Ford v. State

• Decision Date: 29 September 2011
• Docket Number: No. 52272.,52272.
• Citation: 127 Nev. Adv. Op. 55,262 P.3d 1123
• Parties: Jerome Timothy FORD, a/k/a Jerome Ford, Appellant,v.The STATE of Nevada, Respondent.
• Court: Nevada Supreme Court

262 P.3d 1123

127 Nev. Adv. Op. 55

Jerome Timothy FORD, a/k/a Jerome Ford, Appellant,

v.The STATE of Nevada, Respondent.

No. 52272.

Supreme Court of Nevada.

Sept. 29, 2011.

Philip J. Kohn, Public Defender, and Philip David Westbrook, Deputy Public Defender, Clark County, for Appellant.Catherine Cortez Masto, Attorney General, Carson City; David J. Roger, District Attorney, Steven S. Owens, Chief Deputy District Attorney, and Michael J. Watson, Deputy District Attorney, Clark County, for Respondent.Before the Court En Banc.

OPINION

By the Court, PICKERING, J.:

Jerome Ford appeals his conviction of pandering of prostitution, a felony. He contends that the statute under which he was convicted, NRS 201.300(1)(a), is unconstitutionally overbroad and vague. His challenge proceeds from a misinterpretation of the statute. NRS 201.300(1)(a) does not impose strict liability on a person who unintentionally causes another to engage in prostitution—say, the actress who romanticized prostitution in the movie Pretty Woman. It criminalizes the act of soliciting another person with the specific intent that, in response to the solicitation, she “become a prostitute” or “continue to engage in prostitution.” Id.

Thus interpreted, NRS 201.300(1)(a) survives Ford's constitutional challenge. We also reject Ford's secondary argument that pandering cannot occur when the target is an undercover police officer who disavows having been or intending to become a prostitute. The jury instructions, however, did not adequately describe the specific intent required for pandering. For this reason, we reverse and remand for a new trial.

I.

Ford's conviction grows out of a sting operation that the Las Vegas Metropolitan Police Vice Squad conducted on the Las Vegas Strip. An undercover officer, Leesa Fazal, posed as a prostitute. Ford approached Fazal who, unknown to Ford, was wearing a wire under her skimpy dress. Captured on audiotape, the two discuss the fact that Fazal was “working”; that she'd been paid $300 for a 30–minute, “full service” date earlier that evening; that Ford had a “bi-coastal” escort service in Atlantic City and Las Vegas that he advertised (or planned to advertise) on yellowpages.com; and that with him, “You're going to make more than [$300 a date], that's my point. Believe what I'm telling you.” ¹ Not pulling any punches, Ford says, “I'm about making that mother fucking money, and make that mother fucking money do miracles.”

As the conversation progressed, Ford described his business and the services he could offer Fazal. He told Fazal that he would take care of her, that he is the backbone of the business, and that he would protect her if a “trick” tried to attack her. Ford asked Fazal if she understood a pimp's role in her line of work. Ironically, he offered to instruct Fazal on how to properly interview a potential customer to determine if he was an undercover cop. He also offered Fazal practical advice: “As soon as you enter the room, you get your money ... once everything is over and you don't got the money, then the trick has the advantage.” When Fazal said she was working without a pimp, Ford encouraged her to work with him but warned her that if she did, she would have to obey his instructions because “it's a pimp's game.” He said Fazal could make a lot of money if she stuck to his rules.

On appeal, Ford emphasizes that he did not ask Fazal for money, touch her, or arrange for her to have sex with anyone. He also stresses that Fazal did not decide to become a prostitute after they met and her trial testimony that she neither was nor ever would become one.

The State charged Ford with both pandering and attempted pandering. Ford contested probable cause in a pretrial petition for writ of habeas corpus that was denied. The jury convicted Ford of pandering, a category D felony. Ford was sentenced as a habitual criminal to 5 to 20 years in prison.

II.

Ford's principal argument on appeal is that NRS 201.300(1)(a) criminalizes speech and innocent conduct and so is overbroad under the First Amendment and impermissibly vague under the Due Process Clauses of the Fifth and Fourteenth Amendments. “The overbreadth doctrine permits the facial invalidation of laws that inhibit the exercise of First Amendment rights if the impermissible applications of the law are substantial when ‘judged in relation to the statute's plainly legitimate sweep.’ ” Chicago v. Morales, 527 U.S. 41, 52, 119 S.Ct. 1849, 144 L.Ed.2d 67 (1999) (quoting Broadrick v. Oklahoma, 413 U.S. 601, 612–15, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973)). The vagueness doctrine holds that “[a] conviction fails to comport with due process if the statute under which it is obtained fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement.” United States v. Williams, 553 U.S. 285, 304, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008).

Our review is de novo, City of Las Vegas v. Dist. Ct. (Krampe), 122 Nev. 1041, 1048, 146 P.3d 240, 245 (2006), and Ford, as the proponent of the constitutional challenge, has the burden of establishing the statute's invalidity. Flamingo Paradise Gaming v. Att'y General, 125 Nev. 502, 509, 217 P.3d 546, 551 (2009).

A.

The first step in both overbreadth and vagueness analysis is to construe the challenged statute. Williams, 553 U.S. at 293, 128 S.Ct. 1830 (“it is impossible to determine whether a statute reaches too far without first knowing what the statute covers”); Skilling v. United States, 561 U.S. ––––, ––––, 130 S.Ct. 2896, 2930, 177 L.Ed.2d 619 (2010) (“ ‘[I]f the general class of offenses to which the statute is directed is plainly within its terms, the statute will not be struck down as vague.... And if this general class of offenses can be made constitutionally definite by a reasonable construction of the statute, this Court is under a duty to give the statute that construction.’ ” (alteration in original) (quoting United States v. Harriss, 347 U.S. 612, 618, 74 S.Ct. 808, 98 L.Ed. 989 (1954))); State v. Castaneda, 126 Nev. ––––, ––––, 245 P.3d 550, 553–54 (2010) (“Enough clarity to defeat a vagueness challenge may be supplied by judicial gloss on an otherwise uncertain statute, by giving a statute's words their well-settled and ordinarily understood meaning, and by looking to the common law definitions of the related term or offense.” (citations and quotations omitted)).

Here, the challenged statute, NRS 201.300(1), reads as follows: “A person who: (a) Induces, persuades, encourages, inveigles, entices or compels a person to become a prostitute or to continue to engage in prostitution ... is guilty of pandering.” (Emphases added). Originally enacted in 1913, 1913 Nev. Stat., ch. 233, § 1, at 356, NRS 201.300(1)(a) has not changed significantly over the years, beyond its amendment in 1977 to add the words emphasized above. 1977 Nev. Stat., ch. 510, § 1, at 1054. “Prostitute” and “prostitution” are defined terms,² but the serial verbs “[i]nduces, persuades, encourages, inveigles, entices or compels,” are not. Notably NRS 201.300(1)(a) does not specify the intent required for pandering. This is atypical of more modern criminal statutes, which often “employ words (usually adverbs) or phrases indicating some type of bad-mind requirement: ‘intentionally’ or ‘with intent to ...’; ‘knowingly’ or ‘with knowledge that ...’; ‘purposely’ or ‘for the purpose of ...,’ ” and so on. 1 Wayne R. LaFave, Substantive Criminal Law § 5.1(a), at 333 (2d ed. 2003) (alteration in original); see Model Penal Code § 2.02(2) (1985) (defining kinds of culpability).

Because NRS 201.300(1)(a) does not use any “bad-mind” adverbs or phrases, Ford takes the statute to impose strict liability based on cause and effect, not intent. By his account, NRS 201.300(1)(a) reaches not only the human trafficker who recruits teenage runaways for prostitution rings but also the following: The “over-protective mother, whose constant nagging and stern disapproval encourages her daughter to engage in prostitution as an act of rebellion; [t]he amorous 22–year–old male, steeped in the ‘urban’ culture popularized by rap artists and other media figures, who falsely represents himself as a ‘pimp’ or a ‘player’ in the hopes of enticing a woman to sleep with him”; and Julia Roberts, whose film Pretty Woman suggests that “wholesome and beautiful girls can use prostitution as a means to achieve wealth, see the world, and obtain the love of a dashing businessman like Richard Gere.”

The intent, if any, required to be convicted of pandering under NRS 201.300(1)(a) lies at the heart of Ford's appeal. If he is right and NRS 201.300(1)(a) provides for strict liability, the statute is unsustainable. But Ford misinterprets the statute. To be convicted of pandering under NRS 201.300(1)(a), a defendant must act with the specific intent of inducing (or persuading, encouraging, inveigling, enticing, or compelling) his target to become or remain a prostitute. A number of factors lead us to this conclusion.

First, Ford makes too much of NRS 201.300(1)(a)'s omission of a stated intent requirement. “While strict-liability offenses are not unknown to the criminal law and do not invariably offend constitutional requirements,” they occupy a “generally disfavored status” and “[c]ertainly far more than the simple omission of the appropriate phrase from the statutory definition is necessary to justify dispensing with an intent requirement.” United States v. United States Gypsum Co., 438 U.S. 422, 437–38, 98 S.Ct. 2864, 57 L.Ed.2d 854 (1978); Morissette v. United States, 342 U.S. 246, 263, 72 S.Ct. 240, 96 L.Ed. 288 (1952) (“mere omission ... of intent [in a criminal statute] will not be construed as eliminating that element from the crimes denounced”); see United States v. X–Citement Video, Inc., 513 U.S. 64, 70, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994) (many “cases interpret[ ] criminal sta...