United States v. Rivera

• Decision Date: 25 August 2015
• Docket Number: 13–2723,Nos. 13–2722,13–2864.,s. 13–2722
• Citation: 799 F.3d 180
• Parties: UNITED STATES of America, Appellee, v. Antonio RIVERA, aka Santos Morales, aka Antonio Almadamo, aka Santos Garcia, Jason Villaman, aka Santi, John Whaley, aka John Holly, aka Johnny, Defendants–Appellants.
• Court: U.S. Court of Appeals — Second Circuit

799 F.3d 180

UNITED STATES of America, Appellee

v.Antonio RIVERA, aka Santos Morales, aka Antonio Almadamo, aka Santos Garcia, Jason Villaman, aka Santi, John Whaley, aka John Holly, aka Johnny, Defendants–Appellants.^*

Nos. 13–2722

13–2723

13–2864.

United States Court of Appeals, Second Circuit.

Argued: Jan. 26, 2015.

Decided: Aug. 25, 2015.

John F. Carman, Garden City, N.Y., for Defendant–Appellant Antonio Rivera.

Jonathan I. Edelstein, Edelstein & Grossman, New York, N.Y., for Defendant–Appellant Jason Villaman.

Elizabeth A. Latif (Daniel E. Wenner, on the brief), Day Pitney LLP, Hartford, CT, for Defendant–Appellant John Whaley.

Amy Busa, Assistant United States Attorney (Jo Ann Navickas, Assistant United States Attorney, on the brief), for Kelly T. Currie, Acting United States Attorney for the Eastern District of New York, Brooklyn, N.Y.

Before: JACOBS, CALABRESI, and WESLEY, Circuit Judges.

Opinion

WESLEY, Circuit Judge:

Appellants Antonio Rivera, Jason Villaman, and John Whaley appeal from judgments entered on June 27, 2013, in the United States District Court for the Eastern District of New York (Feuerstein, J.). Appellants operated two bars on Long Island that also functioned as illegal brothels. They advertised a decent salary and free transportation to and from work to recruit attractive, undocumented aliens to work in a role they described as “waitress.” The “waitresses,” who became the victims in Appellants' scheme, were told they would be expected to dress suggestively, serve drinks, and possibly dance with customers. The reality was very different: Appellants threatened the victims with violence and deportation if they spoke to the authorities or quit, forced them to drink alcohol until they were intoxicated, required them to strip, and compelled them to be fondled by customers, to be groped by customers, and to have sex with customers.

Before trial, the Government moved in limine to, among other things, preclude Appellants from inquiring or offering evidence as to “the victims' other sexual behavior including ... any other employment in a sexualized business” under Federal Rule of Evidence 412. Gov't Mot. in Lim., Apr. 12, 2011, Dist. Ct. Dkt. No. 139, at 2. Whaley, joined by Villaman,¹ opposed this branch of the motion, arguing that “[i]nformation which shows that the alleged victims engaged in commercialized or similar sex without force, fraud or coercion goes to the heart of the question of guilt or innocence in this case.” Villaman App. 147. The district court, after argument, precluded testimony about the victims' employment in other sexualized businesses.

Whaley also objected to the Government's proposed jury instruction on the sex trafficking charge, arguing that the jury should not be instructed that it could consider any aspects of the victims' backgrounds since the defense was precluded from questioning victims about their prior life experiences. The district court overruled Whaley's objection.²

At trial, Appellants' counsel elicited testimony that could suggest that the victims consented to being prostitutes. For example, some of the victims testified that they had quit working at the bars but then returned after some time for various reasons. A few of the victims acknowledged that they knew others who worked at the bars and had visited the bars prior to their employment there, or had even recruited relatives or friends to work at the bars.

Appellants' counsel made use of this testimony at closing. For example, Rivera's counsel argued that the victims “had the chance to see the[ ] bars for what they were before they started working,” including viewing “non-stop debauchery.” Villaman App. 765. He also contended that the victims chose to be prostitutes at the bars because they “would make a lot [more] money ... than they could make in a factory, or in a nail salon, or in any of the other places that they worked at illegally prior to working at [the bars].” Id. Rivera's counsel asked the jury “what woman would come for a job interview, observe this, and then work there unless she knew what she was getting into and how much money she was going to make to do it?” Id.

Appellants were convicted of sex trafficking, forced labor, and alien harboring and transportation charges. We address Appellants' arguments that the district court erred: (1) in granting the Government's motion in limine to exclude cross-examination regarding the victims' other employment in a sexualized business with respect to Appellants' sex trafficking and forced labor charges; (2) in giving the sex trafficking jury charge; and (3) in imposing unreasonable sentences upon them. We hold first that the exclusion of evidence of the victims' other sexual behavior did not violate the Appellants' right to present a complete defense and to confront witnesses. We next hold that while the sex trafficking jury charge was error, that error, given the evidence in this case, was harmless. Finally, we hold that the sentences imposed were procedurally unreasonable, and a full resentencing is warranted.

DISCUSSION

Although we generally review evidentiary rulings for abuse of discretion, Manley v. AmBase Corp., 337 F.3d 237, 247 (2d Cir.2003), we review interpretations of law de novo, including whether an evidentiary ruling violates a defendant's constitutional rights, see United States v. Tropeano, 252 F.3d 653, 657 (2d Cir.2001).

Federal Rule of Evidence 412(a)(1) provides that in a case involving allegations of sexual misconduct, “evidence offered to prove that a victim engaged in other sexual behavior” is inadmissible. The Rule “aims to safeguard the alleged victim against the invasion of privacy, potential embarrassment and sexual stereotyping that is associated with public disclosure of intimate sexual details.” Fed.R.Evid. 412 advisory committee's note. The exclusion, however, is not absolute. The Rule wisely makes explicit that “evidence whose exclusion would violate the defendant's constitutional rights” should be admitted. Fed.R.Evid. 412(b)(1)(C). The constitutional rights contemplated by this exception include the accused's right under the Sixth Amendment to confront a witness. See, e.g., Olden v. Kentucky, 488 U.S. 227, 231, 109 S.Ct. 480, 102 L.Ed.2d 513 (1988). This includes “a meaningful opportunity to present a complete defense” at trial, Holmes v. South Carolina, 547 U.S. 319, 324, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006) (internal quotation marks omitted), and to confront witnesses, including by “impeach[ing] the credibility of a prosecution witness by cross-examination,” Davis v. Alaska, 415 U.S. 308, 309, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974).

Appellants contend that they were improperly precluded from cross-examining the victims about their prior work in the sex industry. Because the sex trafficking and forced labor statutes both require an analysis of “all the surrounding circumstances,” see 18 U.S.C. §§ 1589(c)(2), 1591(e)(4), Appellants argue that a victim's “experience in the sex industry, and knowledge of its practices, is ... relevant to whether she was coerced or whether, on the other hand, she knew precisely what she was getting into and accepted it as part of a money-making endeavor.” Villaman Br. 27 (emphasis added).³ Appellants contend that, by excluding inquiry on this subject, the district court prevented them from conducting a full cross-examination, thereby violating their rights under the Confrontation Clause. We disagree.

Evidence of victims' prior acts of commercial sex is irrelevant to whether those victims were coerced into working as prostitutes. Appellants wanted to cross-examine the testifying victims about prior work as prostitutes before Appellants hired them to work in their bars. Appellants hoped to suggest that having already worked as prostitutes, the victims would not have been deceived by Appellants and that they “knew ... what [they were] getting into.” Villaman Br. 27. But knowing that suggestive behavior or even sexual acts might become a part of the job does not mean that the victims therefore consented to being threatened or coerced into performing sexual acts they did not wish to perform. The very purpose of the Rule is to preclude defendants from arguing that because the victim previously consented to have sex—for love or money—her claims of coercion should not be believed.

The Government did not assert that the victims had not been engaged in sexualized business before they worked at the bars. The focus of the Government's case was that the victims were forced to perform sex acts against their will. Prior sexual conduct for money or pleasure was irrelevant to whether the victims' sexual activities at the bars were the result of coercion. See United States v. Roy, 781 F.3d 416, 420 (8th Cir.2015) (excluding evidence of victim's prior prostitution as irrelevant to defendant's charged conduct of sex trafficking); United States v. Valenzuela, 495 Fed.Appx. 817, 819–20 (9th Cir.2012) (“Appellants cannot show the relevance of questions about prior prostitution to either Appellants' knowledge of the use of force, fraud, or coercion, or the victims' consent to work in prostitution.”); United States v. Cephus, 684 F.3d 703, 708 (7th Cir.2012) (“[Defendants] wanted to suggest that having already been a prostitute she would not have been deceived by [Defendant] and therefore her testimony that she was coerced into working for him—an element of one of the charged offenses when the prostitute is not a minor, 18 U.S.C. § 1591(a) —should be disbelieved. But the testimony sought to be elicited by the cross-examination would have been irrelevant. Even if no promises were made to [the victim], this would not be evidence that she consented to be beaten and to receive no share of the fees paid by the johns she serviced.”). That some of the victims may have been prostitutes before working at the bars does not suggest that Appellants did not later threaten them with violence or deportation in order to coerce them into...