United States v. Tavares

Decision Date14 January 2013
Docket Number11–1055,Nos. 10–1781,10–2495.,s. 10–1781
Citation705 F.3d 4
PartiesUNITED STATES of America, Appellee, v. Darryl TAVARES, a/k/a Young Stallion, a/k/a Stallion, Defendant, Appellant. United States of America, Appellee, v. Eddie Jones, a/k/a Young Indian, Defendant, Appellant.
CourtU.S. Court of Appeals — First Circuit

OPINION TEXT STARTS HERE

William A. Hahn, for appellant, Darryl Tavares.

Robert R. Herrick, for appellant, Eddie Jones.

Randall E. Kromm, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.

Before HOWARD, RIPPLE,* and LIPEZ, Circuit Judges.

RIPPLE, Circuit Judge.

After a jury trial, Darryl Tavares and Eddie Jones were both convicted under 18 U.S.C. § 371 of conspiracy to knowingly transport an individual in interstate commerce with the intent that such individual engage in prostitution, in violation of 18 U.S.C. § 2421 (Count One). Mr. Tavares was also convicted of knowingly transporting a minor, B.B., across state lines to engage in prostitution, in violation of 18 U.S.C. § 2423(a) (Count Nine), and of sex trafficking of a child, T.B., in violation of 18 U.S.C. § 1591 (Count Ten). Mr. Jones also was convicted of aiding and abetting the transportation of a minor, B.B., across state lines to engage in prostitution, in violation of 18 U.S.C. § 2423(a) (Count Nine), and of knowingly transporting a minor, K.S., in interstate commerce with the intent that she engage in prostitution, in violation of 18 U.S.C. § 2423(a) (Count Fourteen). The district court sentenced both Mr. Tavares and Mr. Jones to 300 months' imprisonment and to three years' supervised release. They have timely appealed their convictions and sentences on various grounds.1 For the reasons set forth in this opinion, we affirm the judgments of the district court.

IBACKGROUND

On May 16, 2007, a grand jury indicted Mr. Tavares, Mr. Jones and four other individuals for various offenses involving the transportation and trafficking of individuals for prostitution.2 They were indicted for conspiring to knowingly transport individuals in interstate commerce with the intent that those individuals engage in prostitution. In addition, Mr. Tavares was charged with two counts of sex trafficking of children, and Mr. Jones was charged with one count of transporting a minor to engage in prostitution. The four other individuals pleaded guilty; Mr. Tavares and Mr. Jones chose to go to trial.

At trial, the Government established that Mr. Tavares and Mr. Jones were pimps who, over several years, prostituted young women, including high-school-age girls. The Government presented five principal witnesses, women who had worked as prostitutes for Mr. Tavares, Mr. Jones or both. Four of these five women worked for one or both defendants as prostitutes when they were under eighteen.

The Government's evidence demonstrated that Mr. Tavares and Mr. Jones worked closely together. The testimony recounted one incident in which Mr. Tavares and Mr. Jones, along with an associate, took a young girl from her home in Maine to become a prostitute in Boston, Massachusetts. Travel such as this was common; another woman testified that she had worked for Mr. Jones as a prostitute in several cities along the East Coast (Boston, Massachusetts, Atlantic City, New Jersey, Philadelphia, Pennsylvania and Washington, D.C.). The Government also presented evidence that Mr. Tavares and Mr. Jones had used violence and coercion against their victims. For instance, on one occasion, Mr. Tavares took a young woman to another pimp, assisted in assaulting her and then offered to take her back with him.

Mr. Tavares and Mr. Jones were sentenced separately. Mr. Tavares received an “organizer or leader” enhancement. The district court then imposed an above-guidelines sentence of 300 months' imprisonment, to be followed by three years' supervised release. The district court determined that Mr. Jones was a career offender and imposed a within-guidelines sentence of 300 months' imprisonment, to be followed by three years' supervised release.

IIDISCUSSION

Mr. Tavares and Mr. Jones were tried together, but sentenced separately. Their consolidated appeal contains only one common issue. Thus, for clarity and ease of discussion, we shall address first their joint trial on the merits, beginning with the common issue and then turning to each defendant's claims. Finally, we shall discuss their respective sentencing claims.

A. Trial on the Merits1. The Common Issue: Voir Dire

Mr. Tavares and Mr. Jones each have nicknames. Mr. Tavares's is “Stallion” or “Young Stallion”; Mr. Jones's is “Young Indian.” These nicknames were included on the docket sheet posted outside of the courtroom during jury selection.

Voir dire of the prospective jurors lasted three days. At the beginning of the proceeding, the district court informed the jurors of the nature of the charges. The court then made some general inquiries to ascertain if any member of the venire had read or seen anything about the case or if any member was related to or knew the attorneys or witnesses. The court then pointedly admonished the prospective jurors that they were “under an order not to talk about the case and not to “guess what the case is about beyond what” the court had told them.3

The court then undertook an individual examination of each prospective juror. Counsel were permitted an allotted time to question each prospective juror. During that questioning, defense counsel often inquired about the jurors' views of pimps and prostitutes, and the relationship between the two. Defense counsel questioned some prospective jurors concerning their views about prostitutes who were minors. During this process, three prospective jurors reported that some members of the jury pool had discussed the district court's instructions about the case and the significance of Mr. Tavares's and Mr. Jones's nicknames in the jury room. They also said that there had been speculation about the nature of the case. They reported that several prospective jurors had laughed and joked about the nicknames, including one comment that the nicknames might indicate gang membership.

After listening to the jurors' accounts and considering the argument of counsel, the district court denied Mr. Tavares's motion to disqualify all jurors who had been in the jury room since the first report of discussion about the case and the nicknames. Mr. Tavares and Mr. Jones then asked to question prospective jurors who already had been preliminarily qualified. This request also was denied; the district court stated that it was not going to order the return of all preliminarily qualified jurors for additional questioning. It then explained that it was “fairly confident[ ] that all that was involved was speculation about what [the court's] instructions were and speculation about what [the defendants'] nicknames meant.” 4 The court also noted that, in any event, the nicknames would be revealed at trial and that the early revelation of the nicknames “pales [in comparison] to what [defense counsel] told the jurors” about the defendants' work as pimps.5

When subsequent prospective jurors were called for examination, the district court asked each potential juror whether he or she had discussed the case. One prospective juror, who admitted to joking about the nicknames, was challenged for cause and dismissed. After empaneling the jury, the court gave a general instruction to the jurors not to discuss the case with anyone, including each other, until all evidence was presented. However, no specific instruction was given about the nicknames or the earlier discussions.

Mr. Tavares and Mr. Jones submit that the district court's response to the discussion of the defendants' nicknames was inadequate. They maintain that the court committed reversible error when it refused to permit questioning of the entire jury pool. Alternatively, they contend that, upon learning of the discussion, the court should have dismissed the entire jury pool.

The parties variously cast the problem presented here as one of juror taint on the theory that prospective jurors were exposed to material outside the record, or of premature deliberation because prospective jurors speculated among themselves about the significance of facts that eventually would be before them, if they were selected for service on the chosen jury. Neither of these characterizations is a precise description of the rather unique situation that confronted the district court. In any event, choosing between these characterizations is not an essential part of the analytical task facing a district court, or this court, when dealing with juror misconduct. Our cases make clear that when faced with a non-frivolous allegation of any sort of juror misconduct, the district court must engage in a two-step analysis. See United States v. Diaz, 597 F.3d 56, 62–63 (1st Cir.2010); United States v. Tejeda, 481 F.3d 44, 52 (1st Cir.2007). First, the court must determine whether misconduct occurred. If no misconduct occurred, no further action is required. [M]isconduct allegations that are frivolous ... do not trigger any duty of inquiry and do not require that a hearing be held.” United States v. Mikutowicz, 365 F.3d 65, 74 (1st Cir.2004) (alterations in original) (internal quotation marks omitted). On the other hand, if any misconduct did occur, the court must proceed to “assess[ ] the magnitude and extent of any prejudice caused” and, if necessary, take remedial measures. Tejeda, 481 F.3d at 52. If no curative measures appear adequate, the court may grant a timely motion for mistrial. Id.

We review for abuse of discretion a district court's handling of juror misconduct. Diaz, 597 F.3d at 62.6 The fact-specific and often delicate task of assessing such situations, which often requires the assessment of witness credibility, counsels that a district court must “enjoy broad discretion in addressing potential juror misconduct.” Id. Therefore, “norm...

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