United States v. Thompson, Docket No. 16-2986

CourtUnited States Courts of Appeals. United States Court of Appeals (2nd Circuit)
Citation896 F.3d 155
Docket NumberDocket No. 16-2986,August Term, 2017
Parties UNITED STATES of America, Appellee, v. Alvaun THOMPSON, aka LP, aka Legit Pimp, aka AT, Defendant-Appellant.
Decision Date13 July 2018

896 F.3d 155

UNITED STATES of America, Appellee,
Alvaun THOMPSON, aka LP, aka Legit Pimp, aka AT, Defendant-Appellant.

Docket No. 16-2986
August Term, 2017

United States Court of Appeals, Second Circuit.

Argued: August 28, 2017
Decided: July 13, 2018

896 F.3d 158

Matthew B. Larsen, Assistant Federal Defender, Federal Defenders of New York Appeals Bureau, New York, NY, for Defendant-Appellant.

Matthew Jacobs, Assistant United States Attorney (David C. James, Jennifer Sasso, Assistant United States Attorneys, on the brief ), for Richard P. Donoghue, United States Attorney for the Eastern District of New York, Brooklyn, NY, for Appellee.

Before: Parker, Lynch, and Carney, Circuit Judges.

Susan L. Carney, Circuit Judge:

Following a jury trial, Alvaun Thompson was convicted in 2015 on nine counts related to his prostitution of two minor victims in New York City in 2013 and 2014. On appeal from the judgment entered in the Eastern District of New York (Glasser, J. ), Thompson challenges his convictions for violating 18 U.S.C. § 1591 ("Sex trafficking of children or by force, fraud, or coercion") and 18 U.S.C. § 2251 ("Sexual exploitation of children"). He argues that section 1591 is unconstitutionally overbroad; that his indictment was deficient as to the section 1591 count, in that it failed to allege that he knew one of his minor victims was younger than 14 years of age; and that, as to his conviction under section 2251, the government failed to prove that venue was proper in the Eastern District of New York. For the reasons set forth below, we reject these challenges.

In relevant part, section 1591 proscribes "harbor[ing] ... or maintain[ing]" a person under the age of 18, knowing that the person "will be caused to engage in a commercial sex act." 18 U.S.C. § 1591(a). Thompson premises his constitutional overbreadth challenge to the statute principally on the theory that charities and religious organizations, as well as family members of minor prostitutes, could be prosecuted under section 1591 for providing food, shelter, and other support to young persons engaged in prostitution.

896 F.3d 159

Such prosecutions, he argues, would violate those entities’ or individuals’ First Amendment expressive associational and intimate associational rights. We decide that, even assuming that the statute could reasonably be construed to permit such prosecutions as he hypothesizes, Thompson has demonstrated neither that section 1591 substantially burdens First Amendment rights in an "absolute sense," United States v. Williams , 553 U.S. 285, 292, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008), nor that it substantially burdens First Amendment rights relative to its broad legitimate sweep.

Thompson also fails to persuade us that, because the indictment did not allege that he knew that one minor victim was under 14 years of age, his conviction under subsections (a) and (b)(1) of section 1591 must be reversed. Rather, we conclude that the statutory language requires that the defendant know or recklessly disregard the fact that a minor was younger than 18 years old. It does not mandate, to support the increased punishment in subsection (b), that the government prove that a defendant knew or recklessly disregarded that a minor was under the age of fourteen.

Finally, Thompson’s venue challenge to his conviction under section 2251 after a jury trial in the Eastern District of New York is also unavailing. As relevant here, section 2251 criminalizes the production of child pornography. Although Thompson physically produced the pornographic video at issue in the Southern District of New York, the government presented ample evidence that elements of Thompson’s criminal conduct—his persuasion, inducement, enticement, or coercion of the minor victim, leading her to engage in the sex acts depicted in the video—occurred in the Eastern District. Based on this evidence, the jury was entitled to find that venue for prosecution lay in the Eastern District of New York.

We therefore AFFIRM the judgment of the District Court.


Because Thompson appeals from a judgment of conviction entered after a jury trial, we "draw the facts from the evidence presented at trial, viewed in the light most favorable to the government." United States v. Allen , 864 F.3d 63, 69 n.8 (2d Cir. 2017) (internal quotation marks omitted).

Thompson began his relationship with the two minor female victims of concern here—identified as M1 and M2—in early 2013, when he was twenty-six years old and they were thirteen and fifteen years old, respectively. Thompson soon began directing the minors to engage in prostitution: he instructed them to offer their prostitution services on the "Penn Track"—a notorious area in Brooklyn’s East New York neighborhood—and he advertised their services as prostitutes on the now-defunct website www.backpage.com ("Backpage"). Thompson’s Backpage postings displayed the minors semi-nude and in sexually suggestive poses, and offered to sell the prostitution services of each. On several occasions from March through November 2013, the girls were each arrested on the Penn Track for prostitution.

From those early 2013 encounters through the 2015 arrest of Thompson that led to the convictions he now appeals, Thompson employed a variety of methods to gain and maintain control over the girls. He shared an address in Brooklyn with them for at least some of the time during which he sold their prostitution services, and he exercised stringent control over the girls’ finances. He professed affection for them and, at the same time, threatened them

896 F.3d 160

with violence and cursed at them.1 Thompson personally tattooed his alias—"LP"—under M2’s eye, and M1 had his first name tattooed on her breast. The record contains numerous transcripts and recordings of conversations between Thompson and each of the teenagers that depict this controlling and manipulative relationship. These interactions reflect the girls’ conviction that they were engaging in prostitution out of a devotion to him.

The control that Thompson exercised over the girls was powerful. In September 2013, Thompson was arrested for a robbery that had occurred a month earlier and was incarcerated on Rikers Island from then until July 2014, when, after being convicted of petit larceny and sentenced to time served, he was released. Nonetheless, from his first day on Rikers Island until the end of his confinement there eleven months later, he continued to manage and prostitute the girls, directing their activities through phone calls to his confederates and to the girls themselves. Even from the remove of that jail, he was able to dictate where the girls would live, what rooms they would rent for their prostitution activities, and what prostitution services they would offer to customers. He also continued to collect his portion of the proceeds of their prostitution, successfully demanding that the girls place his claimed share in his commissary account at the jail. His threats, harassment, and emotional abuse of the girls also persisted during this period.2

In July 2014, soon after his release from jail, Thompson rejoined M1 and M2. Over the next six months, he posted dozens of advertisements for their prostitution services on Backpage. Thompson also transported M1 and M2 to Maryland and Pennsylvania, advertising their services in those states. During this time, he sent the girls semi-nude photos of each other and of other prostitutes who were working for him.

In December 2014, following a vice-unit investigation that lasted eighteen months, New York City police officers arrested Thompson in a Bronx motel, where they found him with M1 and M2. Although, notwithstanding their lengthy investigation, they soon released Thompson, the officers seized his mobile phone in connection with the arrest. On that phone, they found a video made earlier in December and later ascertained to have been made in the Bronx of M1 performing oral sex on Thompson. In January 2015, the FBI arrested Thompson on the federal charges that led to the convictions he now contests.

After a four-day trial in November 2015, a jury found Thompson guilty on nine counts. Eight counts were related to his prostitution of the girls: three counts of sex trafficking of minors in violation of 18 U.S.C. § 1591(a) and (b) ; one count of promoting prostitution in violation of 18 U.S.C. § 1952(a) ; two counts of illicitly transporting minors in violation of 18 U.S.C. § 2423(a) ; and two counts of interstate prostitution in violation of

896 F.3d 161

18 U.S.C. § 2422(a). The ninth count charged sexual exploitation of a child through the production of child pornography in violation of 18 U.S.C. § 2251(a). That charge was based on the video found on Thompson’s phone at the time of his arrest in December 2014.

In preparation for sentencing and in response to the presentence report, the District Court conducted a hearing under United States v. Fatico , 603 F.2d 1053 (2d Cir. 1979), and found by a preponderance of the evidence that Thompson was responsible for a September 2013 murder related to a dispute with a rival over control of M2. Based on this...

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