United States v. Lacy

• Decision Date: 18 September 2018
• Docket Number: No. 17-3119,17-3119
• Citation: 904 F.3d 889
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Daederick LACY, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

904 F.3d 889

UNITED STATES of America, Plaintiff-Appellee,

v.Daederick LACY, Defendant-Appellant.

No. 17-3119

United States Court of Appeals, Tenth Circuit.

FILED September 18, 2018

William D. Lunn, Tulsa, Oklahoma, for Defendant-Appellant.

Jason W. Hart, Assistant United States Attorney (Thomas E. Beall, United States Attorney, with him on the brief), Wichita, Kansas, for Plaintiff-Appellee.

Before MATHESON, McKAY, and EBEL, Circuit Judges.

McKAY, Circuit Judge.

Defendant Daederick Lacy was charged with three felony counts stemming from his prostitution of teenage girls. In Count 1, which related to a sixteen-year-old girl, he was charged with sex-trafficking of a minor in violation of 18 U.S.C. § 1591(a)(1) and (b)(2). In Count 2, which related to a nineteen-year-old girl, he was charged with sex-trafficking accomplished by force, fraud, or coercion in violation of 18 U.S.C. § 1591(a)(1) and (b)(1). Finally, in Count 3, which related to a seventeen-year-old girl, he was charged with transporting a minor with intent to engage in criminal sexual activity in violation of 18 U.S.C. § 2423(a). The jury convicted him on all three counts, and he was sentenced to a total of 293 months of imprisonment.

On appeal, Defendant challenges his conviction on each count. He argues that Count 1 should be reversed because (1) the district court did not provide the jury with a technical definition of "sex act" to guide its verdict and (2) there is insufficient evidence to support the jury’s finding that his sixteen-year-old victim engaged in sex acts with her clients. He argues that Count 2 should be reversed because the district court allowed two law enforcement officers to testify about what the victim told them the day after she committed an act of prostitution arranged by Defendant. Finally, he argues that Count 3 should be reversed for insufficiency of the evidence. We address each of these arguments in turn, discussing the facts relevant to the resolution of each argument as needed.

We begin with Defendant’s argument that his conviction on Count 1 should be reversed because the jury instructions did not include a technical definition of "sex act." Because Defendant did not raise this argument below, we review it only for plain error. See United States v. Pablo , 696 F.3d 1280, 1287 (10th Cir. 2012). "Under plain error review, we will notice the alleged error and grant the appellant relief only when four requirements are met: (1) an error occurred; (2) the error is plain or obvious; (3) the error affects substantial rights; and (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings." Id. "In other words, the plain-error exception to the contemporaneous-objection rule is to be used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result." United States v. Young , 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985) (internal quotation marks omitted).

Section 1591 applies in part to anyone who knowingly "recruits, entices, harbors, transports, provides, obtains, advertises, maintains, patronizes, or solicits by any means" a minor who "will be caused to engage in a commercial sex act," which the statute defines as "any sex act, on account of which anything of value is given to or received by any person." 18 U.S.C. §§ 1591(a)(1), (a)(2), (e)(3). The statute does not further define "sex act," nor does it refer to any other statutory definition for this phrase. Defendant contends, however, that the term "sex act" in § 1591 must be defined by reference to a separate statute, 18 U.S.C. § 2246, which provides a definition for "sexual act" as that phrase is used in 18 U.S.C. § 2241 – § 2248.

"For purposes of plain error review, the term ‘plain’ requires that the error be clear or obvious under current law." Pablo , 696 F.3d at 1290. "Generally speaking, we do not deem an error to be obvious and clear unless it is contrary to current well-settled law—that is, to the current law of the Supreme Court or the Tenth Circuit." United States v. Wardell , 591 F.3d 1279, 1298 (10th Cir. 2009) (internal quotation marks omitted). Defendant has not cited to a single case from any jurisdiction in which a court held that the jury in a § 1591 case must be provided with the definition of "sex act" from § 2246. Indeed, Defendant has not cited to a single § 1591 case in which a court held that the jury must be provided with a technical definition of this term from any source. Thus, even assuming that the lack of a technical definition was erroneous, any such error was far from clear or obvious under current law. Defendant has therefore failed to meet his burden of showing plain error on this argument.

We turn then to Defendant’s argument that his conviction on Count 1 must be reversed for insufficiency of the evidence. "We review the record de novo in sufficiency-of-the-evidence challenges to criminal jury verdicts, asking if, viewing the evidence in the light most favorable to the government, a reasonable jury could have found the defendant guilty beyond a reasonable doubt." United States v. Cornelius , 696 F.3d 1307, 1316 (10th Cir. 2012) (internal quotation marks omitted). In so doing, "[w]e consider both direct and circumstantial evidence, together with the reasonable inferences to be drawn therefrom." Id. (internal quotation marks and brackets omitted). "We will reverse a conviction only if no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. (internal quotation marks omitted).

Defendant challenges only one aspect of the sufficiency of the evidence on Count 1, arguing that there is insufficient evidence to show that he caused his sixteen-year-old victim to engage in "sex acts" because her testimony about engaging in sex acts with clients is "conclusory." (Appellant’s Opening Br. at 29–30.)¹ This argument is based in part on Defendant’s contention that "sex acts" under § 1591 must be defined by reference to § 2246 : he argues that the only types of "sex acts" that can sustain a conviction under § 1591 are the types of acts defined in § 2246, i.e., oral sex and penile or digital penetration of the anus or genitalia. The cases Defendant cites to support his underlying definitional argument are all inapposite. However, even accepting Defendant’s definitional argument for purposes of this appeal, we are persuaded that a reasonable jury could certainly have found beyond a reasonable doubt that Defendant caused his sixteen-year-old victim to participate in such acts. The victim testified that she engaged in numerous sex acts with clients, arranged by Defendant through online advertising, for which Defendant was paid. Particularly in light of the evidence that the victim asked Defendant to bring her condoms and had conversations about sexual matters with Defendant and his other sex-trafficking victims, we are not persuaded that it was unreasonable for the jury to infer that the "sex acts" she testified about were indeed sex acts and not, as Defendant argues, something along the lines of a non-erotic massage.

Moreover, even if we were to accept Defendant’s argument that the victim’s testimony that she engaged in sex acts was insufficient to prove she did engage in sex acts, we would still affirm the conviction based on the substantial additional evidence of the types of acts that occurred. To take just one example, Defendant told the victim he would not accept the excuse that she was on her period, since she could still use her mouth to make money. A law enforcement officer who works with exploited children testified that this was a reference to oral sex. Defendant argues this could have instead been a reference to kissing. However, while Defendant was free to make this argument to the jury, the jury was free to accept the law enforcement officer’s explanation instead, and even Defendant concedes that oral sex would qualify as a "sex act" under § 1591. Based on all of the evidence presented at the trial, a reasonable jury could easily have found that Defendant caused his sixteen-year-old victim to engage in sex acts for pay, even under Defendant’s preferred definition of the term. We therefore affirm Defendant’s conviction on Count 1.

As for Count 2, Defendant raises only one challenge to his conviction on this count. Specifically, he argues that the district court erred in admitting hearsay testimony from two officers about what his nineteen-year-old victim told them the day after she committed an act of prostitution for Defendant. We review this argument only for plain error because Defendant did not raise a hearsay objection to the officers’ testimony below. See United States v. Frost , 684 F.3d 963, 971 (10th Cir. 2012).

We hold that this argument fails on the third prong of plain error because Defendant has not shown that any arguable error in the admission of this testimony was prejudicial. To satisfy this prong of the plain error test, "the appellant must show a reasonable probability that, but for the error claimed, the result of the proceeding would have been different." United States v. Gonzalez-Huerta , 403 F.3d 727, 733 (10th Cir. 2005) (internal quotation marks omitted). We conclude that Defendant has not satisfied this burden, and we therefore affirm on this ground without reaching the question of whether the admission of the officers’ testimony constituted an error that was obvious under well-settled law.

In this count, Defendant was convicted of sex-trafficking his nineteen-year-old victim by "means of force, threats of force, fraud, coercion ..., or any combination of such means." 18 U.S.C. § 1591(a)(2). Defendant does not dispute that he arranged for the nineteen-year-old to commit a sex act with a client, nor does he dispute that this sex act actually occurred. The only disputed factual question is whether Defendant used "means of force, threats of force, fraud, coercion ..., or any combination" t...