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.
