United States v. Fuertes, s. 13–4755

• Citation: 805 F.3d 485
• Decision Date: 18 August 2015
• Docket Number: Nos. 13–4755,13–4931.,s. 13–4755
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Kevin Garcia FUERTES, a/k/a Kerlin Esquivel–Fuentes, a/k/a Flaco, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. German De Jesus Ventura, a/k/a Chino, a/k/a Chalo, a/k/a Pancho, a/k/a Chaco, a/k/a Oscar, Defendant–Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

805 F.3d 485

UNITED STATES of America, Plaintiff–Appellee

v.Kevin Garcia FUERTES, a/k/a Kerlin Esquivel–Fuentes, a/k/a Flaco, Defendant–Appellant.

United States of America, Plaintiff–Appellee

v.German De Jesus Ventura, a/k/a Chino, a/k/a Chalo, a/k/a Pancho, a/k/a Chaco, a/k/a Oscar, Defendant–Appellant.

Nos. 13–4755

13–4931.

United States Court of Appeals, Fourth Circuit.

Argued May 13, 2015.

Decided Aug. 18, 2015.

ARGUED:Nicholas J. Vitek, Vitek Law LLC, Baltimore, Maryland; Michael Daniel Montemarano, Michael D. Montemarano, P.A., Columbia, Maryland, for Appellants. Sujit Raman, Office of the United States Attorney, Greenbelt, Maryland, for Appellee. ON BRIEF:Rod J. Rosenstein, United States Attorney, P. Michael Cunningham, Rachel M. Yasser, Assistant United States Attorneys, Office of the United States Attorney, Baltimore, Maryland, for Appellee.

Before KING and KEENAN, Circuit Judges, and DAVIS, Senior Circuit Judge.

Opinion

No. 13–4755 affirmed; No. 13–4931 affirmed in part and vacated and remanded in part by published opinion. Senior Judge DAVIS wrote the opinion, in which Judge KING and Judge KEENAN joined.

DAVIS, Senior Circuit Judge:

These appeals arise from the prosecution of two members of an enterprise engaged in interstate prostitution. Following a two-week trial, a jury convicted Appellants Kevin Garcia Fuertes (“Fuertes”) and German de Jesus Ventura (“Ventura”) of conspiracy to commit, and commission of, a number of sex trafficking and related offenses. On appeal, Fuertes and Ventura make four assertions of error, two individually and two jointly, regarding evidentiary rulings, jury instructions, and the sufficiency of the evidence. For the reasons stated below, we affirm the Fuertes judgment in No. 13–4755. In Ventura's appeal, No. 13–4931, applying plain error review, we conclude that the conviction under 18 U.S.C. § 924(c) for possession and use of a firearm in relation to a crime of violence was erroneous because, we hold, sex trafficking by force, fraud, or coercion, in violation of 18 U.S.C. § 1591(a), is not categorically a crime of violence. Accordingly, we vacate the conviction on Count Seven and remand for entry of judgment of acquittal on that count but we otherwise affirm the Ventura judgment.

I.

A.

The trial evidence was amply sufficient to permit the jury to find the following facts.

By early 2008, Ventura was operating brothels in the Hispanic community in Annapolis, Maryland. Fuertes helped Ventura run the brothels, as well as advertise the prostitution business. To maintain control over the sex trade, Fuertes and Ventura threatened perceived competitors with violence. For example, in March 2008, Ventura told Alberto Hernandez Campos (“Campos”) about trouble he was having with another Annapolis-area pimp, Ricardo Humberto “el Pelon” Rivas Ramirez (“Ramirez”). Then, to emphasize the seriousness of the matter, Fuertes showed Campos a handgun.¹

Following this encounter, on September 13, 2008, Ramirez was murdered. Investigators learned that Ramirez had received threatening phone calls from two different phone numbers (one phone number ending in 5015, the other in 1397) some time prior to his murder. Police sought subscriber information for the two phone numbers, and entered them into a database for future investigative purposes.

On September 24, 2008, Fuertes was arrested following an unrelated traffic violation. When he provided booking information, Fuertes gave a phone number that matched the 5015 number from which Ramirez had received threatening phone calls. Fuertes was arrested again the next day, this time on an open warrant. At the time of this arrest, Fuertes had in his possession a cellular phone with the 5015 number, as well as business cards advertising prostitution services.

After his September 25 arrest, Fuertes consented to a search of his home in Annapolis, where officers found evidence that the residence was being used as a brothel. In the living room, investigators found a cellular phone, which an occupant of the house permitted them to examine. The contacts list contained the 1397 number from which Ramirez had received threatening calls. Police also located a physical address book, which listed two phone numbers for “Pancho”: the 1397 number, as well as another number ending in 0903. After obtaining a warrant, police learned that Ventura was listed as the subscriber for the phone number ending in 0903. Witnesses in the investigation eventually identified Ventura by the aliases/nicknames of “Pancho” and “Chino,” among others.

Suspecting that Ventura and Fuertes were responsible for Ramirez's murder, investigators continued to monitor their activities. Agents learned that Ventura operated brothels at several locations in Annapolis, as well as in Easton, Maryland and Portsmouth, Virginia. Ventura arranged for prostitutes to work in the brothels from Monday through Sunday. Typically, the women communicated with Ventura by phone, then traveled by bus to Washington, D.C., where they met Ventura, or one of his employees, and drove to the brothel where they worked for the week. The prostitutes provided fifteen minutes of sex for thirty dollars, and were paid half of the gross receipts, less expenses for food, hygiene products, and other expenses of the trade. One woman, Margarita Santiago Laona, testified that she spoke with Ventura by telephone while she was in New Jersey, and then traveled by bus to Washington, D.C., where he met her and took her to a nearby brothel.

Rebeca Duenas Franco (“Duenas”), another woman employed by Ventura, had a particularly violent history with him. On the one hand, he helped extricate her from the control of another pimp. He also had a relationship with Duenas—indeed, she believes he is the father of her son—and provided her with a place to live. On the other hand, Ventura compelled Duenas to engage in prostitution by violence and threats of violence, and held her against her will. Ventura reintroduced Duenas to prostitution by giving her a box of condoms, telling her to “go to work,” and beating her “several times” when she resisted. J.A. 1186. On one occasion, when Duenas refused to have sex with an African–American client, Ventura beat her with a belt. On another occasion, when Duenas refused to perform a sex act with an object, Ventura pushed her down onto rocky ground.² Ventura also discharged a gun in her presence. Unlike other women working for Ventura, Duenas did not receive any money from her services as a prostitute.

At trial, Duenas testified that Ventura threatened competitor pimps, including Ramirez, and that she witnessed Ventura and Fuertes celebrating Ramirez's murder. Duenas also recounted an incident when Ventura assaulted a male employee who threatened to go to the police. During another incident, Ventura beat a prostitute who he believed had sent people to rob one of his brothels. According to Duenas, Fuertes was present when Ventura beat the prostitute, as well as at least one occasion when Ventura beat her.³

On March 25, 2009, police again arrested Fuertes at an apartment in Annapolis, and found evidence that the residence was being used as a brothel. During a protective sweep, police found Duenas and another woman hiding in a bedroom closet. Meanwhile, a search of Fuertes revealed $696 in cash, a wallet with miscellaneous papers, including a piece of paper listing the 0903 phone number associated with Ventura, and a cellphone. Following his 2009 arrest, Fuertes relocated to Virginia because he had been entered into deportation proceedings by the Department of Homeland Security.

On September 24, 2009, police arrested Ventura in Annapolis on an open warrant from the District of Columbia. A search of Ventura revealed $859 in cash and documents detailing how many customers each prostitute had serviced in the past week. Ventura also had his Maryland driver's license, a Mexican license that featured his picture but a different name, and two cell phones. Despite having two cell phones on his person, Ventura told the police that he did not have a phone number. He claimed that he had found one cell phone at the mall, and that he was borrowing the other from a taxicab driver whose name he did not know. A later search revealed that one of the phones had the 0903 number.

Months later, on February 17, 2010, Annapolis police responded to a 911 call for a possible robbery. The call came from a phone number which, police eventually learned, was the number Ventura used after his 2009 arrest. The police located the site of the robbery, which turned out to be another brothel operated by Ventura. Maximilliano Zelaya Repalo, a former employee of Ventura, testified at trial that he committed the robbery because he had not been paid for his work at the brothel.

In May 2010, police discovered that Ventura was operating another brothel in Easton. On July 7, 2010, they executed a search warrant at the brothel and arrested two individuals who were working there. Law enforcement continued its investigation, and on August 2, 2010, learned that Ventura was transporting a prostitute from Maryland to a brothel in Portsmouth.

Back in Annapolis, on November 3, 2010, several men believed to be operating at Ventura's behest seriously assaulted competitor-pimp Hector Fabian Avila. Law enforcement, therefore, decided to bring its investigation to a close, and on November 15, 2010, arrested Ventura in his home. Fuertes was also charged but was not arrested at that time.

B.

On November 29, 2011, a federal grand jury returned a superseding indictment, charging Fuertes and Ventura with conspiracy to transport an individual in interstate commerce for the purpose of prostitution, in violation of 18 U.S.C. § 371 (Count One); transportation of individuals in interstate commerce for the purpose of prostitution, in violation of 18 U.S.C. § 2421 (Count Two); and sex trafficking by force, fraud, or coercion, in violation of 18 U.S.C. § 1591(a) (Count Six). Ventura was also separately...