United States v. Lockhart

• Decision Date: 23 December 2016
• Docket Number: No. 15-50596,15-50596
• Citation: 844 F.3d 501
• Parties: United States of America, Plaintiff–Appellee v. Deion Dee Lockhart, also known as Memphis, also known as Deion Lockhart; Richard Charles Gray, also known as Crenshaw, also known as Richard Gray; Timothy Keith McCullouch, Jr., also known as TJ, also known as Timothy McCullough, Jr., also known as Timothy Keith McCullough, Jr.; Emmanual Lockhart, also known as E. Jay, Defendants–Appellants
• Court: U.S. Court of Appeals — Fifth Circuit

844 F.3d 501

United States of America, Plaintiff–Appellee

v.Deion Dee Lockhart, also known as Memphis, also known as Deion Lockhart; Richard Charles Gray, also known as Crenshaw, also known as Richard Gray; Timothy Keith McCullouch, Jr., also known as TJ, also known as Timothy McCullough, Jr., also known as Timothy Keith McCullough, Jr.; Emmanual Lockhart, also known as E. Jay, Defendants–Appellants

No. 15-50596

United States Court of Appeals, Fifth Circuit.

Filed December 23, 2016

Joseph H. Gay, Jr., Ellen A. Lockwood, Assistant U.S. Attorneys, U.S. Attorney's Office, Western District of Texas, San Antonio, TX, for Plaintiff–Appellee.

Patrick A. Lara, Esq., Law Office of Patrick A. Lara, Maria Bertha Ramirez, Sherilyn Ann Bunn, Esq., Firth Johnston Bunn Kerr, Miguel Angel Villalba, Miguel A. Villalba & Associates, El Paso, TX, for Defendants–Appellants.

Before STEWART, Chief Judge, and SMITH and DENNIS, Circuit Judges.

CARL E. STEWART, Chief Judge:

Following a Federal Bureau of Investigation ("FBI") inquiry into a child sex trafficking ring, a jury found Defendants-Appellants guilty of various crimes charged in an eleven-count indictment. All four appeal the jury's guilty verdicts. We AFFIRM each conviction, with one exception. Finding that the district court's jury instructions regarding 18 U.S.C. § 1591 (Sex Trafficking of Children) constructively amended the indictment, we VACATE and REMAND Appellant McCullouch's conviction as to that count.

I. Background and Procedural History¹

Between May 1, 2012 and March 31, 2013, Appellants prostituted underage girls, ranging from fifteen- to seventeen-years-old. After the National Center for Missing and Exploited Children discovered a suspicious advertisement featuring a sixteen-year-old girl on Backpage.com, a website notorious for facilitating prostitution, the FBI began collecting Appellants' hotel, phone, Facebook, and e-mail records. Through its investigation, the FBI learned that Appellants were pooling their money together to rent hotel rooms, solicit johns over the Internet, and transport underage girls to and from hotel rooms, in some cases crossing state lines to do so.

The conspiracy began when Appellants Deion Lockhart ("D. Lockhart"), Emmanual Lockhart ("E. Lockhart"), and Richard Gray ("Gray")² —all members of the Folk Nation Gangster Disciples ("Folk Nation") gang—decided to begin prostituting teenage girls instead of dealing drugs. After meeting the victims—SH, KB, LA, AG, and ANJ—and convincing them to "work" for them, the men used prepaid credit cards to post advertisements for escort services on Backpage.com. The men would then rent adjoining hotel rooms, using one room for "meeting dates" and the other for "hanging out."

Timothy McCullouch ("McCullouch"), another member of Folk Nation, became part of the conspiracy after he and Gray met ANJ and LA in a hotel room in June 2012. ANJ initially met Gray at a downtown club. She and Gray corresponded over Facebook, and eventually ANJ invited Gray and McCullouch to meet her and LA in ANJ's hotel room. When McCullouch entered the room, ANJ and LA both recognized him as an officer from the juvenile facility where they had been previously confined. After this meeting, ANJ began living with and prostituting for McCullouch, and LA began prostituting for Gray.

To ensure that the girls continued working for them, Gray regularly beat LA while his coconspirators and the other victims watched. The men controlled the girls' movements and forced them to give all of the money they earned to Appellants. The victims testified that they felt they had no choice but to prostitute for the men.

Before trial, the district court denied E. Lockhart's motion to sever and Appellants' joint motion to exclude evidence of their gang affiliation. The court also ruled that it would not admit evidence of the victims' prior or subsequent prostitution. At trial, the Government solicited testimony from Officer Robert Ontiveros. Through his testimony, Officer Ontiveros explained to the jury what his job as a gang investigator entails, the specialized training he had received, and his particular knowledge of Folk Nation. After the court accepted him as a gang expert, he testified that all four of Appellants are confirmed Folk Nation members.

At the close of the Government's case-in-chief, all four Appellants moved for a Rule 29 judgment of acquittal as to each count against them, which the court denied. At the close of the evidence, each Appellant renewed his motion, which the court again denied.

After deliberating, the jury found D. Lockhart guilty of Sex Trafficking by Force, Fraud or Coercion; Aiding and Abetting Sex Trafficking of Children; and Conspiracy to Sex Traffic Persons. The jury acquitted Gray on Count Three, Sex Trafficking by Force, Fraud or Coercion with respect to KB, but found him guilty of Sex Trafficking by Force, Fraud or Coercion with respect to LA; Sex Trafficking of Children; Conspiracy to Sex Traffic Persons; and Transportation for Prostitution. The jury found McCullouch guilty of Sex Trafficking of Children and Conspiracy to Sex Traffic Persons, and found E. Lockhart guilty of Conspiracy to Sex Traffic Persons.

On May 6, 2015, E. Lockhart filed a motion seeking an evidentiary hearing, as the jury found him guilty of only Count Nine, the conspiracy count, but had not specified on which object offense(s) it had based his guilt, as U.S.S.G. § 1B1.2 requires. The district court denied that motion. The court thereafter sentenced E. Lockhart to 240 months' imprisonment to be followed by five years' supervised release and sentenced Gray to life imprisonment, among other, lesser sentences to be served concurrently. In determining Gray's sentence, the court applied U.S.S.G. § 2A3.1(b)(1), thereby increasing his base offense level by four.

II. DISCUSSION

Appellants raise a host of arguments on appeal. They first challenge the sufficiency of the evidence as to each of their convictions, and relatedly, the district court's denial of their motions for judgment of acquittal. They next assert that the district court erred in excluding evidence of the victims' prior- and post-indictment prostitution and in including evidence of their shared gang affiliation. E. Lockhart contends that the district court erred in denying his motion to sever and in applying U.S.S.G. § 1B1.2 to his sentence. McCullouch argues that the district court's jury instructions regarding 18 U.S.C. § 1591 constructively amended the indictment. Finally, Gray avers that the district court misapplied U.S.S.G. § 2A3.1(b)(4)(B) when it added a four-point enhancement to his offense level. We address each argument in turn.

A. Sufficiency of the Evidence

We review the denial of a motion for judgment of acquittal de novo. United States v. Floyd , 343 F.3d 363, 370 (5th Cir. 2003). Still, this court's review of a jury's verdict is "highly deferential." United States v. McNealy , 625 F.3d 858, 870 (5th Cir. 2010). Thus, the relevant question is whether, "viewing the evidence and the inferences that may be drawn from it in the light most favorable to the verdict, a rational jury could have found the essential elements of the offenses beyond a reasonable doubt." United States v. Clark , 577 F.3d 273, 284 (5th Cir. 2009) (internal quotation marks omitted); see Jackson v. Virginia , 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

At trial, three of Appellants' victims and two coconspirators who had already pleaded guilty testified against Appellants. These witnesses explained how the men decided to prostitute young girls instead of selling drugs, took turns posting advertisements to Backpage.com and shared the profits, and that Gray would regularly beat AG in front of the other coconspirators and victims. The Government also presented physical evidence that linked Appellants to Backpage.com through e-mail and cell phone records, showed that Gray transported LA across state lines for the purpose of prostitution, and corroborated the witnesses' testimony with hotel rental receipts and Facebook conversations. Finally, the victims' testimony demonstrated that Appellants knew, or at the least recklessly disregarded the fact that, their victims had not yet attained the age of eighteen. Viewing this evidence "and all inferences to be drawn from it in the light most favorable to the verdict,"United States v. Burton , 126 F.3d 666, 669 (5th Cir. 1997), a rational jury could find all four Appellants guilty beyond a reasonable doubt of the crimes for which the jury convicted them.

B. Evidence of Prior and Post-Indictment Acts of Prostitution

Appellants argue that the district court erred when it barred admission of evidence showing the victims' prior and subsequent acts of prostitution. They aver that Rule 412 applies primarily to rape cases, and that even if the Rule does apply to this case, barring the evidence violated their Fifth and Sixth Amendment rights. We review the district court's limitation of cross-examination for an abuse of discretion. United States v. Davis , 393 F.3d 540, 548 (5th Cir. 2004) (citing United States v. Gordon , 780 F.2d 1165, 1175 (5th Cir. 1986) ). When a defendant alleges that the district court's limitation violated a constitutional right, however, this court reviews that limitation de novo. See United States v. Hitt , 473 F.3d 146, 156 (5th Cir. 2006) ; Gochicoa v. Johnson , 118 F.3d 440, 445 (5th Cir. 1997).

In a "criminal proceeding involving alleged sexual misconduct," Rule 412 prohibits evidence offered "to prove that a victim engaged in other sexual behavior," as well as evidence offered "to prove a victim's sexual predisposition." Fed. R. Evid. 412(a). Further, Rule 412(a) prohibits a defendant from introducing or eliciting evidence of the victim's "other sexual behavior," even if it is offered "as substantive evidence or for impeachment." Fed. R. Evid. 412 (1994 Advisory Committee Notes). Forced prostitution undoubtedly involves sexual misconduct. M...