U.S. v. Cox

• Citation: 577 F.3d 833
• Decision Date: 18 August 2009
• Docket Number: No. 08-1807.,08-1807.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Tommy C. COX, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

577 F.3d 833

UNITED STATES of America, Plaintiff-Appellee, v. Tommy C. COX, Defendant-Appellant.

No. 08-1807.

United States Court of Appeals, Seventh Circuit.

Argued February 24, 2009.

Decided August 18, 2009.

Matthew Madden (argued), Office of the United States Attorney, Chicago, IL, for Plaintiff-Appellee.

Bradley H. Weidenhammer (argued), Kirkland & Ellis, Chicago, IL, for Defendant-Appellant.

Before ROVNER, WOOD, and SYKES, Circuit Judges.

WOOD, Circuit Judge.

Tommy Cox was convicted of one count of knowingly transporting an individual under the age of 18 in interstate commerce with intent that the individual engage in prostitution, in violation of 18 U.S.C. § 2423(a), and one count of knowingly persuading, inducing, enticing, or coercing an individual to travel in interstate commerce to engage in prostitution, in violation of 18 U.S.C. § 2422(a). In addition, Cox pleaded guilty prior to his trial to two counts of credit card fraud, in violation of 18 U.S.C. § 1029(a)(3). Cox now appeals. He asserts that the district court erred when it did not require the Government to prove for purposes of the § 2423(a) charge that Cox knew that the person he transported was under the age of 18. He also accuses the court of abusing its discretion by admitting evidence of his credit card fraud into the trial on the transportation conduct. We conclude that the district court correctly ruled that the Government need not prove in a prosecution under 18 U.S.C. § 2423(a) that the person being transported was under the age of 18. Nor did the court abuse its discretion by admitting the evidence of Cox's credit card fraud into the trial on the 18 U.S.C. §§ 2423(a) and 2422(a) violations. We therefore affirm.

I

On January 31, 2006, an employee of Expedia, the online travel company, contacted United States Secret Service Agent James Sams to report an unauthorized use of a credit card to rent hotel rooms at the Hyatt Regency Hotel in Chicago, Illinois. The rooms had been rented under the name of Andre Oby. By the time Agent Sams arrived at the hotel, Chicago police officers had detained Cox and removed a handful of credit cards from his possession: a Wachovia Visa Bucks card in the name of Carnell Johnson, an e-Trade debit card in the name of Tony M. Cox, a Western Union Mastercard in the name of Tommy Cox, and an Illinois I.D. card in the name of Andre Oby. The police also seized a notebook with a number of names, addresses, and credit card numbers; the notebook included information about Andre Oby. Finally, the police found printouts of emails with credit card numbers on them; these were hidden between the mattress and frame of the bed in one of the hotel rooms.

Later investigations revealed that Cox was associated with a boy named Quantan Champion. At trial, Champion testified that he first met Cox on a telephone party line during 2005, when Champion was 16 years old. Later, Champion met Cox in person at a hotel party in Chicago. There Cox told him that he could make a lot of money as a prostitute; Cox volunteered to find customers for him. Champion testified that he "went along with it" because he had no money. Cox took nude and semi-nude pictures of Champion, decided how much Champion would charge for different sexual acts, and posted the pictures and prices on various internet websites. Champion said that if a person was interested in his services, the potential customer would contact Cox on his cell phone, and Cox would inform the customer of the location of the meeting, the services to be provided, and the amount to be charged. Champion testified that he engaged in the sexual services that he and Cox discussed and that he split the proceeds with Cox 50/50. Cox prostituted him on a daily basis during 2005 and 2006.

In the spring or early summer of 2006, Cox moved from Chicago to Atlanta. Initially, Cox did not take Champion with him. But later that fall, Cox returned to Chicago, found Champion, and took him back to Atlanta. Champion testified that Cox continued to prostitute him in Atlanta, with Cox advertising Champion's services and prices, and arranging meetings just as he had in Chicago. Champion eventually returned to Chicago and spurned Cox's repeated attempts to get him to come back to Atlanta. After returning from Atlanta, Champion never prostituted himself again.

Following Cox's arrest, a grand jury issued a four-count indictment against him. Count I charged Cox with transporting a minor in interstate commerce with the intent that the minor engage in prostitution, in violation of 18 U.S.C. § 2423(a), and Count II charged Cox with persuading, inducing, enticing, or coercing an individual to travel in interstate commerce to engage in prostitution, in violation of 18 U.S.C. § 2422(a). Counts III and IV charged Cox with violating 18 U.S.C. § 1029(a)(3), based on his possession and use of credit cards and account numbers on or about January 15, 2006, and January 26, 2006. On October 23, 2007, Cox pleaded guilty to the credit card counts. The Government then filed two motions in limine. In the first, the Government sought a ruling that it did not have to prove that Cox knew that Champion was a minor in order to obtain a conviction under 18 U.S.C. § 2423(a). The second motion asked the court to rule that evidence of Cox's credit card fraud was admissible in the trial of Counts I and II because the credit card evidence was "inextricably intertwined" with the evidence of Cox's enticement and transportation of Champion.

On October 31, 2007, the district court granted both of the Government's motions. The court concluded that 18 U.S.C. § 2423(a) does not require the Government to prove that a defendant knew that the victim was under the age of 18. It also held that the evidence relating to Cox's credit card fraud was admissible in the trial of his enticement and transportation activity because it was, as the Government argued, inextricably intertwined with the offense conduct, and because its probative value was not substantially outweighed by the danger of unfair prejudice. The court denied Cox's motion to reconsider on November 5, 2007, and on November 8, the jury returned a verdict of guilty on Counts I and II.

II

Before turning to the merits of Cox's appeal, we need to address a matter that arose immediately before oral argument. On February 19, 2009, Cox, acting pro se, filed a document entitled "motion to file supplemental brief." The motion questioned the adequacy of the representation that his appointed counsel, Bradley Weidenhammer, was furnishing. Cox questioned Weidenhammer's decision not to file a supplemental brief challenging Cox's sentence as unreasonable. We denied Cox's pro se motion. On the eve of oral argument, Weidenhammer learned of Cox's motion and filed an emergency motion to delay the argument, which we also denied. At the start of oral argument Weidenhammer told us that there might be a conflict between him and Cox and then moved on to the merits of his argument. Shortly after oral argument, Cox filed a pro se motion to substitute counsel, which was withdrawn two days later in another motion written by Weidenhammer. According to this most recent motion, any issue between Cox and Weidenhammer was the result of a misunderstanding that had been resolved to Cox's satisfaction.

For the sake of thoroughness, however, it bears mentioning that we see no reason to relieve Weidenhammer from this case. Cox has no right to raise substantive issues while he is represented, and he is foolish if he thinks that he ought to complain about constitutional ineffectiveness of counsel on direct appeal. Without reaching any issue related to the adequacy of Cox's representation, it is clear to us that nothing in Cox's initial pro se filing, strictly from the point of view of legal ethics, compels Weidenhammer to do any more than bring this issue to the court's attention, which he has done. Weidenhammer has abided by rules governing communication with his client, N.D. IL. R. 83.51.4, the manner in which strategic decisions should be made, Rule 83.51.2, and termination of the attorney client relationship, Rule 83.51.16, and he has adhered to the spirit of the rule calling for candor before a tribunal, Rule 83.53.3. We see no conflict that requires him to step aside.

A

Turning to the arguments that are properly before us, the first issue is Cox's assertion that § 2423(a) requires the Government to prove that a defendant knew that the victim was under the age of 18. Section 2423(a) reads as follows:

A person who knowingly transports an individual who has not attained the age of 18 years in interstate or foreign commerce, or in any commonwealth, territory or possession of the United States, with intent that the individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense, shall be fined under this title and imprisoned not less than 10 years or for life.

18 U.S.C. § 2423(a). Cox argues that the plain language of the statute makes knowledge of the transportee's age an element of the offense, because the adverb "knowingly" modifies not only the transitive verb "transports" but also the verb's direct object. Therefore, according to Cox, "knowingly" also reaches the object of the phrase, "an individual who has not attained the age of 18 years."

While the question whether knowledge of a victim's minor status is an element of the § 2423(a) offense is a question of first impression for this court, at least four of our sister circuits have faced this issue and all have held that it is not. See United States v. Jones, 471 F.3d 535, 538-39 (4th Cir.2006); United States v. Griffith, 284 F.3d 338, 350-51 (2d Cir.2002); United States v. Taylor, 239 F.3d 994, 996 (9th Cir.2001); United States v. Hamilton, 456 F.2d 171, 173 (3d Cir.1972). Today we join the Second, Third, Fourth, and Ninth Circuits and hold that § 2423(a) does not require that the Government prove...