United States v. Rounds

• Decision Date: 09 April 2014
• Docket Number: No. 12–51081.,12–51081.
• Citation: 749 F.3d 326
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Trevin ROUNDS, Defendant–Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

749 F.3d 326

UNITED STATES of America, Plaintiff–Appellee,

v.Trevin ROUNDS, Defendant–Appellant.

No. 12–51081.

United States Court of Appeals,Fifth Circuit.

April 9, 2014.

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

Sharon Denotra Henderson (argued), Esq., Henderson Law Office, Jackson, MS, for Defendant–Appellant.

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

Before SMITH, DeMOSS, and HIGGINSON, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

Trevin Rounds was found guilty by a jury of being in possession of child pornography in violation of 18 U.S.C. § 2252(a)(4) (Count One) and using a facility of interstate commerce to persuade, induce, entice, or coerce a juvenile to engage in sexual activity in violation of 18 U.S.C. § 2422(b) (Count Two). He raises several issues on appeal, and we affirm.

I.

Before trial, Rounds moved to suppress “any and all photographic and/or video evidence that was gathered by the seizure and subsequent search of his phone.” The district court held an evidentiary hearing at which Rounds and sheriff's deputies Jeffery Whitson and Georgina Maritz testified. The court made the following findings: (1) Because Whitson “could not have viewed the contents of the phone without assistance from Defendant,” Rounds consented to the search; and (2) “[b]ased on the totality of the circumstances ... [,] consent was freely and voluntarily given.” Accordingly, the court denied the motion to suppress.

Shortly before trial, the government indicated that it planned to call Sheretta Trahan, Jane Doe's godmother; because she had not been previously listed as a witness, defense counsel objected. The court (1) continued the trial for one hour to allow counsel an opportunity to meet with Rounds and Trahan and (2) delayed her testimony for one day. An hour later, counsel informed the court that he had been able to meet the witness and to confer with his client, and the witness had answered his questions. Although the court had delayed the witness from testifying for another day, because counsel told the court “I'm ready to go forward,” Trahan testified the same day.

Similarly, the night before trial, the government disclosed its intent to introduce Tagged.com messages between Jane Doe and Rounds. Defense counsel again objected to that late disclosure. In response, the court granted a one-day continuance and again delayed, for one day, the government's introduction of that evidence. Again, defense counsel indicated that he was ready to go forward.

II.

The following evidence was presented at trial: In February 2012, Rounds contacted a fourteen-year-old female (“Jane Doe”), living in Houston, on the social networking website Tagged.com. She and Rounds began texting. She initially lied to Rounds about her age ¹ but testified about several incidents that made him aware of her real age. First, she acknowledged that the father of one of her former classmates saw her with Rounds and told Rounds that she was fourteen. Second, she ran away from her godmother's house on February 23, 2012. Before running away, Trahan asked Jane to place a call to Rounds during which Trahan told Rounds that Jane was fourteen and to stay away from her. Trahan's testimony corroborates the phone call.

In early March, after she ran away from home, Jane stayed approximately twelve nights with Rounds in a Houston hotel room and had sex there. Around March 12, Jane and Rounds got into an argument about her talking to other men online, including Brian Phea, who bought her a bus ticket from Houston to Amarillo. Rounds drove Jane to the bus station, and shortly after she arrived in Amarillo, she and Phea went to Odessa, where Phea was abusive, tasered her, and hit her, resulting in a ruptured eardrum. At some point in Odessa, Jane wanted to get away from Phea and return to Houston; Rounds agreed to drive to Odessa and pick her up from a motel where she was staying. During that time, Jane and Rounds continued to communicate via text messages and phone calls. Rounds eventually picked up Jane in Odessa on March 17.

Later that evening, Rounds's vehicle was pulled over in Eden, Texas, for a traffic violation. Whitson testified that he and his partner, Maritz, conducted the traffic stop. Whitson stated that during the course of the stop he obtained consent to search the vehicle and Rounds's iPhone, which was in the vehicle. At some point during the stop, Whitson decided to take Rounds and Jane to the police station, where Whitson again looked through the iPhone. This search uncovered a video that showed Rounds having intercourse with a young woman later determined to be Jane Doe. Jane's testimony confirmed that the video, which was admitted as evidence, was of Rounds and her having sex. Whitson also said that he seized a second cell phone—a flip phone that was being used by Jane—from Rounds's vehicle. Maritz's testimony corroborated much of Whitson's.

The government presented Lisa Upton as an expert in telephone cell site analysis. She testified that she had performed an analysis on the phone number registered to the iPhone seized from Rounds. As part of that analysis, she produced five maps pertaining to phone calls made from and received by Rounds's iPhone on March 17. Those maps showed that the iPhone was traveling within Texas, having left the Houston area around 5:00 a.m. on March 17, and arriving in Odessa about 1:00 p.m. Beginning at 12:20 a.m. on March 17, Rounds's iPhone had five consecutive incoming phone calls from the phone number associated with Jane Doe, followed by two outgoing calls to Jane's phone number. Next, between 3:41 a.m. and 4:20 a.m., Rounds's iPhone had two outgoing calls to, and two calls from, Jane's number.

Heath Hardwick, a Special Investigative Agent for the Department of Homeland Security, testified as an expert in computer forensics, including cell phone forensics. Hardwick analyzed the two phones seized during the March 17 traffic stop and produced a report for the iPhone seized from Rounds. The government introduced several text messages between Rounds and Jane.

III.

Rounds brings five challenges on appeal. First, he questions the sufficiency of the evidence on Count Two. Second, he contends venue was not proper in the Western District of Texas. Third, he maintains that he did not have an adequate opportunity to prepare for trial because the government had a material witness testify at trial without adequate notice to the defense and did not timely disclose Exhibit 14. Fourth, Rounds avers that the government failed to disclose Brady material ² when it did not provide the defense a copy of the notes made during Round's initial arrest. Fifth, Rounds claims the court erred in denying his motion to suppress.

IV.

The district court denied Rounds's Federal Rule of Criminal Procedure 29 motion, which challenged both the sufficiency of the evidence and venue as to Count Two. By moving for a judgment of acquittal at the close of the government's case and at the close of all the evidence and by requesting the jury to be instructed on venue, Rounds has preserved both of these issues for appeal.³

A.

“[R]eviewing courts must affirm a conviction if, after viewing the evidence and all reasonable inferences in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” United States v. Vargas–Ocampo, 747 F.3d 299, 301, 2014 WL 1303364, at *1 (5th Cir. Mar. 26, 2014) (en banc) (citing Jackson v. Virginia, 443 U.S. 307, 312, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)) (emphasis in Jackson ). “[I]t is the responsibility of the jury—not the court—to decide what conclusions should be drawn from evidence admitted at trial.” Cavazos v. Smith, ––– U.S. ––––, 132 S.Ct. 2, 4, 181 L.Ed.2d 311 (2011). In assessing the sufficiency of the evidence, this court considers both circumstantial and direct evidence. See United States v. Terrell, 700 F.3d 755, 760 (5th Cir.2012), cert. denied,––– U.S. ––––, 133 S.Ct. 1834, 185 L.Ed.2d 843 (2013). “The evidence need not exclude every reasonable hypothesis of innocence or be completely inconsistent with every conclusion except guilt, so long as a reasonable trier of fact could find that the evidence established guilt beyond a reasonable doubt.” Id.

Count Two charges Rounds with coercion and enticement in violation of 18 U.S.C. § 2422(b), which requires the government to prove that (1) Rounds used a facility of interstate commerce to commit the offense; (2) he was aware that Jane Doe was younger than eighteen; (3) by engaging in sexual activity with Jane, he could have been charged with a criminal offense under Texas law; and (4) he knowingly persuaded, induced, enticed, or coerced Jane to engage in criminal sexual activity.⁴ Focusing on the fourth element, Rounds avers that the evidence does not suggest that he pressured and persuaded Jane to come with him. According to Rounds, the record instead demonstrates that Jane “practically had to beg him to get him to come” to Odessa. Rounds therefore urges that he cannot have persuaded, induced, enticed, or coerced Jane to engage in criminal sexual activity. In contrast, the government contends that “[g]iven the continuing nature of the offense of coercion and enticement, it was entirely reasonable for the jury to look at the totality of the circumstances and conclude that Rounds engaged in a coercive and enticing communication with [Jane] while she was in Odessa.”

Evidence can establish that a defendant intended to induce, persuade, entice, or coerce a minor by sending the minor sexually explicit messages. In United States v. Lundy, 676 F.3d 444, 447 (5th Cir.2012), for example, we concluded that a rational jury could have found that the defendant enticed a minor in light...