U.S. v. Diaz

• Decision Date: 03 March 2010
• Docket Number: No. 08-1766.,08-1766.
• Citation: 597 F.3d 56
• Parties: UNITED STATES of America, Appellee, v. Victor DIAZ, Defendant, Appellant.
• Court: U.S. Court of Appeals — First Circuit

597 F.3d 56

UNITED STATES of America, Appellee, v. Victor DIAZ, Defendant, Appellant.

No. 08-1766.

United States Court of Appeals, First Circuit.

Heard September 11, 2009.

Decided March 3, 2010.

Martin J. Vogelbaum, Federal Defender Office, for appellant.

Randall E. Kromm, Assistant United States Attorney, with whom Michael K. Loucks, Acting United States Attorney, was on brief, for appellee.

Before BOUDIN, GAJARSA^* and LIPEZ, Circuit Judges.

LIPEZ, Circuit Judge.

Appellant Victor Diaz was found guilty of conspiring to engage in the sexual trafficking of children based on his involvement in a prostitution business, operated by his niece, that employed several minors. See 18 U.S.C §§ 371, 1591. On appeal, he asserts that his right to a fair trial was compromised by the district court's failure to investigate an incident of premature jury deliberations. He also claims that the court improperly admitted two sets of hearsay statements: (1) comments made by two minors during the course of prostitution calls that had been set up by police officers in Boston and Cambridge, and (2) statements made by his niece during the Cambridge sting operation.

We conclude that the district court did not abuse its discretion in the handling of the jury deliberation issue and that all of the statements were either properly admitted or harmless. We therefore affirm appellant's conviction.

I.

A federal grand jury returned a six-count indictment charging Diaz and his niece, Evelyn Diaz,¹ with conspiracy to engage in the sexual trafficking of children, in violation of 18 U.S.C. §§ 371 and 1591. Evelyn pled guilty to the conspiracy charge and the other five counts, which alleged substantive sex trafficking offenses that did not involve Diaz. A jury found Diaz guilty of the conspiracy charge after a four-day trial.²

The facts underlying the charge, as the jury could have found them, are as follows. Evelyn operated a prostitution business in the Boston area from at least 2003 through the time of Diaz's arrest in April 2005. Evelyn, who sometimes used the name "Messiah," advertised her business as an escort service in various publications and online, including on Craigslist, under the name "Messiah's Adult Entertainment." Her group of prostitutes included her two teenage sisters, "C" and "P," who were both under age eighteen.

Diaz knew that Evelyn ran a prostitution business whose employees included minors. In 2001, he had urged his girlfriend, Evalicia Torres, who was then fourteen years old, to stay away from Evelyn because she was reputed to be a prostitute. Torres, however, moved in with Evelyn and two other women in July 2004, when she was still a minor, and began working as a prostitute for her. The women would entertain customers at the house where they lived, at customers' homes or in hotels.

Law enforcement officers investigating prostitution activities set up sting operations in March and April 2005, first in Cambridge and then in Boston. On March 25, Cambridge police officers occupied two adjoining rooms in a Cambridge hotel, one for the undercover activity and one for surveillance. From the undercover room, Detective Louis Cherubino called a phone number listed on one of Evelyn's Craigslist ads and asked for a girl pictured in the ad who was identified as "Jenna." A short time later, a girl who said she was "Jenna" returned the call and made plans to meet Cherubino at the hotel. Evelyn drove to the hotel with her sister, C, who entered Cherubino's room and asked him for $175. When asked what he would get in return, C replied "a full service." C handed Cherubino a condom and said, "Put it on, you won't be disappointed." The officers from the adjoining surveillance room then entered, arrested C and took her into the surveillance room. At the officers' direction, C called Evelyn and asked her to come up to the room. Upon entering, Evelyn told C to "shut up." Evelyn was read her Miranda rights, after which she told the officers that C was eighteen years old and that Evelyn drove her to various locations to give massages.

The second sting operation occurred on April 14 at a Boston hotel, where officers again took two adjoining rooms.³ Detective Steven Blair called a telephone number listed in one of Evelyn's Craigslist ads and asked for "two girls," specifying that "they have to be young." The person on the other end, apparently a woman, said "we can help you out," and gave Blair a price. A short time later, Blair received a call from a man telling him that the girls were "on their way."

An officer conducting surveillance outside the hotel, Sergeant Paul Mahoney, subsequently saw a red Jeep pull up in front of the hotel to drop off two females. The Jeep's driver, appellant Diaz, drove the car to a parking lot behind the hotel. About twenty minutes after the second phone conversation, two women knocked on Blair's door and entered the hotel room. The older one appeared to be eighteen to twenty years old and the younger one between thirteen and fifteen. The younger one, Evelyn's sister P, placed a call on her cell phone and told the man on the other end that "[w]e're in."⁴

A conversation ensued about the services to be provided and their cost. The older woman, Chavonne Lewis, stated that she would provide "straight oral and masturbation" for $300. When Blair asked if both women would do this, P stated, "I don't fuck. I'll jerk you off." After Blair gave Lewis the $300, P said, "[g]ive me the money, give me the money. I'll run it downstairs." The officers in the adjoining room then entered, and Mahoney was instructed to arrest the driver of the red Jeep. In a search of the vehicle, Mahoney found, inter alia, cell phones, a business card with the word "Messiah" and escort information, including phone numbers, and a pink bag that contained condoms, among other items.

Diaz was arrested and, after signing a waiver of his Miranda rights, admitted in an interview with FBI Agent Tamara Harty and Sergeant Detective Kelly O'Connell of the Boston Police Department that he had driven P and Lewis to the hotel at Evelyn's request. Harty, who had begun investigating Evelyn's escort service about ten months earlier, testified that Diaz said that Evelyn expected him to let her know when the prostitution call was completed. He also admitted to driving females who worked for Evelyn to prostitution calls on other occasions, including P, whom he knew was thirteen years old. He said he was not paid for his help, but drove the girls as a favor to Evelyn.

In his own testimony at trial, Diaz denied driving P to prostitution calls or telling Agent Harty that he had done so. He claimed that he did not know that C was involved in prostitution until the March sting operation and did not know that P was involved before his arrest. Diaz admitted driving the two women to the hotel at Evelyn's request. He had expected, however, to pick up only Lewis and said that P explained that she was going into the hotel with Lewis so that Lewis would not be alone. He also said he was not planning to pick up the women after the call, but pulled into the parking lot so that he could watch a wrestling match on the television in the car.

Diaz further explained that he had agreed to drive Lewis at Evelyn's request because she threatened not to let him use her car again. He had no car and relied on Evelyn to provide him with a vehicle to visit his friends, go job hunting, help his mother and see his daughter. He acknowledged regularly driving P and other women working for Evelyn, but only on trips to visit friends or go shopping.

II.

Appellant contends that the district court committed reversible error in failing to investigate whether a juror note given to the court about ninety minutes after the start of testimony showed that the jury had engaged in premature deliberations. We first describe in some detail the parties' discussions with the court concerning the note and then consider the court's response.

A. The Note and the Court's Colloquy with Counsel

The juror note was given to the court during a mid-morning break in the cross-examination of the government's first witness, Evalicia Torres. Although the note and its exact wording are not in the record, the court reported that it asked about "the meaning of conspiracy and what the government has to prove beyond a reasonable doubt."⁵ The record indicates that the note was signed by a single juror, but it referred to "our question." Before Torres's cross-examination resumed, the court gave counsel the opportunity to see the note, and then advised them that it would respond by telling the jury "it's a legal question that I'll address at the end in the instructions." Neither party objected, and the court then spoke to the jury as follows:

One juror sent me a question about the meaning of conspiracy and what the government has to prove beyond a reasonable doubt. I will be addressing all of those issues in detail during my final instructions of law, so I will not be discussing it right now. We'll continue with the cross. But if you want to ask questions, that was the right mode to do it, and, as I said, I'll address that later on.

The trial continued for about another ninety minutes, and the jurors were then excused for the day. The next morning, defense counsel returned to the subject of the note. She observed that "the note is some evidence perhaps of premature deliberations on the part of the jury," pointing out that the last line of the note referred to "our question." She urged the court to question the juror "to determine the context in which this note came to be written." She explained that, if the note resulted from a group discussion, "that would appear on its face anyway to be a violation of the Court's instructions not to [discuss the case]" and the jury would "at least need[] to be admonished, [and] if it's gone farther than that . . . there may be some other action."

Counsel also commented that it...