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United States v. Whyte

United States Court of Appeals, Eleventh Circuit

July 10, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,
JERMAYNE WHYTE, a.k.a. Turtle, JENNIFER CASTRO, Defendants - Appellants.

          Appeals from the United States District Court for the Southern District of Florida D.C. Docket No. 0:16-cr-60350-WPD-1

          Before WILLIAM PRYOR, NEWSOM, and BRANCH, Circuit Judges.


         The main issue presented by this appeal is whether the government may prove sex trafficking of a minor, 18 U.S.C. § 1591, by establishing only that a defendant had a reasonable opportunity to observe the minor victim instead of proving that he knew or recklessly disregarded the victim's age. Jermayne Whyte and Jennifer Castro appeal their convictions and sentences for the sex trafficking of a minor, id.; conspiracy to commit sex trafficking of a minor, id. §§ 1591(a)(1), (b)(2), 1594(c); and knowingly transporting an individual in interstate commerce for the purpose of engaging in prostitution, id. § 2421(a). After A.E., a 16-year-old runaway from California, arrived in Florida, she met Whyte and Castro and lived with them for about two months during which Whyte and Castro obtained work for A.E. at strip clubs and facilitated her prostitution. Notwithstanding our earlier dicta to the contrary in United States v. Mozie, 752 F.3d 1271, 1282 (11th Cir. 2014), we conclude that the 2015 amendment of section 1591 makes clear that the government may satisfy its burden by proving that the defendant had a reasonable opportunity to observe the minor victim. We also conclude that Whyte and Castro's challenges of the jury instructions, the denial of their motion to suppress evidence, a limitation on Castro's cross-examination of A.E., and their sentences all fail. We affirm.

         I. BACKGROUND

         When A.E. was 16 years old, she ran away from her family in California. A.E. had been spending time with people her father considered "thugs," including a man named Marcus Weber. Weber, whom A.E. later described as a "dangerous guy" she could not refuse, coerced A.E. to board a flight to Florida. When A.E. left, she was on probation and could have been punished with up to 15 years of imprisonment for leaving California.

         After A.E. arrived in Florida, she began working for an escort agency. The agency posted advertisements for A.E. on, a website that could be used to obtain prostitutes. A.E. began going on what she described as "dates" or engagements in which men paid to have sex with her. During this period, A.E. used several false identities.

         Shortly after her arrival in Florida, A.E. received unprompted text messages from Jennifer Castro, an adult prostitute who also worked at strip clubs. Castro told A.E. that she "could put [A.E.] in a better situation." After texting with Castro for two days, A.E. agreed to meet her. When they met in person, Castro came with her partner, Jermayne Whyte, nicknamed "Turtle," and their baby. Whyte and Castro brought A.E. home with them. A.E. lived with Whyte and Castro in their townhouse for most of a two-month period. A.E. slept on the couch, and Whyte and Castro slept in the master bedroom. Whyte and Castro bought A.E. food and clothing. They also gave A.E. marijuana and smoked it with her.

         For the first few days, A.E. enjoyed living with Whyte and Castro and performed no work. But then Whyte and Castro encouraged A.E. to work at a strip club. A.E. explained that she had no identification document, but Whyte and Castro obtained a false identification for her. The identification was in the name of "Jessica Berry," who was about 24 or 25 years old. A.E. used this false identification to work at multiple strip clubs. Whyte and Castro drove A.E. to the strip clubs to perform that work.

         Whyte and Castro also began prostituting A.E. They both posted ads for A.E. on They chose the content of the ads and set the price for A.E.'s services. Along with the online ads, Whyte and Castro told A.E. to pick up clients at the strip clubs. And they took her to a nearby Hard Rock Casino to look for clients.

         Whyte and Castro managed A.E.'s prostitution. They had a "trick phone" to communicate with A.E.'s "tricks"-i.e., the men who were paying to have sex with her. Whyte pretended to be A.E. in text conversations with her clients because A.E. "didn't know how to talk to them." Whyte and Castro instructed A.E. on how to treat clients, told her to use condoms, and taught her how to identify undercover do it for her. A.E. had no control over the money she made. Whyte would drive A.E. to her engagements, wait for her, and then collect the money. Castro also accompanied A.E. and was sometimes present in the same room as A.E. when she was having sex with a client. When she was working for Whyte and Castro, A.E. saw four to six clients a day.

         After a few weeks of working for Whyte and Castro, they took a trip to Atlanta so that A.E. could work in more lucrative strip clubs there. Whyte drove A.E. in a rental car and arranged for A.E. to have sex with a client on their way. Whyte also had sex with A.E. on the trip. When he got tired, Whyte asked A.E. to drive, but she did not know how to drive and hit a traffic cone. Whyte later acknowledged that he needed to teach A.E. how to drive. Castro flew to Atlanta to meet Whyte and A.E., and the three of them stayed in a single hotel room. Whyte and Castro posted ads for A.E. and had her work at two strip clubs. But one strip club would not allow A.E. to work there because her appearance did not match the photograph for her identification and she "look[ed] young."

         A.E. left Whyte and Castro a few times. After the Atlanta trip, A.E. left them when Whyte was arrested on an unrelated charge of providing a false identification. A.E. had several conversations with Whyte while he was in jail, which were recorded. Whyte encouraged A.E. to go back to Castro and called them a "family." Castro texted A.E. that she was "not here to play kiddie feelings games with [A.E.]" and rebuked A.E. for being "too scared to deal with problems like a grown person." While Whyte was in jail, Castro maintained the trick phone, and she continued to post A.E. on Castro refused to return A.E.'s medication and belongings to her. After Whyte was released, A.E. returned to living with Whyte and Castro and working at strip clubs. At one point, A.E. placed a call to a human-trafficking rescue hotline but did not report Whyte and Castro.

         Meanwhile, Agent Roy Van Brunt of the Federal Bureau of Investigation received a lead about a runaway minor working as a prostitute at a strip club. When A.E. was working at a strip club one night, the police took her into custody. A.E. first admitted but then denied her true identity. A.E. told the police about her ads under the name "Cali Rose" or "Cali Rosebud," which the police used to locate the account that posted the ads and the phone numbers associated with it. After several weeks of being uncooperative, A.E. admitted her identity to Agent Van Brunt and Detective Nicholas Masters of the Broward County Sheriff's Office, and she told them about Whyte and Castro's role in her prostitution. After A.E. began cooperating with the police, a California court held a hearing to revoke her probation, but the court found that A.E. had not violated her probation.

         Based on A.E.'s interview, Detective Masters obtained a search warrant for Whyte and Castro's townhome. Although he knew A.E.'s criminal history, Detective Masters did not include it in his affidavit because he did not think it was relevant. When the police executed the warrant, they found several items that A.E. had described, including two duffel bags containing clothes A.E. had worn while stripping; a drug prescription for "Jessica Berry," the name on A.E.'s false identification; a rental car receipt for the Atlanta trip; and the trick phone.

         The police also corroborated A.E.'s story by obtaining phone records that included A.E.'s text messages with Whyte and Castro. The police matched the trick phone with several ads posted for A.E. And the historical cell site data from the trick phone revealed that it had moved from Whyte and Castro's townhome to Atlanta and near several strip clubs, as A.E. had described. When the police interviewed Castro, she described A.E. as "very immature" and stated that she "had questions about her age from almost the first time she met her." Castro also "believed A.E. might be lying about how old she was."

         In a superseding indictment, a grand jury indicted Whyte and Castro with conspiracy to commit sex trafficking of a minor, 18 U.S.C. §§ 1591(a)(1), (b)(2), (c), 1594(c); sex trafficking of a minor, id. §§ 1591(a)(1), (b)(2), (c); and knowingly transporting A.E. from Florida to Georgia with the intent that A.E. engage in prostitution, id. § 2421(a).

         Before trial, Whyte and Castro moved to suppress the evidence obtained pursuant to the search warrant. They argued that Detective Masters's affidavit supporting the warrant omitted A.E.'s criminal history, which affected the probable-cause determination. After conducting an evidentiary hearing about the warrant, see Franks v. Delaware, 438 U.S. 154 (1978), the district court denied the motion. The district court found Detective Masters "extremely credible" and "not deliberate or reckless in omitting information in the affidavit." And the district court ruled that he "acted in objective good faith when applying for and executing the search warrant."

         The government proceeded to trial on the theory that Whyte and Castro were guilty of sex trafficking of a minor because they had a "reasonable opportunity to observe" A.E., see 18 U.S.C. § 1591(c). The government argued that, although section 1591(a) requires proof that a defendant knew or recklessly disregarded that the victim had not attained the age of 18, section 1591(c) provides that the government "need not prove that the defendant knew, or reckless disregarded" the victim's age when it proves that "the defendant had a reasonable opportunity to observe the [victim]." Id. Whyte and Castro contended that the government needed to prove that they knew or recklessly disregarded A.E.'s age and so a mistake-of-age defense would preclude their convictions. On the second day of trial, the district court agreed with the government that it needed to prove only that Whyte and Castro had a reasonable opportunity to observe A.E. and need not prove that they knew or recklessly disregarded her age. In the light of this ruling, the court concluded that mistake of age was not a defense.

         The government presented testimony from A.E., her father, Detective Masters, Agent Van Brunt, and other police officers who investigated the crimes. The government also presented the recorded jailhouse phone calls between Whyte, Castro, and A.E. And the government presented the phone records and historical cell site data from the trick phone. Whyte and Castro presented a defense about A.E. looking and acting like an adult, her willingness to engage in prostitution, and her criminal history.

         The government also presented evidence about A.E.'s travel from California to Florida and the possible probation consequences for her. A.E. testified that Weber coerced her to board the flight to Florida. And the government later elicited testimony that A.E. informed the California court in her probation hearing that she had not left voluntarily and that the court found A.E. had not violated her probation. Castro sought to cross-examine A.E. about whether she lied in her probation hearing about leaving California involuntarily. The government objected, and the district court sustained on relevance grounds. Castro later cross-examined A.E. about the possible "15-year prison sentence hanging over [her] head." And Castro asked A.E., "Isn't it true that the only reason you're here testifying is so that you don't get violated on your probation?"

         After closing argument, the district court instructed the jury that it could find Whyte and Castro guilty of sex trafficking of a minor and conspiracy to commit sex trafficking of a minor if it found that the defendants had a "reasonable opportunity to observe" the minor victim A.E. For the conspiracy charge, the district court instructed that the second element of a conspiracy is "[t]hat the Defendant knew the unlawful purpose of the plan and willfully joined in it." It defined the term "willfully" as "mean[ing] that the act was committed voluntarily and purposely, with the intent to do something the law forbids; that is, with the bad purpose to disobey or disregard the law." For the sex trafficking charge, the district court instructed that "[i]t is a federal crime for anyone . . . to recruit, entice, harbor, transport, provide, obtain or maintain by any means, a person, knowing or in reckless disregard of the fact that the person . . . would be caused to engage in a commercial sex act." The court then listed facts that the jury must find, but that list did not include "that the person . . . would be caused to engage in a commercial sex act" as an element. The jury found Whyte and Castro guilty of all charges.

         A probation officer prepared presentence investigation reports for Whyte and Castro. The probation officer calculated Whyte's and Castro's base offense levels as 30. See United States Sentencing Guidelines Manual § 2G1.3(a)(2) (Nov. 2016). The probation officer then applied three two-level enhancements for unduly influencing a minor to engage in prohibited sexual conduct, id. § 2G1.3(b)(2)(b); using a computer to offer prohibited sexual conduct with a minor, id. § 2G1.3(b)(3)(B); and for an offense involving the commission of a commercial sex act, id. § 2G1.3(b)(4)(A). The reports did not include a two-level reduction for acceptance of responsibility. With the enhancements, Whyte and Castro had total offense levels of 36. Whyte's prior convictions yielded 11 criminal-history points. The probation officer also included two more points because Whyte committed the offenses while on probation. With a criminal history category of VI and an offense level of 36, the probation officer calculated Whyte's guideline range as 324 to 405 months' imprisonment. Castro had six criminal-history points. With a criminal history category of III and an offense level of 36, the probation officer calculated Castro's guideline range as 235 to 293 months' imprisonment.

         Whyte and Castro raised several objections to their guideline calculations. They objected to the enhancement for undue influence of a minor. Whyte and Castro argued that a two-point reduction for acceptance of responsibility was warranted because, although they went to trial, they contested only whether a "reasonable opportunity to observe" A.E. was sufficient for their convictions. Whyte and Castro objected to the enhancement for the commission of a commercial sex act as double counting because the base offense level already accounted for the commission of a commercial sex act. And Castro objected to the enhancement for use of a computer on the ground ...

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