United States v. Anderson

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT United States Court of Appeals

Fifth Circuit

FILED

February 17, 2009

No. 07-20467 Charles R. Fulbruge III

Clerk

UNITED STATES OF AMERICA

Plaintiff - Appellee

v.

GEORGE ANDERSON, III

Defendant - Appellant

Appeal from the United States District Court

for the Southern District of Texas

Before HIGGINBOTHAM, BENAVIDES, and STEWART, Circuit Judges.

PATRICK E. HIGGINBOTHAM:

George Anderson appeals his conviction and sentence for two counts of sex

trafficking of children.1 The Government’s case at trial showed that Anderson

induced two minor females to work for him as prostitutes, that they gave him all

the money they made, and that in return Anderson paid for the girls’ hotel

rooms, cell phones, clothes, and food.

I

Anderson raises five points of error which we address in turn.

1

18 U.S.C. § 1591.

No. 07-20467

A

Anderson first argues that the phrasing of the jury instruction on the

interstate commerce element of sex trafficking allowed the jury to convict

without finding beyond a reasonable doubt that interstate commerce was

actually affected. The interstate commerce portion of the charge used in this

case, in its entirety, reads:

The offense of sex trafficking requires that the act of

harboring a person for commercial sex acts must be “in or

affecting interstate commerce.” I instruct you that acts and

transactions which affect the flow of money in the stream of

commerce to any degree, however minimal, are acts and

transactions “in or affecting interstate commerce.”

The Government is not required to prove that the

defendant knew that his conduct would affect interstate

commerce. It is not necessary for the Government to show

that the defendant actually intended or anticipated an effect

on interstate commerce by his actions or that commerce was

actually affected. All that is necessary is that the natural and

probable consequence of the acts the defendant took would be

to affect interstate commerce. If you decide that there would

be any effect at all on interstate commerce, than that is

enough to satisfy this element. The effect can be minimal.

So, if the Government proves beyond a reasonable doubt

that any of the acts of harboring a person who had not

attained the age of eighteen years for commercial sex acts

affected the flow of money, goods or services in interstate

commerce to any degree, you may find that the interstate

commerce requirement has been satisfied.

We review a jury instruction for abuse of discretion and ask “whether the

instruction, taken as a whole, ‘is a correct statement of the law and whether it

clearly instructs jurors as to the principles of law applicable to the factual issues

confronting them.’”2

2

U.S. v. Fuchs, 467 F.3d 889, 901 (5th Cir. 2006) (quoting U.S. v. Freeman, 434 F.3d

369, 377 (5th Cir. 2005)). The Government in this case casts some doubt on whether

Anderson’s objection to the jury charge at trial was specific to the interstate commerce portion

2

No. 07-20467

The principle of law at issue here is the jurisdictional hook in the sex

trafficking statute. Because the statute requires that the prohibited act itself

be “in or affecting interstate or foreign commerce,” the Government must prove

the jurisdictional nexus on a case-by-case basis, as compared with other federal

statutes, similarly enacted under the commerce power, but which rely on a

finding that the regulated activity substantially affects interstate commerce in

the aggregate.3

Noting this principle of law, Anderson points to the second paragraph of

the interstate commerce instruction, specifically the sentence: “It is not

necessary for the Government to show that the defendant actually intended or

anticipated an effect on interstate commerce by his actions or that commerce

was actually affected.” Anderson argues that the last clause of the sentence—“or

that commerce was actually affected”—relieved the prosecution of the burden of

proving that interstate commerce was actually affected by the sex trafficking in

this case.

We agree that, taken out of context, the last clause of the quoted sentence

would be a misstatement of the law; the interstate commerce element does

require the prosecution to prove that interstate commerce was actually affected.

However, our review is of the jury instruction as a whole. Viewing the charge

holistically, the suspect phrase occurs in the second paragraph, which plainly

discusses the scienter requirement as it relates specifically to the jurisdictional

hook element. The paragraph’s first sentence conveys the subject of the

paragraph, stating the rule, as we have held in a variety of contexts, that no

of the charge. Without a proper objection, we would review for plain error. Because we find

no abuse of discretion, we need not debate the sufficiency of Anderson’s objection.

3

See Controlled Substances Act, 21 U.S.C. § 801 et seq.; Gonzales v. Raich, 545 U.S. 1

(2005).

3

No. 07-20467

mens rea attaches to the interstate nexus element.4 With this subject in mind,

the second sentence then continues as explanation. The beginning of the

sentence correctly states that “[i]t is not necessary for the government to show

that the defendant actually intended or anticipated an affect on interstate

commerce by his actions.” But then appears the unhappy phrase “or that

commerce was actually affected.” While the stray language was best deleted,

when taken in context—its location in a paragraph discussing intent—the last

phrase “that commerce was actually affected” is best read as relating back to

what the “defendant actually intended or anticipated.” In other words, the

sentence was not meant to say that the Government need not show an actual

affect on commerce, but that“[i]t is not necessary for the Government to show

that the defendant actually intended or anticipated . . . that commerce was

actually affected.”

Of course the effort of all is to use sentences in a jury instruction that do

not require jurors to tease out the best reading. But when it happens we

confront it directly. We do not assume that the jury correctly interpreted the

charge’s ambiguous sentence. We find no error. The instruction as a whole

clarified that the Government must prove an affect on interstate commerce. The

suspect sentence was contained in a paragraph whose subject was limited to

intent, sandwiched between two other paragraphs reinforcing that the

Government must prove at least a de minimis affect on interstate commerce.

The last paragraph offered a summary—signaling this by beginning with the

word “So”—which clearly reiterated that the Government must prove some

degree of affect on interstate commerce. This conclusion is strengthened by

4

See U.S. v. Richards, 204 F.3d 177, 208 (5th Cir. 2000) (no specific intent requirement

as to interstate nature of wire fraud); U.S. v. Kelly, 569 F.2d 928, 934 (5th Cir. 1978); U.S. v.

Thrasher, 569 F.2d 894, 895 (5th Cir. 1978).

4

No. 07-20467

placing the charge in the full context of the trial, with focus upon the

construction given to it by counsel in their argument to the jury.

Our question is the message given to the jury. This makes it significant

that the Government did not exploit the weakness in the charge in its trial

argument.5 To the contrary, in closing argument the Government emphasized

to the jury the evidence that it had presented—hotel bills, cell phone bills, and

clothing purchases—to prove an actual affect on interstate commerce:

Did it have an affect on interstate commerce? Well, Mr.

Anderson is paying about $50 a day for this hotel room. I

suggest to you, ladies and gentlemen, he’s putting money into

interstate commerce. In part, we base this upon the testimony

of the owner of this hotel who says, “I’m a chain. My

headquarters are in Atlanta, Georgia[.]” [I]nterstate commerce.

We are persuaded that the charge as a whole and as framed by the jury

arguments correctly conveyed the law—the Government had to prove Anderson’s

illegal activities had some degree of affect on interstate commerce.

B

Anderson next argues that his equal protection rights were violated when

the testimony of an FBI special agent regarding the culture of prostitution turned

racial. The relevant testimony reads:

Government lawyer: Okay. Are you familiar with the term

“pimp rules?”

Agent: Yes, I am.

Government lawyer: And what does that mean to you, in this

culture?

5

See Estelle v. McGuire, 502 U.S. 62, 72 (1991) (“It is well established that the

instruction ‘may not be judged in artificial isolation,’ but must be considered in the context of

the instructions as a whole and the trial record.”) (quoting Cupp v. Naughten, 414 U.S. 141,

147 (1973)).

5

No. 07-20467

Agent: In this culture, there’s a number of rules

that the girls have to abide by. One of-

Government lawyer: What are those rules, ma’am?

Agent: One of the rules is that a girl is told not

to look at or make eye contact with any

young Black male because he might be

another pimp.

The Court: Well what about potential customers?

How does that jibe with the - that rule?

Agent: Most of the girls will not have a date

with a young Black male. They will

avoid that. A lot of them avoid all Black

males in general.

The Court: Why is that? Is there a reason for that?

Agent: The reason is mainly they’re afraid that

that’s going to be a pimp-

Testimony from a prosecution witness stating or implying that persons of

the same race as the defendant are more likely to commit certain crimes is

impermissible, both on constitutional grounds 6 and because its probative value

is outweighed by its danger of unfair prejudice.7 The Government contends that

the FBI agent’s testimony was elicited for the innocuous purpose of explaining

the behavior of prostitution victims. The testimony turned racial, however, the

impetus behind this particular line of questioning being that all pimps are black

males, or at least this may well have been the implication to a reasonable juror.

The testimony should have been excluded.

6

See McCleskey v. Kemp, 481 U.S. 279, 310 n.30 (1987) (“The Constitution prohibits

racially biased prosecutorial arguments.”).

7

See FED . R. EVID . 403; U.S. v. Vue, 13 F.3d 1206, 1213 (8th Cir. 1994).

6

No. 07-20467

We conclude, however, that the error was harmless. Because the error

implicated Anderson’s constitutional rights we “must be able to declare a belief

that it was harmless beyond a reasonable doubt.” 8 The impermissible testimony

was limited to a few moments from a single witness that occurred in the course

of a five day trial, the testimony was not mentioned again, and the Government

did not allude to the testimony in its closing argument. The Government’s

admissible evidence against Anderson, on the other hand, was overwhelming.

Former prostitutes testified regarding Anderson’s activity as a pimp. Physical

evidence, including hotel bills and cell phones, was introduced. And a police

officer testified that when he pulled Anderson over for a traffic violation and

asked him what his occupation was, Anderson replied that he was a pimp.

C

Anderson also contends that the district court abused its discretion by

admitting the expert testimony of a Government witness who testified to the

typical characteristics of adolescent prostitutes and to the behavior of pimps.

Anderson argues that the expert, Frank Quattrochi, was not qualified to testify

as an expert and that his testimony was not relevant.

Mr. Quattrochi was qualified as an expert based on his experience.9 He is

the director of a center that provides services for runaways and high-risk

adolescent victims and that specializes in serving victims of sexual exploitation.

The position provided Mr. Quattrochi unique experience on which to base his

testimony.

8

Chapman v. Cal., 386 U.S. 18, 24 (1967).

9

See FED . R. EVID . 702 (“ . . . a witness qualified as an expert by knowledge, skill,

experience, training, or education, may testify . . .”) (emphasis added).

7

No. 07-20467

The testimony was also relevant. In U.S. v. Anderson,10 the D.C. Circuit,

reviewing a conviction for interstate transportation of minors for prostitution,

held that a sociologist’s expert testimony on “pimping patterns and the pimp-

prostitute relationship” was relevant because it “might have shed light on

critical issues in the case—for example, whether the appellant was in fact a

pimp or rather, as [appellant] claims, merely a gambler with a flashy lifestyle

and a penchant for travel; and whether the government's young witnesses

traveled with him quite independently, or as part of a pimp-prostitute

relationship.” Additionally, the court also found the testimony, “could have

helped the jury to determine the credibility of the government's

prostitute-witnesses, which counsel for appellant had sought to undermine on

cross-examination by pointing out the inconsistencies in the witnesses'

testimonies, and by intimating that they would not have remained with

[appellant] if he had mistreated them as they claimed.” 11 The issues in this case

are nearly identical. Mr. Quattrochi’s testimony was both reliable and relevant;

the district court did not abuse its discretion in allowing it.

D

Anderson next argues that the district court erred in granting a motion to

quash the subpoena for Judge Mark Atkinson. In preparation for trial,

Anderson subpoenaed Harris County Criminal Court Judge Mark Atkinson.

Judge Atkinson, in an unrelated case, had accepted a plea on a failure to identify

charge from one of the girls that allegedly worked for Anderson. Anderson

sought to elicit Judge Atkinson's testimony that he did not suspect the girl was

a juvenile when he accepted her plea. Anderson argues such testimony would

10

851 F.2d 384, 392–93 (D.C. Cir. 1988).

11

Id. at 393.

8

No. 07-20467

have been material to his defense that he did not know the girl was a minor.

Judge Atkinson filed a motion to quash, which the district court granted.

A district court has broad discretion to grant or deny a request for a

subpoena and may consider factors including materiality, relevancy, and

competency.12 This case also implicates the “mental process rule.” This rule

protects the mental process of government agents and judges from compelled

testimony; “such an examination of a judge would be destructive of judicial

responsibility.”13 This Court has explained, quoting a Virginia district court:

While a judge enjoys no special privilege from being subpoenaed

as a witness, it is imperative when he is called to testify as to

action taken in his judicial capacity, to carefully scrutinize the

grounds set forth for requiring his testimony. Should a judge be

vulnerable to subpoena as to the basis of every action taken by

him, the judiciary would be open to frivolous attacks upon its

dignity and integrity, and interruption of its ordinary and proper

functioning.14

In light of this rule, the district court did not abuse its discretion in

granting the motion to quash the subpoena. The testimony that Anderson

sought related to Judge Atkinson's acceptance of a plea from a girl he did not

suspect to be a minor—a point that Judge Atkinson need not defend on collateral

attack in an unrelated proceeding. It is true that the testimony would have been

material to Anderson's defense that he did not know the girl’s age. However,

there was already ample evidence that Anderson did know the girl was under

eighteen. The girl herself testified that Anderson did not believe her when she

12

See U.S. v. Masat, 948 F.2d 923, 933 (5th Cir. 1991); U.S. v. Johnson, 495 F.2d 1097,

1102 (5th Cir. 1974).

13

Gary v. L.A., 861 F.2d 1366, 1368 (5th Cir. 1988) (quoting U.S. v. Morgan, 313 U.S.

409, 422 (1941)).

14

Gary, 861 F.2d at 1369 (quoting U.S. v. Dowdy, 440 F. Supp. 894, 896 (W.D. Va.

1977)) (citations omitted).

9

No. 07-20467

told him she was eighteen. Mr. Quattrochi, a government expert witness,

testified that adolescent prostitutes frequently lie about their age. And, the

girl’s mother and friend both testified that they told Anderson of the girl’s true

age and that she had to return to high school. Moreover, Anderson could have

refuted this evidence in a number of ways without subpoenaing Judge Atkinson,

for example, by adducing testimony from others that thought the girl was older

than she was. Quashing the subpoena was not an abuse of discretion.

E

Lastly, Anderson challenges his sentence. The district court sentenced

Anderson to 262 months imprisonment and lifetime supervised release. Because

Anderson raised his objections to the sentence at the district court, we review

the sentence for abuse of discretion.15

Anderson first challenges the district court’s application of three

enhancements to his base offense level of 24. The district court applied

enhancements for undue influence, for the offense involving a commercial sex

act, and for obstruction of justice, which together increased Anderson’s offense

level to 30.16 In order to apply an enhancement, the district court must find

evidence supporting the enhancement to a preponderance of the evidence.17 We

review the district court’s factual determinations for clear error.18

15

U.S. v. Williams, 517 F.3d 801, 808 (5th Cir. 2008).

16

Grouping the two counts together further raised the total offense level to 32. See

U.S.S.G. § 3G.

17

Williams, 517 F.3d at 808.

18

U.S. v. Gonzales, 163 F.3d 255, 263 (5th Cir. 1998). “A factual finding is not clearly

erroneous as long as it is plausible in the light of the record read as a whole.” U.S. v. Lowder,

148 F.3d 548, 552 (5th Cir.1998) (quoting U.S. v. Cluck, 143 F.3d 174, 180 (5th Cir.1998)).

10

No. 07-20467

Regarding the undue influence enhancement,19 Anderson contends that his

victims were already engaging in prostitution before they associated with him.

This, however, ignores evidence in the record that Anderson’s victims were

afraid to leave him. Moreover, the application note for § 2G1.3 provides for a

rebuttable presumption of undue influence “[i]n a case in which a participant is

at least 10 years older than the minor.” The district court stated at sentencing

that Anderson was 29 years old. His victims were minors, at least under 18,

though evidence at trial suggested they were considerably younger. Thus, undue

influence was both presumed and supported by evidence.

Anderson next challenges the enhancement for the offense involving the

commission of a sex act 20 on the grounds that the underlying offense

incorporated the element of commercial sex and thus the enhancement would

constitute double counting. The base offense level in § 2G1.1, however, applies

to a variety of crimes, some of which do not involve commercial sex acts. Thus,

it is not double counting for an enhancement to apply to the crimes that do, as

opposed to those that do not, involve commercial sex acts.

The final enhancement, for obstruction of justice,21 was based on the

district court’s finding that Anderson communicated from jail in a letter to one

of his minor victims seeking her help. The letter stated “you need to be trying

to help me, to help you, to help us.” This letter reasonably could be read as an

attempt to influence the victim’s testimony. In light of this evidence, obstruction

was plausible, and thus the enhancement was not clearly erroneous.

Finally, Anderson challenges the overall reasonableness of his sentence.

The district court departed from the guidelines in this case by the addition of

19

U.S.S.G. § 2G1.3(b)(2)(B).

20

§ 2G1.3(b)(4).

21

§ 3C1.1.

11

No. 07-20467

three offense levels.22 The guideline range for the resulting offense level of 35,

given Anderson’s criminal history category of III, was 210 to 262 months.

Anderson was sentenced to 262 months.

The sentence was not an abuse of discretion and is supported by the

factors in 18 U.S.C. § 3553(a). The district court explained at sentencing the

serious nature of the offense and the harm it brought on the victims. The court

expressed its concern that Anderson was likely to commit future crimes, noting

that Anderson was on supervised release when he engaged in the current illegal

activity. Based on the sentencing judge’s unique position to understand the

evidence against Anderson and given his statements supporting a departure

pursuant to the sentencing statute, we find that the sentence was not an abuse

of discretion.

Anderson’s conviction and sentence are AFFIRMED.

22

See § 5K2.0.

12