United States v. Ventura

• Decision Date: 18 July 2017
• Docket Number: No. 15-4808,15-4808
• Citation: 864 F.3d 301
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. German De Jesus VENTURA, a/k/a Chino, a/k/a Chalo, a/k/a Pancho, a/k/a Chaco, a/k/a Oscar, Defendant-Appellant.
• Court: U.S. Court of Appeals — Fourth Circuit

864 F.3d 301

UNITED STATES of America, Plaintiff-Appellee,

v.German De Jesus VENTURA, a/k/a Chino, a/k/a Chalo, a/k/a Pancho, a/k/a Chaco, a/k/a Oscar, Defendant-Appellant.

No. 15-4808

United States Court of Appeals, Fourth Circuit.

Argued: May 9, 2017

Decided: July 18, 2017

ARGUED: Erek Lawrence Barron, WHITEFORD, TAYLOR & PRESTON, LLP, Bethesda, Maryland, for Appellant. Rachel Miller Yasser, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee. ON BRIEF: Rod J. Rosenstein, United States Attorney, P. Michael Cunningham, Assistant United States Attorney, Melanie Goldberg, Student Law Clerk, OFFICE OF THE UNITED STATES ATTORNEY, Baltimore, Maryland, for Appellee.

Before GREGORY, Chief Judge, and KING and KEENAN, Circuit Judges.

Affirmed by published opinion. Judge King wrote the opinion, in which Chief Judge Gregory and Judge Keenan joined.

KING, Circuit Judge:

Appellant German de Jesus Ventura and his co-defendant, Kevin Garcia Fuertes, ran several brothels in Annapolis, Maryland. Eventually, their seedy empire was exposed, resulting in the prosecution of Ventura and Fuertes in the District of Maryland. In a seven-count indictment, Ventura was charged with sex trafficking and related offenses. After a jury found Ventura guilty of all seven charges, the district court sentenced him to 420 months in prison. Ventura appealed, and we vacated one of his seven convictions, plus the sentence imposed on the vacated conviction. We therefore remanded to the district court for resentencing. See United States v. Fuertes , 805 F.3d 485 (4th Cir. 2015) (the "First Decision").¹ On remand, the court resentenced Ventura to an aggregate of 420 months. Ventura has now appealed the new sentence and, as explained below, we affirm.

I.

A.

With the help of Fuertes, Ventura established and operated a chain of brothels in Annapolis, Maryland. In early 2008, Ventura was looking to expand and assume control of other brothels in the area. To that end, he was threatening violence to other pimps. For example, in March 2008, Ventura told an associate about another pimp who had been causing him trouble—Ricardo Humberto "el Pelon" Rivas Ramirez. On September 13, 2008, Ramirez was murdered. The Annapolis Police Department (the "APD") learned that, prior to the murder, Ramirez "had received threatening phone calls from two different phone numbers." See Fuertes , 805 F.3d at 490–91. Shortly thereafter, on September 24, 2008, Fuertes was arrested by the APD after being stopped for a traffic violation. That arrest revealed that Fuertes's cell phone number was associated with the threatening calls made to Ramirez. When arrested again by the APD on September 25, 2008, Fuertes had in his possession the cell phone from which the threatening calls to Ramirez had been made. Also in his possession were a handful of homemade business cards that advertised prostitution services.

After his September 25 arrest, Fuertes consented to a search of his home. During the search, the APD uncovered several items indicating that the home was a brothel. The search also turned up an address book that included an entry connecting the second phone number associated with Ramirez's threatening calls to a man named "Pancho." Further investigation revealed that Ventura, also known as "Pancho" and "Chino," was the subscriber of the second phone number.

With suspicions aroused, the APD continued to monitor the activities of Ventura and Fuertes. Their monitoring revealed that Ventura operated brothels in Annapolis and that his enterprise extended to Easton, Maryland, and Portsmouth, Virginia. In fact, the APD learned some operational details of Ventura's venture:

Ventura arranged for prostitutes to work in the brothels from Monday through Sunday. Typically, the women communicated with Ventura by phone, then traveled by bus to Washington, D.C., where they met Ventura, or one of his employees, and drove to the brothel where they worked for the week. The prostitutes provided fifteen minutes of sex for thirty dollars, and were paid half of the gross receipts, less expenses for food, hygiene products, and other expenses of the trade.

See Fuertes , 805 F.3d at 491. In addition to their pay, the prostitutes working for Ventura also received his wrath. One woman, Rebecca Duenas Franco, was compelled by Ventura "to engage in prostitution by violence and threats of violence, and [he] held her against her will.... On one occasion, when Duenas refused to have sex ... Ventura beat her with a belt." Id. Duenas—unlike other employees—was not financially compensated for her services. Ventura's violence also extended to his competitors, other employees, and those of whom he was suspicious. For example, according to Duenas, "Ventura threatened competitor pimps," "celebrat[ed] Ramirez's murder," "assaulted a male employee who threated to go to the police," and "beat a prostitute who he believed had sent people to rob one of his brothels." Id. at 492.

On March 25, 2009, Fuertes was again arrested by the APD. This time the APD found him in an Annapolis apartment littered with "evidence that the residence was being used as a brothel." See Fuertes , 805 F.3d at 492. A search of his person resulted in the seizure of a paper on which the phone number associated with Ventura and the threats to Ramirez was written.

When Ventura was arrested by the APD on September 24, 2009, he possessed two cell phones, but nevertheless claimed not to have a phone number. He explained that neither phone was his—"he had found one cell phone at the mall" and "he was borrowing the other from a taxicab driver whose name he did not know." See Fuertes , 805 F.3d at 492. One of the phones, however, carried the phone number associated with Ventura and the threats to Ramirez.

Several months later—on February 17, 2010—a 911 call about a robbery was made from yet another phone number associated with Ventura and from which other area pimps had been receiving threatening calls. The robbery—which occurred at one of Ventura's brothels—had been committed by a former employee of Ventura. That employee, who had worked as a doorman, "testified at trial that he committed the robbery because he had not been paid for his work at the brothel." See Fuertes , 805 F.3d at 492.

The APD subsequently learned that Ventura had opened a brothel in Easton, Maryland. During the execution of a search warrant at that brothel on July 7, 2010, the APD arrested two more of Ventura's employees. As the investigation into Ventura's illicit enterprises continued, the APD ascertained, on August 2, 2010, "that Ventura was transporting a prostitute from Maryland to a brothel in [Virginia]." See Fuertes , 805 F.3d at 492.

Finally, on November 3, 2010, "several men believed to be operating at Ventura's behest seriously assaulted competitor-pimp Hector Fabian Avila." See Fuertes , 805 F.3d at 492. At this point, the investigation came to a head, and the APD arrested Ventura at his home in Capitol Heights, Maryland, on November 15, 2010. He has been in custody since then.

B.

On November 29, 2011, Ventura was charged in a superseding indictment by the grand jury in Baltimore with seven offenses:

• Count One—Conspiracy to commit interstate prostitution, in violation of 18 U.S.C. § 371 ;

• Count Two—Interstate transportation in furtherance of prostitution offenses, in violation of 18 U.S.C. § 2421 ;

• Count Three—Coercion and inducement of individuals to travel in interstate commerce for prostitution and illegal sexual activity, in violation of 18 U.S.C. § 2422(a) ;

• Count Four—Interstate transportation in furtherance of prostitution offenses, in violation of 18 U.S.C. § 2421 ;

• Count Five—Interstate transportation in furtherance of prostitution offenses, in violation of 18 U.S.C. § 2421 ;

• Count Six—Sex trafficking by force, fraud, and coercion, in violation of 18 U.S.C. § 1591(a) ; and

• Count Seven—Possession of a firearm in furtherance of a crime of violence, in violation of 18 U.S.C. § 924(c).

See J.A. 24-38.² As recited in the First Decision, the jury in the District of Maryland found Ventura guilty of all seven counts. After denying Ventura's post-trial motion for judgments of acquittal or a new trial, the district court sentenced Ventura to an aggregate of 420 months in prison, including the following:

• 60 months on Count One;

• 120 months on Count Two, concurrent with sentence on Count One;

• 240 months on Count Three, concurrent with sentences on Counts One and Two;

• 120 months on Counts Four and Five, concurrent with sentences on Counts One through Three;

• 360 months on Count Six, concurrent with sentences on Counts One through Five; and

• 60 months on Count Seven, consecutive to sentences on Counts One through Six.

See J.A. 100.

C.

In the First Decision, we rejected Ventura's arguments relating to the district court's admission of "evidence of violence and threats of violence against competitor pimps" and challenging the admission of expert testimony relating to physical injuries. See Fuertes , 805 F.3d at 494, 497. We found meritorious, however, his contention that the sentencing court had erred in denying judgment of acquittal on Count Seven. Reviewing for plain error, the First Decision concluded that "the conviction under 18 U.S.C. § 924(c) for possession and use of a firearm in relation to a crime of violence was erroneous because ... sex trafficking by force, fraud, or coercion ... is not categorically a crime of violence." Id. at 490. We added that " ‘[five] years of a man's life is not a trifling thing,’ " and "[w]e simply cannot ‘require a man to serve [five] undeserved years in prison when [we] know [ ] that the sentence is improper.’ " Id. at 501 (quoting United States v. Ford , 88 F.3d 1350, 1356 (4th Cir. 1996) ) (third through fifth alterations in original). Accordingly, we vacated Ventura's conviction on Count Seven, "remand[ing] for entry of judgment of acquittal on that count and resentencing." Id.

D.

On remand, and prior to the resentencing...