United States v. Purcell

• Decision Date: 23 July 2020
• Docket Number: August Term, 2019,Docket No. 19-238-cr
• Citation: 967 F.3d 159
• Parties: UNITED STATES of America, Appellee, v. Lavellous PURCELL, also known as King Casino, also known as Mike Hill, Defendant-Appellant, Gloria Palmer, also known as Gloria Hearn, Defendant.
• Court: U.S. Court of Appeals — Second Circuit

967 F.3d 159

UNITED STATES of America, Appellee,

v. Lavellous PURCELL, also known as King Casino, also known as Mike Hill, Defendant-Appellant,Gloria Palmer, also known as Gloria Hearn, Defendant.^*

Docket No. 19-238-cr

August Term, 2019

United States Court of Appeals, Second Circuit.

Argued: February 6, 2020

Decided: July 23, 2020

Sebastian Swett, Assistant United States Attorney (Jane Kim, Anna M. Skotko, Assistant United States Attorneys, on the brief), for Audrey Strauss, United States Attorney for the Southern District of New York, New York, NY, for Appellee.

Yuanchung Lee, Federal Defenders of New York, Inc., Appeals Bureau, New York, NY, for Defendant-Appellant.

Before: Pooler, Lynch and Park, Circuit Judges.

Gerard E. Lynch, Circuit Judge:

Defendant-Appellant Lavellous Purcell¹ oversaw and operated a commercial sex business from approximately 2012 through 2017. At trial, the government relied extensively on evidence that had been seized from Purcell's Facebook account pursuant to warrants obtained by the New York County District Attorney's Office. Following a jury trial, Purcell was convicted in the United States District Court for the Southern District of New York (Denise L. Cote, J .) of five charges related to interstate sex trafficking: enticement to engage in unlawful sexual activity, in violation of 18 U.S.C. §§ 2422(a) and 2 (Count One); transporting individuals in interstate commerce to engage in prostitution, in violation of 18 U.S.C. §§ 2421(a) and 2 (Count Two); using facilities of interstate commerce to promote unlawful activity, in violation of 18 U.S.C. §§ 1952(a)(3) and 2 (Count Three); conspiring to use interstate commerce to promote unlawful activity, in violation of 18 U.S.C. § 371 (Count Four); and sex trafficking by force, fraud, and coercion, in violation of 18 U.S.C. §§ 1591(a)(1), (a)(2) and 2 (Count Five).

On appeal, Purcell challenges his conviction by arguing that the district court should have granted his motion to suppress the evidence seized from his Facebook account because the warrants were defective. He also challenges the sufficiency of the evidence on Counts One (as to venue and enticement), Two (as to whether he transported the relevant victim), and Five (as to coercion). Finally, he argues further that his conviction on Count Five was based in part on testimony that was erroneously admitted in violation of a pretrial agreement, the Federal Rules of Evidence, and the Confrontation Clause of the Sixth Amendment.

We conclude that district court properly denied Purcell's motion to suppress the evidence seized from his Facebook account, because even if the warrants authorizing seizure of that evidence were defective, the officers who collected and reviewed the evidence reasonably relied on them in good faith. We further conclude that the government presented sufficient evidence to permit a reasonable jury to find Purcell guilty on Counts Two and Five, and that the testimony that Purcell challenges was properly admitted non-hearsay. We also conclude, however, that the government failed to present sufficient evidence of venue in the Southern District of New York with respect to Count One, which charged Purcell with enticement to engage in unlawful sexual activity. Accordingly, we REVERSE the conviction on Count One, AFFIRM the convictions on all other counts, and REMAND to the district court for dismissal of Count One and resentencing.

BACKGROUND

I. Factual Background

The evidence presented at trial, "viewed in the light most favorable to the jury's verdict," See United States v. Facen , 812 F.3d 280, 287 (2d Cir. 2016), established that from 2012 through 2017, Lavellous Purcell oversaw and operated a commercial sex business. In the course of that business, Purcell recruited women from across the United States to work as prostitutes. Purcell contacted women, many of whom he did not know and some of whom did not have prior experience with prostitution, through private messages on Facebook, Instagram, and dating applications such as Tinder, requesting their phone numbers and sometimes identifying himself as a "pimp." App'x 708. He also contacted women who were already working as prostitutes through Backpage, a website that advertises commercial sex to potential customers, and attempted to persuade those women to "choose up" – a term in the commercial sex industry for a prostitute's selection of a pimp – with him. Id . at 261. To facilitate his recruitment efforts, Purcell represented to some women that he would buy them houses or apartments if they worked for him. In other cases, he represented to women that by working for him they could make as much as $100,000 in less than one year.

Women who worked for Purcell were routinely asked to travel around the country to perform commercial sex. Purcell, who throughout the relevant period resided primarily in the town of Hempstead, on Long Island, New York, also traveled extensively to promote and manage his business. He often traveled in rental cars, in some cases driving as much as six thousand miles in a month. Women who worked for Purcell sometimes accompanied him on trips around the country. Gloria Palmer, Purcell's cousin and co-defendant, worked in the hotel industry and reserved discounted hotel rooms for Purcell and the women who worked for him.²

The evidence at trial demonstrated that Purcell and the women who worked for him traveled to at least fourteen states – Alabama, Arizona, California, Colorado, Connecticut, Florida, Nevada, New York, North Carolina, Pennsylvania, Tennessee, Texas, Utah, and Virginia – in connection with Purcell's prostitution business. Purcell promoted his business primarily through advertisements on the website Backpage, depicting scantily or provocatively dressed women, making euphemistic promises of "pleasure" and "satisfaction," and providing links that customers could use to make appointments with the women pictured. Id . at 693.

Purcell required the women who worked for him to abide by a number of "rules." Id . at 500. He expected the women to avoid relationships and interactions with other men (other than in the performance of commercial sex work), to have sex with him, to keep him apprised of all places they traveled to and all money they spent, and to give him any money that they earned. Purcell held the women's cell phones while they were in his company. The women who worked for him were to call him "Daddy," and some of them received neck tattoos of the word "Casino," a reference to Purcell's "pimp" alias, "King Casino." Id . at 273-74, 494.

Purcell sometimes used threatening language and violence in interactions with women who worked for him. He hit one woman for turning over less than all of the money customers had paid her for her services. In various Facebook posts and private messages, Purcell referred to the use of violence to "break" the women who worked for him, id . at 242-43, suggested that he had "slapped" (but not "beat[en]") one such woman, id . at 238, and reminisced about grabbing another by the neck. After one woman fled the hotel to which Purcell had brought her to engage in prostitution, Purcell sent her a text message threatening to "kill [her] fat nasty ass." Id . at 329. A witness who frequently spoke with Purcell by phone while he drove between cities testified that she often overheard him yelling and cursing at women who were in the car.

The facts with respect to four alleged victims – each of whom either worked for Purcell as a prostitute or was the subject of his recruitment efforts – are of particular relevance to Purcell's arguments on appeal.

A. Marie Ann Wood (Count Five)

Marie Ann Wood, who testified at trial, spent three days with Purcell in December 2012, when she was about 25 years old. During that time she engaged in sex with a customer, before fleeing from the hotel at which she, Purcell, and two other prostitutes were staying and working.

Wood had worked as a prostitute in California before meeting Purcell. In late November or early December 2012, she traveled alone to New York to work as a prostitute there, while Robert, her pimp, remained in California. She did not know anyone in New York City. She moved into a hotel near LaGuardia Airport and posted advertisements on Backpage to attract customers.

Purcell contacted Wood in response to her advertisement. On approximately December 19, 2012, Purcell went to her hotel room to discuss the possibility of his becoming her pimp. Purcell told Wood "that this was his city and [she] should not be alone." Id . at 261. She testified that she did "choose up" with Purcell, meaning that she "was going to go from [her current] pimp to be [Purcell's] prostitute." Id . She testified that she felt she had little or no choice in the matter, because Purcell's presence, alone with her in a hotel room, was intimidating. Wood retrieved $800 in cash from under a lamp and gave it to Purcell. She testified that she felt "[o]bligated" to give him any cash she had because she had never before been confronted with "a pimp in [her] face that [she had] never met." Id . at 262.

Purcell, unprompted, took Wood's bags from the hotel room closet, said "[l]et[’]s go," id ., and led Wood out of the hotel room. Wood followed. She testified that she did not want to go but that she felt that she had no choice, because she believed that Purcell "might have harmed" her if she had refused to follow him. Id . at 263. Wood checked out of the hotel, retrieved a cash deposit she had previously paid, and gave that cash to Purcell. Outside the hotel, two women were waiting in Purcell's car, one in the driver's seat. Wood and Purcell got into the back seat, and the four of them drove off.

In the car, Purcell asked Wood for the phone number of Robert, the pimp with whom Wood worked. She gave him the number, and Purcell called Robert and informed him that Wood now worked for him. He then instructed Wood to call her cellular provider and change her phone number, so that...