Saturday, December 20, 2014

Another Pimp Bites the Dust

Continuing with recent decisions published by the Tenth Circuit, we present:
United States v. Brinson (Judge Bacharach, with Judges Holmes and McHugh)
The case involves a pimp, an underage prostitute, and a police sting. You know the drill. The case went to trial. The jury convicted. The defendant appealed. The opinion is a whopper: 28 pages. It addresses 6 issues. Luckily, the Court summarizes its holdings on each issue on pages 2 and 3. This is a fantastic summary, actually. Aside from reading this summary, here's what you need to know (we think):
  1. apparently, there are "experts" on child prostitution rings who can testify as to many "aspects" of such rings "unknown to jurors." This "expert," by the way, was a police officer. He testified about, inter alia, coded language, and he also explained how a pimp uses the Internet and cell phones to recruit and control prostitutes. Interestingly, in finding no abuse of discretion, the Court failed to cite the relevant rules of evidence. There is essentially no legal analysis on this issue whatsoever. Yet, this is a published decision . . . .
  2. if your client posts messages on Facebook, they are fair game at trial under Rule 801(d)(2)(A)'s party-opponent exception to the hearsay rule, and that is true even if your client uses an alias on Facebook (as long as the government proves identity by a preponderance of the evidence).
  3. out-of-court statements are admissible if they explain why the police officer did what he did, and not to prove the truth of the statements. So, if an unknown individual told the officer to go to Room 123 at the Super 8, that statement is admissible to show why the officer went to Room 123 at the Super 8. And if the prostitute tells the officer that she does not have a condom, that statement is admissible to show why the officer paid for oral sex instead of some other type of sex (we are not entirely sure why the type of sex is relevant, but anyway). Nor were these statements inadmissible via the Confrontation Clause because they were not "testimonial" (i.e., used in relation to a criminal investigation).     
  4. the government can admit into evidence a certificate authenticating debit card records under Rule 902(11), which avoids the need for live testimony to authenticate the records. Again, this certificate is not "testimonial," even though arguably prepared for trial, because the certificate does not contain any "analysis that would constitute out-of-court testimony" (contrast with a forensic report).
  5. officers had probable cause to arrest the defendant; among other things, they knew that he had rented the prostitute's room, and he was seen driving a vehicle slowly by the room that night (trust us on this one; there was probable cause)
  6. the evidence was sufficient. The Court spends more time on this last issue than any of the others (but the analysis is still perfunctory). It seems a safe bet that the evidence was sufficient, but we note:
    1. the interstate commerce nexus was met via the defendant's use of the internet and a cell phone (so, intrastate activity becomes a federal crime if the defendant advertises a prostitute online or uses a cell phone to communicate with her);
    2. the defendant actually had proof of the prostitute's age (14 years old) in his vehicle (ouch);
    3. text messages between a pimp and an underage girl, the nature of which involves the girl becoming a prostitute, is sufficient to establish an attempt conviction, as well as a coercion/enticement conviction;
    4. if your client tells another person not to testify in front of the grand jury, that amounts to obstruction of justice (you guessed it, this conversation happened on the jail phone).
Our final point on this monstrosity is to note, again, the barebones nature of the analysis in this published decision. We are unsure how one would use this as precedent, so be careful if the government cites it in one of your cases.

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