United States v. Fulton

• Decision Date: 29 January 2019
• Docket Number: No. 17-41251,17-41251
• Citation: 914 F.3d 390
• Parties: UNITED STATES of America, Plaintiff-Appellee v. Charles Devan FULTON, Sr., Also Known As Black, Also Known As Blacc, Defendant-Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

914 F.3d 390

UNITED STATES of America, Plaintiff-Appellee

v.Charles Devan FULTON, Sr., Also Known As Black, Also Known As Blacc, Defendant-Appellant

No. 17-41251

United States Court of Appeals, Fifth Circuit.

FILED January 29, 2019

Andrew R. Gould, Carmen Castillo Mitchell, Assistant U.S. Attorneys, U.S. Attorney's Office, Southern District of Texas, Houston, TX, for Plaintiff-Appellee.

Federico Reynal, Fertitta Reynal, L.L.P., Houston, TX, for Defendant-Appellant.

Before WIENER, SOUTHWICK, and COSTA, Circuit Judges.

LESLIE H. SOUTHWICK, Circuit Judge:

A jury convicted Charles Fulton, Sr. on four counts of sex trafficking and one count of conspiracy. The most significant issue concerns a long-delayed search of his cell phone. Fulton also makes arguments premised on the Confrontation and Grand Jury clauses, and he challenges the sufficiency of the evidence. We find no basis to disturb the judgment. We AFFIRM.

FACTUAL AND PROCEDURAL BACKGROUND

In October 2014, a Galveston juvenile probation officer learned from the father of a juvenile she supervised that the girl was pictured in an online advertisement offering her services as an "escort," or in effect, a prostitute. The probation officer began to investigate and saw that a particular house where the girl had been arrested was a location where other young girls consistently were arrested. She began monitoring incoming police reports, spoke with some of the girls, compiled a list of names and ages, and gathered information from other probation officers. Her investigation revealed common links among the girls: Charles Fulton, Sr. and a residence on Avenue L. In February and early March 2015, the Galveston Police Department, in tandem with the FBI, began an investigation. Police discovered that Fulton acted as the girls' pimp, directing them to prostitution dates; providing them with food, condoms, housing, and drugs; and having sex with some of them as young as 15.

In May 2016, Fulton was indicted in the U.S. District Court for the Southern District of Texas on six counts of sex trafficking in violation of 18 U.S.C. § 1591(a) – (b) (2015), with a different minor victim identified in each count. Fulton was also charged with a seventh count for conspiracy to commit sex trafficking under 18 U.S.C. § 1594(c). He was found guilty after a jury trial on four of the substantive counts and on the conspiracy count. The district court sentenced him to prison for concurrent life terms.

DISCUSSION

We will analyze four issues. First, Fulton asserts the district court admitted evidence obtained from his cell phone in violation of the Fourth Amendment. Second, he argues the district court violated the Confrontation Clause by prohibiting him from questioning one of the minor victims about a purported aggravated assault charge. Third, he argues that special findings made by the jury in two of his counts of conviction were not supported by sufficient evidence. Finally, Fulton contends the district court violated the Grand Jury Clause by constructively amending the indictment.¹

I. Search of Fulton's phone

In February 2015, Galveston police obtained a search warrant on the Avenue L house where the prostitution was based, but the warrant was part of a separate investigation into Fulton's narcotics activities. Fulton's cell phone was seized. Nine days later, police obtained a second warrant to examine its contents but were unable to bypass the phone's security features. Around this same time, the FBI agent assisting with the Fulton sex-trafficking investigation learned that the Galveston police had the phone. The agent acquired it to determine if the FBI could access the phone's data. Three weeks later, that agent obtained a federal warrant to search the phone. Still, it was a year later before the data on the phone was accessed. The FBI discovered evidence on the phone that helped piece together Fulton's involvement with the minor victims. Fulton moved to suppress the evidence, but the district court denied the motion. At trial, the Government introduced evidence of the phone's contents through the testimony of the FBI agent and of minor victims. The district court also admitted evidence such as text messages, a photograph, and the results of searches of the phone's files for specific terms, linking Fulton to five minor victims and behaviors consistent with sex trafficking.

On appeal, Fulton argues that the phone's seizure in the February 2015 raid violated the Fourth Amendment. He alternatively argues that even if the initial seizure had been lawful, the nine-day delay in obtaining a warrant to search it was unconstitutional. At oral argument, Fulton's counsel stated that those two arguments are the limit of the objections to the search and seizure. Thus, no issue is made about the FBI's obtaining the phone, procuring its own search warrant, and finally accessing the data on the phone a year later.

We review a ruling on a motion to suppress "in the light most favorable to the verdict," accepting "the district court's factual findings unless clearly erroneous or influenced by an incorrect view of the law" and reviewing "questions of law de novo ." United States v. Carrillo-Morales , 27 F.3d 1054, 1060–61 (5th Cir. 1994). The disagreements here are ones of law. We review the sufficiency of the warrant authorizing the seizure of Fulton's phone de novo . United States v. Cavazos , 288 F.3d 706, 709 (5th Cir. 2002). We also review the district court's determination of the reasonableness of a search or seizure de novo . United States v. Jones , 133 F.3d 358, 360 (5th Cir. 1998).

A. Whether the narcotics warrant authorized the phone's seizure

We start with whether the initial seizure of the phone was proper. Fulton contends "the warrant did not particularly describe the phone as one of the items to be seized." The Constitution states that a warrant should not issue without "particularly describing" what is to be seized. U.S. CONST. amend. IV. A warrant's particularity is sufficient if "a reasonable officer would know what items he is permitted to seize," which does not mean all items authorized to be taken must be specifically identified. United States v. Aguirre , 664 F.3d 606, 614 (5th Cir. 2011). "We have upheld searches as valid under the particularity requirement where a searched or seized item was not named in the warrant, either specifically or by type, but was the functional equivalent of other items that were adequately described." Id.

This narcotics warrant did not refer to telephones. The alleged functional equivalent was a reference to "ledgers." A "ledger" is a "book ... ordinarily employed for recording ... transactions." Ledger , OXFORD ENGLISH DICTIONARY (2d ed. 1989). We have held that a "cell phone ... used as a mode of both spoken and written communication and containing text messages and call logs, served as the equivalent of records and documentation of sales or other drug activity." Aguirre , 664 F.3d at 615. Here, the officer who took Fulton's phone was a nine-year veteran of his department's narcotics unit. He testified at the suppression hearing to a belief the phone was used in narcotics activity. The belief was reasonable, making this cell phone the equivalent of a ledger. The narcotics warrant authorized the seizure of Fulton's phone. We need not discuss the Government's alternative arguments.

B. Whether the nine-day delay was unreasonable

We have just held that Galveston Police were authorized to seize Fulton's cell phone based on the warrant they obtained. That warrant, though, which did not identify any specific electronic devices, necessarily did not explicitly provide for a search into the contents of such devices either. A warrant to search the cell phone was obtained nine days after the seizure. Fulton says that delay invalidated the search. It is true that "a seizure reasonable at its inception ... may become unreasonable as a result of its duration." Segura v. United States , 468 U.S. 796, 812, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984).

An initial question arises from the fact that Galveston police obtained a warrant before ever seizing the phone. Might that warrant be all that was needed to conduct the later search of the phone's contents? The warrant itself only sought the seizure of certain items. There is divergent authority on whether a specific warrant to search contents that are seized is needed. One circuit has held that a warrant that expressly authorized seizure of a cell phone could permit on-site search of a phone's contents without exigent circumstances. United States v. Fifer , 863 F.3d 759, 766 (7th Cir. 2017). We see a different emphasis in a scholarly work stating that "if a search warrant specifically names a cellphone only as one of the objects to be seized, absent exigent circumstances a search warrant will thereafter be required to authorize a search of that cellphone." 2 WAYNE R. LAFAVE, SEARCH & SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 4.11(a) (5th ed. Updated Oct. 2018).

The Government does not argue that the warrant for the seizure of "ledgers" would have permitted the search of the ledger-like phone's contents. We move on, then, to the issue we will resolve: was it reasonable here to delay nine days between the warrant-based seizure of the phone and the issuance of a warrant authorizing a search of its contents?

We find no caselaw addressing our specific facts, namely, a seizure of a cell phone that was authorized by a warrant, then several days followed until a warrant to search the contents of the phone was obtained. Courts, though, have wrestled with the effect of delay in obtaining a search warrant following a seizure that was proper for other reasons, such as a seizure of a computer based on consent as in United States v. Laist , 702 F.3d 608, 610–11 (11th Cir. 2012), or based on probable cause and exigent circumstances, see United States v. Burgard , 675 F.3d 1029, 1031–32 (7th Cir. 2012). Such caselaw is analogous to our situation...