U.S. v. Williams
| Decision Date | 05 June 2002 |
| Docket Number | No. 00-30409.,00-30409. |
| Citation | 291 F.3d 1180 |
| Parties | UNITED STATES of America, Plaintiff-Appellee, v. Kendal Ray WILLIAMS, aka Wren, aka Paris Carpenter, Defendant-Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Daniel P. Buckley, Berg, Lilly & Tollefsen, P.C., Bozeman, Montana, for the defendant-appellant.
Michael A. Rotker, United States Department of Justice, Washington, DC, for the plaintiff-appellee.
Appeal from the United States District Court for the District of Montana; Jack D. Shanstrom, District judge, Presiding. D.C. No. CR-99-00112-JDS.
Before: THOMAS, GRABER, and GOULD, Circuit Judges.
; Concurrence by Judge GRABER.
A jury convicted Defendant Kendal Ray Williams of four counts of persuading, inducing, enticing, or coercing a person to travel in interstate commerce to engage in prostitution, 18 U.S.C. § 2422(a), and four counts of transporting a minor in interstate commerce with the intent that the minor engage in prostitution, 18 U.S.C. § 2423(a) (). The jury also convicted Defendant of one count of interstate travel in aid of racketeering, 18 U.S.C. § 1952 ("the Travel Act count").
On appeal, Defendant challenges his convictions on the grounds that (1) the government violated his rights under the Double Jeopardy Clause by charging him under two separate provisions of the Mann Act for each interstate trip; (2) venue did not lie in the District of Montana for the Travel Act count because he lacked intent to commit a crime of violence while he was in Montana; (3) the district court abused its discretion in admitting "other acts" evidence; (4) the district court should not have admitted the statement he made to FBI agents because the agents violated his right to counsel by conducting an interview without providing him with a lawyer; and (5) the government violated his rights under the Confrontation Clause by failing to provide him with an agent's rough notes from that interview.
Defendant also challenges his sentence on the grounds that (1) the district court's sentences on counts 2, 5, 8, and 11 exceeded the statutory maximum; (2) the district court did not give proper notice of its intent to impose consecutive sentences; (3) the district court miscalculated Defendant's criminal history score; and (4) the district court erred by applying enhancements for victim vulnerability and for the use of extreme physical force.
We hold that (1) convicting Defendant under § 2422(a) and § 2423(a) of the Mann Act for each interstate trip did not violate his rights under the Double Jeopardy Clause; (2) venue was proper in Montana for all counts in the indictment; (3) the district court properly admitted "other acts" evidence because that evidence was inextricably intertwined with the crimes charged; (4) the admission of Defendant's statements to the FBI did not violate his right to counsel; and (5) the government's failure to produce the rough notes from the FBI interview did not violate Defendant's rights under the Confrontation Clause.
As for Defendant's sentence, we hold that (1) the district court erred in imposing sentences that exceeded the statutory maximum for counts 2, 5, 8, and 11; (2) the district court erred by failing to give Defendant notice of its intent to impose consecutive sentences and by failing to inform Defendant of a contemplated ground for that departure; (3) any error in calculating Defendant's criminal history score was harmless; and (4) the physical force enhancements and one of the victim vulnerability enhancements were proper, but we reverse and remand for resentencing so that, in addition to addressing its other errors, the district court may determine whether Defendant's other victim was uniquely vulnerable.
In 1994, Defendant began dating S.S., a 15-year-old girl, in Billings, Montana. S.S. lived with her mother and five siblings. S.S. was largely responsible for the younger children because her mother was addicted to cocaine. S.S. knew that Defendant was a pimp and that he took his prostitutes on interstate trips to earn money. Defendant eventually convinced S.S. that prostitution was an effective means of providing for herself and her family.
Initially, Defendant trained S.S. in Billings. He set the prices that S.S. charged and required her to work six days a week. He instructed S.S. to turn over the proceeds of her prostitution to him, and he in turn provided her with food, clothes, shelter, and transportation.
In late December of 1994, Defendant took S.S. and several other prostitutes to Phoenix, Arizona. Defendant's "household" worked in Phoenix for about a month. During this time, S.S. was introduced to Defendant's violent side. S.S. got into a car with a Mexican man and stole his pistol. To punish her for "dating" a Mexican, Defendant beat S.S. with the stolen pistol and shoved the gun into her mouth.
In early 1995, Defendant took his household from Phoenix to California. After working there for about a month, S.S. and Defendant returned to Billings. Defendant's violent control over S.S. continued. Defendant assaulted S.S. and forced her to perform oral sex after he saw her speaking to another man on the street.
In March of 1995, Defendant took S.S. and his other prostitutes from Billings to Washington, D.C. There, Defendant continued to abuse S.S. On one occasion, Defendant stomped on S.S.'s face hard enough to leave an imprint of his boot's sole. Over the next few months, Defendant worked his household in cities along the east coast and eventually took the operation to San Francisco, California. While in San Francisco in August of 1995, S.S. decided to leave Defendant. She informed him of her plans and then, at his request, agreed to meet with him because he had promised to return her belongings. Instead, Defendant trapped S.S. in a zippered bag and took her back to a hotel. Over the next two days, Defendant assaulted S.S. for trying to leave his employ. Defendant beat her with a dog leash, forced her to engage in rough sex with him and another prostitute, and broke her nose. Finally, S.S. escaped and returned to Billings.
In October of 1996, Defendant picked up a hitchhiker, 15-year-old R.K., in Billings. At the time, R.K. was a drug addicted runaway. Defendant convinced R.K. to work for him as a prostitute. He took her to Albuquerque, New Mexico, where she turned tricks at a truck stop. Defendant used violence to control R.K. and took all the proceeds from her prostitution, just as he had done with S.S.
In October of 1999, Defendant, along with nine other men, was charged in a multiple-count indictment. The indictment alleged a large-scale interstate prostitution conspiracy centered in Billings, Montana. Pursuant to that indictment, a warrant was issued for Defendant's arrest.
In November of 1999, FBI agents and the Houston police arrested Defendant at his apartment in Houston, Texas. Defendant was taken to the FBI's offices in Houston, where three agents, including Agent Jeff Tarpinian, interviewed him. Tarpinian advised Defendant that he was under indictment in Montana for transporting minors across state lines for the purpose of prostitution. The agents advised Defendant of his Miranda rights. Defendant signed a form stating that he understood and waived those rights.
Agents then interviewed Defendant for a period that lasted between 45 minutes and an hour. Defendant told the agents that he had pimped underage women in Billings, Montana. He also told agents that he had traveled to Arizona in 1994 with several prostitutes. He denied beating any of the prostitutes who worked for him. Agent Tarpinian took rough notes of the interview with Defendant, which he later condensed into an official report, known as a "302."
Defendant was returned to Montana. He moved to sever his trial from that of the other nine men, and the district court granted his motion.1
Before his trial was severed, Defendant requested notice of the government's intent to introduce evidence of other acts, pursuant to Federal Rule of Evidence 404(b). The government responded that some evidence of similar acts would be introduced. However, the government asserted that the evidence would be introduced not as Rule 404(b) evidence, but as acts "inextricably intertwined" with the charged conduct.
The government called S.S. and R.K. to testify. S.S. testified for two days about the three interstate trips that she took with Defendant. Those trips supported six of the Mann Act violations, charged in the indictment as counts 2, 3, 5, 6, 8, and 9. The trip that began in Montana and eventually culminated in the two-day beating of S.S. supported count 10, the Travel Act count. R.K. described her trip to New Mexico with Defendant. That trip supported two other Mann Act counts — counts 11 and 12.
The government also called FBI Agent Tarpinian to testify about the statements that Defendant had made when he was arrested.
Outside the presence of the jury, the district court held a hearing on Defendant's motion to suppress Tarpinian's testimony about Defendant's statements. Defendant claimed that agents threatened to "smash [his] ass" and "throw [him] through [a] chair." Defendant testified that he said at one point, Tarpinian testified that Defendant did not request a lawyer, but did eventually say that he was "done talking." At that point, according to Tarpinian, the agents terminated the interview. The district court denied the motion to suppress, finding that the "more credible testimony" was that the interview had terminated when Defendant indicated an interest in a lawyer. The court also determined that Defendant...
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