United States v. Brooks

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, No. 08-10301

v.  D.C. No.

2:07-cr-00411-

DEPAUL BROOKS, DGC-2

Defendant-Appellant.



UNITED STATES OF AMERICA,  No. 08-10437

Plaintiff-Appellee, D.C. No.

v.  2:07-cr-00411-

UAWNDRE LARUE FIELDS, DGC-1

Defendant-Appellant.

 OPINION

Appeals from the United States District Court

for the District of Arizona

David G. Campbell, District Judge, Presiding

Argued and Submitted

November 2, 2009—San Francisco, California

Filed July 8, 2010

Before: Betty B. Fletcher, William C. Canby, Jr. and

Susan P. Graber, Circuit Judges.

Opinion by Judge Canby

9723

9728 UNITED STATES v. BROOKS

COUNSEL

Thomas E. Haney, Phoenix, Arizona, for defendant-appellant

Brooks; Philip E. Hantel, Phoenix, Arizona, for defendant-

appellant Fields.

Joan G. Ruffennach, Assistant United States Attorney, Phoe-

nix, Arizona, for the plaintiff-appellee.

OPINION

CANBY, Circuit Judge:

Following a jury trial, Depaul Brooks and Uawndre Fields

both were found guilty of two counts of child sex trafficking

and two counts of interstate transportation of minors for pur-

poses of prostitution. Brooks and Fields now appeal their con-

victions and sentences on a number of grounds, including

challenges to the sufficiency of the evidence, the denial of a

suppression motion, and a sentencing enhancement. We have

jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C.

§ 3742. We affirm all of the convictions, but we vacate both

sentences and remand the matter to the district court for resen-

tencing.

FACTUAL AND PROCEDURAL BACKGROUND

In late April 2006, sixteen-year-old N.K. and fifteen-year-

old R.O. ran away from a residential treatment center in

Scottsdale, Arizona. For a brief time, the girls stayed at a

UNITED STATES v. BROOKS 9729

hotel with one of R.O.’s friends, who gave them methamphet-

amine, N.K.’s first experience with the drug. Eventually, the

girls left the hotel and met Brooks and Fields, as well as

another man known only as “Lee.” The girls told the men that

they had nowhere to go, and the men brought the girls to a

different hotel room that Brooks had rented.

That night, after Fields had left, the girls told Brooks and

Lee that they had run away from a juvenile detention center.

The men laughed and made jokes about N.K. and R.O. being

juvenile delinquents and suggested that the girls go to San

Diego to work for Fields as prostitutes. The next day, Fields

told R.O. that he was a pimp and asked her to work for him.

When R.O. asked Fields what N.K. would do, Fields

responded that R.O. could ask N.K. to come, too. During

these initial conversations, R.O. told both Brooks and Fields

that she and N.K. were minors.

The next day, Brooks and Fields introduced the girls to

Julia Fonteneaux, a prostitute who described herself as

Fields’s “main chick.” After Fonteneaux explained certain

details about prostitution to the girls, Brooks and Fields drove

R.O. and N.K. to the bus station, where the men bought the

girls bus tickets to San Diego, assigning them false names.

The morning after the girls arrived in San Diego, Brooks,

Fields, and Fonteneaux met the girls at the apartment of an

associate of Fields, where R.O. and N.K. had slept. Fields

took R.O. shopping for sexually provocative clothing and

shoes, and then both men brought the girls and Fonteneaux to

a motel. At Fields’s direction, Fonteneaux posted prostitution

ads on craigslist.com for N.K., R.O., and herself, and

explained to the girls how to handle customers. Over the next

two days, R.O. engaged in two or three acts of prostitution at

the hotel. N.K., however, who still was disoriented by the

drugs she had taken in Arizona, did not engage in any such

acts.

9730 UNITED STATES v. BROOKS

Three days later, Brooks, Fields, Fonteneaux, and the girls

traveled back to Phoenix in a rented Ford Freestyle. All of the

females were dressed in provocative clothing, and R.O. and

Fonteneaux understood the trip’s purpose to be prostitution.

Upon arriving in Phoenix, the men dropped R.O. and Fon-

teneaux off near the corner of 51st Avenue and McDowell

Road, an area of Phoenix known for prostitution. R.O.

engaged in two or three acts of prostitution, but later that

night she was taken into custody by the Phoenix police after

an officer who observed her on the street determined that she

was underage.

After Brooks and Fields left R.O. and Fonteneaux, Brooks

rented two rooms for the group at nearby hotels. Fonteneaux

called Fields later that night to tell him that R.O. had been

picked up by the police. The next day, Fields left N.K. at a

bus station with her and R.O.’s belongings, but otherwise pen-

niless.

After being taken into custody, R.O. recounted to the police

the previous days’ events and described the men involved and

their rental vehicle. The following evening, using the informa-

tion provided by R.O., police officers stopped Brooks and

Fields in the Ford Freestyle and held them in custody for sev-

eral hours. The officers also searched the Ford Freestyle at the

local police precinct, discovering receipts for motel rooms

and car rental and other incriminating evidence.

A federal grand jury returned a superseding indictment

against Brooks, Fields, and Fonteneaux, charging each of

them with two counts of child sex trafficking, 18 U.S.C.

§§ 1591(a) & 2, and two counts of interstate transportation of

minors for purposes of prostitution, 18 U.S.C. §§ 2423(a), (e)

& 2. Fonteneaux pleaded guilty and received a reduced sen-

tence in exchange for her testimony against Brooks and

Fields.

Prior to trial, Brooks and Fields moved to suppress evi-

dence seized from the Ford Freestyle, as well as the fruits of

UNITED STATES v. BROOKS 9731

that evidence, arguing that their detention on the night of

April 29, 2006, as well as the accompanying search of their

vehicle violated the Fourth Amendment. They also moved to

dismiss Counts 3 and 4 of the indictment as multiplicitous of

Counts 1 and 2. The district court denied both motions. At

trial, the district court also overruled Defendants’ objections

to the introduction of the expert testimony of Phoenix Police

Department Detective Christi Hein on the relationship

between pimps and prostitutes and the business of prostitu-

tion.

A jury found Brooks and Fields guilty on all counts. The

district court subsequently denied Defendants’ renewed

motions for judgment of acquittal. Brooks was sentenced to

97 months in prison for each count, to run concurrently.

Fields was sentenced to 198 months in prison for each count,

also to run concurrently.

DISCUSSION

Brooks and Fields appeal their convictions and sentences

on several grounds. Brooks alone challenges the district

court’s pre-trial denials of the motions to suppress evidence

and to dismiss Counts 3 and 4 of the indictment as multiplicit-

ous of Counts 1 and 2. Both Appellants challenge the district

court’s decision to admit Detective Hein’s expert testimony.

Brooks and Fields also both appeal the denial of their motions

for judgments of acquittal, although Brooks appeals the denial

of the motion as to all counts, while Fields appeals the denial

only as to Counts 2 and 4, which related to N.K. Finally,

Brooks and Fields challenge their sentences on various

grounds.

The Motion to Suppress Properly Was Denied

Brooks first challenges the district court’s denial of his

motion to suppress, arguing that his warrantless arrest and the

subsequent warrantless search of the Ford Freestyle were ille-

9732 UNITED STATES v. BROOKS

gal. Reviewing de novo the denial of the motion to suppress,

United States v. Delgado, 545 F.3d 1195, 1200 (9th Cir.

2008), cert. denied, 129 S. Ct. 1383 (2009), we reject

Brooks’s contentions.

[1] Brooks’s warrantless arrest was proper because it was

supported by probable cause. See United States v. Lopez, 482

F.3d 1067, 1072 (9th Cir. 2007). “Probable cause to arrest

exists when officers have knowledge or reasonably trustwor-

thy information sufficient to lead a person of reasonable cau-

tion to believe that an offense has been or is being committed

by the person being arrested.” Id. (citing Beck v. Ohio, 379

U.S. 89, 91 (1964)). Here, probable cause was established by

the substantial correspondence between the officers’ observa-

tions at the time of the arrest and the details that R.O. had pro-

vided to the police concerning the crime, the individuals

involved, their vehicle, and the location where the perpetra-

tors operated. Even if Brooks’s name and appearance did not

correspond exactly to R.O.’s description of the men involved,

“[n]either certainty, nor proof beyond a reasonable doubt, is

required for probable cause to arrest.” United States v. Har-

vey, 3 F.3d 1294, 1296 (9th Cir. 1993). The considerable sim-

ilarity between the officers’ observations and R.O.’s

description was sufficient to lead a person of reasonable cau-

tion to conclude that Brooks was one of the men who had

brought R.O. and N.K. to and from California for purposes of

prostitution, establishing probable cause to arrest him.

[2] The warrantless search of the Ford Freestyle also was

proper. Under the automobile exception to the warrant

requirement, police may conduct a warrantless search of a

vehicle if there is probable cause to believe that the vehicle

contains evidence of a crime. See, e.g., United States v.

Albers, 136 F.3d 670, 673-74 (9th Cir. 1998). “Probable cause

to search is evaluated in light of the totality of the circum-

stances.” United States v. Pinela-Hernandez, 262 F.3d 974,

978 (9th Cir. 2001). Under the totality of the circumstances in

this case, the officers, at the time they stopped the Ford Free-

UNITED STATES v. BROOKS 9733

style, had probable cause to believe that the vehicle contained

evidence of interstate child sex trafficking. Not only did the

vehicle match R.O.’s description of the car that had trans-

ported her from San Diego back to Phoenix, but it was found

in the same area where the police, less than twenty-four hours

before, had picked up R.O., and its occupants largely matched

R.O.’s description of the men involved. Consequently,

because both the arrest and the search were proper, the district

court did not err in denying the motion to suppress.

Counts 3 and 4 Were Not Multiplicitous of Counts 1

and 21

Brooks next contends that the district court erred in deny-

ing his motion to dismiss Counts 3 and 4 as multiplicitous of

Counts 1 and 2, in violation of the Fifth Amendment’s Double

Jeopardy Clause. “The question of whether an indictment is

multiplicitous—charges a single offense in more than one

count—is reviewed de novo.” United States v. Vargas-

Castillo, 329 F.3d 715, 718-19 (9th Cir. 2003). In this matter

of first impression, we conclude that, because 18 U.S.C.

§ 1591(a) and 18 U.S.C. § 2423(a) each require proof of a fact

that the other does not, Brooks’s multiplicity challenge fails.

[3] “The Fifth Amendment’s prohibition on double jeop-

ardy protects against being punished twice for a single crimi-

1

The issue of multiplicity is not rendered moot by the fact that the sen-

tences of imprisonment are concurrent. Brooks was given a $100 special

assessment per count pursuant to 18 U.S.C. § 3013 ($400 total). In Rut-

ledge v. United States, 517 U.S. 292, 301 (1996), the Supreme Court held

that even where the associated terms of imprisonment are concurrent, “[a]s

long as § 3013 stands, a second conviction will amount to a second pun-

ishment.” Moreover, in Ball v. United States, 470 U.S. 856, 864-65

(1985), the Supreme Court cast considerable doubt on the proposition that

the concurrence of a sentence could render harmless a double jeopardy

violation. See also United States v. Overton, 573 F.3d 679, 690 (9th Cir.),

cert. denied, 130 S. Ct. 480 (2009); United States v. Davenport, 519 F.3d

940, 947 (9th Cir. 2008).

9734 UNITED STATES v. BROOKS

nal offense.” United States v. Davenport, 519 F.3d 940, 943

(9th Cir. 2008). “If the same act constitutes a violation of two

different statutes, the test to determine whether punishment

for both offenses may be imposed is ‘whether each provision

requires proof of a fact which the other does not.’ ” United

States v. Solomon, 753 F.2d 1522, 1527 (9th Cir. 1985) (quot-

ing Blockburger v. United States, 284 U.S. 299, 304 (1932)),

superseded on other grounds as recognized by Daubert v.

Merrell Dow Pharms., Inc., 43 F.3d 1311, 1314 & n.2 (9th

Cir. 1995). “The elements of the offenses are determinative,

even if there is a substantial overlap in their proof.” Id.

[4] Counts 1 and 2 charged Brooks with violating 18

U.S.C. § 1591(a) (2005), which provided in pertinent part:

Whoever knowingly—

(1) in or affecting interstate or foreign

commerce . . . recruits, entices, har-

bors, transports, provides, or obtains

by any means a person . . .

....

knowing . . . that the person has not attained the age

of 18 years and will be caused to engage in a com-

mercial sex act, shall be punished as provided in sub-

section (b).

Counts 3 and 4 charged violations of 18 U.S.C.

§ 2423(a)(2005), which provided:

Transportation with intent to engage in criminal sex-

ual activity.—A person who knowingly transports an

individual who has not attained the age of 18 years

in interstate or foreign commerce . . . with intent that

the individual engage in prostitution . . . shall be

UNITED STATES v. BROOKS 9735

fined under this title and imprisoned not less than 5

years and not more than 30 years.

A comparison of the two statutes’ elements persuades us that

the indictment was not multiplicitous.

[5] First, while § 1591(a) plainly requires proof that the

defendant knew that the victim was under the age of eighteen

years at the time of the crime, the government need not prove

such knowledge for purposes of § 2423(a). See United States

v. Taylor, 239 F.3d 994, 997 (9th Cir. 2001) (explaining that

§ 2423(a)’s knowledge requirement “applies to the defen-

dant’s conduct of transporting the person rather than to the

age of the person transported,” so that “[i]gnorance of the vic-

tim’s age provides no safe harbor”). Thus, if a sex trafficker

lacked knowledge that the victim was underage, he could be

convicted of violating § 2423(a), but not § 1591(a).

[6] Further, while § 2423(a) requires proof that the defen-

dant intended that the victim engage in prostitution, such

intent need not be proven for § 1591(a). Instead, § 1591(a)

requires that the defendant knew that the victim would engage

in a commercial sex act. Thus, for example, if a sex trafficker

arranged for a minor victim to be transported to a pimp in

another state, the trafficker might know that the victim would

be caused to engage in a commercial sex act without actually

having any specific intent that the victim do so. In that case,

the sex trafficker could be convicted of violating § 1591(a),

but not § 2423(a). While the distinction between the two mens

rea requirements is fine, “it matters not that there is ‘substan-

tial overlap’ in the evidence used to prove the two offenses,

so long as they involve different statutory elements.” United

States v. Kimbrew, 406 F.3d 1149, 1152 (9th Cir. 2005) (quot-

ing United States v. Cuevas, 847 F.2d 1417, 1429 (9th Cir.

1988)). Because § 1591(a) and § 2423(a) “have different

intent requirements[,] . . . the ‘same elements’ test is not satis-

fied.” United States v. Ford, 371 F.3d 550, 554 (9th Cir.

9736 UNITED STATES v. BROOKS

2004). And because each statute requires proof of a fact that

the other does not, the indictment was not multiplicitous.2

The District Court Did Not Abuse Its Discretion in

Admitting the Expert Testimony

Brooks and Fields both appeal the district court’s admission

of Detective Hein’s expert testimony. We review the district

court’s decision to admit expert testimony for abuse of discre-

tion, United States v. Morales, 108 F.3d 1031, 1035 (9th Cir.

1997) (en banc), and find no abuse of discretion here.

[7] First, Detective Hein’s training and experience quali-

fied her as an expert on the business of prostitution and the

relationships between pimps and prostitutes. See United States

v. Freeman, 498 F.3d 893, 900 n.1 (9th Cir. 2007). Detective

Hein had worked as a police officer for approximately eight

years, including two and a half years with the Phoenix vice

enforcement unit. She had conducted approximately twenty to

twenty-five full-scale child prostitution investigations, com-

pleted approximately fifty extended interviews with pimps

and prostitutes, and frequently worked undercover, posing as

a street prostitute and posting prostitution ads online. Detec-

tive Hein had attended several specialized trainings on child

prostitution and had lectured on the subject of child prostitu-

tion. The fact that Detective Hein lacked an advanced degree,

supervisory experience, previous experience as an expert wit-

ness, or relevant publications did not render her unfit to pro-

vide expert testimony. See United States v. Smith, 520 F.3d

1097, 1105 (9th Cir. 2008) (“No specific credentials or quali-

fications are mentioned [by Federal Rule of Evidence 702].”).

[8] Detective Hein’s testimony was relevant to matters at

2

The Blockburger test is not controlling where there is “clear indication

of contrary legislative intent.” Overton, 573 F.3d at 691 (internal quotation

marks omitted). Brooks, however, has “failed to present a showing of con-

gressional intent contradicting the statutory language.” Id. at 694.

UNITED STATES v. BROOKS 9737

issue in this case. “By and large, the relationship between

prostitutes and pimps is not the subject of common knowl-

edge.” Taylor, 239 F.3d at 998. Detective Hein’s testimony

helped place other witnesses’ testimony into context and pro-

vided the jury a means to assess their credibility. For example,

Detective Hein’s testimony concerning the role of the “bottom

girl”—a pimp’s most senior prostitute, who often trains new

prostitutes and collects their earnings until they can be trusted

—potentially helped the jury evaluate Fonteneaux’s testimony

that she was acting at Fields’s direction, not on her own

accord. Similarly, Detective Hein’s testimony that pimps

often isolate new prostitutes from familiar areas provided con-

text for evaluating Appellants’ intentions in initially transport-

ing the girls from Phoenix to San Diego.3

[9] Nor was Detective Hein’s testimony unduly prejudi-

cial. Detective Hein’s testimony closely fit the facts of this

case and, contrary to Brooks’s assertions, did not suggest that

Appellants were on trial for a “wide ranging organized

crime.” Any alleged unfair prejudice did not outweigh, let

alone “substantially outweigh[ ],” the testimony’s probative

value on a number of issues. See Fed. R. Evid. 403. Thus, we

conclude that the district court did not abuse its discretion in

admitting the expert testimony.

Appellants’ Motions for Judgment of Acquittal Properly

Were Denied

Brooks and Fields next contend that the district court erred

in denying their motions for judgments of acquittal. We

review a motion for judgment of acquittal de novo, “viewing

the evidence against the appellants in the light most favorable

to the government to determine whether any rational trier of

3

To the extent that the testimony of witnesses such as Fonteneaux con-

tradicted Detective Hein’s testimony concerning the general practices of

pimps and prostitutes, this divergence simply went to the weight of the

expert testimony, not its admissibility.

9738 UNITED STATES v. BROOKS

fact could have found the essential elements of the crime

beyond a reasonable doubt.” United States v. Williams, 547

F.3d 1187, 1195 n.6 (9th Cir. 2008). We conclude that the

evidence was sufficient to sustain all of the convictions.

Counts 1 and 2

Counts 1 and 2 of the superseding indictment charged

Appellants with child sex trafficking of R.O. and N.K.,

respectively, in violation of 18 U.S.C. §§ 1591(a) and 2.

Brooks challenges the sufficiency of the evidence as to both

Count 1 and Count 2, while Fields challenges only Count 2,

concerning N.K.

[10] Fields’s challenge to Count 2 is limited to the suffi-

ciency of the evidence that he knew N.K. was a minor. See 18

U.S.C. § 1591(a) (punishing sex trafficking of children where

the defendant “[knew] . . . that the [victim] ha[d] not attained

the age of 18 years”). This claim is unpersuasive. R.O. testi-

fied that both she and N.K. told Fields that they were under-

age. Further, the jury had the opportunity to consider N.K.’s

appearance during her testimony, at which time she was eigh-

teen. This evidence is sufficient to sustain Fields’s conviction

as to Count 2.

[11] Brooks’s challenges to Counts 1 and 2 also fail. As in

Fields’s case, a rational jury could have found beyond a rea-

sonable doubt that Brooks knew that R.O. and N.K. were

under eighteen. R.O. testified that she told Brooks and Lee

that she and N.K. were underage and had run away from a

juvenile detention center, causing the men to joke about how

the girls would get them into trouble. And, as in the case of

N.K., the jury had an opportunity to evaluate R.O.’s appear-

ance and demeanor while testifying, at which time she was

seventeen.

[12] There also was sufficient evidence to prove that

Brooks satisfied the actus reus requirement of § 1591(a).

UNITED STATES v. BROOKS 9739

While Brooks argues that there was no evidence that he per-

suaded or enticed either R.O. or N.K. to become involved in

prostitution, § 1591 also imposes liability on anyone who “re-

cruits, . . . harbors, transports, provides, or obtains by any

means” a minor for purposes of prostitution. 18 U.S.C.

§ 1591(a)(1). Here, a rational jury could find beyond a reason-

able doubt that Brooks knowingly transported, as well as har-

bored, the girls. The jury could infer from N.K.’s and R.O.’s

testimony that Brooks assisted Fields in purchasing bus tick-

ets for N.K. and R.O. to travel to San Diego. R.O. and Fon-

teneaux also testified that Brooks personally transported the

girls all or part of the way from San Diego to Phoenix. Fur-

thermore, physical evidence introduced at trial, including

hotel receipts, was sufficient to prove that Brooks harbored

the girls in rented hotel rooms.

[13] A rational jury also could find beyond a reasonable

doubt that Brooks acted “knowing . . . that [R.O. and N.K.]

. . . [would] be caused to engage in a commercial sex act,” 18

U.S.C. § 1591(a). R.O. testified that, on the night the girls met

the men in Phoenix, Brooks and Lee discussed with R.O. and

N.K. the possibility of the girls going to San Diego to work

as prostitutes. Then, the next day, Brooks assisted Fields in

buying bus tickets so that the girls could travel to San Diego.

Later, when Brooks transported the group from San Diego

back to Phoenix, both girls were dressed in provocative cloth-

ing. And upon arriving back in Phoenix, Brooks left R.O. at

51st Avenue and McDowell Road, an area known for prostitu-

tion, and brought N.K. to a hotel, suggesting that the men had

plans for her to be caused to engage in prostitution in the future.4

4

N.K. was not in fact caused to engage in prostitution. The jury, how-

ever, could infer that N.K. did not engage in such acts simply because she

still was very affected by the drugs she took in Phoenix. Further, as we

recently explained in another § 1591(a) appeal,

[w]hen an act of Congress requires knowledge of a future action,

it does not require knowledge in the sense of certainty as to a

future act. What the statute requires is that the defendant know

9740 UNITED STATES v. BROOKS

Therefore, we reject Brooks’s sufficiency-of-the-evidence

challenge to Counts 1 and 2.

Counts 3 and 4

Counts 3 and 4 of the superseding indictment charged

Appellants with interstate transportation of minors for pur-

poses of prostitution, in violation of 18 U.S.C. §§ 2423(a) and

2. Brooks challenges the sufficiency of the evidence as to

both Count 3 and Count 4, concerning R.O. and N.K., respec-

tively, while Fields challenges only Count 4. These appeals

concern just one element of § 2423(a): intent that the minor

engage in prostitution. See 18 U.S.C. § 2423(a) (criminalizing

the knowing transportation of a person under the age of eigh-

teen “with intent that the individual engage in prostitution”).

[14] Appellants’ contentions have no merit. Fields’s acts

were sufficient to prove that he intended not just R.O., but

also N.K., to engage in prostitution when he transported them

to and from San Diego. Fields bought both girls bus tickets to

San Diego under false names, bought both girls provocative

shoes upon their arrival, and directed Fonteneaux to post pros-

titution ads for both girls on craigslist.com and to instruct

both girls on receiving customers. Further, when the group, at

Fields’s direction, returned to Phoenix, both girls were

dressed in “working clothes,” indicating his intent that both

R.O. and N.K. be caused to engage in prostitution. Thus, we

uphold Fields’s conviction as to Count 4.

[15] Although it is a closer case, we also conclude that the

evidence, when viewed in the light most favorable to the pros-

in the sense of being aware of an established modus operandi that

will in the future coerce a prostitute to engage in prostitution.

United States v. Todd, 584 F.3d 788, 792 (9th Cir. 2009). This standard

is satisfied here even though N.K. did not ultimately engage in any acts

of prostitution.

UNITED STATES v. BROOKS 9741

ecution, was sufficient for a rational jury to conclude that

Brooks, too, acted with the intent that the girls engage in pros-

titution. R.O. testified that Brooks, with Lee, first talked to the

girls about working for Fields as prostitutes in San Diego.

Fonteneaux also testified that, while Brooks did not appear to

be paid by Fields for his assistance, he benefitted from the

association by not having to pay for his food or lodging.

These perquisites were funded by money Fields brought in

from prostitution, which a rational jury could infer that

Brooks knew. These facts, together with Brooks’s involve-

ment in transporting the group and securing hotel rooms for

them, were sufficient for a rational juror to conclude that

Brooks intended that the girls engage in prostitution. Accord-

ingly, Brooks’s challenges to Counts 3 and 4 fail.

Brooks’s and Fields’s Sentences Must Be Vacated

Last, Brooks and Fields raise various challenges to their

sentences. Brooks asserts that the district court committed

procedural error in applying two enhancements to his sen-

tence and also contends that his sentence was substantively

unreasonable. Fields challenges the district court’s failure to

grant use immunity to a witness who wished to testify at his

sentencing hearing.

Brooks

In reviewing a sentence, we first consider whether the dis-

trict court committed significant procedural error. United

States v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) (en banc).

In determining whether the district court committed proce-

dural error, we review “ ‘the district court’s interpretation of

the Sentencing Guidelines de novo, the district court’s appli-

cation of the Sentencing Guidelines to the facts of a case for

abuse of discretion, and the district court’s factual findings for

clear error.’ ” United States v. Grissom, 525 F.3d 691, 696

(9th Cir. 2008) (quoting United States v. Cantrell, 433 F.3d

1269, 1279 (9th Cir. 2006)). If we find significant procedural

9742 UNITED STATES v. BROOKS

error, we will remand for re-sentencing. United States v.

Pham, 545 F.3d 712, 716 (9th Cir. 2008). “If no such material

error . . . is found, however, we may go on to evaluate the

sentence for its substantive reasonableness under an abuse of

discretion standard.” Id.

1

[16] Brooks first challenges the district court’s application

of a two-level sentencing enhancement that applies if “a par-

ticipant . . . unduly influenced a minor to engage in prohibited

sexual conduct.” U.S. Sentencing Guidelines Manual

(“U.S.S.G.”) § 2G1.3(b)(2)(B). We conclude that the applica-

tion of § 2G1.3(b)(2)(B) to Brooks’s sentence was proper.

[17] Section 2G1.3(b)(2)(B) applies when “a participant”

unduly influenced a minor to engage in prostitution. Id. “Par-

ticipant” is defined as “a person who is criminally responsible

for the commission of the offense, but need not have been

convicted.” Id. § 3B1.1 cmt. n.1. Thus, even if Brooks, who

has been found criminally responsible for the crime, did not

personally unduly influence the girls, he can be subject to the

enhancement if another criminally responsible individual,

such as Fields, exercised the requisite undue influence. See

United States v. Egge, 223 F.3d 1128, 1134 (9th Cir. 2000)

(concluding that a convicted defendant, who plainly “has been

held criminally responsible for the commission of the

offense,” constitutes a “participant” in the crime).

[18] The district court’s conclusion that Fields exercised

undue influence over the victims was not clearly erroneous.

The guideline’s Commentary establishes that “[i]n a case in

which a participant is at least 10 years older than the minor,

there shall be a rebuttable presumption,” U.S.S.G. § 2G1.3

cmt. n.3(B), that such “participant . . . unduly influenced a

minor to engage in prohibited sexual conduct,” id.

§ 2G1.3(b)(2)(B). Because Fields, a participant in the crimes,

is more than ten years older than the girls, the district court

UNITED STATES v. BROOKS 9743

properly applied a rebuttable presumption that Fields exer-

cised “some degree of undue influence” over the girls. Id.

§ 2G1.3 cmt. n.3(B).

The only evidence that Brooks provided in attempting to

rebut the presumption of undue influence was that the girls

willingly had engaged in sexual relations with other men just

before and after meeting Brooks and Fields, under circum-

stances suggesting that the girls had received a benefit, such

as a place to stay. However, “[t]he victim’s willingness to

engage in sexual activity is irrelevant, in much the same way

that a minor’s consent to sexual activity does not mitigate the

offense of statutory rape or child molestation.” United States

v. Dhingra, 371 F.3d 557, 567-68 (9th Cir. 2004) (discussing

18 U.S.C. § 2422(b), enticement and coercion of a minor for

purposes of prostitution). Nothing in the record suggests that

the girls were inclined to engage in commercial sex acts

before they met Brooks and Fields, and counsel’s suggestion

at oral argument that the girls were “giving it away” is not

well taken.

[19] Even without the rebuttable presumption, the record

supports the conclusion that both Fields and Brooks unduly

influenced the girls to engage in prostitution. When R.O. and

N.K. encountered Brooks and Fields, the girls had no money,

no job and, as runaways, nowhere to live. Fields showed R.O.

a large sum of money and told her that if she worked for him

she would travel, be paid, and have a good life, and that N.K.

could come, too. Brooks, after learning that R.O. and N.K.

had run away from a juvenile detention center, also suggested

that the girls go to San Diego to work for Fields as prostitutes.

Neither of the girls had engaged in prostitution before meet-

ing Brooks and Fields. Under the circumstances, the district

court’s application of the § 2G1.3(b)(2)(B) enhancement to

Brooks’s sentence was not an abuse of discretion. See United

States v. Patterson, 576 F.3d 431, 443 (7th Cir. 2009)

(upholding the application of an analogous undue influence

enhancement where the defendant was forty-two and the vic-

9744 UNITED STATES v. BROOKS

tim was fourteen; the victim had never worked in prostitution

before receiving the defendant’s encouragement; and the vic-

tim was “destitute and penniless” when the defendant urged

her to travel with him for purposes of prostitution), cert.

denied, 130 S. Ct. 1284 (2010).

2

[20] Brooks also challenges the district court’s application

of a two-level sentencing enhancement for having had cus-

tody, care, or supervisory control over the girls. Section

2G1.3(b)(1) of the Sentencing Guidelines provides: “If (A)

the defendant was a parent, relative, or legal guardian of the

minor; or (B) the minor was otherwise in the custody, care,

or supervisory control of the defendant, increase by 2 levels.”

U.S.S.G. § 2G1.3(b)(1). Because Brooks is not a parent, rela-

tive, or legal guardian of R.O. or N.K., only subsection (B) is

at issue.

In applying the enhancement to Brooks’s sentence, the dis-

trict court reasoned that § 2G1.3(b)(1) is to have “broad appli-

cation,” including when a minor victim is “entrusted to the

defendant, whether temporarily or permanently.” Id. § 2G1.3

cmt. n.2(A). Citing an Eleventh Circuit decision holding that

the enhancement applies even when the victim entrusts herself

to the defendant, United States v. Jennings, 280 F. App’x 836,

844-45 (11th Cir. 2008) (per curiam) (unpub.), the district

court concluded that R.O. and N.K. had entrusted themselves

to Appellants’ care, custody, and control, rendering the

enhancement applicable.

On appeal, Brooks argues that the district court misinter-

preted the scope of § 2G1.3(b)(1)(B), contending that the

guideline “was intended to punish those who exploit their

position of authority as a temporary parent.” Although it is a

close question, we conclude, in this matter of first impression,

UNITED STATES v. BROOKS 9745

that the district court erred in interpreting the scope of

§ 2G1.3(b)(1)(B).5

[21] We begin with the guideline itself. Section

2G1.3(b)(1) reaches not just situations where defendants are

parents, relatives, and legal guardians of minors, but also situ-

ations where “the minor was otherwise in the custody, care,

or supervisory control of the defendant.” Id. § 2G1.3(b)(1)(B)

(emphasis added). It is true that, in a technical sense, Brooks

exercised a form of “care,” “custody,” or “supervisory con-

trol” over R.O. and N.K. through his participation in the

offenses. But the use of the adverb “otherwise” in subsection

(B) does not entirely divorce subsection (B) from its alterna-

tive in subsection (A). If “otherwise” means any type of “cus-

tody, care, or supervisory control,” then subsection (A) is

wholly superfluous. Such an interpretation would also

threaten to merge the enhancement into the definition of the

underlying offense. We therefore conclude that subsection (B)

refers to a defendant’s role with respect to the minor that is

comparable to that of the parents, relatives, and legal guard-

ians covered by subsection (A). Indeed, care, custody, and

supervisory control of minors are quintessential duties of sub-

section (A) defendants. The word “otherwise,” indicates that

a subsection (B) defendant exercises such parent-like care,

custody, or supervisory control albeit “in a different way or

manner” or “in different circumstances” than traditional

guardians. Webster’s New International Dictionary 1598 (3d

ed. 1976).

The Sentencing Commission provided additional guidance

on the scope of § 2G1.3(b)(1), which adds further support to

our conclusion that subsection (B) applies only to defendants

who exploit a pre-existing parent-like position of authority

that Brooks simply did not possess. Most significantly, the

Commentary provides examples of individuals to whom the

5

We review de novo the district court’s interpretation of the guideline.

See United States v. Kimbrew, 406 F.3d 1149, 1152 (9th Cir. 2005).

9746 UNITED STATES v. BROOKS

enhancement may apply, citing “teachers, day care providers,

baby-sitters, or other temporary caretakers.” U.S.S.G. § 2G1.3

cmt. n.2(A). Teachers, day care providers, and baby-sitters all

act in loco parentis, in a position of authority over the minor

that exists apart from the conduct giving rise to the offense.6

The Commentary does not expressly limit application of the

enhancement to defendants with similar authority, but these

examples reinforce the inference that a subsection (B) defen-

dant’s role with respect to a minor must be broadly compara-

ble to that of parents, relatives, and legal guardians.7

[22] Further, although the Commentary instructs that the

enhancement have “broad application,” it also explains that

courts should “look to the actual relationship that existed

between the defendant and the minor and not simply to the

legal status of the defendant-minor relationship.” Id. § 2G1.3

cmt. n.2(A). Thus, the enhancement may apply to defendants

acting in a breadth of positions of authority over the minor

victim that fall short of legal guardianship. But we do not

read “broad application” to mean that the enhancement

applies where there was no “actual relationship” outside of

the conduct surrounding the offense.

[23] Limiting § 2G1.3(b)(1)(B) to such defendants makes

6

Pursuant to the canon of ejusdem generis, the “other temporary care-

takers” referenced in the Commentary must possess characteristics shared

by teachers, day care providers, and baby-sitters. See, e.g., Circuit City

Stores, Inc. v. Adams, 532 U.S. 105, 114-15 (2001) (“Where general

words follow specific words in a statutory enumeration, the general words

are construed to embrace only objects similar in nature to those objects

enumerated by the preceding specific words.” (quoting 2A N. Singer,

Sutherland on Statutes and Statutory Construction § 47.17 (1991) (alter-

ation omitted)).

7

This inference gains some support from the fact that the Commentary,

in an apparent attempt to prevent double-counting, instructs that courts

should not, when § 2G1.3 applies, apply a separate enhancement in

§ 3B1.3 that also is concerned with abuse of authority. See id. § 2G1.3

cmt. n. 2(B).

UNITED STATES v. BROOKS 9747

sense: it is the abuse of authority over the minor that makes

the offense conduct more egregious and thus worthy of

enhancement. Cf. id. § 2A3.1 cmt. background (explaining

that a similar “care, custody, or supervisory control” enhance-

ment applies because of “the potential for greater and pro-

longed psychological damage”). In cases like Brooks’s, where

the relationship between the defendant and the minor arose

almost entirely from the crime itself, application of this

enhancement is warranted neither by the language of the

guideline and its Commentary nor by common sense.

Although we do not rule out the possibility that the necessary

parent-like relationship could evolve from volitional acts of a

minor and a defendant, we hold that, for the enhancement to

apply, the defendant must have held a position of parent-like

authority that existed apart from conduct giving rise to the

crime. Thus, because the district court misinterpreted the

scope of § 2G1.3(b)(1)(B), the court miscalculated Brooks’s

Guidelines range, committing significant procedural error. See

Carty, 520 F.3d at 993. Accordingly, we vacate Brooks’s sen-

tence and remand for resentencing.8

Fields

[24] Although Fields, like Brooks, objected in the district

court to the enhancement for “custody, care, or supervisory

control” under Guideline § 2G1.3(b)(1), he did not raise the

issue in his appellate briefs. “Generally, an issue is waived

when the appellant does not specifically and distinctly argue

the issue in his or her opening brief.” United States v. Kama,

394 F.3d 1236, 1238 (9th Cir. 2005). In some circumstances,

however, we may entertain issues not raised, and those cir-

cumstances are present here. First, the government is not prej-

udiced by Fields’s failure to raise the issue, because it briefed

and argued that issue in response to Brooks’s appeal. See

8

In light of our remand for resentencing, we decline to reach Brooks’s

argument that his sentence was substantively unreasonable. See, e.g.,

United States v. Forrester, 592 F.3d 972, 991 (9th Cir. 2010).

9748 UNITED STATES v. BROOKS

United States v. Ullah, 976 F.2d 509, 514 (9th Cir. 1992);

United States v. Baker, 999 F.2d 412, 417 (9th Cir. 1993).

Second, the issue is purely legal and the record in the district

court was fully developed. See United States v. Berger, 473

F.3d 1080, 1100 n.5 (9th Cir. 2007). With these conditions

met, we conclude that a third condition of manifest injustice

is also met: it would be a manifest injustice to vacate the sen-

tence of one co-defendant but uphold the sentence of the other

“when the same error affected both defendants.”9 Ullah, 976

F.2d at 514; see also United States v. Molinaro, 11 F.3d 853,

858 n.9 (9th Cir. 1993); Walter v. United States, 969 F.2d

814, 817 (9th Cir. 1992). We therefore vacate Fields’s sen-

tence and remand for resentencing.10

CONCLUSION

For the foregoing reasons, we affirm Brooks’s and Fields’s

convictions, but we vacate their sentences and remand for

resentencing.

CONVICTIONS AFFIRMED; SENTENCES

VACATED; REMANDED FOR RESENTENCING.

9

The district court sentenced Fields below the Guideline level, but that

departure was based primarily on over-representation of Fields’s criminal

history and factors in Fields’s personal background. On this record, we

cannot conclude that Fields’s sentence was unaffected by the erroneous

two-level enhancement under Guideline § 2G1.3(b)(1)(B).

10

Because we remand Fields’s case for resentencing, we decline to

address his contention that the district court erred in failing to issue an

order sua sponte to compel the government to grant use immunity to a

proposed witness to testify at his sentencing.