United States v. Kendal Ray Williams, AKA Wren, AKA Paris Carpenter
Docket: 00-30409
Court: Court of Appeals for the Ninth Circuit; June 5, 2002; Federal Appellate Court
Kendal Ray Williams was convicted on multiple counts related to prostitution and racketeering under the Mann Act and the Travel Act. He appealed his convictions, arguing that the government violated the Double Jeopardy Clause by charging him under two provisions of the Mann Act for each trip, that the venue in Montana was improper, that the admission of "other acts" evidence was an abuse of discretion, and that his rights were violated during an FBI interview. Additionally, he challenged the legality of his sentence on several grounds, including exceeding statutory maximums and improper notice for consecutive sentences.
The court held that there was no Double Jeopardy violation in the charges, that the venue was appropriate in Montana, that the admission of "other acts" evidence was justified, and that his rights during the FBI interview were not violated. Regarding sentencing, the court found that the district court erred in imposing sentences beyond the statutory maximum and in failing to provide notice for consecutive sentences. While some errors in calculating his criminal history were deemed harmless, certain enhancements for victim vulnerability and the use of physical force were upheld. The court reversed and remanded for resentencing, allowing the district court to reassess the vulnerability of one victim.
In 1994, the Defendant began a relationship with 15-year-old S.S. in Billings, Montana, where S.S. was responsible for caring for her younger siblings due to her mother's cocaine addiction. Defendant, a known pimp, persuaded S.S. that prostitution was a viable means of supporting her family. He trained her in prostitution, setting her prices, requiring her to work six days a week, and demanding she turn over her earnings to him in exchange for food, clothing, shelter, and transportation.
In late December 1994, Defendant took S.S. and other prostitutes to Phoenix, Arizona, where he exhibited violent behavior, including a severe beating with a pistol after S.S. associated with a Mexican man. In early 1995, they moved to California, and upon returning to Billings, Defendant continued to exert violent control over S.S. In March 1995, he transported S.S. and others to Washington, D.C., where he physically abused her further, including an incident where he stomped on her face.
In August 1995, after a series of abusive incidents, S.S. attempted to leave Defendant but was violently restrained and assaulted over two days before escaping back to Billings. In October 1996, Defendant picked up 15-year-old R.K., a runaway, and similarly coerced her into prostitution, using violence to control her.
In October 1999, Defendant was indicted along with nine others for a large-scale interstate prostitution conspiracy based in Billings. He was arrested in November 1999 by FBI agents in Houston, Texas, and was informed of the indictment for transporting minors for prostitution. After being read his Miranda rights, Defendant admitted to pimping underage women and traveling with prostitutes but denied physically abusing them. This interview was documented by Agent Tarpinian in an official report. Following his arrest, Defendant moved to sever his trial from the other defendants, which the district court approved.
Defendant requested notice of the government's intent to introduce evidence of other acts under Federal Rule of Evidence 404(b) before his trial was severed. The government indicated it would use certain evidence not as Rule 404(b) evidence, but as acts "inextricably intertwined" with the charged conduct. Witness S.S. testified for two days regarding three interstate trips with Defendant, which supported six Mann Act violations (counts 2, 3, 5, 6, 8, and 9) and a Travel Act count (count 10). R.K. testified about her trip with Defendant to New Mexico, supporting counts 11 and 12. FBI Agent Tarpinian testified about Defendant's statements during his arrest.
A hearing on Defendant's motion to suppress Tarpinian's testimony revealed allegations of threats made by agents. Defendant claimed he requested to leave and lacked a lawyer, while Tarpinian countered that Defendant did not request a lawyer but eventually stated he was "done talking." The district court denied the motion, finding Tarpinian's account more credible and determining the statements were voluntary.
Defendant objected to Tarpinian's testimony due to the absence of rough notes from the initial interview, which had been sent to another FBI office that could not locate them. The defense did not prove that Tarpinian destroyed the notes or that the formal report contradicted them. The district court granted a judgment of acquittal on counts 4 and 7, related to a victim who did not testify. Ultimately, Defendant was convicted on nine counts, including six Mann Act counts and one Travel Act count involving S.S., as well as two counts involving R.K. He received a 240-month sentence, leading to a timely appeal.
Defendant raised five challenges to his conviction: (1) double jeopardy concerning the Mann Act counts; (2) improper venue for the Travel Act count; (3) erroneous admission of "other acts" evidence; (4) improper admission of FBI statements; and (5) violation of Confrontation Clause rights concerning Tarpinian's notes. Each argument will be addressed in detail.
Defendant contends that charging him under two provisions of the Mann Act for each trip across state lines with a minor prostitute infringes upon the Double Jeopardy Clause. The legal question of whether such prosecution constitutes double jeopardy is reviewed de novo. The court employs the Blockburger test, examining whether each statute requires proof of a fact that the other does not. Under 18 U.S.C. § 2422(a), it is a crime to persuade, induce, entice, or coerce any individual to travel in interstate commerce for prostitution, while 18 U.S.C. § 2423(a) criminalizes transporting a minor in interstate commerce for the same purpose. A key distinction is that § 2423(a) necessitates proof of the victim's age, an additional fact not required by § 2422(a). Furthermore, the statutes proscribe different conduct: § 2422(a) focuses on persuading or coercing individuals to travel, while § 2423(a) centers on the act of transporting a minor. Therefore, committing an offense under § 2423(a) does not inherently include the offense under § 2422(a), as one could transport a minor without having induced or coerced them to travel.
Defendant argues that § 2422(a) conduct is inherently included within § 2423(a), asserting that if a minor is transported under § 2423(a), then persuasion, inducement, enticement, or coercion must also have occurred. However, the text of § 2423(a) does not mandate proof of these elements for a violation, as established by the Blockburger test, which focuses on the statutory requirements rather than the specific charges in an indictment.
Defendant cites United States v. Johnson to support his claim, but this case addresses the methods of transportation rather than the necessary elements of § 2423(a). Johnson clarifies that a minor can be transported directly or indirectly without implying that persuasion is required. Additionally, Defendant references Bell v. United States, noting that multiple victims do not equate to multiple violations under the Mann Act. However, the current case involves separate statutes with distinct elements, allowing for multiple convictions based on the same conduct.
Consequently, the analysis concludes that the convictions do not infringe on the Double Jeopardy Clause, and the superseding indictment is not duplicitous. On the issue of venue for the Travel Act violation (count 10), the general venue statute, 18 U.S.C. § 3237(a), permits prosecution in any district related to the offense, affirming the appropriateness of the venue. The statute characterizes such offenses as continuing, thus allowing for prosecution in any district involved in the transportation or mail services.
A violation of the Travel Act is classified as a "continuing offense," allowing prosecution in any district involved in the travel. The defendant commenced the relevant travel in Montana but contested the intent to commit a violent act in California, arguing that the government failed to prove this intent at the time of departure. The jury's guilty verdict indicates that the defendant had the requisite intent while still in Montana, thus validating venue in that state.
The defendant also challenged the admission of testimony regarding his violent assaults on victims, which is reviewed under Federal Rule of Evidence 404(b). Evidence of prior acts is deemed "other acts" only if it is not inextricably intertwined with the charged crime. The court found that the assaults were integral to the crimes of persuading and transporting minors for prostitution, serving to demonstrate the control the defendant exerted over the victims. This evidence was critical in refuting the defense's narrative of the victims as carefree travelers, thereby allowing the government to provide a coherent account of the events. Consequently, the court did not abuse its discretion in admitting the assault evidence, as it related directly to the criminal transactions at issue.
Defendant's motion to suppress statements made to FBI Agent Tarpinian was denied by the district court, leading to two main arguments from the Defendant: the statements were obtained in violation of his right to counsel and were involuntary.
Regarding the right to counsel, while the principles established in Edwards v. Arizona and Minnick v. Mississippi prohibit the reinitiation of an interview after a suspect requests counsel, the government contended that Defendant's statement, "I ain't got no lawyer, man. Let me out of here," was not a clear request for counsel. The court emphasized that the determination of whether a statement constitutes an unequivocal request is reviewed de novo. However, the district court found that the interview was terminated immediately upon Defendant's statement, which aligns with the protections afforded by Edwards and Minnick, thereby affirming that Defendant's right to counsel was not violated.
On the issue of voluntariness, the district court's finding that Defendant's statements were made voluntarily was upheld. This conclusion was supported by a review of the totality of circumstances, including Defendant's familiarity with the justice system, receipt of Miranda warnings, a valid waiver of rights, and the conduct of Agent Tarpinian during the interrogation, which lasted approximately 45 to 60 minutes without deprivation of necessities.
Additionally, Defendant claimed a violation of his Confrontation Clause rights due to the government's failure to provide Agent Tarpinian's notes from the initial interview. However, the court found that his reliance on United States v. Harris was misplaced, as that case did not mandate the production of rough notes in every instance and concerned statutory requirements rather than constitutional ones. No claims of routine destruction of evidence were present in this case.
The court in United States v. Pisello established that the necessity of producing notes must be evaluated on a case-by-case basis, particularly if the content of the notes is already documented in a formal memorandum, like a 302 report. In this case, the Defendant did not demonstrate that the notes contained exculpatory material or that they would have impacted his trial. The Sixth Amendment ensures defendants have the opportunity for effective cross-examination, but not necessarily all materials they desire for impeachment. The Defendant had a sufficient opportunity to challenge the witness, Tarpinian, and did so, revealing minor inconsistencies in testimony. Consequently, the Defendant's Confrontation Clause claim was dismissed.
Regarding sentencing, the court reviews the legality of a sentence de novo and assesses the district court's decisions under the Sentencing Guidelines for abuse of discretion. The district court incorrectly imposed a maximum sentence of 10 years for four counts under § 2422(a) when the applicable maximum was 5 years at the time the offenses occurred. This error necessitates a reversal and remand for resentencing according to the original statutory maximum. Additionally, the Defendant was sentenced to consecutive terms for counts related to different victims, which were not supported by the Sentencing Guidelines' grouping provisions. The imposition of these consecutive sentences lacked proper notice to the Defendant, making it inappropriate.
Under the Sentencing Guidelines, district courts have the discretion to impose consecutive sentences, as per 18 U.S.C. § 3584. The Guidelines provide guidance on when such sentences may be appropriate but allow for consecutive sentences even if not specified as a departure. A district court must give notice to a defendant if it intends to depart upward in sentencing or to impose consecutive sentences, as established in cases like Burns v. United States and United States v. Brady. In this instance, the district court erred for two main reasons: the defendant was not informed of all grounds for departure, specifically regarding his criminal history, and he lacked notice that consecutive sentences would be considered a departure mechanism. The government’s objections did not clarify that consecutive sentences were sought as a departure, leading the defendant to argue incorrectly based on the assumption that the Guidelines did not permit consecutive sentences in this context. Consequently, the district court's reliance on unnotified grounds and mechanisms constituted an error, preventing assurance that the court would have imposed the same sentence had it adhered to proper notification protocols. Therefore, the court vacated the defendant's sentence and ordered a remand for resentencing, requiring the district court to ensure the defendant is aware of all departure grounds and to consider the lower statutory maximums for certain counts when imposing consecutive sentences. Additionally, the court found that the defendant's criminal history score had been miscalculated by one point.
Defendant contests the points assigned for juvenile offenses in his criminal history score, which includes an October 1989 juvenile detention sentence of 8 to 12 weeks for delivering cocaine and a July 1992 aggravated assault conviction, resulting in commitment until age nineteen. Criminal history is calculated according to U.S.S.G. § 4A1.1(a) through (f) and § 4A1.2, which provide definitions and instructions for scoring. Specifically, § 4A1.2(d) addresses juvenile convictions:
1. Three points are added for adult convictions with imprisonment exceeding one year and one month.
2. Two points are added for any confinement of at least sixty days if released within five years of the current offense.
Defendant received two points for the cocaine offense, appropriately under § 4A1.1(b), while the aggravated assault conviction should also yield two points because both offenses involved juvenile detention, qualifying as “sentences to confinement.” The aggravated assault resulted in over two years of confinement, and the cocaine delivery maximum of 12 weeks meets the 60-day requirement. Defendant was released from both offenses within five years of the current offense commencement, which began in the fall of 1994 when he trained S.S.
Additionally, Defendant disputes the inclusion of his August 1998 adult conviction for criminal mischief. Although he argues it resembles disorderly conduct—which typically does not affect the score unless certain conditions apply—his sentence of six months, suspended, does not qualify for exclusion under § 4A1.2(c)(1). Thus, the criminal mischief conviction is properly counted toward his criminal history score, as suspended sentences are included in the Guidelines.
The aggravated-assault sentence should have been calculated as two points under § 4A1.2(d)(2)(A), resulting in a miscalculation of the Defendant's criminal history score by one point. The erroneous calculation placed the Defendant in Criminal History Category V with 12 points, while the correct score was 11 points, which still falls within Category V (10-12 points). This error is deemed harmless as it does not affect the Defendant's Criminal History Category, thus no relief is warranted for this mistake. However, the district court is instructed to correct this during resentencing on independent grounds.
The Defendant also challenges enhancements for victim vulnerability and physical force. The district court increased the offense level based on findings that victims S.S. and R.K. were vulnerable. According to U.S.S.G. § 3A1.1(b)(1), an enhancement for targeting a vulnerable victim is inappropriate if the victim's vulnerability is already accounted for in the offense guideline. Previous case law, notably United States v. Castaneda, indicates that economic vulnerability, common among Mann Act victims, does not warrant the enhancement unless the victim's vulnerability exceeds typical circumstances associated with the offense.
In contrast, the enhancement may still apply if unique vulnerabilities are established. The court upheld the enhancement for the count involving S.S., as the district court found her to have unusual vulnerability. The findings concerning victim vulnerability are not clearly erroneous, but the application of the enhancement must be scrutinized to determine its appropriateness based on the unique circumstances of the case.
The district court determined that S.S. exhibited particular vulnerability due to her mental condition stemming from a history of rape by her mother's boyfriend at age seven and her mother's chemical dependency issues. This psychological profile justified a vulnerable-victim enhancement for counts 2, 3, 5, 6, 8, 9, and 10. Conversely, R.K.'s vulnerability, rooted in her instability and chemical dependency, was deemed typical for Mann Act victims and insufficient for enhancement, as the court made no findings indicating unusual vulnerability or specific exploitation by the Defendant. Consequently, the enhancement for counts 11 and 12 involving R.K. was reversed, and the case was remanded for further proceedings.
Regarding physical force, the district court applied a four-level enhancement to all counts based on the use of physical force or coercion in the prostitution offenses. The Defendant contested this enhancement for R.K.'s counts, arguing that actual travel did not involve physical force. However, the court found that the Defendant used physical force to control R.K. and ensure her participation in prostitution, aligning with the adjustment's intent. The court affirmed that physical force need not be present in every element of the Mann Act counts for the adjustment to apply. Thus, the overall prostitution scheme, which involved intimidation and coercion, justified the enhancement. The convictions were affirmed, the sentence vacated, and the case remanded for resentencing consistent with the ruling.
Concurrent or consecutive terms of imprisonment may be imposed on a defendant based on the timing and nature of the offenses. If multiple sentences are given simultaneously, they typically run concurrently unless specified otherwise by the court or statute. Conversely, sentences imposed at different times generally run consecutively unless the court decides they should run concurrently. Factors outlined in section 3553(a) must be considered when determining the nature of the terms. For administrative purposes, multiple sentences, whether concurrent or consecutive, are treated as a single aggregate term.
A specific case is referenced where the defendant engaged in extreme criminal conduct, including trapping victims and subjecting them to prolonged violence and coercion. This behavior is characterized as unusually heinous and serves as grounds for a departure under U.S.S.G. 5K2.8. The defendant's criminal history score totaled 12 points, derived from various juvenile and adult convictions, with some adjustments made for offenses committed while on probation and within two years of release.
Circuit Judge Graber concurs with the majority's analysis but disagrees with the requirement for separate notice before imposing consecutive sentences. Graber cites four reasons for this disagreement: the previous ruling in United States v. Brady is outdated, there is inconsistency in the majority's rationale with established case law, a lack of policy justification for the majority's stance, and the defendant had prior notice of the possibility of consecutive sentences, negating any entitlement to relief. Each of these reasons is elaborated upon in the judge's concurrence.
Two cases decided shortly after *Brady* clarified the legal interpretation of sentencing guidelines regarding consecutive versus concurrent sentences. In *United States v. Pedrioli*, the Ninth Circuit reaffirmed the discretion of district courts to impose consecutive sentences as a departure from the Sentencing Guidelines, even when the Guidelines suggest overlapping sentences. The *Pedrioli* court distinguished its ruling from *Brady*, noting that *Brady* was limited to its specific facts and did not eliminate the authority of district courts to impose consecutive sentences.
The court in *Pedrioli* emphasized that while district courts must follow established procedures when departing from guidelines, the focus should be on the substantive reasons for the departure rather than the mechanism for imposing consecutive sentences. Procedural requirements include specifying the grounds for departure on the record, making accurate findings of fact, and ensuring that the reasons for departure are based on reasonable factors not considered by the guidelines.
Subsequently, the Supreme Court's decision in *Burns* further defined the notice requirements for departing from the Sentencing Guidelines. It clarified that under Federal Rule of Criminal Procedure 32(a)(1), district courts must provide reasonable notice to the parties regarding any contemplated departure and must specifically identify the grounds for such a departure. The Supreme Court reiterated the necessity of an informed adversarial process, highlighting that the lack of clear limits on departure factors requires transparency in the grounds for departure decisions.
Burns establishes that no special notice is required for a specific departure mechanism in sentencing. The Court did not imply that the extent of a departure necessitates separate notice, nor does Rule 32 independently suggest this. The majority's interpretation inaccurately adds an additional notice requirement regarding the mechanism and extent of departures. Both Pedrioli and Burns affirm that only notice of the substantive grounds for departure is necessary for a district court to deviate from the Guidelines. Once the district court communicates its intent and the substantive reasons for departure, the parties can adequately prepare for the sentencing hearing, allowing them to argue for adherence to the Guidelines.
Introducing different requirements for specific forms of departure contradicts the rationale established in Wills and Pedrioli, which reconciled the apparent conflict between consecutive and concurrent sentences mandated by the Guidelines and the district court's discretion under Section 3584. A special notice requirement for one type of departure could disrupt the resolution achieved in those cases. Additionally, imposing extra notice obligations complicates the sentencing process unnecessarily when the substantive grounds alone provide adequate preparation for the parties involved.
The majority's ruling also introduces ambiguity into sentencing hearings by suggesting that departures, particularly in the form of consecutive sentences, are inherently more significant. This logic could extend to all significant departures, causing confusion over which cases truly necessitate separate notice. Ultimately, creating a separate notice requirement is deemed unnecessary, as the standard procedure typically ensures that both the defendant and the prosecution are aware of potential grounds for departure through the presentence report or sentencing recommendations, barring only extraordinary circumstances.
The district court independently decided to impose consecutive sentences, which was unexpected for both the defendant and the government. The defendant had been made aware of the potential for such a departure through the Presentence Report (PSR), which indicated that the defendant's extreme conduct might justify an upward departure under § 5K2.8. Additionally, the government, in its objections to the PSR, advocated for consecutive sentences, to which the defendant responded. Ultimately, the district court chose to impose consecutive sentences based on the grounds of extreme conduct as noted in the PSR.
There was disagreement regarding the necessity for additional notice about the departure method, but the court concluded that the existing notice sufficed since the departure aligned with the PSR. Despite this, the court acknowledged that the district court imposed an additional, unspecified ground for departure related to the defendant's extensive criminal history under § 4A1.3, which necessitated a remand for resentencing. The excerpt also references that other circuits have similar views on the notice requirement and discusses the complexities surrounding the establishment of sentencing factors. The district court did not provide any notice regarding the additional grounds for departure beyond what was in the PSR.
