702 F.3d 22 (2nd Cir. 2012), 11-301-cr, United States v. Robinson

Docket Nº:11-301-cr.
Citation:702 F.3d 22
Opinion Judge:JOS
Party Name:UNITED STATES of America, Appellee, v. Devon ROBINSON, aka Da Da, Defendant-Appellant.[1]
Attorney:Curtis J. Farber, Law Office of Curtis J. Farber, New York, NY, for Defendant-Appellant. Sylvia S. Shweder, Assistant United States Attorney (David C. James, Assistant United States Attorney, on the brief), for Loretta E. Lynch, United States Attorney, United States Attorney's Office for the East...
Judge Panel:Before: KEARSE, CABRANES, and STRAUB, Circuit Judges. Judge KEARSE concurs in the judgment in a separate opinion. KEARSE, Circuit Judge, concurring in the judgment:
Case Date:November 30, 2012
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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702 F.3d 22 (2nd Cir. 2012)

UNITED STATES of America, Appellee,

v.

Devon ROBINSON, aka Da Da, Defendant-Appellant. 1

No. 11-301-cr.

United States Court of Appeals, Second Circuit.

November 30, 2012

Argued: Jan. 25, 2012.

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Curtis J. Farber, Law Office of Curtis J. Farber, New York, NY, for Defendant-Appellant.

Sylvia S. Shweder, Assistant United States Attorney (David C. James, Assistant United States Attorney, on the brief), for Loretta E. Lynch, United States Attorney, United States Attorney's Office for the Eastern District of New York, for Appellee.

Before: KEARSE, CABRANES, and STRAUB, Circuit Judges.

Judge KEARSE concurs in the judgment in a separate opinion.

JOSÉ A. CABRANES, Circuit Judge:

Defendant-appellant Devon Robinson appeals from the January 26, 2011 judgment of the United States District Court for the Eastern District of New York (John Gleeson, Judge ), convicting him, following a jury trial, on two counts of sex trafficking of a minor in violation of 18 U.S.C. § 1591. On an issue of first impression, we consider the appropriate construction of 18 U.S.C. § 1591(c), an evidentiary provision added by the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (" TVPRA" ), Pub.L. No. 110-457, 122 Stat. 5044 (2008), which provides that " [i]n a prosecution ... in which the defendant had a reasonable opportunity to observe the [victim], the Government need not prove that the defendant knew that the person had not attained the age of 18 years." 18 U.S.C. § 1591(c) (Supp. II 2008). We hold that this provision, when applicable, imposes strict liability with regard to the defendant's awareness of the victim's age, thus relieving the government's usual burden to prove knowledge or reckless disregard of the victim's underage status under § 1591(a). We reject Robinson's remaining evidentiary and sentencing challenges as lacking merit, and therefore affirm the judgment of the District Court.

BACKGROUND

On April 14, 2010, a federal grand jury returned a superseding indictment charging Devon Robinson with three counts of child sex trafficking in violation of 18 U.S.C. § 1591. Two counts proceeded to trial, both relating to a single minor victim, Jane Doe, who was born on April 5, 1991. These two counts corresponded to the two versions of § 1591 in effect when Robinson is alleged to have trafficked Jane Doe. Count One, as renumbered at trial, 2 charged sex trafficking of a minor under the amended version of § 1591 and covered the period from December 23, 2008, when the amendments took effect, through April 5, 2009, when Jane Doe turned eighteen.3 Count Two charged sex trafficking

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of a minor under the preceding version of § 1591(a) and covered the period from January 1, 2007 through December 22, 2008.4

A. The Trial

A jury trial commenced before Judge Gleeson in the Eastern District of New York on June 21, 2010. During trial, the government called Jane Doe— who at that time was nineteen years old— to testify. After she invoked the Fifth Amendment protection against self-incrimination and was granted immunity, the government received permission to treat her as a hostile witness. She testified that she had run away from home on several occasions in her early teenage years, and had dropped out of high school at the age of seventeen. While in high school, Jane Doe began to work as an exotic dancer at a strip club and as a prostitute. She was arrested several times for and convicted of prostitution in Queens, New York, in 2008 and 2009. Jane Doe testified that she met Robinson through his sister two and a half years prior to the trial and started dating him when she was seventeen. She also testified that she told " everybody" that she was nineteen at the time. Throughout the trial, Jane Doe insisted that Robinson was her boyfriend rather than her pimp, and that he was only living off of her income as a prostitute rather than facilitating that line of work.

The balance of the evidence against Robinson consisted primarily of recorded statements. On July 18, 2008, Robinson made a videotaped statement to a detective and an assistant district attorney (" ADA" ) in the Queens County District Attorney's Office, in which he admitted that he had been staying with his " girlfriend" Jane Doe at the Courtesy Hotel in Hempstead, New York, for about three months and that Jane Doe paid for their room. The videotaped statement included the following exchange:

ADA: You gotta, the obvious thing[ ] [is] you got to be real with us[.]

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DR: But I ain't gonna say I'm a pimp though. But you know.

ADA: You watch out for them and they give you money[.]

DR: They take care of me. Word[.]

ADA: I think that's by definition a pimp[.]

DR: (laughter)

* * *

DR: [Robinson admitted to having promoted prostitution on an occasion in the past.] 5 So I stopped it. So I tried to do something else. You feel what I'm saying?

ADA: That's when you moved on to the prostitution.

DR: Exactly. Tried to do something else. And awright [sic], it worked for a little while.

Gov't App'x 11. The prosecution also introduced thirty-five recorded telephone calls that Robinson made from various detention facilities between July 20, 2008, and April 10, 2010. As demonstrated in the following excerpts, Robinson repeatedly implored Jane Doe to make money for him:

September 2, 2008: " You're gonna make that bread tonight, right baby?.... So you're gonna make daddy happy when I call you in the morning?" Id. at 29.

September 7, 2008: " Listen, every night, you give [Robinson's grandmother] 200 f* * *ing dollars man.... [J]ust make 200 tomorrow, give all that sh* * to my grandma man.... [T]onight, yo, you better on some real sh* * man, like these next 7 days man. 2, 4, 6, 8, 10, 12, 14. Yo man, that's 1400. 200 dollars every mother f* * *ing day to my grandmother for the next 7 days man." Id. at 48, 50, 54.

September 9, 2008: " Can you please make me happy baby? That's all, man. That's all I want you to do man is just to get that money out for me baby.... How hard is it, right? Every date that you go on, right, when you finish with the date, how hard is it to get the date to drop you off on 115?" Id. at 58, 62.

In other conversations, Robinson threatened Jane Doe when she failed to deliver the money:

September 16, 2008: " Word to my mother ... if my grandmas have to bail me out, when I come home I'm not f* * *in with you no more and I'm gonna beat the sh* * out of you ... I'm gonna beat the sh* * out of you stupid slut a* * man." Id. at 101.

September 26, 2008: " I'm ready to send a bit* * over there to wash you the f* * * up.... I said I'm ready to send, I'm ready to send somebody over there to f* * * you up man.... All right, listen I'm gonna get the last laugh man. Always remember that, when I come home I'm gonna have the last laugh. Cause I'm gonna beat the sh* * out of your stupid a* *. Word to mother I'ma throw you in a f* * *ing garbage can and let everybody know you ain't sh* *.... [S]tupid bit* *, f* * * you talking about[?] Yo, just make sure man you get that money tonight man. And you take that to my grandmother man on some real sh* * man." Id. at 110, 113.

October 4, 2008:

Jane Doe: " If I was to ever leave you, what would you do?"

Robinson: " Kill your a* *."

Jane Doe: " Didn't you use to say till death do us part?.... What does that mean? You're gonna kill me before I leave right?"

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Robinson: " Yeap, kill you." Id. at 132.

During other phone calls, Robinson discussed women named " Angie" and " Creame." For instance, in an October 11, 2008 call, Robinson told his cousin, Tykim, that when he got out of jail, " Creame is back in my possession." Robinson also said that he spoke to Creame and that she was " ready to come back to her n* * *er" and that Robinson told her " just stay where you're at though right now man I'll be home soon man. You're coming back to a pimp." Id. at 140.

B. The Verdict and Sentence

On June 24, 2010, the jury returned a guilty verdict on both counts of sex trafficking of a minor in violation of § 1591. The jury also found by special verdict that Robinson (1) knew that Jane Doe was under the age of eighteen, (2) recklessly disregarded that fact, and (3) that he had a reasonable opportunity to observe Jane Doe.

On January 21, 2011, Robinson was sentenced principally to 180 months of imprisonment on each count, to run concurrently, followed by five years of supervised release. Judgment was entered on January 26, 2011. This appeal followed.

DISCUSSION

Section 1591 was first enacted as part of the Trafficking Victims Protection Act of 2000 (" TVPA" ), Pub.L. No. 106-386, 114 Stat. 1464 (Oct. 28, 2000),6 the stated purpose of which was " to combat trafficking in persons, a contemporary manifestation of slavery whose victims are predominantly women and children, to ensure just and effective punishment of traffickers, and to protect their victims." 22 U.S.C. § 7101(a) (2000). The TVPA defined as " severe forms of trafficking in persons" the two forms of sex trafficking proscribed by § 1591— sex trafficking involving a commercial sex act " induced by force, fraud, or coercion," or in which the person induced to perform the sex act was under the age of eighteen. Id. § 7102(8)(A) (2000). Under the TVPA, a conviction for child sex trafficking under § 1591 required proof, inter alia, that the defendant acted " knowing ... that the person has not attained the age of 18 years and will be caused to engage in a commercial sex act...." 18 U.S.C. § 1591(a) (2000) (emphasis supplied).

Section 1591 was amended by the William Wilberforce Trafficking Victims Protection Reauthorization Act of 2008 (" TVPRA" ), Pub.L. No. 110-457, 122 Stat. 5044 (2008),7 which took...

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