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United States v. Mickey

United States Court of Appeals, Ninth Circuit

July 30, 2018

United States of America, Plaintiff-Appellee,
v.
Willie Dwayne Mickey, AKA Ace, Defendant-Appellant.

          Argued and Submitted February 15, 2018 Pasadena, California

          Appeal from the United States District Court for the Southern District of California No. 3:15-cr-01201-BTM-1 Barry Ted Moskowitz, Chief Judge, Presiding

         COUNSEL

          Marc X. Carlos (argued), Bardsley & Carlos LLP, San Diego, California, for Defendant-Appellant.

          Mark R. Rehe (argued), Assistant United States Attorney; Helen H. Hong, Chief, Appellate Section, Criminal Division; United States Attorney's Office, San Diego, California; for Plaintiff-Appellee.

          Before: M. Margaret McKeown and Kim McLane Wardlaw, Circuit Judges, and James Donato, [*] District Judge.

         SUMMARY[**]

         Criminal Law

         The panel affirmed convictions for two counts of sex trafficking by force, threats of force, fraud, or coercion in violation of 18 U.S.C. §§ 1591(a) and (b)(1).

         The panel held that the district court did not err by refusing to give a specific unanimity instruction regarding which precise combination of means the defendant used to cause the victim to engage in a commercial sex act. The panel rejected the defendant's contention that force, threats of force, fraud, and coercion are separate elements of the crime.

         The panel held that although the prosecution technically erred in failing to include the statutory phrase "or any combination of such means" in the indictment, inclusion of that phrase in the jury instructions and Special Verdict Form did not constitute a constructive amendment of the indictment. The panel wrote that the defendant cannot show prejudice, and concluded that there was no plain error.

          OPINION

          McKEOWN, Circuit Judge:

         The lesson from this case is that the devil is in the details-from the language of the statute to the recitation of the crime in the indictment, in the jury instructions, and the special verdict form. After a five-day jury trial, Willie Dwayne Mickey was convicted of two counts of sex trafficking by force, threats of force, fraud, or coercion in violation of 18 U.S.C. §§ 1591(a) and (b)(1). Mickey challenges the district court's refusal to give a specific unanimity instruction with respect to the means that he used to traffic his victims, and claims the government constructively amended the indictment by including the phrase "or any combination of such means" of force, threats of force, fraud, or coercion in the jury instructions and on the Special Verdict Form.[1] We affirm.

          Background

         Willie Mickey is, according to both parties in this appeal, "a pimp." Over the course of a several-year-long career, at least ten female prostitutes worked for him in some capacity.

         In 2010, at age 25, Mickey married 21-year-old Lasasha Ray, a member of the United States Navy. Mickey told Ray soon after they married that he intended to continue seeing other women; needless to say, their relationship was tumultuous. Between 2010 and 2013, Mickey lived in the same house with Ray, together with two or three prostitutes at various times. Still, Ray and Mickey remained romantically involved and remained married at least until Mickey's trial in 2016.

         Soon after his marriage to Ray, Mickey met 19-year old K.I. at Southwestern College. Even before she met Mickey, K.I. had worked as a prostitute, advertising herself on Craigslist and also working on the streets. Within two years of their meeting, K.I. moved in with Mickey and they began a romantic relationship. Mickey, Ray, and K.I. lived together for over a year, though Ray was sometimes gone for extended periods on military deployment. While K.I. was living with Mickey, she continued to work as a prostitute, posting advertisements of herself on "Backpage.com," a classified advertisement site.

         K.I. lived with Mickey for several years, remaining in the house when additional prostitutes moved in. The relationship between the women in the house was at times "fine" and at times violent. At trial, K.I. denied that Mickey was her pimp and claimed he never forced her to be a prostitute. But the government introduced substantial evidence to the contrary, including that K.I.'s "Backpage" ads linked to email addresses and phone numbers belonging to Mickey. Ray and another of Mickey's prostitutes, A.P., also testified that Mickey drove both A.P. and K.I. to "out-calls," after which both of them gave their proceeds to Mickey.

         On Valentine's Day, 2012, Mickey and K.I. got into a fight. K.I. and Mickey "exchanged words." K.I. testified that she threw an object at Mickey, that he "threw an object back at [her]," and that K.I. "got hit." When Ray went outside, she saw K.I. "bleeding from the back of [her] head." Ray had also seen Mickey hit K.I. at least three times in the past. Mickey pled guilty to assault with a deadly weapon in violation of California Penal Code § 245 and spent 270 days in jail. K.I. continued to live with Mickey and act as a prostitute for him for several years after this incident.

         Sometime in 2012 or 2013, Mickey began a romantic relationship with G.S., who eventually moved in with Mickey, Ray, and K.I. Mickey told G.S. that she would have to "hustle" if she was going to live with him, and she began working as a prostitute. Mickey exerted considerable control over her prostitution activities, setting prices, arranging calls with paying male customers, and giving G.S. guidelines on how to respond to inbound customer calls. G.S. also saw Mickey get violent with K.I.

         In 2013, Mickey met 18-year-old A.P. on the social media site Tagged. After a period of friendship, the relationship became romantic, and A.P. moved in with Mickey after graduating from high school. At first, Mickey told A.P. that he worked security at a navy base, but eventually indicated that he was a pimp. Over time, he expressed his wish that A.P. work as a prostitute for him, and began posting images of A.P. to Backpage.com.

          Mickey also exercised considerable control over A.P.'s prostituting activities, setting prices, deciding when encounters would take place, reserving hotel rooms, transporting A.P., and enforcing time limits. Mickey picked the names that A.P. was listed under in her advertisements and helped arrange logistics for commercial sex acts. Mickey also took a substantial amount of the money A.P. received in exchange for performing sex acts. Mickey prohibited A.P. from talking to family members or other men. The relationship between Mickey and A.P. was violent at times, as the two had "physical altercation[s]." A.P. testified that Mickey punched her repeatedly, "below the neck," for "many, many different reasons."

         In late September 2014, A.P. decided that she wanted to leave Mickey. Mickey prevented her from leaving by punching and slapping her. He also threw a stool at A.P., hitting her in the back of the head. After Mickey forced her to spend the night, she fled the next day and called her parents, who came with police.

         Mickey was eventually arrested, and the government filed a second superseding indictment charging him with three counts of sex trafficking in violation of 18 U.S.C. § 1591.[2] That provision punishes anyone who "recruits, entices, harbors, transports, provides, obtains, advertises, maintains, patronizes, or solicits by any means a person," knowing or in reckless disregard of the fact that "means of force, threats of force, fraud, coercion . . . or any combination of such means" will be used to cause the person to engage in a commercial sex act. 18 U.S.C. § 1591(a) (emphasis added). However, the prosecution's indictment omitted the phrase "or any combination of such means."

         After a five-day trial, the jury returned a guilty verdict. With respect to count 1, the jury unanimously found that Mickey used "any combination of such means" of force, threats of force, fraud, or coercion in causing K.I. to engage in a commercial sex act. With respect to count 2, the jury unanimously found that Mickey used force, threats of force, coercion, and any combination of such means in causing A.P. to engage in a commercial sex act. The district court sentenced Mickey to the lower end of the guidelines range, 204 months in prison for counts 1 and 2, to run concurrently, followed by 10 years of supervised release.

         Analysis

         The government created more heat than light in this case by submitting a Special Verdict Form that separately listed the individual means Mickey may have used to traffic his victims-force, threats of force, fraud, coercion, or any combination of such means. See 18 U.S.C. §§ 1591(a), (b)(1). The jury was asked five separate questions regarding whether Mickey used each of these methods rather than simply if Mickey trafficked his victims using any of these means, which was the actual issue at trial. Neither the statute nor our precedent requires such specificity. The government also committed a minor technical error by omitting the phrase "or any combination of such means" from the indictment, but that error did not rise to the level of a constructive amendment. Mickey had ample notice of the charges against him and the jury was properly instructed on the nature of those charges.

          I. Specific Unanimity

         The key issue on appeal is whether the district court was required to give a specific unanimity instruction for Count 1 regarding which precise combination of means Mickey used to cause K.I. to engage in a commercial sex act. Although Mickey did not object to the original instructions and did not ask for a specific unanimity instruction at the initial instruction conference, he made such a request after the jury came back with questions about the instructions. In light of this sequence, Mickey did not forfeit his request and thus we review for abuse of discretion the denial of a specific unanimity instruction. United States v. Kim, 196 F.3d 1079, 1082 (9th Cir. 1999).

         Two jury instructions and the Special Verdict Form are the basis for Mickey's challenge. Instruction 15[3] set out the counts in the indictment while Instruction 17[4] outlined the second element of the crime with respect to the mens rea requirements and the means of sex trafficking. The court gave the standard Ninth Circuit Model Criminal Instruction on unanimity: "Your verdict, whether guilty or not guilty, must be unanimous." However, the Special Verdict Form contained ...


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