United States v. Willoughby

• Decision Date: 11 March 2014
• Docket Number: No. 12–3822.,12–3822.
• Parties: UNITED STATES of America, Plaintiff–Appellee, v. Anthony C. WILLOUGHBY, Defendant–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

742 F.3d 229

UNITED STATES of America, Plaintiff–Appellee,

v.Anthony C. WILLOUGHBY, Defendant–Appellant.

No. 12–3822.

United States Court of Appeals,Sixth Circuit.

Argued: Nov. 22, 2013.

Decided and Filed: Jan. 30, 2014.

Rehearing and Rehearing En Banc Denied March 11, 2014.

ARGUED:Angela Hayden, Adams, Stepner, Woltermann & Dusing, PLLC, Covington, Kentucky, for Appellant. Daniel R. Hurley, United States Attorney's Office, Ann Arbor, Michigan, for Appellee. ON BRIEF:Angela Hayden, Adams, Stepner, Woltermann & Dusing, PLLC, Covington, Kentucky, for Appellant. Daniel R. Hurley, United States Attorney's Office, Ann Arbor, Michigan, for Appellee.

Before: SUTTON and KETHLEDGE, Circuit Judges; DOW, District Judge. ^*

OPINION

KETHLEDGE, Circuit Judge.

The jury in this case found that Anthony Willoughby had prostituted a 16–year–old runaway girl in violation of 18 U.S.C. § 1591. The district court sentenced him to 30 years in prison. Willoughby presents a raft of arguments on appeal, most of which are meritless. The exceptions are certain of the district court's evidentiary rulings at trial; but neither of those errors provide us any ground to grant relief. We therefore affirm.

I.

In January 2009, a 16–year–old girl (whom we call SW) ran away from her foster home with nothing but her purse. Over the next two weeks, SW stayed with a series of friends and acquaintances—until one of them introduced her to Anthony Willoughby, a.k.a. “Party Time,” a crack dealer and part-time pimp in Toledo. Willoughby was then 34–years–old and weighed 360 pounds. Willoughby told SW that she could live at his house with him and his eight-year-old daughter. Once there, SW was entirely dependent on Willoughby; she had no money or driver's license. Almost immediately, Willoughby began having sex with SW every day, oftentimes on a tan pillow in the living room. Willoughby also forced SW to engage in anal sex with him and to use anal beads.

One day, Willoughby asked SW if she had ever “sold [her] body.” SW said no. Willoughby said she would “learn the game.” SW felt that she had no choice but to comply, because she was “scared of him.”

Willoughby kept the names and numbers of his prostitution “customers” in a notebook with Barbie stickers. He told SW to cold-call the customers, and gave her scripts to follow: to call herself “Jessica” or “Jasmine,” to say that she had previously spoken to the customer on a chat line, to ask “do you want a show for 1 hour or 2,” and to get directions to the customer's house. With Willoughby standing over her shoulder—at one point, when she became upset during a call, he passed her a note saying “Take a breath”—SW called the men on the list. Then she wrote down the result of each call—“just got off work, going to bed,” “wrong # ,” “no answer”—next to each customer's name and number in the notebook.

But two of the customers—“Chip” (whom the police later identified as Albert Tusin), and “Ed” (whom they identified as Edward Miles)—each responded to SW's inquiry by asking her to come to his home. Willoughby instructed SW to charge $50 for oral sex, $75 for intercourse, and $100 for both. He also gave her undergarments to wear, two condoms for each visit, and instructions never to kiss the johns on the mouth. (That was reserved for Willoughby.) He then drove SW to each man's house and waited outside while the man had sex with SW. When SW returned to Willoughby's car, he made her give the john's money to him. SW also had commercial sex with a third man, “Pistol,” who came to Willoughby's house to buy crack; on that occasion Willoughby “offered” SW to Pistol directly.

Willoughby made other attempts to offer SW to johns. He took her to a nearby hotel where a swingers' convention was in progress, and made her “dress[ ] up” and walk the halls. That effort failed; Willoughby said that “they was [sic] people giving it up for free so who would want to pay.” One night Willoughby also took SW to Lagrange Street, a notorious prostitution “track” in Toledo, and left her there, alone, with instructions to “walk” for johns. She did not find any, and eventually used a phone at a party store to call Willoughby for a ride home. When Willoughby arrived, he was “upset” that she had not gotten any johns.

Willoughby began beating SW in March, once when she used his cellphone to make a personal call, and twice when she “wasn't obeying rules.” By the middle of that month, SW decided to try to leave him. To convince Willoughby to take her back to her foster parents, SW bit the inside of her lip hard enough to draw blood, and made herself vomit—“[t]o make him think I was throwing up blood, I was sick.” Willoughby eventually drove SW back to her foster home, but told her that, if she said anything, he would “take care of”—meaning harm—SW and her family.

SW's foster parents promptly called the police. The next day, law-enforcement agents interviewed SW and obtained a search warrant for Willoughby's home. There, they found the undergarments that Willoughby had bought for SW, a list of truck stops in nearby states, the notebook with Barbie stickers, another notebook in which Willoughby wrote rap lyrics about pimping, a camera with photos of SW, handwritten notes with phone numbers (including numbers for Miles and Tusin), a makeup bag with a condom in it, anal beads, and the tan pillow, among other things.

A jury thereafter convicted Willoughby of sex trafficking a minor through force, fraud, or coercion, in violation of 18 U.S.C. § 1591(a) and (b). The district court imposed a sentence of 360 months' imprisonment. This appeal followed.

II.

A.

Willoughby argues that the district court should have suppressed the evidence seized during the search of his home. In reviewing the denial of a motion to suppress, we review the district court's factual findings for clear error and its legal conclusions de novo. See United States v. Hodge, 714 F.3d 380, 384 (6th Cir.2013).

“[I]tems to be seized pursuant to a search warrant must be described with particularity[.]” Marcilis v. Twp. of Redford, 693 F.3d 589, 601 (6th Cir.2012). Willoughby contends that the warrant here fell short of that standard for two reasons. First, he says that the warrant recited a broad list of items “without specifying that those items have some connection to this case[.]” Thus, he suggests, the warrant left the officers free to search and seize whatever items they wished. We disagree: the warrant contained a global modifier that limited its scope to items that were related to a list of offenses for which there was probable cause to think Willoughby had committed. The warrant therefore supplied enough information to “guide and control the agent's judgment in selecting what to take[.]” United States v. Richards, 659 F.3d 527, 537 (6th Cir.2011).

Second, Willoughby contends that the warrant was overbroad, i.e., “that it include[d] items that should not be seized[.]” Id. (internal quotation marks omitted). But “[i]nfirmity due to overbreadth does not doom the entire warrant;” rather, it requires suppression only of any evidence seized pursuant to the part of the warrant that was overbroad. Id. (internal quotation marks omitted). And Willoughby has not identified any specific items of evidence that he thinks should have been suppressed—much less any that were seized pursuant to a part of the warrant that was somehow overbroad. (Willoughby also suggests that the affidavit in support of the warrant was not properly sworn; but he does not develop that argument, so we do not consider it.) The district court correctly denied the motion to suppress.

B.

Willoughby also raises several evidentiary issues on appeal.

1.

Willoughby argues that the district court wrongly applied Federal Rule of Evidence 412 to prevent him from cross-examining SW about an unrelated sexual-abuse allegation which she later recanted. Specifically, in July 2008—while SW was living in a group home for foster children—she alleged that, on one occasion, she had engaged in sexual activity with a counselor there. But thereafter the counselor passed a polygraph and SW withdrew the allegation, writing that she had “made the stories up.”

The government filed a motion in limine to bar Willoughby from cross-examining SW about this recantation. Willoughby responded that the recantation was probative of SW's truthfulness, which would make the recantation presumptively admissible under Rule 608(b). During oral argument on the motion, the district court recognized that the recantation “might go towards [SW's] credibility,” but concluded that her recantation was interwoven with her sexual conduct. The court therefore held that Rule 412 barred Willoughby from cross-examining her about the recantation. We review the court's decision for an abuse of discretion. See Gen. Elec. Co. v. Joiner, 522 U.S. 136, 141, 118 S.Ct. 512, 139 L.Ed.2d 508 (1997).

As amended in 2011, Rule 412 provides in relevant part:

(a) Prohibited Uses. The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct:

(1) evidence offered to prove that a victim engaged in other sexual behavior; or

(2) evidence offered to prove a victim's sexual predisposition.

Here, testimony about SW's recantation was not “offered to prove that [SW] engaged in other sexual behavior”—because the testimony's whole predicate was that there was no “other sexual behavior” to begin with. For the same reason, the testimony was not “offered to prove [SW]'s sexual predisposition.” Thus, by its terms, the Rule does not apply here.

The government responds that our decision in United States v. Cardinal, 782 F.2d 34 (6th Cir.1986), requires the opposite conclusion. In Cardinal, we applied a prior version of Rule 412—the original 1978 one—to uphold the district court's exclusion of an allegedly false accusation of sexual misconduct. Since then Rule 412 has been amended three times and substantially rewritten—in part to “expand the...