Eleventh Circuit Court of Appeals - Published Opinions

Wednesday, July 10, 2019

Whyte: For Sex Trafficking, the Government Need Only Prove a Reasonable Opportunity to Observe the Victim

In United States v. Whyte, No. 17-15223 (July 10, 2019) (William Pryor, Newsom, Branch), the Court affirmed the defendants' sex trafficking convictions.

The Court primarily held that, in light of a 2015 amendment to 18 U.S.C. 1591, the government may prove sex trafficking by establishing only that the defendant had a reasonable opportunity to observe the victim; the government need not also prove that the defendant knew or recklessly disregarded the victim's age.  The Court rejected the defendants' reliance on dictum in case law interpreting the pre-amendment version of the statute.  The Court rejected the defendants' related arguments, including that the Court's reading improperly created a strict liability offense and rendered the statute unconstitutionally vague.

Reviewing for plain error, the Court found no reversible error with regard to the jury instructions.  The Court found that the offense did not require knowledge of the victim's status as a minor, and so therefore that requirement could not be imported into the related conspiracy offense.  And although the instructions omitted the element of a commercial sex act from the numbered list of elements, that omission was not plain error in light of the entirety of the instructions.

The Court upheld the denial of a motion to suppress.  Although the detective's warrant affidavit omitted the victim's criminal history, the defendant failed to argue that he omitted material facts deliberately or with a reckless disregard for truth.

The Court found that limitations on the cross examination of the victim did not violate the Confrontation Clause.  Although the court prevented the defense from attacking the victim's credibility on one point, the defense explored her bias and credibility during a nearly two-day cross examination and elicited testimony that was cumulative to the testimony it was prevented from eliciting.

Finally, the Court upheld the denial of a reduction for acceptance of responsibility because the defendant contested a factual element of guilt at trial.  The Court upheld an undue-influence enhancement because the defendant was ten years older than the victim, creating a presumption of undue influence that he could not rebut.  The Court upheld, on plain error, an enhancement for use of a computer based on their use of smart-phones to communicate with the victim's clients, relying on circuit precedent that found the commentary inconsistent with the text of the Guideline.  The Court rejected the defendant's argument that an enhancement for commission of sex acts constituted impermissible double counting.  And the Court upheld as substantively reasonable the defendants' 300-month and 188-month sentences, both near the bottom of the guideline range.