United States v. Flanders

Citation752 F.3d 1317
Decision Date27 May 2014
Docket Number12–15248.,12–15027,Nos. 12–10995,s. 12–10995
PartiesUNITED STATES of America, Plaintiff–Appellee, v. Lavont FLANDERS, Jr., a.k.a. Antone Cobe, a.k.a. Shannon, et al., Emerson Callum, a.k.a. Jah–T, Defendants–Appellants. United States of America, Plaintiff–Appellee, v. Lavont Flanders, Jr., a.k.a. Antone Cobe, a.k.a. Shannon, a.k.a. Larry Griffin, a.k.a. Karen Watson, a.k.a. Darius, a.k.a. Ladarius Cobe, a.k.a. Darius Cove, a.k.a. Errick Farmer, a.k.a. Eric Lawson, a.k.a. Erick Liwson, a.k.a. Tina Clintmore, a.k.a. Erick Blossom, a.k.a. Gregory Bagget, Defendant–Appellant. United States of America, Plaintiff–Appellee, v. Lavont Flanders, Jr., a.k.a. Antone Cobe, a.k.a. Shannon, a.k.a. Larry Griffin, a.k.a. Karen Watson, a.k.a. Darius, a.k.a. Ladarius Cobe, a.k.a. Darius Cove, a.k.a. Errick Farmer, a.k.a. Eric Lawson, a.k.a. Erick Liwson, a.k.a. Tina Clintmore, a.k.a. Erick Blossom, a.k.a. Gregory Bagget, Defendant–Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (11th Circuit)

OPINION TEXT STARTS HERE

Roy K. Altman, Lisa Tobin Rubio, Wifredo A. Ferrer, Barbara A. Martinez, Anne Ruth Schultz, Arimentha R. Walkins, U.S. Attorney's Office, Miami, FL, for PlaintiffAppellee.

David Jonathon Joffe, Joffe Law, PA, Fort Lauderdale, FL, Derek Lewis, Derek Lewis, PA, Miami, FL, for DefendantsAppellants.

Appeals from the United States District Court for the Southern District of Florida. D.C. Docket No. 1:11–cr–20557–KMM–1.

Before MARTIN and FAY, Circuit Judges, and DUFFY,* District Judge.

DUFFY, District Judge:

For years Lavont Flanders, Jr., and Emerson Callum (collectively, Defendants or Appellants) perpetrated a scheme in which they fraudulently lured women to South Florida, drugged them with Benzodiazepines, filmed them engaging in sexual acts, and distributed the pornographic footage. After a six-day trial, a jury convicted both Flanders and Callum on multiple counts of inducing women to engage in sex trafficking through fraud and of benefitting from that scheme. Flanders was also convicted of distributing a controlled substance, which he used to impair the victims' judgments such that they would participate in the filming of pornographic videos. Appellants were sentenced to multiple consecutive life sentences. In this appeal, they raise several challenges to their convictions and sentences, and Flanders challenges his forfeiture. After oral argument and a careful review of the briefs and record in this case, we affirm.

I. Background
A. Criminal Scheme

As part of the scheme, Flanders, using one of numerous aliases, would recruit women off of modeling websites and convince them to travel to South Florida for an “audition” for a liquor commercial. He usually advised the women to come alone to the audition. When they arrived, Flanders explained that they would need to act out a scene for a commercial before they could be taken to a second man, later identified as Callum, to film test footage. Flanders convinced the women that the auditions required them to taste alcohol, say scripted lines, and repeat the scene several times. Unbeknownst to the women, the alcohol was laced with Benzodiazepines, a drug known to impair memory and reduce inhibitions.

As Flanders drove the women to another location to meet Callum, whom they thought was a Bacardi agent, the victims became dizzy, groggy, and often “blacked out.” Flanders and Callum then had the women sign Model Release Forms. The women remembered little, as they helplessly fell unconscious, waking momentarily only to realize that Callum was having sex with them while Flanders filmed. When they fully regained consciousness the following day in their cars or hotel rooms, they were disoriented, confused, and sometimes bleeding and covered in bodily fluids. At least four victims tested positive for Callum's DNA, recovered from vaginal swabs, and for Benzodiazepines.

Unbeknownst to the victims, Callum distributed and attempted to distribute videos of the assaults over the Internet and to businesses through his pornographic production company, Miami Vibes Enterprises. The distributed videos were edited to remove portions where the victims were obviously unconscious.

B. Police Investigation

In the midst of their scheme, in 2007, Appellants were arrested by state police, and their residences were searched pursuant to warrants. Both were released on bond and continued their scheme until their arrests in 2011 following searches pursuant to new warrants.

1. 2007 Searches

In Flanders's bedroom in a residence he shared with two adult relatives, officers discovered victims' pornographic videos. In the only bathroom in the residence, officers found a prescription codeine pill bottle containing eight Diazepam pills and three codeine pills. Flanders waived Miranda rights, stated that he was a bus driver, denied working for Bacardi, denied knowing Callum or Miami Vibes, and denied meeting anyone at an IHOP restaurant (although officers knew he had met a victim there).

In Callum's office, officers observed hundreds of pornographic photos on the walls. They seized thousands of pornographic videos, including hundreds of copies of three victims' videos, and nude photosof a fourth victim. Officers found raw footage of one victim that included footage—which had been edited out of the commercial copy—in which she fell asleep during the sexual encounter. Even the raw footage was not a complete representation of the encounter between the victim and Callum because the filming stopped and started.

In Callum's residence, officers found hundreds of inserts for, and commercial copies of, victims' videos, Model Release Forms for two victims, copies of the video interview of one victim, and evidence that Callum paid for the artwork on a victim's video.

2. 2011 Searches

From a residence Flanders shared with his girlfriend and her sister, officers seized four computers and memory devices, a cellphone, a camera, numerous videos of victims (some packaged for sale), Model Release Forms for five victims, and a copy of one victim's student ID. Officers also found a package containing letters from Flanders to HomeGrownVideo revealing that Flanders was attempting to sell pornographic videos of Callum and several young women, including one of the victims. On a nightstand, officers found a bottle containing nineteen Clonazepam pills. Analysis of recovered computers showed that Flanders used them to email victims and conduct hundreds of searches on modeling websites and searches for images of unconscious women.

In Callum's residence, officers seized over 100 boxes, including sales receipts for victims' videos, victims' Model Release Forms, and hundreds of victims' DVDs (commercial and master copies), and DVD cover inserts. Also found was a handwritten note indicating that one victim's footage was filmed at a Miami motel.

C. Procedural History

A twenty-count superseding indictment charged both Appellants with conspiracy and substantive sex trafficking of women (18 U.S.C. §§ 371, 1591, 1594), and Flanders with narcotics distribution (21 U.S.C. § 841). Count 1 charged a § 371 conspiracy (May 2006July 2007) to commit sex trafficking by fraud. Substantive offenses committed during this conspiracy were: § 1591(a)(1) sex trafficking by fraud (Counts 2, 4, 7, and 10) and § 1591(a)(2) benefitting by participating in a venture that commits sex trafficking by fraud (Counts 3, 6, 9, and 11). Count 13 charged a § 1594(c) conspiracy (May 2010August 2011) to commit sex trafficking by fraud. Substantive offenses committed during this conspiracy were: § 1594(a) attempted sex trafficking by fraud (Counts 14 and 16) and § 1594(a) attempted benefitting by participating in a venture that commits sex trafficking by fraud (Counts 15 and 18). Flanders alone was charged with § 841 distribution of Alprazolam (“Xanax”) (Counts 5, 8, 12, and 17).

During the six-day trial, the jury heard testimony from seven victims and watched portions of their videos. The jury also heard testimony from an expert on Benzodiazepines and learned about the evidence seized during the 2007 and 2011 searches. After the Government rested, Defendants brought a Rule 29 motion as to all counts. The district court granted the motion as to Counts 19 and 20 1 and denied the motion as to the other counts. The defense rested without putting on any witnesses. The jury returned guilty verdicts on all of the remaining counts.

On January 27, 2012, the district court entered a Preliminary Order of Forfeiture against Flanders and Callum. The court then held a sentencing hearing on February 16, 2012. At the hearing, the district court overruled Appellants' objections to the pre-sentence report, adopted the advisory guideline range of 262–327 months' imprisonment, and granted the Government's request for an upward departure to life imprisonment. The court heard testimony from victims, denied Flanders's request for a downward variance, and concluded that life imprisonment was reasonable. The court sentenced Callum to a total imprisonment term of life, including sixty months for the § 371 conspiracy and life imprisonment for each of the sex-trafficking charges, to run consecutively to each other and to the sixty-month term. The court similarly sentenced Flanders to a total imprisonment term of life, including concurrent sixty-month terms for the § 371 conspiracy and drug counts and life terms for each of the sex-trafficking charges, to run consecutively to each other and to the sixty-month terms.

Judgment was entered against Flanders on February 21, 2012, and against Callum on February 22, 2012. Both Appellants timely appealed their convictions and sentences (Appeal No. 12–10995). The district court entered a Final Order of Forfeiture against Flanders and Callum on August 28, 2012. Flanders filed a notice of appeal of the Final Order of Forfeiture on September 20, 2012 (Appeal No. 12–15027). On September 26, 2012, the district court denied Flanders's motion for disclosure of grand jury...

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