 370 F.Supp.2d 661 (S.D. Ohio 2005)
– U.S. v. Gray, 362 F.Supp.2d 714 (S.D. W.Va. 2005)
• But see -– U.S. v. Grubbs, 585 F.3d 793 (4th Cir. 2009) (rejecting Sixth Amendment
Use of Acquitted Conduct
Argue heightened standard of proof – BRD – required
Support –
U.S. v. Faust, 456 F.3d 1342 (11th Cir. 2006)
U.S. v. Pimenthal, 367 F.Supp.2d 143 (D.Mass. 2005)
U.S. v. Coleman, 370 F.Supp.2d 661 (S.D. Ohio 2005)
U.S. v. Kelley, 355 F.Supp.2d 1031 (D. Neb. 2005)
U.S. v. Huerta-Rodriguez, 355 F.Supp.2d 1019 (D. Neb. 2005)
But see –
– U.S. v. Grubbs, 585 F.3d 793 (4th Cir. 2009) (rejecting claim that “clear and convincing”
standard should apply to uncharged as conduct)
Also argue that court should defer to jury verdict
– U.S. v. Semrau, 2011 WL 9258 (W.D. Tenn. 2011)
– U.S. v. Carvajal, 2005 WL 476125 (S.D. N.Y. 2005)
Mitigation Strategies for Pimps
• Means of entry into the business may be mitigating,
e.g., if exposed as a child, or eased in by association
• Other means of income, or other indications that this
was not a primary way of life for your client
• Compare sentences – comparable state offenses and
other federal sentences (try WL searches for “sex
trafficking” & “sentence” and a number)
• Research DOJ press releases for other cases in which
lower sentences were given for comparable or worse
• Standard Mitigation
Mitigation Strategies for “Bottoms”
Put conduct within the context of her own victimization, if possible,
and that work as bottom was part of that victimization
Explain that choice does not always equal “free choice” and how your
client became a victim
Explain the “trauma bond” between a pimp and a bottom – Stockholm
Develop a full social history on your client – there will be plenty of
mitigation here – guaranteed
Consider retaining one or more experts:
1. Sex trafficking expert to explain the dynamic
2. Social worker for social history/trauma narrative
3. MH expert for possible diagnoses, including PTSD
Get them into counseling and treatment
Comparison of Sex Trafficking Cases
• Chart of all cases shows some interesting patterns:
1. Charges began in 2007, picked up 2009
2. Superseding indictments appear to be
the norm
3. The first lawyer (and sometimes the
second one) usually gets fired
4. Cases involving minor victims typically
plead, cases with adults are more likely
to go to trial
5. There is usually, but not always, a substantial
“trial penalty.”
List of Training Materials
• Powerpoint presentation
• Sample Pleadings: motions to sever, motions to disclose
(404(b) and 609 materials, witnesses, various motions to
suppress), motions in limine, sentencing memo excerpt,
protective order
• Materials on expert witnesses (expert notice, CVs of
commonly-used government experts, cross-examination
outline, articles)
• Sample jury instructions and proposed voir dire
• Samples from social media investigations
• Chart of Sex Trafficking Cases in D. MD
• List of commonly used terms