59 F.3d 172 (6th Cir. 1995), 94-3655, U.S. v. York

• Citation: 59 F.3d 172
• Docket Number: 94-3655.
• Date: 20 June 1995
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Bernard YORK, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 172

59 F.3d 172 (6th Cir. 1995)

UNITED STATES of America, Plaintiff-Appellee,

v.

Bernard YORK, Defendant-Appellant.

No. 94-3655.

United States Court of Appeals, Sixth Circuit

June 20, 1995

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA6 Rule 28 and FI CTA6 IOP 206 regarding use of unpublished opinions)

S.D.Ohio

AFFIRMED.

Before: MILBURN and RYAN, Circuit Judges; and Godbold, Senior Circuit Judge. ^[*]

RYAN, Circuit Judge.

Defendant, Bernard York, appeals his conviction of interstate transportation of a minor for the purposes of prostitution, in violation of 18 U.S.C. § 2423, entered after a remand was ordered by this court. In this second appeal, we are asked to determine: (1) whether the district court erred by not requiring the government to make an election between sentencing York under 18 U.S.C. § 2421 or 18 U.S.C. § 2423, and (2) whether the district court erred in sentencing the defendant under 18 U.S.C. § 2423 instead of 18 U.S.C. § 2421. We conclude that the district court did not err and, therefore, affirm the judgment of the district court.

I.

In December 1990, two fifteen-year-old girls, referred to in the proceedings as "Individual A" and "Individual B," were in the custody of the United Methodist Children's Home in Worthington, Ohio. The two girls ran away from the home during a trip to the grocery store; they intended to travel to Individual B's home in Dayton, Ohio. After leaving the store, they called Individual A's friend. This friend picked them up and took them to his apartment. One night, the girls met York's codefendant, Anthony Mosley, at a bar. Mosley persuaded the girls to come to his apartment with the promise that he would take them to Dayton the next day.

The next morning, Mosley convinced the girls to engage in prostitution on the streets of Columbus. They agreed to do so, and they turned over the money they earned to Mosley. Mosley introduced the girls to defendant York. York and Mosley drove the girls and an adult prostitute to Washington, D.C., in York's car. In Washington, Mosley and York introduced the girls to the area frequented by prostitutes, bought them clothes to wear out on the street, and instructed them on how to succeed as prostitutes in Washington, D.C. The girls again turned over the money they earned to Mosley. The adult prostitute worked for York.

The scheme ended when one girl turned herself into police after she was raped, and when police found the other girl walking on the Beltway outside Washington missing some of her clothes.

II.

York was indicted on four counts. Counts 1 and 2 charged York with transporting a minor in interstate commerce for the purpose of prostitution, in violation of 18 U.S.C. §§ 2423 and 2. Counts 3 and 4 charged York with interstate transportation of a person for the purposes of prostitution, in violation of 18 U.S.C. §§ 2421 and 2.

A jury convicted York on all four counts. The district court sentenced York to 87 months imprisonment on counts 1 and 2 and to a concurrent term of 60 months on counts 3 and 4.

York appealed. A panel of this circuit affirmed in part and reversed in part and remanded the case to the district court with instructions. Relevant to this appeal, the panel held that the defendant's sentence violated the rule announced by the Supreme Court in United States v. Bell, 349 U.S. 81 (1955), that the simultaneous transportation of more than one woman in interstate commerce to engage in prostitution amounts to only one offense under 18 U.S.C. § 2421. The panel reversed and remanded the case to the district court with instructions to reverse York's convictions to the extent they were inconsistent with Bell. The panel also held that the district court erred by not requiring the government to make an election between § 2423 or § 2421 because, under Blockburger v. United States, 284 U.S. 299 (1932), § 2423 and § 2421 are not two separate offenses as they do not each require proof of an additional fact which the other does not. Because the defendant could not constitutionally be convicted under both statutes, the panel remanded the case to the district court to conduct proceedings consistent with Blockburger.

On remand, the government filed a sentencing memorandum with the district court in which the government recommended that the district court reverse York's convictions on counts 2 and 3 and vacate his conviction on count 4. Based on this suggestion, the district court resentenced the defendant on count 1 of the indictment to 87 months imprisonment. The defendant appeals and urges this court to reverse.

III.

The defendant makes two arguments on appeal. First, he argues that he faced a multiplicitous indictment, and that the district court erred by not requiring the government to make an election between charging the defendant under 18 U.S.C. §...