United States v. Carter, 110218 FED9, 16-50271

Docket Nº:16-50271
Opinion Judge:BYBEE, CIRCUIT JUDGE
Party Name:United States of America, Plaintiff-Appellee, v. Laron Darrell Carter, AKA Birdd, AKA Gardena Pimpin Birdd, AKA Garr Birdd, AKA Pi Birdd, AKA Pi Pimpin Birdd, Defendant-Appellant.
Attorney:Benjamin L. Coleman (argued), Coleman & Balogh LLP, San Diego, California, for Defendant-Appellant. Jeffrey Chemerinsky (argued) and Jeff Mitchell (argued), Assistant United States Attorneys, Violent & Organized Crime Section; Lawrence S. Middleton, Chief, Criminal Division; Nicola T. Hanna, Unit...
Judge Panel:Before: Ronald M. Gould and Jay S. Bybee, Circuit Judges, and Marco A. Hernandez, District Judge.
Case Date:November 02, 2018
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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United States of America, Plaintiff-Appellee,

v.

Laron Darrell Carter, AKA Birdd, AKA Gardena Pimpin Birdd, AKA Garr Birdd, AKA Pi Birdd, AKA Pi Pimpin Birdd, Defendant-Appellant.

No. 16-50271

United States Court of Appeals, Ninth Circuit

November 2, 2018

Argued and Submitted August 27, 2018 Pasadena, California

Appeal from the United States District Court for the Central District of California D.C. No. 2:14-cr-00297-VAP-1 Virginia A. Phillips, Chief Judge, Presiding

Benjamin L. Coleman (argued), Coleman & Balogh LLP, San Diego, California, for Defendant-Appellant.

Jeffrey Chemerinsky (argued) and Jeff Mitchell (argued), Assistant United States Attorneys, Violent & Organized Crime Section; Lawrence S. Middleton, Chief, Criminal Division; Nicola T. Hanna, United States Attorney; United States Attorney's Office, Los Angeles, California; for Plaintiff-Appellee.

Before: Ronald M. Gould and Jay S. Bybee, Circuit Judges, and Marco A. Hernandez, [*] District Judge.

SUMMARY[**]

Criminal Law

The panel vacated the defendant's convictions on one count of violating 18 U.S.C. § 1591 (sex trafficking of a minor or by force, fraud, or coercion) and one count of violating 18 U.S.C. § 2423(a) (transportation of a minor in interstate commerce to engage in prostitution), and remanded for resentencing on remaining counts as to which the panel affirmed the defendant's convictions in a concurrently-filed memorandum disposition.

The panel held that a defendant's right to physically confront an adverse witness (whether child or adult) cannot be compromised by permitting the witness to testify by video (whether one-way or two-way) unless use of the remote video procedure is necessary and the reliability of the testimony is otherwise assured. Because alternatives were available for obtaining a victim-witness's testimony that would have preserved the defendant's right to physical confrontation, the use of a remote video was not necessary in this case, and violated the defendant's Sixth Amendment right to confront the witnesses against him.

OPINION

BYBEE, CIRCUIT JUDGE

Laron Carter was tried and convicted on seven counts of violating 18 U.S.C. § 1591, and seven counts of violating 18 U.S.C. § 2423(a), based on his trafficking and prostitution of seven minor girls. During Carter's trial, one of the victims, J.C., testified against him from Minnesota by two-way video, as she was seven months pregnant and unable to travel. Carter contends that permitting J.C. to testify against him remotely by two-way video, rather than in person, violated his Sixth Amendment right to confront the witnesses against him.

We agree. Criminal defendants have a right to "physical, face-to-face confrontation at trial," and that right cannot be compromised by the use of a remote video procedure unless it is "necessary" to do so and "the reliability of the testimony is otherwise assured." Maryland v. Craig, 497 U.S. 836, 850 (1990). Because alternatives were available for obtaining J.C.'s testimony that would have preserved Carter's right to physical confrontation, the use of a remote video procedure was not necessary in this case. We therefore vacate Carter's convictions on the two counts involving J.C. and remand to the district court for resentencing on the remaining counts.1

I

Carter was convicted of forcing seven minor girls into prostitution and trafficking them across state lines. The crimes took place over a ten-year period from 2003 to 2013. For each of the seven victims, Carter was charged with one count of violating 18 U.S.C. § 1591 (sex trafficking of a minor or by force, fraud, or coercion), and one count of violating 18 U.S.C. § 2423(a) (transportation of a minor in interstate commerce to engage in prostitution), for a total of fourteen counts.

One week before Carter's April 2016 trial, the government filed an ex parte application regarding the anticipated testimony of J.C., the victim for Counts 13 and 14. J.C., who was by then an adult living in Minnesota, was seven months pregnant with a due date in June. The government explained that J.C. had been hospitalized for complications with her pregnancy and that her doctor had instructed her not to travel from Minnesota to California. Accordingly, the government sought either to take J.C.'s deposition in Minnesota pursuant to Federal Rule of Criminal Procedure 15, or to have her testify during trial from Minnesota via live two-way video conference. With respect to the out-of-court deposition, the government proposed that the parties would fly to Minnesota in the middle of trial and suggested that it would try to secure, but could not guarantee, Carter's physical attendance.

Carter opposed both options on Confrontation Clause grounds. He objected to the deposition because the logistics for securing his attendance at the deposition could not be arranged on such short notice, and because counsel would have to forgo preparation for trial to attend the deposition. He objected to the live two-way video procedure based on his "constitutional rights to personally confront his accuser at trial." He concluded by noting that, if he were forced to select one of the two alternatives, he would choose the two-way video procedure. The district court granted the government's application to use two-way video, and the case proceeded to trial.

On the second day of trial, Carter again objected to the two-way video procedure. He argued that under Craig, permitting J.C. to testify by two-way video would violate his right to confrontation unless the court found that J.C.'s absence was "necessary to further an important public policy." The district court overruled Carter's objection. Despite the government's failure to provide any "direct evidence from [J.C.'s] physician," the court concluded that J.C. was "unavailable" because "she had been advised by her doctor not to travel, given the advanced state of her pregnancy." The court also concluded that J.C.'s "testimony [was] necessary" to the government's case, and that the two-way video procedure would "satisfy all the requirements of the Confrontation Clause"-J.C. would testify under oath, she would be subject to cross-examination, and the jury would be able to observe her demeanor.

J.C. testified by two-way video at trial. At the start of her testimony, the court instructed the jurors that, although J.C. was testifying "via live video feed," they were "to treat the testimony the same as a witness who is physically present in the courtroom." J.C. was then sworn in by the courtroom deputy and asked to identify Carter while the camera scanned the courtroom. She responded: "Um, is that him right there next to - I can't really see that well on you guy's thing, but I believe that's him next to these two gentlemen right there. I can't really see that well." After she described Carter's clothing, the court "note[d] that the witness has identified the defendant."

J.C. proceeded to testify about her relationship with Carter. She stated that she met Carter in 2013, when she was 16 years old. She was living in Minnesota at the time, and Carter bought her a bus ticket to Los Angeles under an alias because she was underage. When she arrived in Los Angeles, Carter picked her up and took her to a motel room. There, he photographed her in lingerie and used the photographs in an advertisement on Backpage, a website used to advertise sexual services. She then worked as a prostitute for Carter for approximately two weeks. She testified that Carter kept all of her earnings, dictated how much she should charge and what she should wear, and threatened to beat her if she did not comply.

In addition to J.C.'s testimony, the government introduced as evidence her birth certificate, which confirmed that she was 16 years old when the conduct took place, as well as a record of the bus ticket J.C. used to get to Los Angeles, which confirmed that Carter purchased it. The government also introduced the Backpage advertisement, evidence showing that the credit card used to pay for this advertisement was the same credit card used to pay for an advertisement of another prostitute who worked for Carter, and evidence showing that the Internet Protocol ("IP") address used to access Carter's Facebook account matched the IP address used to create the Backpage advertisement. That IP address was traced to a Travelodge motel, the decor of which matched the background in the Backpage advertisements featuring J.C.

Aside from J.C., five of the other victims testified in person at trial, and one of the victims did not testify at all. Carter was ultimately convicted on all fourteen counts and sentenced to 40 years' imprisonment. Because the group of counts involving J.C. (Counts 13 and 14) carried the highest offense level under the United...

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