United States v. Morgan

• Citation: 45 F.4th 192
• Decision Date: 05 August 2022
• Docket Number: 18-3045
• Parties: UNITED STATES of America, Appellee v. Charles MORGAN, Jr., Appellant
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

45 F.4th 192

UNITED STATES of America, Appellee

v.Charles MORGAN, Jr., Appellant

No. 18-3045

United States Court of Appeals, District of Columbia Circuit.

Argued April 23, 2021

Decided August 5, 2022

Lisa Wright, Assistant Federal Public Defender, argued the cause for appellant. With her on the briefs was A. J. Kramer, Federal Public Defender. Tony Axam Jr. and Michelle M. Peterson, Assistant Federal Public Defenders, entered appearances.

Daniel J. Lenerz, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Elizabeth Trosman and Elizabeth H. Danello, Assistant U.S. Attorneys.

Before: Srinivasan, Chief Judge, Katsas, Circuit Judge, and Sentelle, Senior Circuit Judge.

Srinivasan, Chief Judge:

Appellant Charles Morgan, Jr. was indicted for transportation of a minor with intent to engage in criminal sexual activity, attempted production of child pornography, and commission of a felony involving a minor by a person required to register as a sex offender. After a bifurcated jury and bench trial, Morgan was convicted on all counts.

On appeal, Morgan brings three challenges to his convictions. First, he contends that the district court abused its discretion by admitting the government's expert testimony concerning the approximate locations of Morgan's and the transported minor's cell phones on the night of their meeting. Second, Morgan argues that the government should have been required to prove not just that he transported a minor to engage in sexual activity, but that he knew she was underage. Third, Morgan challenges the constitutionality of the Act that required him to register as a sex offender. Because we are unpersuaded by Morgan's arguments, we affirm.

I.

A.

In November 2016, a grand jury charged Charles Morgan, Jr. with transportation of a minor with intent that the minor engage in sexual activity for which any person could be criminally charged, in violation of 18 U.S.C. § 2423(a) ; attempted production of child pornography, in violation of 18 U.S.C. § 2251(a), (e) ; and two counts of commission of a felony involving a minor by a person required to register as a sex offender, in violation of 18 U.S.C. § 2260A.

Pursuant to the parties’ stipulation, the district court held a bifurcated trial. The court first held a jury trial on the transportation and child pornography charges. The government put forth the following facts in the jury trial. The defense did not put on a case.

In May 2016, J.T. was 15 years old and lived with her mother in an apartment in Southeast Washington, D.C. On May 22, a Sunday, J.T. was at her grandmother's house in Southwest D.C., where she planned to stay overnight. But after getting into an argument with her cousin that evening and sensing her grandmother's resulting frustration, J.T. decided to sneak out of her grandmother's house and return home.

J.T. took the bus part of the way home and walked the remainder of the way. When J.T. arrived at her apartment building in Southeast D.C., she could not get into her apartment—she did not have keys, the lights in the apartment were off, and she was unable to reach her sister. J.T. decided to meet a friend with whom she had been texting and then to spend the night at the home of her friend's sister. After learning that the bus would not arrive at the nearest stop for another 20 to 25 minutes, J.T. decided to walk along the bus route toward Pennsylvania Avenue, where she was to meet her friend. She eventually reached Randle Circle—still in Southeast D.C.—where she stopped to wait for the bus because she was tired and her phone battery had died.

While J.T. waited for the bus at Randle Circle, a car pulled over and idled for a few minutes. The driver—Charles Morgan, Jr., then 55 years old—rolled down his window and asked J.T. if she wanted a ride. J.T. did not respond and turned away. Morgan then told her that he "wouldn't do things like that," showed her "a government I.D.," and gave her a business card. Apr. 27, 2018 Trial Tr. 129:11–30:22, App. 982–83. J.T. decided to get in Morgan's car because "he seemed old" and "like he wouldn't do nothing like that." Id. at 131:18–19, App. 984. Morgan then asked for her name, her age, and where she lived. J.T. told him that she was 14 but did not answer the other questions.

Instead of driving her home, Morgan drove to another part of Southeast D.C. and stopped the car near the Fort Davis Recreation Center. J.T. recognized the location because her mother had worked there in the summer. Morgan then fondled J.T. in the car and forced her to perform fellatio on him.

After J.T. sat back up, Morgan began driving again. J.T. saw them pass a "Welcome to D.C." sign on the driver's side of the car. Morgan drove into Maryland, parked at a house, and led J.T. into the basement apartment. Morgan told J.T. to get on the bed, where he proceeded to sodomize her. After he stopped sodomizing J.T., Morgan eventually led J.T. back to the car.

Morgan drove J.T. to her requested location in Southeast D.C, around the corner from her mother's apartment, and gave her his number. J.T. went inside the apartment and told her mother what had happened. They reported the incident to the police shortly thereafter.

Later that week, a police detective obtained J.T.’s consent to assume J.T.’s identity and start communicating with Morgan. After the detective (pretending to be J.T.) and Morgan exchanged several text messages, Morgan asked J.T. to send him a picture of her genitalia. In response, the detective set up a recorded call between Morgan and J.T. On the call, Morgan reiterated his request for the picture. After Morgan briefly hung up, they got back on the phone and J.T. said she was just 14 years old. Morgan reacted with apparent surprise and hung up again. Morgan tried calling J.T. several times later that night but did not reach her. The detective and Morgan exchanged sporadic text messages for the next several days until Morgan stopped communicating.

B.

1.

To demonstrate a violation of 18 U.S.C. § 2423(a) (the transportation charge), the government needed to prove that Morgan had transported J.T. from D.C. to Maryland on the night she rode in his car, May 22. To that end, the government sought to call FBI Special Agent Kevin Horan as an expert witness to opine about the locations of J.T.’s and Morgan's cell phones during that night. Horan's testimony would be based on the results of a "drive test," and it was meant to support J.T.’s account that Morgan had transported her from D.C. to Maryland.

A drive test is a method of identifying the coverage range of a cell tower. Drive tests are used primarily "by wireless telephone companies and radio frequency engineers to determine ... the health of the telephone company's wireless network." Larry Daniel, Cell Phone Location Evidence for Legal Professionals: Understanding Cell Phone Location Evidence from the Warrant to the Courtroom 69 (2017). Law enforcement personnel also conduct drive tests, typically to determine the approximate coverage area of a particular tower to which a cell phone of interest connected during a relevant time period. See Aug. 22, 2017 Daubert Hearing Tr. 11:8–17:20, App. 467–73; see also Daniel, supra , at 69–71; United States v. Nelson , 533 F. Supp. 3d 779, 786 (N.D. Cal. 2021). By determining a tower's coverage area, law enforcement can narrow down the cell phone's location when it connected to that tower.

After the government indicated its intention to call Horan as a witness at trial to give testimony about drive tests he had conducted in connection with this case, Morgan moved to exclude the testimony. The district court then held a multi-day Daubert hearing on the admissibility of Horan's testimony. See Daubert v. Merrell Dow Pharms., Inc. , 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Horan stated at the hearing that he has been a member of the FBI's cellular analysis survey team (CAST) since its inception in 2007. He annually conducts an average of twenty to thirty drive tests. Before Morgan's trial, Horan had testified as an expert seventy-six times, and in the last several years, almost all of his cases involved drive tests. The district court accepted Horan as an expert in "historical cell site analysis, which includes the drive test." Aug. 22, 2017 Daubert Hearing Tr. 10:22-23, App. 466.

Horan told the court that he prepares for a drive test by analyzing call-detail records to understand which cell phone towers a cell phone communicated with during the relevant time period. He then creates a "target area" containing both the "target tower" and "the other towers that are surrounding it." Id. at 23:19–24:3, App. 479–80. Using that area, Horan generates a planned route that he will drive with the testing equipment. He conducts the drive test by driving along the planned route with a device—the Gladiator Autonomous Receiver (GAR)—manufactured by a company named Gladiator. The GAR collects radio frequencies and GPS data and stores them in a computer system. Horan typically drives until he becomes satisfied that he has "gone through all the different parts of [the] target area, ... gone by the [relevant] addresses, [and] ... gone around the tower enough times on certain streets." Id. at 28:14–16, App. 484. The drive tests typically "take[ ] more than one day" to complete. Id. at 27:25, App. 483.

After completing the driving portion of a drive test, Horan processes the collected data through Gladiator's proprietary software program, Enterprise Sensor Processing and Analytics (ESPA). The software generates maps depicting the approximate coverage area of the towers of interest. Another agent then independently reviews the collected data and the ESPA analysis to check whether there were any errors. When asked how the software processes the data, Horan explained he had not been granted permission to access and examine the underlying software code and thus was unsure precisely how it functioned.

For this case, Horan had conducted a...