United States v. Wardlow

• Decision Date: 29 July 2016
• Docket Number: No. 15-2962,15-2962
• Citation: 830 F.3d 817
• Parties: United States of America, Plaintiff–Appellee, v. Tony Eugene Wardlow, Defendant–Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

830 F.3d 817

United States of America, Plaintiff–Appellee

v.Tony Eugene Wardlow, Defendant–Appellant.

No. 15-2962

United States Court of Appeals, Eighth Circuit.

Submitted: April 14, 2016

Filed: July 29, 2016

Rehearing and Rehearing En Banc Denied October 7, 2016

Rebecca L. Kurz, Research and Writing Specialist, Office of the Fed. Public Defender, Kansas City, MO, argued (Laine Cardarella, Fed. Public Defender, on the brief), for appellant.

Patrick D. Daly, Asst. U.S. Atty., Kansas City, MO, argued (Tammy Dickinson, U.S. Atty., on the brief), for appellee.

Before COLLOTON and SHEPHERD, Circuit Judges, and MOODY,¹ District Judge.

MOODY, District Judge.

A jury convicted Defendant Tony Eugene Wardlow of transportation of a minor for prostitution, a violation of 18 U.S.C. § 2423(a)

. The district court sentenced him to 250 months' imprisonment. Wardlow appeals from his conviction and sentence, specifically challenging two of the district court's² evidentiary rulings during trial and the court's application of the United States Sentencing Guidelines at sentencing. We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We affirm.

I.

At trial, the minor (“A.R.”) testified that in August of 2011 she met Wardlow on Independence Avenue in Kansas City, Missouri, where she worked as a prostitute. She was sixteen years old at the time. The Defendant became a “regular” client, meaning that she engaged in sex with him in exchange for money two to three times per week. She testified that having a “regular” provided a more stable income for her than soliciting “tricks” on Independence Avenue. She testified that she would give a “regular” more time and attention, but would not form an emotional attachment to them. A.R. testified that Wardlow was sometimes nice but other times he would “say things, inhumane things, place ideas into my head of fear, make me in fear, degrade me, a lot of things like that.” (Trial Tr. vol.1, 23). A.R. stated that Wardlow would pick her up and drive her to places in Missouri where “it's very common for girls to end up dead there,” and he would tell her that was where she would end up. Wardlow told her that she was “just a black prostitute, that nobody would come and look for [her].” Id. A.R. explained that Wardlow provided her with a mobile phone so that he could contact her. When asked whether anyone else knew the phone number, A.R. stated that she gave the phone number to someone else “because at that time I was in fear that I wasn't going to make it through anything, so I really just wanted somebody to have a number to get ahold [sic] of me like if there was no more contact between me and my family.” (Trial Tr. vol. 1, 24).

A.R. testified that Wardlow, an over-the-road truck driver, took her along on certain trips for the purpose of having sex with him and his friends. On one occasion, the Defendant, A.R., and his friend, Tom Farrell, took a trip to St. Louis. A.R. testified that she had sex with both men during the trip and was paid for the sex. This testimony was corroborated by the government's witness, Tom Farrell. A.R. testified that she was always paid in cash because she had to pay her pimp in cash but frequently the Defendant would supplement the cash with payment in kind. These payments were given in the form of food, clothing, and drugs. Wardlow took A.R. to Texas on another long-haul trip in late September of 2011. Again, Tom Farrell traveled with them and testified that the Defendant brought A.R. along to have sex with both men. A.R. testified that she had sex with Tom and Tony on this trip. Farrell and A.R. both testified that Wardlow's plan was to set A.R. up in an apartment in St. Joe, Missouri, so that she would be available to Wardlow and his friends at any time.

II.

In a pretrial motion in limine, the Government argued that any reference to A.R.'s sexual behavior after the time of the offense, specifically evidence of A.R.'s prostitution activity with a man named Otis Warren, should be precluded. Mr. Warren had also been charged and pled guilty to transporting A.R. for the purpose of prostitution in 2011. The Government argued that the evidence was inadmissible under Rule 412 of the Federal Rules of Evidence

which precludes introduction of evidence of a victim's sexual behavior in a criminal sex offense case with specific exceptions.

The Government also argued that the evidence regarding Otis Warren was irrelevant, prejudicial, and likely confusing to the jury. See Fed. R. Evid. 403

. The district court granted the Government's motion in limine and precluded evidence of A.R.'s prostitution activity with Otis Warren.

Wardlow argued at trial that he lacked the intent required to prove the trafficking of a minor charge against him because he considered A.R. to be his girlfriend. Wardlow attempted to cross-exam A.R. about her testimony that she would not develop an emotional attachment to a client. Wardlow proffered his line of questioning based upon a personal journal entry in which A.R. had stated that she had established a boyfriend-girlfriend relationship with Warren after her relationship with Wardlow ended. The district court affirmed its previous ruling and denied the proffer. Wardlow contends the district court abused its discretion when it limited his cross-examination of A.R. into this issue, violating his Sixth Amendment right to confront the witnesses against him.

Rule 412

excludes any “evidence offered to prove that a victim engaged in other sexual behavior” or “evidence offered to prove a victim's sexual predisposition” from a civil or criminal proceeding involving alleged sexual misconduct.³ Fed. R. Evid. 412. Clearly, testimony elicited from A.R. about her prostitution activity with Otis Warren would fall under the prohibition of Rule 412. Wardlow's Sixth Amendment right to confront a witness does not extend to any and all questions he intends to ask. “A restriction on an accused's right to introduce evidence may not be arbitrary or disproportionate to the purpose that the restriction is designed to serve....” United States v. Papakee, 573 F.3d 569, 573 (8th Cir. 2009) (citing Michigan v. Lucas, 500 U.S. 145, 151, 111 S.Ct. 1743, 114 L.Ed.2d 205 (1991) ). The purpose of the Rule 412 restriction is “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 and the infusion of sexual innuendo into the factfinding process.” Fed. R. Evid. 412 advisory committee's note to 1994 amendment. This purpose outweighs Wardlow's right to produce testimony showing that the victim had an emotional relationship with a different client. Wardlow's Sixth Amendment right was not violated by the exclusion of this evidence.

In addition, the proffered line of questioning by Wardlow was irrelevant. Wardlow sought to prove that he believed A.R. was his girlfriend. The question which he proffered regarding A.R.'s feelings for Mr. Warren did not tend to prove Wardlow's state of mind, but rather A.R.'s state of mind. In other words, the testimony would be used to show that A.R. likely consented to the transportation for sex.

The consent or willing participation of [a minor] is insignificant and hardly relevant. “[W]hen sexual assaults are committed upon children ..., consent is not a defense. The reason is that the victims in these cases, because of ignorance or deceit, do not understand what is happening to them. Therefore their ‘consent’ is of no significance.”

United States v. Abad , 350 F.3d 793, 798 (8th Cir. 2003)

(quoting Guarro v. United States, 237 F.2d 578, 581 (D.C.Cir.1956) ). See also

Gebardi v. United States, 287 U.S. 112, 119, 53 S.Ct. 35, 37, 77 L.Ed. 206 (1932) (The “statute is drawn to include those cases in which the woman consents to her own transportation.”).

A trial, the Government called Detective Derrick Wilczek as a witness. Wilczek is an officer with the FBI's Child Exploitation Task Force and was involved with the investigation of the Defendant. Wilczek conducted a recorded interview of Wardlow on the day a search was conducted at Wardlow's home. During Wilczek's direct examination, the Government played short audio clips of the interview, including transcription, and stopped to ask Wilczek questions about that particular clip. After playing the first audio clip, the following exchange occurred:

Government: ... [H]ow does [Wardlow] refer to [A.R.] in this?

Wilczek: As a “streetwalker from the Avenue.”

Government: Does he use variations about kind of the way he referred to her? What other sorts of terms does he use to refer to her during the course of this interview?

Wilczek: At times he calls her a whore, a lying bitch.

(Trial Tr. vol 1, 191).

At the conclusion of Wilczek's direct testimony and outside the presence of the jury, the Defendant asked the district court whether he would be allowed to cross-examine Wilczek about Wardlow's characterization of the victim. The defense argued that the Government had opened the door to this line of questioning when the witness testified that Wardlow called A.R. a “lying bitch.” The district court affirmed its pretrial order in which the court precluded any evidence relating to a mistake of fact defense based on Wardlow's mistaken belief that A.R. was eighteen years old. In response to the Government's motion in limine, the Defendant had argued that A.R. was a critical and essential witness for the Government and the Defendant should be allowed to inquire as to her reputation for truthfulness. The Defendant conceded that there was no mistake of fact defense available to him. The court had reasoned that whether A.R. lied about her age was irrelevant to the issues to be proven at trial. Citing Rule 403 of the Federal Rules of Evidence

, the court ruled that the information would confuse the jury regarding a mistake of fact defense. At trial, the court ruled that the Defendant could not cross examine Detective...