United States v. Kettles

• Decision Date: 12 August 2020
• Docket Number: No. 19-5698,19-5698
• Citation: 970 F.3d 637
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Brittan Ezekiel KETTLES, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

970 F.3d 637

UNITED STATES of America, Plaintiff-Appellee,

v.Brittan Ezekiel KETTLES, Defendant-Appellant.

No. 19-5698

United States Court of Appeals, Sixth Circuit.

Decided and Filed: August 12, 2020

Rehearing En Banc Denied September 9, 2020

ON BRIEF: Manuel B. Russ, Nashville, Tennessee, for Appellant. Sangita K. Rao, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., Kathryn Risinger, UNITED STATES ATTORNEY'S OFFICE, Nashville, Tennessee, for Appellee.

Before: GIBBONS, LARSEN, and NALBANDIAN, Circuit Judges.

LARSEN, Circuit Judge.

In June 2016, Brittan Kettles set out to build a prostitution "empire." He then prostituted a thirteen-year-old child to at least six different men. A jury convicted Kettles of one count of sex trafficking a child in violation of 18 U.S.C. §§ 2 and 1591(a)(1), (b)(1), and (c), and one count of conspiracy to do the same in violation of § 1594(c). Kettles now raises six challenges to his conviction on appeal. For the reasons that follow, we AFFIRM.

I.

This case began with an Instagram message. On June 15, 2016, Kettles messaged an eighteen-year-old woman named Stormy Whittemore to tell her that she could be a "million-dollar girl." He promised Whittemore money, cars, and houses if she agreed to help him build an "empire." Whittemore gave Kettles her phone number and the two met face-to-face in a parking lot later that same day.

Kettles explained his plan to Whittemore. He would post pictures of Whittemore on backpage.com—a website commonly used for prostitution; men interested in having sex with Whittemore would message Kettles; he would negotiate a time, location, and price for the encounter; he would then transport Whittemore to the location and wait outside while she had sex with the man; and afterwards, Kettles would collect the money. Eventually, Kettles hoped that he and Whittemore would build a "team" of prostitutes that would make them both rich. If all went according to plan, Kettles promised Whittemore "houses, ... cars and a lot of money." Whittemore agreed; she had sex with her first "customer" later that night.

That same night, Whittemore received a call from A.D., a thirteen-year-old girl. Whittemore and A.D. lived in the same trailer park and the two had "gr[own] up together." They referred to each other as "cousins." That night, A.D. needed a ride home; her father, who had terminal colon cancer

, was out of town receiving medical treatment and her mother was at work. Whittemore and Kettles picked A.D. up and drove her home.

The next day, Whittemore and Kettles retrieved A.D. at her home. Kettles gave Whittemore and A.D. marijuana, which they smoked in his car. Kettles then drove Whittemore to a prostitution call. A.D. sat in the car with Kettles while Whittemore went inside the house; when Whittemore returned with between $200 and $350, she handed it to Kettles.

Whittemore then began recruiting A.D. Still in the car, she texted A.D., "You trying to make some money[?]" A.D. asked, "How?" Whittemore responded, "You know how." A.D. deflected, asking instead whether Kettles and Whittemore would get her some food. Whittemore was explicit, "We take yo[u] to eat ... you do some calls." A.D. resisted. She told Whittemore that she would think about it. But the next morning, still hungry and lacking food at home, A.D. texted Whittemore: "I'm trying to make some money today."

Kettles arranged a prostitution call for A.D. later that night. He drove A.D. and Whittemore to a hotel where he had booked a room. The three entered the hotel room together, and then Kettles and Whittemore left to wait in the parking lot. A few minutes later, a man entered the hotel room, had sex with A.D., and then left. A.D. called Whittemore to say that she was done. Whittemore responded, "Take a shower. Leave the money on the table." Kettles and Whittemore then entered the hotel room and collected the cash.

Kettles prostituted A.D. five more times over the next two days. Each time the process remained roughly the same: Kettles negotiated the time, location, and price with the men who responded to his listing on backpage.com; he and Whittemore went with A.D. to the location; A.D. had sex with the men; and Kettles collected the money. Throughout this time, Kettles knew that A.D. was a minor. He had previously asked about her "real age." When A.D. told him that she was a minor, Kettles said, "make sure you say that you're 18 if they ask."

Kettles returned A.D. to her parents’ home on June 19, 2016. The next day, A.D.—who had been paid only $70 thus far—texted both Whittemore and Kettles asking for more money. She had earned Kettles and Whittemore between $150 and $280 per call, and she had done six calls during the previous two days. In her estimation, she deserved at least another $150 of that money. Kettles disagreed. He offered $60. A.D. reluctantly accepted and asked Kettles to put the money in her mailbox. But Kettles placed only $15 in the mailbox. He and Whittemore then left town.

At that point, A.D. told her parents that Kettles and Whittemore had prostituted her; her parents immediately called the police. Several weeks later, Kettles and Whittemore were apprehended and arrested. In a post-arrest interview, Kettles admitted to "helping" Whittemore and A.D. engage in prostitution. He also admitted to knowing that A.D. was a minor at the time, telling the officers that he "believed that she was 17."

A grand jury indicted Kettles on one count of sex trafficking a child in violation of 18 U.S.C. §§ 1591(a)(1), (b)(1), (c) and § 2, and one count of conspiracy to do the same in violation of 18 U.S.C. § 1594(c). Kettles pleaded not guilty. A jury convicted him on both counts and the district court sentenced him to 180 months’ imprisonment. This appeal followed.

II.

A.

Kettles first challenges one of the district court's evidentiary rulings. We review for an abuse of discretion. United States v. Chavez , 951 F.3d 349, 357–58 (6th Cir. 2020). A trial court abuses its discretion if it "(1) misunderstood the law (here, the Federal Rules of Evidence), (2) relied on clearly erroneous factual findings, or (3) made a clear error of judgment." Id. at 358.

Kettles argues that he should have been permitted to cross-examine A.D. about inconsistent statements she had allegedly made concerning three prior sexual assaults. The district court prevented this line of questioning based on Federal Rule of Evidence 412. In relevant part, that Rule provides:

(a) Prohibited Uses. The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct:

(1) evidence offered to prove that a victim engaged in other sexual behavior; or

(2) evidence offered to prove a victim's sexual predisposition.

Fed. R. Evid. 412. Kettles asserts that rather than trying to prove that A.D. had engaged in "other sexual behavior," see id. , his proffered cross-examination sought to impeach A.D.’s credibility by showing that she had been "untruthful with the police and her counselors" regarding past sexual assaults; as a result, says Kettles, the district court erred by concluding that his proffered cross-examination fell within the scope of Rule 412.

Kettles is right. We have held that not all evidence implicating a victim's past sexual activity falls within Rule 412(a). See United States v. Willoughby , 742 F.3d 229, 234 (6th Cir. 2014) (holding that evidence of false accusations is not excluded by Rule 412 because the "whole predicate" of such evidence is "that there was no other sexual behavior to begin with" (quotation marks omitted)), overruled on other grounds by Johnson v. United States , 576 U.S. 591, 135 S. Ct. 2551, 192 L.Ed.2d 569 (2015). Instead, Rule 412(a) excludes only two narrow categories of evidence: (1) "evidence offered to prove that a victim engaged in other sexual behavior," and (2) "evidence offered to prove a victim's sexual predisposition." See Fed. R. Evid. 412. As in Willoughby , Kettles’ proffered cross-examination sought to introduce evidence for neither purpose; he sought to impeach A.D.’s credibility by showing that she had been untruthful regarding past allegations of sexual assault.

The district court mistakenly relied on our prior decision in United States v. Cardinal , 782 F.2d 34 (6th Cir. 1986). In that case, we held that evidence "interwoven" with past sexual activity is inadmissible under Rule 412. Id. at 36. In Willoughby , however, we recognized that Cardinal had applied a prior version of Rule 412 —one that has subsequently "been amended three times and substantially rewritten." Willoughby , 742 F.3d at 234. The current rule does not exclude cross-examination into past untruthfulness regarding sexual assaults. See id. ; Fed. R. Evid. 412 advisory committee's note to 1994 amendments ("Evidence offered to prove allegedly false prior claims by the victim is not barred by Rule 412."). The district court therefore erred in concluding that Rule 412 prohibited Kettles’ proffered cross-examination.¹

That does not end our inquiry, however. "Evidentiary errors remain subject to harmless error review." United States v. Kilpatrick , 798 F.3d 365, 378 (6th Cir. 2015) ; see also Fed. R. Crim. P. 52(a). Our court has applied at least four different measures of harmlessness for nonconstitutional evidentiary errors in a criminal case. We have required (1) the defendant to show by a preponderance that the error did affect the outcome, see United States v. Davis , 577 F.3d 660, 670 (6th Cir. 2009) ; United States v. Caver , 470 F.3d 220, 239 (6th Cir. 2006) ; (2) the government to show by a preponderance that the error did not affect the outcome, see Kilpatrick , 798 F.3d at 378 ; United States v. Luck , 852 F.3d 615, 628 (6th Cir. 2017) ; (3) the record to provide us with "fair assurance" that the verdict was not "substantially swayed" by the error, see United States v. Chavez , 951 F.3d 349, 358 (6th Cir. 2020) (quoting Kotteakos v. United States , 328 U.S. 750, 765, 66 S.Ct. 1239, 90 L.Ed....