United States v. Collier

• Decision Date: 01 August 2019
• Docket Number: No. 18-1025,18-1025
• Parties: UNITED STATES of America, Plaintiff - Appellee v. Anthony Donte COLLIER, Defendant - Appellant
• Court: U.S. Court of Appeals — Eighth Circuit

932 F.3d 1067

UNITED STATES of America, Plaintiff - Appellee

v.Anthony Donte COLLIER, Defendant - Appellant

No. 18-1025

United States Court of Appeals, Eighth Circuit.

Submitted: May 15, 2019

Filed: August 1, 2019

Rehearing and Rehearing En Banc Denied September 25, 2019^*

Nicholas Whitney Chase, Matthew Greenley, Megan A. Healy, Jennifer Klemetsrud Puhl, Brett M. Shasky, Assistant U.S. Attorneys, U.S. ATTORNEY'S OFFICE, District of North Dakota, Fargo, ND, for Plaintiff - Appellee.

Anthony Collier, Pro Se.

Chad R. McCabe, MCCABE LAW FIRM, Bismarck, ND, for Defendant - Appellant.

Before BENTON, WOLLMAN, and GRASZ, Circuit Judges.

GRASZ, Circuit Judge.

Anthony Donte Collier was convicted in the district court¹ of five counts of sex trafficking and attempted sex trafficking, in violation of 18 U.S.C. §§ 1591(a)(1), 1591(b)(1), and 1594(a) ; and one count of conspiracy to commit an offense against the United States, specifically facilitating the promotion and management of a business enterprise involving prostitution, in violation of 18 U.S.C. § 371. Collier filed an appeal and we affirm.

I. Background

Collier was on supervised release in Minnesota for a prior state crime when his supervising officials learned he was engaging in the business of prostitution. Collier was arrested at the request of a supervising official, who then conducted a warrantless search of Collier’s cell phone. Local police later secured a warrant to search all of Collier’s electronic devices. Further investigation led officials to believe that Collier had been forcing several women to engage in commercial sex acts and give him the proceeds from those acts. Following a jury trial, Collier was convicted of conspiracy, interstate and foreign travel or transportation in aid of racketeering enterprises, sex trafficking, and attempted sex trafficking.

II. Analysis

Collier raises numerous issues on appeal, including denial of his motion to suppress; improper jury instructions; denial of his right to counsel; various evidentiary and witness errors; violation of due process rights; judicial bias; and the denial of his motion to dismiss based on the sufficiency of the evidence. For the reasons discussed below, we find each contention ultimately fails.

A. Search of Collier’s Cell Phone

Collier alleges the district court erred in denying his motion to suppress evidence gained from the search of his cell phone. The phone was searched without a warrant during Collier’s arrest. In reviewing the denial of a motion to suppress evidence, "[w]e review the district court’s findings of fact under the clearly erroneous standard, and the ultimate conclusion of whether the Fourth Amendment was violated is subject to de novo review." United States v. Williams , 777 F.3d 1013, 1015 (8th Cir. 2015) (quoting United States v. Stephenson , 924 F.2d 753, 758 (8th Cir. 1991) ).

"A warrantless search is per se unreasonable under the Fourth Amendment absent a recognized exception." United States v. Brooks , 715 F.3d 1069, 1075 (8th Cir. 2013). Courts " ‘examin[e] the totality of the circumstances’ to determine whether a search is reasonable within the meaning of the Fourth Amendment." Samson v. California , 547 U.S. 843, 848, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006) (quoting United States v. Knights , 534 U.S. 112, 118, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001) ). "[T]o determine whether the Fourth Amendment forbids a search, we weigh the degree to which a search intrudes upon an individual’s reasonable expectation of privacy against the degree to which the government needs to search to promote its legitimate interests." United States v. Brown , 346 F.3d 808, 811 (8th Cir. 2003).

The district court denied Collier’s motion to suppress evidence discovered as a result of the warrantless search of his phone. As to the cell phone search by the supervising official (Agent Welle), the district court held that Collier had a reduced expectation of privacy while on supervised release and was subject to Standard Condition of Supervised Release No. 13, which provided that Collier "must submit at any time to an unannounced visit and/or search of [his] person, vehicle, or premises by the agent/designee." The district court found that Welle was not acting as an agent for the police. Collier’s computer and other cell phones were also permissibly seized the following day, given that these items could have been searched because of Collier’s reduced expectation of privacy.

Collier argues the Supreme Court’s decision in Riley v. California , 573 U.S. 373, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014), forbade the warrantless search of his cell phone at the time of his arrest. Although Riley held that police officers must generally obtain a warrant before searching a cell phone seized incident to arrest, see id. at 386, 134 S.Ct. 2473, this court has recognized " Riley addressed privacy interests of an arrestee, not the circumscribed interests of an offender serving a term of supervised release." United States v. Jackson , 866 F.3d 982, 985–86 (8th Cir. 2017). This court has said "supervised release ... involves ‘the most circumscribed expectations of privacy.’ " Id . at 985 (quoting United States v. Makeeff , 820 F.3d 995, 1001 (8th Cir. 2016) ). Searches of a person on supervised release further "substantial interests in preventing recidivism and facilitating an offender’s reentry into the community." Id.

On the night of the search, Agent Welle requested an arrest warrant after failing to find Collier at the location where he was supposed to be and called the Moorhead police to arrest him. Additionally, Agent Welle testified he searched the phone to verify Collier’s whereabouts that evening and he conducted the search on his own volition.

We hold Agent Welle’s search was reasonable under these circumstances, where Collier was on restrictive supervised release² and suspected of engaging in illicit activities. In Knights , the Supreme Court explained that "reasonable suspicion" of a probationer’s criminal activity can justify searching even a probationer’s home, and that part of the government’s justified concern is that a probationer "will be more likely to engage in criminal conduct than an ordinary member of the community." 534 U.S. at 121, 122 S.Ct. 587. Collier was also on sufficient notice, due to the conditions of his supervised release.³ See Jackson , 866 F.3d at 985 (noting Jackson "was on clear notice that he was subject to the suspicionless search" while on supervised release). Therefore, under the totality of circumstances Collier did not have a reasonable expectation of privacy in the cell phone. As this search did not violate the Fourth Amendment, the district court did not err in denying Collier’s motion to suppress.

B. Jury Instructions

Collier raises two main issues with respect to the jury instructions: first, he argues the court’s jury instructions did not properly reflect the statute’s mens rea requirements and they constructively amended the indictment; second, he argues the district court improperly included a willful blindness jury instruction. We find both of these claims are without merit.

Collier acknowledges that because he failed to object to the jury instruction for the first claim, this court reviews for plain error. United States v. Fast Horse , 747 F.3d 1040, 1041 (8th Cir. 2014) (reviewing for plain error when the defendant "did not explicitly object to the relevant jury instruction"). Plain error exists where there is "(1) an error, (2) that was ‘plain,’ (3) ‘affects substantial rights,’ and (4) ‘the error seriously affects the fairness, integrity or public reputation of judicial proceedings.’ " Id. at 1042 (quoting United States v. Rush-Richardson , 574 F.3d 906, 910 (8th Cir. 2009) ).

Collier argues that jury instructions for his federal sex trafficking offenses (which must be committed "knowingly") failed to include a mens rea requirement for the criminal element requiring the conduct be committed "in or affecting interstate or foreign commerce." 18 U.S.C. § 1591(a)(1). "The Supreme Court has stated that courts ‘ordinarily read a phrase in a criminal statute that introduces the elements of a crime with the word "knowingly" as applying that word to each element.’ " United States v. Bruguier , 735 F.3d 754, 758 (8th Cir. 2013) (en banc) (quoting Flores-Figueroa v. United States , 556 U.S. 646, 652, 129 S.Ct. 1886, 173 L.Ed.2d 853 (2009) ). However, "[t]he Supreme Court has [also] explained "that situations where the term ‘knowingly’ does not apply to all elements that follow it ‘typically involve special contexts or ... background circumstances that call for such a reading.’ " Id. (quoting same).

A number of other circuits⁴ have already rejected the proposition that "knowingly" in 18 U.S.C. § 1591(a)(1) modifies "interstate or foreign commerce," and no circuit holds to the contrary. We join these circuits in concluding that "knowingly" does not apply to the interstate commerce element. This is consistent with our precedent holding that a mens rea requirement does not apply to the interstate commerce element in 18 U.S.C. § 922(g) (prohibiting felons from possessing firearms or ammunition). See United States v. Garcia-Hernandez , 803 F.3d 994, 997 (8th Cir. 2015). In Garcia-Hernandez , we noted "[t]he interstate commerce nexus ... merely provides the basis for federal jurisdiction, and knowledge of this element is not required." Id. (quoting United States v. Thompson , 365 F. App'x 42, 43 (8th Cir. 2010) (unpublished)). Therefore, we find the district court correctly declined to apply knowingly to "interstate or foreign commerce" under 18 U.S.C. § 1591(a)(1).

Relatedly, Collier argues the jury instructions constructively amended his indictment. "A constructive amendment occurs when the essential elements of the offense charged in the indictment are altered in such a manner ... that the jury is allowed to convict the defendant of an offense different from or in addition to the...