Petition for Writ of Certiorari — Juan Fredy Hernandez-Zozaya, Petitioner v. United States

Docket No.

IN THE SUPREME COURT

OF THE UNITED STATES OF AMERICA

OCTOBER TERM, 2020

JUAN FREDY HERNANDEZ-ZOZAYA,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Mark A. Berman, Esq.

Counsel of Record

HARTMANN DOHERTY ROSA

BERMAN & BULBULIA, LLC

433 Hackensack Avenue, Suite 1002

Hackensack, New Jersey 07601

(201) 441-9056

mberman@hdrbb.com

Attorneys for Petitioner

Juan Fredy Hernandez-Zozaya

QUESTION PRESENTED FOR REVIEW

WHETHER IT IS A VIOLATION OF 18 U.S.C. § 2421(a), WHICH MAKES IT

ILLEGAL TO TRANSPORT A PERSON ACROSS STATE LINES WITH THE

INTENT FOR THAT PERSON TO ENGAGE IN PROSTITUTION, WHERE IT

IS UNDISPUTED THAT THE PROSTITUTES ARRANGED AND PAID FOR

THEIR OWN TRANSPORTATION ACROSS STATE LINES, AN ISSUE THAT

HAS LED TO A CIRCUIT SPLIT.

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PARTIES TO THE PROCEEDING BELOW

The parties to the proceeding in the court whose judgment is sought to be reviewed are as

follows:

1.

Juan Fredy Hernandez-Zozaya

2.

United States of America

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TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW .................................................................................... I

WHETHER IT IS A VIOLATION OF 18 U.S.C. § 2421(a), WHICH MAKES IT

ILLEGAL TO TRANSPORT A PERSON ACROSS STATE LINES WITH THE

INTENT FOR THAT PERSON TO ENGAGE IN PROSTITUTION, WHERE IT

IS UNDISPUTED THAT THE PROSTITUTES ARRANGED AND PAID FOR

THEIR OWN TRANSPORTATION ACROSS STATE LINES, AN ISSUE THAT

HAS LED TO A CIRCUIT SPLIT....................................................................................... i

PARTIES TO THE PROCEEDING BELOW ............................................................................... II

TABLE OF AUTHORITIES ........................................................................................................ IV

PETITION FOR WRIT OF CERTIORARI .................................................................................... 1

CITATIONS OF OPINIONS AND ORDERS ................................................................................ 1

BASIS FOR JURISDICTION ......................................................................................................... 2

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED ...................................... 2

STATEMENT OF THE CASE ....................................................................................................... 2

REASONS CERTIORARI SHOULD BE GRANTED................................................................... 5

THE COURT SHOULD ISSUE A WRIT OF CERTIORARI TO RESOLVE A

CIRCUIT SPLIT AS TO WHETHER 18 U.S.C. § 2421(a) IS VIOLATED

WHERE PROSTITUTES ARRANGED AND PAID FOR THEIR OWN

INTERSTATE TRAVEL .................................................................................................... 5

CONCLUSION ............................................................................................................................. 13

ATTACHED EXHIBIT

3d Cir. Opinion & Judgment (2020-09-10) .................................................................................... A

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TABLE OF AUTHORITIES

CASES

Graham v. United States,

154 F.2d 325 (D.C. Cir. 1946) ................................................................................................... 11

Heitler v. United States,

244 F. 140 (7th Cir. 1917)........................................................................................................... 10

Hill v. United States,

150 F.2d 760 (8th Cir. 1945)................................................................................................... 7, 11

Jackson v. Virginia,

443 U.S. 307 (1979) ................................................................................................................... 12

Le Page v. United States,

146 F.2d 536 (8th Cir. 1945)..................................................................................................... 7, 8

Nunnally v. United States,

291 F.2d 205 (5th Cir. 1961)....................................................................................................... 10

Twitchell v. United States,

330 F.2d 759 (9th Cir. 1964)......................................................................................................... 7

United States v. Camuti,

950 F.2d 72 (1st Cir. 1991) ........................................................................................................ 10

United States v. Clemones,

577 F.2d 1247 (5th Cir. 1978) ................................................................................................... 12

United States v. Holland,

381 F.3d 80 (2d Cir. 2004)......................................................................................................... 11

United States v. Jones,

909 F.2d 533 (D.C. Cir. 1990) ............................................................................................... 8, 10

United States v. Mi Sun Cho,

713 F.3d 716 (2d Cir. 2013)................................................................................................... 6, 11

STATUTES

8 U.S.C. § 1324 ............................................................................................................................... 3

18 U.S.C. § 371 ............................................................................................................................... 2

18 U.S.C. § 399 ............................................................................................................................... 8

18 U.S.C. § 2421 ....................................................................................................................passim

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18 U.S.C. § 2422 ....................................................................................................................passim

28 U.S.C. § 1254 ............................................................................................................................. 2

RULES & REGULATIONS

S. Ct. R. 10....................................................................................................................................... 5

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. V ................................................................................................................ 2, 12

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Docket No.

IN THE SUPREME COURT

OF THE UNITED STATES OF AMERICA

OCTOBER TERM, 2020

JUAN FREDY HERNANDEZ-ZOZAYA,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

PETITION FOR WRIT OF CERTIORARI

Petitioner Juan Fredy Hernandez-Zozaya respectfully asks the Court to issue a writ of

certiorari to review the judgment of the United States Court of Appeals for the Third Circuit

entered on September 10, 2020, in the captioned matter.

CITATIONS OF OPINIONS AND ORDERS

The unreported opinion of the United States Court of Appeals for the Third Circuit,

affirming Petitioner’s conviction in this matter, is attached as Exhibit A.

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BASIS FOR JURISDICTION

Petitioner petitions for a writ of certiorari to review the judgment and opinion of the United

States Court of Appeals for the Third Circuit filed on September 10, 2020. Jurisdiction to review

such judgment by writ of certiorari is conferred upon this Court by 28 U.S.C. § 1254.

CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED

18 U.S.C. § 2421(a) provides in relevant part:

Whoever knowingly transports any individual in interstate or foreign

commerce, or in any Territory or Possession of the United States, with intent

that such individual engage in prostitution, or in any sexual activity for

which any person can be charged with a criminal offense, or attempts to do

so, shall be fined under this title or imprisoned not more than 10 years, or

both.

18 U.S.C. § 2422(a) provides in relevant part:

Whoever knowingly persuades, induces, entices, or coerces any individual

to travel in interstate or foreign commerce, or in any Territory or Possession

of the United States, to engage in prostitution, or in any sexual activity for

which any person can be charged with a criminal offense, or attempts to do

so, shall be fined under this title or imprisoned not more than 20 years, or

both.

The Fifth Amendment to the United States Constitution provides in relevant part as

follows:

.... nor shall any person ... be deprived of life, liberty, or property, without

due process of law ....

STATEMENT OF THE CASE

The government charged Petitioner Juan Fredy Hernandez-Zozaya with running multiple

brothels in the State of New Jersey. Specifically, on October 30, 2018, Petitioner was indicted in

the District of New Jersey in a two-count Second Superseding Indictment with one count of

conspiracy to transport an individual in interstate commerce for purposes of prostitution, contrary

to 18 U.S.C. § 2421(a), in violation of 18 U.S.C. § 371, and one count of conspiracy to conceal,

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harbor and shield from detection an alien for commercial advantage and private financial gain,

contrary to 8 U.S.C. § 1324(a)(1)(A)(iii), in violation of 8 U.S.C. § 1324(a)(1)(A)(v)(I) and 8

U.S.C. § 1324(a)(1)(B)(i). On November 6, 2018, Defendant pleaded “not guilty” to all counts.

On January 9, 2019, Defendant went to trial before a jury. At trial, Department of

Homeland Security SA Christopher Iatauro testified (in relevant part) that, on September 18, 2014,

law enforcement executed search warrants at multiple brothel locations in New Jersey (10T at

50:17 to 87:25; 141:8-15) and arrested (and later charged) Petitioner and his girlfriend, Elizabeth

Rojas Rojas, who went by the name “Diana” (10T at 36-37; 70). SA Iatauro also testified that,

during the government’s investigation, surveillance of the Trenton, New Jersey train station

revealed that, on at least one occasion, one woman who worked in the brothels was picked up after

she arrived at the train station in New Jersey and transported to a brothel in New Jersey (10T at

40:8 to 41:1).

Cristina Suerro Guerrero testified at trial that she lived in New York but worked as a

prostitute in the New Jersey brothels. The government asked her how she traveled to/from the

brothels in New Jersey and she testified: “By train and bus.” (10T at 184:10-12). She also testified

that, on occasion, after she arrived in Trenton, Diana would tell her to take a taxi to a brothel (10T

at 175:19 to 176:24), and that Petitioner once picked her up in Trenton to take her to a brothel in

Bridgeton, New Jersey. (10T at 186:17 to 187:14). Asked who paid for her transportation, Guerrero

testified that she paid for her own “taxi and transportation.” (10T at 168:9-11).

Jose Manuel Hernandez-Moreno (a/k/a “Manolo”) testified that he worked for Petitioner

(11T at 238-242), that “the majority” of the women he talked to at the brothels “came from

Queens” (11T at 282:21-23), and that “they arrived [in New Jersey] by train or by bus and we

would pick them up.” (11T at 315:19-24). Asked to elaborate, Moreno testified: “Sometimes

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Cocho or Diana would call me that the girl would be arriving in five minutes or was already at the

train station, to have a taxi called to go pick her up.” (11T at 283:10-15) (see also 11T at 282)

(“Sometimes they arrived at the train station or bus station and we would go pick them up in a

taxi.”); 11T at 314:10-19 (testifying regarding recorded conversation that he knew woman was

returning home to New York on her own “because she told me she was taking the train for there”

after “she got a taxi from Asbury Park to Long Branch, to catch the other train that left from

there”)).

Nashielly Salinas Pacheco testified that she traveled from Queens, New York to work in

brothels in New Jersey. (14T at 390-93). Asked about her first trip traveling from Queens to a

brothel in Bridgeton, New Jersey, Pacheco testified: “I took a train. Afterwards on 42nd Street, I

took a bus to Union City, and at stop 30 ... the person who was going to drive us to the location

was waiting.” (14T at 391:2-20).

The government introduced at trial text messages retrieved from Diana’s telephone, which

were read into the record by SA Iatauro. (10T at 99:4 to 110:5). Those texts corroborate that the

women who worked in the brothels arranged their own transportation to train or bus stations in

New Jersey and that, occasionally, they were then picked up at the stations, by taxis or other

transportation arranged by a co-conspirator, and then transported within New Jersey. There was

no evidence presented at trial that Petitioner or any other participant arranged or paid for

transportation from New York to New Jersey for any prostitute.

On January 15, 2019, Petitioner was convicted of both counts. On June 19, 2019, the

district court sentenced Petitioner to a 78-month term of imprisonment. On June 20, 2019,

Petitioner filed a timely Notice of Appeal. On September 10, 2020, the Third Circuit affirmed

Petitioner’s conviction. See Ex. A (Slip. Op.).

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REASONS CERTIORARI SHOULD BE GRANTED

THE COURT SHOULD ISSUE A WRIT OF CERTIORARI TO RESOLVE

A CIRCUIT SPLIT AS TO WHETHER 18 U.S.C. § 2421(a) IS VIOLATED

WHERE PROSTITUTES ARRANGED AND PAID FOR THEIR OWN

INTERSTATE TRAVEL.

The United States Courts of Appeals have reached conflicting decisions with respect to

whether a criminal defendant may be convicted of violating the Mann Act, 18 U.S.C. § 2421(a),

where, as in this case, prostitutes arranged and paid for their own interstate transportation. As the

D.C., First, Fifth, Seventh, Eighth and Ninth Circuits have held, see infra, there is a difference

between “transporting” an individual in interstate commerce, which is the conduct criminalized by

Section 2421(a), and enticing another “to travel” in interstate commerce, which is separate conduct

criminalized by 18 U.S.C. § 2422(a) but not charged in this case. As those Circuits have

recognized, the Third Circuit’s holding in this case – that merely scheduling a person to work as a

prostitute in another state is sufficient to prove the interstate transportation element of Section

2421(a), even in the absence of any evidence that the charged defendant transported or arranged

for the transportation of the prostitute across state lines – is contrary to the plain terms of the

statute and would make Section 2422(a) redundant. Therefore, a writ of certiorari should be

granted to resolve this Circuit split, see S. Ct. R. 10(a); certiorari also is warranted because this

petition presents “an important question of federal law that has not been, but should be, settled by

this Court” relating to an often-used federal criminal statute. S. Ct. R. 10(c).

It is undisputed that, at trial, the government did not present any evidence that the

participants in the charged conspiracy transported or arranged the transportation across state lines

of any person for purposes of prostitution. Rather, the evidence at trial was that several women

who lived in New York would arrange and pay for their own transportation from New York– by

bus or train – to stations in New Jersey and that, on occasion, they would be picked up from those

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stations in New Jersey and transported to brothel locations within New Jersey. Nevertheless, the

Third Circuit affirmed Petitioner’s conviction, holding that “Zozaya caused interstate travel for the

purposes of prostitution by coordinating and prearranging the date and time on which women

would travel interstate to work for him.” Slip Op. at 6. Accord United States v. Mi Sun Cho, 713

F.3d 716 (2d Cir. 2013) (holding that “arranging transportation” for purposes of Section 2421(a)

requires nothing more than “providing a prostitution job” and “coordinating and prearranging” the

prostitute’s work schedule).

This interpretation of Section 2421(a) – holding that setting the work schedule of a

prostitute who then arranges and pays for their own transportation across state lines is sufficient to

establish a violation of Section 2421(a) – is both wrong and in conflict with multiple other Circuits’

decisions holding, in cases in which the charged defendants arranged prostitution jobs that

necessarily required the prostitute to travel between states, that providing a prostitution job and

intrastate transportation does not violate Section 2421(a), if the prostitute arranges for their own

interstate transportation.

These holdings are consistent with the plain terms of the relevant provisions of the Mann

Act. Section 2421(a) provides in relevant part as follows:

Whoever knowingly transports any individual in interstate ... commerce ...,

with intent that such individual engage in prostitution ... shall be fined under

this title or imprisoned not more than 10 years, or both.

Petitioner was not charged with violating 18 U.S.C. § 2422(a), which provides in relevant part as

follows:

Whoever knowingly persuades, induces, entices, or coerces any individual

to travel in interstate ... commerce ... to engage in prostitution ... shall be

fined under this title or imprisoned not more than 20 years, or both.

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In contrast to Section 2422(a), which criminalizes interstate travel by another for purposes of

engaging in prostitution, Section 2421(a) – by its plain terms – requires proof that the accused

actually transported an individual across state lines; mere interstate travel by another, or mere

intrastate transportation of another, is not sufficient (and is not a federal crime at all).

Thus, contrary to the Third Circuit’s decision here, in Twitchell v. United States, 330 F.2d

759 (9th Cir. 1964), the Ninth Circuit reversed a Section 2421 conviction following the

government’s confession of error after a remand from this Court because the prostitute had

arranged and paid for her own interstate transportation to a prostitution job provided by the

defendant:

We have examined the government’s confession of error. It states that Wells

paid for her own interstate transportation, and that [Defendant] Rogers

cannot be held to have “counselled, commanded, or induced” such

transportation, in violation of sections 2 and 2421 of title 18, U.S.C. This is

because section 2421 only prohibits transportation of a woman by someone

else; it is not an offense for the woman to transport herself. Consequently,

it cannot be an offense, under section 2, to counsel, command, or induce her

so to transport herself. We think that the government is correct. There is

here no evidence that Rogers in any way participated in the actual

transportation of Wells from Portland to Tacoma, although he did later

participate in transporting her from Tacoma to Everett. The latter trip,

however, was separate, and entirely intrastate. Thus the principles

announced in La Page [sic] v. United States, 146 F.2d 536 [8th Cir. 1945],

and followed in Hill v. United States, 150 F.2d 760 [8th Cir. 1945], are

applicable here. The result might be different if count nine had charged a

violation of section 2422, but it did not. We conclude that the judgment

against Harrison Rogers under count nine cannot stand.

Twitchell, 330 F.2d at759-60.

In Le Page v. United States, supra, the Eighth Circuit held that where a woman made an

interstate journey to a brothel at the defendant’s request, but at her own expense, the defendant

had not caused her unlawful transportation in violation of the predecessor to Section 2421:

The evidence established that Dora Thomas (who was an inmate of a house

of prostitution operated by appellant at Fargo, North Dakota) had gone to

Minneapolis, Minnesota, for a vacation; that appellant telephoned her, one

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evening, to return as “one of her girls was leaving” and she would be

expected early next morning; that it was understood by both women that

Dora Thomas would return to Fargo next day by train; and that she did so

return. Baldly, the evidence is that Dora Thomas made this interstate

journey at her own expense because of appellant’s telephone request and

that both women understood the immoral purpose for which the trip was to

be taken. Since there was no evidence that appellant gave any aid or

assistance in obtaining the transportation, the sufficiency of the proof

depends upon whether it shows that appellant “did cause [Dora Thomas] to

be transported” within the meaning of section 2 of the Act.

Appellant contends that where, as here, the only act of accused is that of

persuading or inducing an interstate trip by common carrier for immoral

purposes, such act is not causing such trip within the meaning of section 2

but is, if any crime, the one stated in section 3 of the Act, U.S.C.A. Title 18,

§ 399....

In construing these provisions of the two sections, we start with the rules

that a statute should be construed so as to give effect to all of its language

and that a broad statutory provision will not apply to a matter specifically

dealt with in another part of the same Act. Also, it has been determined that

the two sections cover separate crimes.... [T]he sections are distinct ... and

this distinction is between “causing to be transported”, etc., under section 2,

and “persuading, inducing” etc., to be transported under section 3 .... The

only way to make that distinction effective and to preserve any effect to this

part of section 3 is to eliminate as causes for transportation under section 2

the kinds of causation covered in section 3 by the expressions “persuade,

induce, entice, or coerce.”

.... In short, if this evidence establishes also a crime under section 2, it must

follow that any evidence sufficient to prove a crime under section 3 is

likewise sufficient to prove a crime under section 2. Since section 3 is of

similar and of narrower application than section 2, the inevitable result is

that all meaning of section 3 is included in section 2 and section 3 states no

crime not included in section 2. This is to strike out section 3 and give it no

effect whatever. We think it is not our province thus to nullify a portion of

an Act, by statutory construction, when it is possible to reconcile the two

sections giving each a separate meaning and effect and thereby preserve

both sections of the Act.

Le Page, 146 F.2d at 537-38 (reversing conviction and remanding for entry of judgment of

acquittal).

Similarly, the D.C. Circuit, in United States v. Jones, 909 F.2d 533 (D.C. Cir. 1990),

reversed the Mann Act conviction of a defendant who worked as a telephone dispatcher for an

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escort service, taking telephone orders for escorts and then contacting the escorts to notify them of

the names and addresses of their customers. The escorts, however, made their own travel

arrangements and transported themselves. Id. at 536, 540.

The Government argued that the business, aided by appellant acting as a

dispatcher, was “so closely involved in the [women’s] ongoing activities

that it was the ‘moving’ or ‘efficient’ or ‘effective’ cause of the

transportation.” The evidence at trial showed, however, that the escorts

made their own travel arrangements and, in a literal sense, transported

themselves interstate, by car or subway; and the Government has never

suggested that the escorts were either physically or psychologically coerced.

Thus, notwithstanding the Government’s insistence that “the conduct

addressed here amounted to more than mere inducement of interstate

travel,” and that the enterprise “directed and controlled the activities of its

‘escorts,’” there is a complete lack of relevant evidence to that effect. The

Government emphasizes the support services that the enterprise provided,

pointing out, for example, that “advertisements ... placed in publications

that ensured a higher class of clients than commonly available to street

prostitutes” made Congressional’s “mode of operation more attractive than

individual enterprise.”

We accept the Government’s implicit premise that one need not physically

carry or accompany a person interstate in order to “transport” her; it may be

enough effectively to cause her to be transported, as would clearly be the

case if one were to commission another to abduct her. The problem with the

Government’s theory is that the conduct it would characterize as direction

and control also and better fits the description of a different and

complementary offense. Another provision of the Mann Act penalizes one

who “knowingly persuades, induces, entices, or coerces any individual to

travel in interstate ... commerce ... to engage in prostitution, or in any sexual

activity for which any person can be charged with a criminal offense.” 18

U.S.C. § 2422. If § 2421 is interpreted so broadly as to encompass

inducement, then § 2422 would be redundant.

The more felicitous rendering preserves a role for each section by confining

§ 2421 to cases in which the defendant can truly be said, personally or

through an agent, to have performed the proscribed act of transporting;

§ 2422 covers those cases in which the defendant provides the motivation,

ranging from persuasion to coercion, but the person then “travels” under her

own steam, without need of anyone to “transport” her. This reading

preserves the ordinary language, common-sense meaning of the distinction

between “causing” and “inducing” unlawful transportation. It is also

logical: the causing and inducing statutes together comprise a set that

captures all instances in which a person crosses a state line, at the instance

of the defendant, for an immoral purpose. The Government’s interpretation

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of § 2421 is, in contrast, inconsistent with the language as well as the logic

of the two provisions viewed together.

Id. at 540. Therefore, the D.C. Circuit reversed the defendant’s conviction under Section 2421. Id.

at 541 (“[I]n our view, the activities of the business in which the appellant participated may have

induced the escorts to travel interstate but did not cause them to be transported within the meaning

of § 2421.”) (distinguishing cases). See also United States v. Camuti, 950 F.2d 72, 77 (1st Cir.

1991) (holding that defendant convicted of inducing interstate travel under Section 2422 could not

have sentenced enhanced for violation of Section 2421 for transporting prostitute named

Goldsmith because even though “Camuti provided the ‘motivation’ for Goldsmith’s travel, ...

using her own car, she ‘travelled under her own steam without need of anyone to transport her.’

Jones, 909 F.2d at 540. Thus, Goldsmith was not transported within the meaning of 18 U.S.C.

§ 2421.”). See also Nunnally v. United States, 291 F.2d 205, 206 (5th Cir. 1961) (recognizing that

“[t]he offense of causing transportation of a woman under § 2421 and the offense of inducing a

woman to go in interstate commerce for immoral purposes under § 2422 constitute separate crimes.

Under § 2422 it is inducing the transportation for the immoral purpose that is the crime, rather than

the furnishing or procuring of the transportation as such. Hence, [under § 2422] for example, it is

not necessary to establish that the accused pay for or provide the transportation.”) (internal

citations omitted); Heitler v. United States, 244 F. 140 (7th Cir. 1917) (holding that the furnishing

of cab fare from a railroad station in the destination town to house of prostitution in that town did

not constitute transportation in interstate commerce because the transportation arranged by the

defendant was purely intrastate).

Perhaps the government here could have charged Petitioner with conspiracy to violate 18

U.S.C. § 2422(a). It did not. Here, it is undisputed that there was no evidence that Petitioner (or

any other conspirator) transported a prostitute across state lines or arranged transportation of a

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prostitute across state lines. Rather, the evidence at trial was that prostitutes who lived in Queens,

New York would arrange (and pay) for their own transportation to New Jersey via bus or train.

Graham v. United States, 154 F.2d 325 (D.C. Cir. 1946) (holding that mere inducement to travel

for purpose of prostitution, when prostitute is likely to and does get transportation for herself, does

not violate Section 2421(a)); Hill v. United States, 150 F.2d 760, 761 (8th Cir. 1945) (holding that

evidence of a telephone request to travel is insufficient to prove that defendant caused someone to

travel). The fact that, on occasion, intrastate transportation would be provided to prostitutes once

they had already arrived in New Jersey, from bus or train stations in New Jersey to various brothels

in New Jersey, does not support a conviction under Section 2421(a) because it does not involve

the transportation of another in interstate commerce. Those Circuits that have adopted a

complimentary interpretation of Sections 2421(a) and Section 2422(a) have gotten it right, whereas

the Third Circuit’s interpretation of Section 2421(a) would make Section 2422(a) superfluous.

The Second Circuit’s decision in Cho, supra – which mirrors the Third Circuit’s

interpretation of Section 2421(a) – does not cite a single case that supports its conclusion that

merely providing a woman with a prostitution job that requires her to cross state lines satisfies the

transportation element of Section 2421(a) where the prostitute arranged her own interstate travel.

To the contrary, Cho relies on United States v. Holland, 381 F.3d 80, 86 (2d Cir. 2004), which

held that “[a] defendant will be deemed to have transport[ed] an individual under Section 2421

where evidence shows that the defendant personally or through an agent performed the proscribed

act of transporting,” a holding that belies the Second and Third Circuit’s expansive interpretation

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of Section 2421(a). Thus, Holland is consistent with the other Circuit’s interpretation of Section

2421(a) discussed above.1

In sum, the Second and Third Circuits’ interpretation of Section 2421(a) would make

Section 2422(a) redundant and is contrary to the plain meaning interpretation afforded those

statutes by the D.C., First, Fifth, Seventh, Eighth and Ninth Circuits, which have properly

distinguished the criminal conduct encompassed by Section 2421(a) from that encompassed by

Section 2422(a), by limiting the reach of the former to those cases in which the charged defendants

actually transported or caused the transportation of prostitutes across state lines.

Properly

interpreted, no rational trier of fact could have found the essential elements of the crime of

transporting an individual in interstate commerce, in violation of Section 2421(a) beyond a

reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). Because Petitioner’s conviction

was based upon insufficient evidence, in violation of his Fifth Amendment right to due process,

this Court should issue a writ of certiorari to review the Third Circuit’s decision, to resolve the

Circuit split discussed above, and to reverse Petitioner’s conviction.

1 The only other case cited by the Second Circuit in Cho is the Fifth Circuit’s decision in United

States v. Clemones, 577 F.2d 1247, 1253 (5th Cir. 1978), where Priscilla Scott, a defendant who

ran a brothel in Johnson City, Tennessee, was held to have aided and abetted a violation of the

Mann Act by calling Thelma Ann Lunsford’s pimp, Billy Johnson, in Rome, Georgia, where

Lunsford was working as a prostitute, and arranging for Johnson to drive Lunsford across state

lines from Rome to Chattanooga, Tennessee, where Lunsford took a bus to Johnson City to work

for Scott. Id. at 1254. In rejecting Scott’s argument that she did not personally transport Lunsford

across state lines, the Fifth Circuit observed that her argument “overlooks the prearrangement

consisting of the telephone call, followed by the actual interstate transportation [by Johnson] with

the last leg terminating at Scott's house in Johnson City.” Id. (emphasis added). Therefore,

Clemones does not support the Second Circuit’s decision in Cho or the Third Circuit’s decision in

this case. No other case law does either.

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CONCLUSION

For these reasons, Petitioner Juan Fredy Hernandez-Zozaya respectfully asks the Court to

grant his Petition for a Writ of Certiorari to the United States Court of Appeals for the Third

Circuit.

Respectfully Submitted,

Mark A. Berman, Esq.

Counsel of Record

HARTMANN DOHERTY ROSA

BERMAN & BULBULIA, LLC

433 Hackensack Avenue, Suite 1002

Hackensack, New Jersey 07601

(201) 441-9056

Attorneys for Petitioner

Juan Fredy Hernandez-Zozaya

Dated: November 9, 2020

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EXHIBIT A