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.
