Eleventh Circuit Court of Appeals - Published Opinions

Monday, June 10, 2019

Cooper: Affirming Wire Fraud and Sex Trafficking Convictions Over Multiple Challenges

In United States v. Cooper, No. 17-11548 (June 10, 2019) (Rosenthal, William Pryor, Newsom), the Court affirmed the defendant's convictions and sentences for wire fraud and sex trafficking over various challenges.

First, the Court rejected the defendant's hearsay/Confrontation Clause arguments.   As to an agent's testimony about the state of mind of foreign victims who did not testify, the Court found that, even if hearsay, the defense opened the door to the agent's testimony on cross examination.  And the agent did not offer testimonial statements from the individuals because he questioned them only to understand why they refused to testify, not to investigate or establish any element of the charged offenses.  As to the agent's testimony about statements made to him by men whose names were listed on visitor logs, the Court again found that the defense opened the door to that testimony.  And while the men's statements were testimonial, any confrontation clause violation was harmless in light of the other evidence at trial.  Finally, as to an agent's testimony that a victim had identified the defendant's voice during a monitored phone call, the Court found that the district court had ample other evidence establishing that identification and that the defendant's statements on the call were admissible as those of a party opponent.

As to additional evidentiary issues, the Court found that the defendant invited his claim of error regarding the admission of additional testimony by the agent.  The district court did not abuse its discretion in admitting evidence under Rule 404(b) because it showed his intent to operate a sex business, his knowledge of the type of business, and that he engaged in a knowing course of conduct.  And the Court rejected the defendant's argument that statements he made to officers outside of his apartment were involuntary, as there was no evidence of coercion.

The Court next found the evidence sufficient to support the defendant's convictions for wire fraud and sex trafficking.

The Court next rejected several claims of error relating to various jury instructions.   First, the district court properly refused to give a defense instruction that was confusing and misstated State Department regulations.  Second, the Court found no error in the court's instruction for using a facility in interstate and foreign commerce to promote an unlawful activity, in violation of 18 U.S.C. 1952(a)(3)(A).  Third, the Court found no error in the court's instruction for importing or attempting to import an alien for the purpose of prostitution or any other immoral purpose, in violation of 8 U.S.C. 1328.  Fourth, the Court found no error in declining to give an immunized-witness instruction because it was covered by the court's instruction to assess each witness's credibility.  Lastly, the Court found no error in declining to give a missing-witness instruction because there was no evidence that the witnesses were in the control of the government or that their testimony would have been favorable to the defense.

The Court next no prosecutorial misconduct when the prosecutor called the defendant a "two-faced fraud" and a "phony" during opening statements, as the government introduced evidence that the defendant used a fake name to run his prostitution business and used false pretenses to lure the victims to the United States.

Lastly, the Court found no error in applying the vulnerable-victim enhancement because the victims were from a foreign country, had difficulty speaking English, and had no other jobs, family, or place to stay without the defendant.