United States v. Phea

• Decision Date: 13 June 2014
• Docket Number: No. 12–51031.,12–51031.
• Citation: 755 F.3d 255
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Brian Terrell PHEA, also known as Brian Phea, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

755 F.3d 255

UNITED STATES of America, Plaintiff–Appellee,

v.Brian Terrell PHEA, also known as Brian Phea, Defendant–Appellant.

No. 12–51031.

United States Court of Appeals, Fifth Circuit.

June 13, 2014.

Joseph H. Gay, Jr., Assistant U.S. Attorney, U.S. Attorney's Office, San Antonio, TX, Jennifer Sheffield Freel (argued), Assistant U.S. Attorney, U.S. Attorney's Office, Austin, TX, for Plaintiff–Appellee.

Seth Kretzer (argued), Law Offices of Seth Kretzer, Houston, TX, for Defendant–Appellant.

Appeal from the United States District Court for the Western District of Texas.

Before REAVLEY, PRADO, and OWEN, Circuit Judges.

PRISCILLA R. OWEN, Circuit Judge:

A jury convicted Brian Terrell Phea of causing a person under the age of 18 to engage in a commercial sex act in violation of 18 U.S.C. § 1591(a) and aiding and abetting the promotion of prostitution in violation of 18 U.S.C. § 1952(a)(3). He received concurrent sentences of 312 months and 60 months of imprisonment, respectively. Phea challenges his conviction under § 1591(a) and his sentence on various grounds.

We affirm.

I

Phea's conviction under § 1591(a) resulted from his involvement in the prostitution of K.R., a fourteen-year-old female. Phea came into contact with her on the social networking website Tagged.com. K.R.'s profile on that website said that she was eighteen years old. Phea says that after engaging in “sexual banter” over the internet, he asked K.R., who lived in Houston, Texas, to travel to and meet him in Amarillo,Texas. He initially sought to buy an airline ticket for her, but she told him that she did not have any identification documents. Phea purchased a Greyhound bus ticket that K.R. used to travel from Houston to Amarillo. In Amarillo, Phea met her at the bus station and took her to his mother's house where he and K.R. had sexual intercourse. Phea then drove K.R. to Odessa, Texas, which was a five-hour trip, and paid for a room at the Quality Inn Hotel that K.R. shared with another woman, who worked as a prostitute for Phea.

Phea bought K.R. new clothes, shoes, and a mobile phone. The phone's number corresponded to a number listed in an advertisement for prostitution services that Phea and another individual had placed on a website called Backpage.com. After K.R. received the phone, she was contacted by men she did not know to inquire about “selling [her] body” and related costs.

K.R. spent four days in Odessa with Phea and women working as prostitutes for Phea. During this time, K.R. quarreled with one of these women, and K.R. told Phea that she did not want to work as a prostitute. In response, Phea beat and tased K.R., rupturing her eardrum. He then instructed her to go with him to a hotel to meet a man from Louisiana who had contacted K.R. earlier to solicit sex. Phea told K.R. how much to charge the man, and later, when the man did not have sufficient funds, instructed her to accept the money he did have. K.R. then had sexual relations with this man. Phea picked her up afterwards and took the money K.R. had received before driving her back to the Quality Inn.

Phea was charged with violating 18 U.S.C. §§ 1591(a) and 1952(a)(3). A jury found Phea guilty. It also made a special finding that Phea had committed the offense of sex trafficking under § 1591(a) by force, threats of force, fraud, or coercion. At sentencing, Phea objected to the application of a two-level enhancement for the use of a computer. The district court overruled the objection and sentenced Phea to a term of 312 months of imprisonment, to run concurrently with his sentence of 60 months for his convictions for aiding and abetting the promotion of prostitution under § 1952(a)(3). Phea now appeals his conviction and sentence under § 1591(a).

II

Phea maintains that he did not know and had no reason to know that K.R. was less than eighteen years of age. Her online identifying information when he communicated with her through Tagged.com indicated that she was eighteen years old; when she was arrested by police after leaving Amarillo with her boyfriend, she told the officers that she was nineteen; and she never told Phea, any of his associates, or anyone at the Amarillo hotels she frequented that she was under the age of eighteen. Phea challenges the sufficiency of the evidence and the charge to the jury regarding his culpable mental state in this regard.

A

Phea asserts that he could be convicted under § 1591(a) only if he either knew K.R. was under the age of eighteen or acted in reckless disregard of that fact. He contends that the evidence was insufficient to establish either of these mental states. Phea moved for a judgment of acquittal under Federal Rule of Criminal Procedure 29. When a defendant moves for a judgment of acquittal at the close of the government's case and after the defense rested, we review his claims regarding the sufficiency of the evidence de novo.¹ “All evidence is reviewed in the light most favorable to the verdict to determine whether a rational trier of fact could have found that the evidence established ... guilt beyond a reasonable doubt.” ² We conclude that there is evidence from which a rational trier of fact could have found beyond a reasonable doubt that Phea caused K.R. to engage in a commercial sex act in reckless disregard of the fact that she had not attained the age of eighteen. There is also evidence that would support a finding that Phea had a reasonable opportunity to observe K.R.

It is undisputed that Phea knew that K.R. did not have identification that was sufficient to allow her to obtain a ticket on an airline. While this evidence, standing alone, might not support the jury's verdict, it is evidence that the jury may properly consider. Her lack of identification is at least some evidence that would tend to put a person on inquiry that K.R. may not have been eighteen years of age. Most importantly, we cannot ignore the undisputed evidence that Phea spent a significant amount of time with K.R. and had sexual intercourse with her. K.R. testified at trial. The jury was entitled to evaluate K.R.'s appearance in deciding whether Phea acted in reckless disregard of the fact that she was fourteen, not eighteen, years old. There is no evidence in the trial record that K.R. appeared to be four or more years older than her age of fourteen. The jury was entitled to draw its own conclusions, from its own direct observations, regarding K.R.'s appearance and behavior, unless the record reflects that no reasonable person could have suspected that K.R. was under the age of eighteen. There is no such evidence in the record before us.

Phea asserts that the Government failed to adduce any expert testimony or to employ a “heuristic method such as the Tanner Scale of Human Development for Females.” We have found no authority, and Phea cites none, that holds expert testimony is necessary to establish a fact question for a jury as to a victim's age under the circumstance of a case such as this. Phea also points to two exhibits in the record as evidence that K.R. had physical attributes that made her appear to be at least eighteen years of age. One of these exhibits is a pre-printed form showing the bare outline of a female that was used by a nurse to make notes when she examined K.R. for injuries. It is not a depiction of K.R. or a representation that K.R.'s physical appearance was similar to that of the figure's outline. In any event, females under the age of eighteen have physical attributes similar to those of the very basic, almost crudely drawn, female outline appearing on this pre-printed form. The other exhibit on which Phea relies is a photograph of a small area of K.R.'s chest. That photo is not necessarily indicative of an age of eighteen. It indicates only that K.R. appeared to be post-pubescent.

Because the jury saw and heard K.R. at trial and was in the best position to determine whether Phea knew, or acted in reckless disregard, of the fact that K.R. was less than eighteen years old, there is sufficient evidence to support the conviction.

B

Phea asserts that the charge to the jury was erroneous because it permitted the jury to reach a guilty verdict solely on the basis that Phea had a reasonable opportunity to observe K.R. He argues that the district court submitted a strict liability theory in this regard. He further contends that the Government must prove both that Phea had a reasonable opportunity to observe K.R. and that he recklessly disregarded her age.

As an initial matter, we disagree with Phea's construction of § 1591(a) in at least one respect. A conviction may be obtained against a defendant who recklessly disregards a victim's age even if the defendant did not have a reasonable opportunity to observe the victim. Facts other than the victim's appearance or behavior may support a finding of reckless disregard of the victim's age, such as information from the victim, or others, or documentation that would cause a reasonable person to question whether the victim was actually eighteen years old. Circumstances of which a defendant was aware, such as the victim's grade level in school, or activities in which the victim engaged, could also constitute the basis for a finding of reckless disregard.

However, we agree with Phea that the charge did not instruct the jury that it could find, as an alternative basis for conviction, that Phea acted in reckless disregard of the fact that K.R. had not attained the age of eighteen. The jury was instructed as follows regarding K.R.'s age:

COUNT ONE:

SEX TRAFFICKING OF CHILDREN BY FORCE, FRAUD, OR COERCION

Title 18, United States Code, Section 1591(a), makes it a federal crime or offense for anyone to affect interstate commerce by causing a person under the age of 18 to engage in a commercial sex act.

The Defendant can be found guilty of that offense only if all of the following facts are proved beyond a reasonable doubt:

First: That on or about March 16, 2012, in the Western...