and Submitted February 15, 2018 Pasadena, California
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
X. Carlos (argued), Bardsley & Carlos LLP, San Diego,
California, for Defendant-Appellant.
R. Rehe (argued), Assistant United States Attorney; Helen H.
Hong, Chief, Appellate Section, Criminal Division; United
States Attorney's Office, San Diego, California; for
Before: M. Margaret McKeown and Kim McLane Wardlaw, Circuit
Judges, and James Donato, [*] District Judge.
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).
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.
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.
McKEOWN, Circuit Judge:
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. We affirm.
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.
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.
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
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.
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.
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.
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
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."
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
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. 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."
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.
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
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).
jury instructions and the Special Verdict Form are the basis
for Mickey's challenge. Instruction 15 set out the
counts in the indictment while Instruction 17 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