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United States v. Blake

United States Court of Appeals, Eleventh Circuit

August 21, 2017

DONTAVIOUS M. BLAKE, TARA JO MOORE, Defendants-Appellants.

         Appeals from the United States District Court for the Southern District of Florida D.C. Docket No. 9:13-cr-80054-KAM-1

          Before ED CARNES, Chief Judge, FAY, and PARKER, [*] Circuit Judges.


         After a nine-day trial, a jury found Dontavious Blake and Tara Jo Moore guilty of child sex trafficking for managing a prostitution ring involving at least two girls under the age of eighteen. Blake and Moore challenge numerous rulings the district court made before and during trial, and at sentencing.


         A. Pre-Trial

         Blake and Moore had a system for running their prostitution ring. One of them would post ads for prostitution services on the classifieds website Backpage. Moore would then take phone calls from potential customers who were responding to the ads. And Blake would give the prostitutes rides to their appointments and provide muscle. The money was split 50/50 between the working prostitute on the one hand and Blake and Moore on the other.

         Through a variety of leads, the FBI discovered Blake and Moore's prostitution ring. It learned that the Backpage ads had been posted using an email address (hereafter the "S.B. email address"), which the FBI determined belonged to Moore. And it found out that at least two girls, known as T.H. and E.P., had been under the age of eighteen when they engaged in prostitution for Blake and Moore.

         In the wake of those discoveries, the FBI arrested Blake and Moore. It continued the investigation, executing four post-arrest search warrants relevant to this appeal. First, it executed a warrant to seize and search electronics in Blake and Moore's townhouse, including an "Apple iPad tablet[ ]." Once in possession of that iPad tablet, however, the FBI found itself unable to access any of the device's data due to its security features. So the FBI requested and received a district court order, issued under the All Writs Act, 28 U.S.C. § 1651(a), requiring the iPad's manufacturer, Apple Inc., to assist the FBI in bypassing the iPad's passcode lock and other security measures. With Apple's help, the FBI was able to successfully unlock the device and download its data.

         The second relevant search warrant the FBI executed directed Microsoft, which owns Hotmail, to turn over emails from two of Blake and Moore's email accounts, including the S.B. email account. The Microsoft warrant did not seek all emails in those two email accounts; instead, it was limited to certain categories of emails in them that were linked to the sex trafficking charges against Blake and Moore. For example, the warrant required Microsoft to turn over all "[e]mails, correspondence, and contact information for" and all "[e]mails and correspondence from online adult services websites" that were contained within the two email accounts.

         Finally, the FBI also applied for and received two almost identical search warrants for Moore's Facebook account. Because that account was associated with the S.B. email address and Moore's phone number, the FBI knew it belonged to her. At the time it executed the Facebook warrants, the FBI had extensive evidence linking Moore to the prostitution ring, including statements by T.H. inculpating her. And Moore's Facebook account was suggestive of criminal conduct: the publicly viewable version of the account listed Moore's occupation as "Boss Lady" at "Tricks R [U]s."

         The two warrants required Facebook to "disclose" to the government virtually every type of data that could be located in a Facebook account, including every private instant message Moore had ever sent or received, every IP address she had ever logged in from, [1] every photograph she had ever uploaded or been "tagged" in, every private or public group she had ever been a member of, every search on the website she had ever conducted, and every purchase she had ever made through "Facebook Marketplace, " as well as her entire contact list. The disclosures were not limited to data from the period of time during which Moore managed the prostitution ring; one warrant asked for all data "from the period of the creation of the account" and the other did not specify what period of time was requested. The warrants did state that the only information that would be "seized, " after all that data had been "disclosed" to the FBI, was data that "constitute[d] fruits, evidence and instrumentalities" of a specified crime.

         After the execution of those four warrants, a third superseding indictment charged Blake and Moore with six violations of 18 U.S.C. § 1591: substantive child sex trafficking of T.H. (Count 1); substantive child sex trafficking of E.P. (Count 2); conspiracy to sex traffic children -- T.H. and E.P. (Count 3); two substantive counts of sex trafficking adults by coercion (Counts 4 and 5); and one count of conspiracy to sex traffic by coercion (Count 6).

         Blake and Moore filed several pre-trial motions relevant to this appeal. Moore moved to sever Counts 1 through 3, which involved sex trafficking of children, from Counts 4 through 6, which involved sex trafficking of adults by coercion. Blake and Moore moved to suppress evidence obtained from the iPad. And they moved to suppress all the evidence gathered as a result of the search warrants served on Microsoft and Facebook. The district court denied all of those motions.

         B. Trial and Sentencing

         At trial T.H. testified about her time prostituting for Blake and Moore, starting when she was sixteen years old. To explain why she turned to prostitution, T.H. described her difficult upbringing. She explained that her great uncle had sexually abused her when she was between the ages of five and eight. During that same period, her parents separated, her father left her life, and her mother fell into a deep depression, leaving T.H.'s older sister to raise her. That older sister was a drug addict who physically abused her.

         E.P. testified as well. She stated that she called Blake after she found his business card and started prostituting for him soon thereafter. She was sixteen when she started - young enough that Blake had to buy her cigarettes. On cross examination she admitted that she saw Moore only six times "at most." One of those times was when Moore spent about twenty minutes taking pictures of her for a Backpage ad.

         The government also called Khrystyna Trejo, an adult prostitute who had spent time working alongside T.H. and E.P. She testified that, although E.P. had told her that she was eighteen, E.P.'s way of "approach[ing] certain things" and her interest in children's television shows made her seem "younger than what . . . she said she was."

         In addition to testimony related solely to the child sex trafficking charges, the government called several witnesses in an attempt to prove its theory that Blake and Moore "coerced" adult prostitutes by controlling their drug supply, evidence that went to Counts 4 through 6. Several adult prostitutes testified both to the general structure of the prostitution ring and the fact that almost all the money the prostitutes made was immediately spent buying drugs from Blake. The government also called an addiction expert who testified about the physical and neurological characteristics of drug dependency and withdrawal.

         At the close of the government's case in chief, the district court granted Blake and Moore's motion for a judgment of acquittal on the adult sex trafficking by coercion charges (Counts 4 through 6), after finding that the government had not proven the "coercion" element of the offense. The court instructed the jury not to "draw any conclusions or inferences one way or the other because [Counts 4 through 6] are no longer involved in the case."

         Blake and Moore did not present any evidence of their own. The jury found them guilty of the remaining charges - two substantive counts of child sex trafficking and one count of conspiracy to sex traffic children, and the district court entered judgment of conviction on those counts.

         After applying a number of enhancements, the district court sentenced Blake to 324 months imprisonment, followed by supervised release for a term of life. And it sentenced Moore to 180 months imprisonment followed by 240 months supervised release.

         II. ANALYSIS

         A. Severance of Charges

         Blake and Moore first challenge the district court's denial of their motion to sever the child sex trafficking charges from the sex trafficking by coercion charges. We review the denial of a motion to sever charges only for an abuse of discretion. United States v. Barsoum, 763 F.3d 1321, 1336 (11th Cir. 2014). We will not reverse the district court's decision unless Blake and Moore "demonstrate that [they] received an unfair trial and suffered compelling prejudice." United States v. Slaughter, 708 F.3d 1208, 1213 (11th Cir. 2013) (quotation marks omitted).

         That is a "heavy" burden, id., and Blake and Moore have not carried it. First of all, a significant part of the testimony underlying the sex trafficking by coercion charges was also relevant to the child sex trafficking charges. For example, in closing arguments Blake's counsel argued that the only T.H. Backpage ad presented at trial was posted under the category of "body rubs" (as opposed to under the "escorts" category), indicating that T.H. had not engaged in prostitution. But given the testimony of some of the adult prostitutes that Blake and Moore generally used Backpage to advertise prostitution, the jury could have inferred that the T.H. ad was actually for commercial sex acts, whatever category it was posted under. Similarly, the testimony of the adult prostitutes that Moore handled interactions with customers undermined her argument that she was not a co- manager of the conspiracy. Because much of the evidence presented in connection with the sex trafficking by coercion charges could have been and likely would have been presented even if the trial had involved only the child sex trafficking charges, Blake and Moore did not suffer "compelling prejudice" from having the charges tried together.[2]

         Blake and Moore argue that, even if the evidence was generally relevant to both sets of charges, the inflammatory nature of the sex trafficking by coercion charges resulted in compelling prejudice. We disagree. Sex trafficking by coercion is an abhorrent crime, but so is child sex trafficking. And there is no compelling prejudice where both sets of charges are inflammatory. See United States v. Hersh, 297 F.3d 1233, 1243 (11th Cir. 2002) (holding that there was no compelling prejudice where "a reasonable jury undoubtedly would have found both the evidence of [the defendant's] child molestation and the evidence of [his] child pornography very inflammatory"). The district court's denial of Blake and Moore's motion to sever was not an abuse of discretion.

         B. The Bypass Order

         Blake and Moore next contend that the order requiring Apple to assist in bypassing the iPad's security features - what we will call the "bypass order" - exceeded the authority granted by the All Writs Act. As a threshold matter, we must address whether Blake and Moore have standing to make this challenge. They satisfy the three requirements of constitutional standing because they "(1) suffered an injury in fact, (2) that is fairly traceable to the challenged conduct . . . and (3) that is likely to be redressed by a favorable judicial decision." Spokeo v. Robins, 578 U.S. ___, 136 S.Ct. 1540, 1547 (2016). Specifically, they were injured because the evidence gathered as a result of the bypass order was used to convict them. That injury is fairly traceable to the government's request for and the district court's issuance of the bypass order. And if a ...

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