U.S. v. Griffith

• Decision Date: 21 March 2002
• Docket Number: Docket No. 00-1651.,Docket No. 00-1654.
• Citation: 284 F.3d 338
• Parties: UNITED STATES of America, Appellee, v. Anthony GRIFFITH and Christopher Griffith, Defendants-Appellants.
• Court: U.S. Court of Appeals — Second Circuit

284 F.3d 338

UNITED STATES of America, Appellee, v. Anthony GRIFFITH and Christopher Griffith, Defendants-Appellants.

Docket No. 00-1651.

Docket No. 00-1654.

United States Court of Appeals, Second Circuit.

Argued: November 6, 2001.

Decided: March 21, 2002.

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Ronnie Abrams, Assistant United States Attorney, New York, NY (Mary Jo White, United States Attorney for the Southern District of New York, Celeste L. Koeleveld, Assistant United States Attorney, of counsel), for Appellee.

Sam Braverman, Law Office of Sam Braverman, Bronx, NY, for Defendant-Appellant Anthony Griffith.

Barry M. Fallick, Rochman Platzer Fallick & Sternheim, LLP, New York, NY, for Defendant-Appellant Christopher Griffith.

Before: KEARSE, MINER, and F.I. PARKER, Circuit Judges.

MINER, Circuit Judge.

Defendants-appellants Anthony Griffith and Christopher Griffith, who are brothers, appeal from a judgment of conviction entered in the United States District Court for the Southern District of New York (Baer, J.), following a jury trial, convicting each of them of transporting an individual in interstate commerce with the intent that she engage in prostitution in violation of 18 U.S.C. §§ 2422 and 2423, of using a minor to engage in sexually explicit conduct for the purpose of producing a visual depiction of that conduct in violation of 18 U.S.C. § 2251(a), and of conspiracy to violate each of the aforementioned laws. The district court sentenced Anthony Griffith to 126 months' imprisonment and Christopher Griffith to 120 months' imprisonment. The court also sentenced each of the Griffiths to supervised release periods of three years and imposed special assessments of $400.

For the reasons that follow, we affirm.

BACKGROUND

From at least April 1999 until their arrests on May 8, 1999, Anthony Griffith and his brother Christopher Griffith recruited into prostitution minors and young women in Bronx County and other locations in New York. On the afternoon of April 28, 1999, fifteen-year-old Ebony,¹ eighteen-year-old Larae Davis, and another girl were standing outside their high school in the Bronx. Ebony was talking with some other friends in a car when the Griffiths pulled up in their car. Davis went to speak with Christopher Griffith, the driver of the car. While they were speaking, Anthony Griffith, who was sitting in the passenger seat, called Ebony over. Anthony asked Ebony her age; instead of telling him that her real age was fifteen, Ebony told him that she was seventeen. The Griffiths asked Ebony and Davis if they wanted to go for a ride. Both girls got into the back seat of the car and the four drove off. After driving for a time, they stopped in a parking lot where Anthony and Davis switched places, leaving Christopher and Davis in the front seat, and Anthony and Ebony in the back seat.

During their drive, Christopher informed Davis that she could "make $500 to $600 a day" prostituting herself and told her that this would involve her "hav[ing] to have sex with white men, oral sex and stuff like that." In addition, he told her that if he wanted to, he would force her, against her will, to perform oral sex on him at that moment. Christopher then received a call on his cellular telephone, which he told Davis was from a girl who "need[ed] more condoms." They then drove to a street corner where they picked up the caller, and all five drove to a McDonald's parking lot. Once there, Anthony asked Ebony to go for a walk. During their walk, Anthony "talk[ed] about making fast money like 400, 500 a day." While Anthony and Ebony were away from the car, Davis told Christopher that she was not interested in prostituting herself, and he drove her to a subway station, where she got on a train and went home.

When Ebony and Anthony returned, only Christopher and the girl Christopher had received the telephone call from were at the car. When Ebony inquired about Davis's absence, she was told not to worry about Davis, and the four of them drove to a parking lot in the Bronx. Anthony then instructed Ebony to perform oral sex on him while Christopher videotaped them. Then Christopher told Ebony to perform oral sex on him and gave the video camera to the other girl to videotape them. After videotaping Ebony performing sex acts on them, she was videotaped stating a false birth date Anthony had instructed her to recite "[b]ecause they wanted [her] to be 18."

Later that same day, Ebony began prostituting herself. Anthony gave her condoms, quarters, a phone number to call when she made a certain amount of money, and told her what to charge for different sex acts. The Griffiths also gave her tequila to "help calm [her] down." Until the time of the Griffiths' May 8 arrest, ten days after they first picked up Ebony, she remained with them and prostituted herself, giving all of the money she made to Anthony. In addition to Ebony, the Griffiths also had a number of other girls working for them as prostitutes. On two occasions during the ten-day period that Ebony was with the Griffiths, they drove her to their mother's house in New Jersey to "get cleaned up" and then brought her back to New York to continue prostituting herself.

On May 3, 1999, Ebony's father called the Federal Bureau of Investigation ("FBI") and reported that Ebony had been abducted. The FBI worked with detectives of the New York City Police Department ("NYPD") pursuing leads to try to locate the Griffiths. On May 8, 1999, Christopher Griffith was pulled over in the Bronx and placed under arrest. After he arrived at the precinct, Christopher called Anthony and told him to come there. Christopher was then given Miranda warnings, and in response waived his constitutional rights in writing and agreed to speak with NYPD Detective Victor Harris and FBI Special Agent Michael McAndrew, who specializes in crimes against children, including sexual exploitation of children. Agent McAndrew testified at trial that during the interview, Christopher stated that he had girls working for him who "used their bodies to make money," and "that on several occasions he took girls to ... Teaneck, New Jersey to his mom's house." McAndrew further testified that Christopher explained that "when they went to the house in Teaneck, New Jersey, they just washed up, and he took [the girls] back to New York and they went back to work, using their bodies to make money."

McAndrew also testified that early in the interview Christopher "made a comment about their [sic] being a tape that would prove that he didn't do anything wrong," but that when Detective Harris later asked Christopher about the tape, he responded that there was no tape. Following a break in the interview, McAndrew and Harris again asked Christopher about the tape, and he told them that the "tape was a personal matter and he did not want to discuss it" with them.

In response to Christopher's telephone call, Anthony came to the same precinct and was also placed under arrest. At the outset of an interview with NYPD Detective John Wynne, Anthony also waived his constitutional rights and made oral, written, and videotaped statements regarding the events at issue. At trial, Wynne testified to the oral statements, read the written statement into the record, and the twenty-five-minute videotape was played before the jury. In these statements, Anthony admitted to enticing Ebony to prostitute herself and to be portrayed in a videotape engaging in sex acts. Anthony also spoke with Detective Harris, and Harris testified at trial that Anthony told him that this videotape was in Anthony's Nissan Pathfinder. Harris also testified that Anthony told him where the vehicle was parked and where the tape was located in the vehicle, and that Anthony gave him the keys to the Pathfinder and consented in writing to a search of the vehicle.

Subsequent to his interview with Wynne, Anthony was interviewed by Agent McAndrew. McAndrew testified at trial that Anthony told him "that on two separate occasions he took Ebony to the house in Teaneck, New Jersey so she could wash up, and after she washed up at the house in Teaneck, he brought her back to New York, and he put her out on the street on Fordham Road to work, and that Ebony worked as a prostitute for him."

Following the interview of Anthony, Harris went to the Nissan Pathfinder with a patrol officer and Agent McAndrew. Harris found the videotape and later made an inventory of all the items retrieved from the vehicle. The videotape, which is one hour and fifteen minutes long, was shown to the jury in its raw, uncut form. The tape depicts Ebony performing oral sex on, and engaging in other types of sexual activity with, the Griffiths and various girls. It also contains scenes from the Griffiths' mother's house in Teaneck, New Jersey, a fact stipulated to at trial by the Griffiths. On the same videotape, the Griffiths describe their prostitution business in great detail. A video camera and other items were seized from Christopher's car earlier that same day. The Griffiths also stipulated at trial that the video camera and blank tape had been shipped in interstate commerce.

On August 10, 1999, the Griffiths were charged in an eight-count indictment. Count One charged the Griffiths with conspiracy to commit the substantive offenses described below. Count Two charged the Griffiths with transporting Ebony in interstate commerce with the intent that she engage in prostitution, and attempting to do so, in violation of 18 U.S.C. §§ 2421 and 2. Count Three charged the Griffiths with persuading, inducing, enticing, and coercing Ebony to travel in interstate commerce to engage in prostitution, and attempting to do so, in violation of 18 U.S.C. §§ 2422(a) and 2. Count Four charged the Griffiths with transporting a minor, Ebony, in interstate commerce with the intent that she engage in prostitution, and attempting to do so, in violation of 18 U.S.C. §§ 2423(a) and 2.

Counts Five, Six,...