FILED NOT FOR PUBLICATION DEC 16 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10125
Plaintiff-Appellee, D.C. No. 2:16-cr-00285-APG-NJK-1 v.
BRANDON LAMAR PRUITT, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the District of Nevada Andrew P. Gordon, District Judge, Presiding
Argued and Submitted December 8, 2020 San Francisco, California
Before: LUCERO,** W. FLETCHER, and IKUTA, Circuit Judges.
Brandon Pruitt appeals his conviction and sentence for sex trafficking of a
minor, 18 U.S.C. § 1591(a)(1), transportation of a minor for prostitution, 18 U.S.C.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Carlos F. Lucero, United States Circuit Judge for the U.S. Court of Appeals for the Tenth Circuit, sitting by designation. § 2423(a), unlawful possession of a firearm, 18 U.S.C. § 922(g)(1), and witness
tampering, 18 U.S.C. § 1512(b). We have jurisdiction under 28 U.S.C. § 1291.
The district court did not plainly err in questioning Juror K during voir dire
regarding her evaluation of law enforcement officers’ testimony. Even assuming
the district court’s statement was inappropriate, it was not prejudicial because the
district judge “sanitized” the comment by giving multiple curative instructions and
statements. United States v. Milner, 962 F.2d 908, 911–12 (9th Cir. 1992). Nor
were there “extraordinary” circumstances raising the inference that Juror K was
impliedly biased. United States v. Mitchell, 568 F.3d 1147, 1151, 1154 (9th Cir.
2009).
The district court did not err by denying Pruitt’s motion to suppress A.D.’s
journal, because the female who opened the door to Pruitt’s apartment had
apparent authority to consent to the officers’ entry into the apartment; the female
stated she lived in the apartment, and there were no substantial indicia to the
contrary. See United States v. Reid, 226 F.3d 1020, 1025 (9th Cir. 2000).1
1 We reject Pruitt’s factual argument, raised for the first time on appeal, that the consent was involuntary. The district court did not plainly err, because there is no applicable case holding that the facts here constituted involuntary consent. See Reid, 226 F.3d at 1026; see also Depue, 912 F.3d at 1234 (holding that an “error is plain if it is contrary to the law at the time of appeal” (citation omitted)). 2 The district court did not constructively amend the indictment when it
crafted a jury instruction saying that “the defendant knew or recklessly disregarded
the fact that anyone would cause A.D. to engage in a commercial sex act,” because
18 U.S.C. § 1591(a)(2) does not require the government to prove that the defendant
will cause the minor to engage in a commercial sex act. See United States v.
Shryock, 342 F.3d 948, 988 (9th Cir. 2003); 18 U.S.C. § 1591(a)(2).
Nor did the government engage in prosecutorial misconduct, because Pruitt
opened the door to use of the cell-phone evidence, and Pruitt’s counsel waived any
challenge to its use by stating “I don’t really care if the phone comes in or not to be
honest with you.” See United States v. Depue, 912 F.3d 1227, 1234 (9th Cir. 2019)
(en banc).
The district court did not abuse its discretion by allowing Detective Petrulli
to testify. Detective Petrulli’s training and experience qualified him as an expert
on sex trafficking, juvenile sex trafficking, and “the relationships between pimps
and prostitutes.” United States v. Brooks, 610 F.3d 1186, 1195 (9th Cir. 2010).
His testimony was helpful to the jury in interpreting coded language used by pimps
and prostitutes, and it was relevant to rebut Pruitt’s argument that his relationship
with A.D. was romantic. The testimony was not unduly prejudicial. See United
States v. Taylor, 239 F.3d 994, 998 (9th Cir. 2001); Fed. R. Evid. 403. Pruitt does
3 not identify any case holding that a district court must give a limiting instruction
when an expert witness gives expert testimony but not lay testimony. Therefore,
the district court did not plainly err by failing to give a limiting instruction as to
Detective Petrulli’s testimony. See Depue, 912 F.3d at 1234.
The district court did not err by admitting Pruitt’s jailhouse phone call to
A.D. acknowledging that he was “not supposed to be communicating” with her. At
the first trial, the evidence was relevant to the witness-tampering count, 18 U.S.C.
§ 1512(b), because it tended to show Pruitt’s consciousness of wrongdoing and that
he knowingly corruptly persuaded A.D. with the intent to influence, delay, or
prevent the testimony of A.D. in the case. At the second trial, Pruitt opened the
door to this evidence when his counsel implied that Pruitt had financial reasons for
using the identification of other inmates to call A.D., rather than because he knew
his calls violated a no-contact order. See United States v. Sine, 493 F.3d 1021,
1038 (9th Cir. 2007).
Because the district court did not err (or any errors were harmless), there was
no cumulative error. See United States v. Fernandez, 388 F.3d 1199, 1256–57 (9th
Cir. 2004). Likewise, there was sufficient evidence to convict Pruitt, because
taking the evidence in the light most favorable to the prosecution, a rational trier of
fact could have found Pruitt guilty of child-sex trafficking, transportation of a
4 minor for prostitution, and witness tampering. See United States v. Maggi, 598
F.3d 1073, 1080 (9th Cir. 2010) overruled on other grounds by United States v.
Zapeda, 792 F.3d 1103 (9th Cir. 2015) (en banc). As to child-sex trafficking, a
rational trier of fact could have found Pruitt guilty based on A.D.’s testimony and
the prison-call evidnce. See Vega v. Ryan, 757 F.3d 960, 969 (9th Cir. 2014). As
to transportation of a minor for prostitution, a rational trier of fact could have
found, based on the testimony of Pruitt and A.D., that Pruitt drove A.D. from
California to Nevada to engage in prostitution. And a rational trier of fact could
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FILED NOT FOR PUBLICATION DEC 16 2020 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 19-10125
Plaintiff-Appellee, D.C. No. 2:16-cr-00285-APG-NJK-1 v.
BRANDON LAMAR PRUITT, MEMORANDUM*
Defendant-Appellant.
Appeal from the United States District Court for the District of Nevada Andrew P. Gordon, District Judge, Presiding
Argued and Submitted December 8, 2020 San Francisco, California
Before: LUCERO,** W. FLETCHER, and IKUTA, Circuit Judges.
Brandon Pruitt appeals his conviction and sentence for sex trafficking of a
minor, 18 U.S.C. § 1591(a)(1), transportation of a minor for prostitution, 18 U.S.C.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Carlos F. Lucero, United States Circuit Judge for the U.S. Court of Appeals for the Tenth Circuit, sitting by designation. § 2423(a), unlawful possession of a firearm, 18 U.S.C. § 922(g)(1), and witness
tampering, 18 U.S.C. § 1512(b). We have jurisdiction under 28 U.S.C. § 1291.
The district court did not plainly err in questioning Juror K during voir dire
regarding her evaluation of law enforcement officers’ testimony. Even assuming
the district court’s statement was inappropriate, it was not prejudicial because the
district judge “sanitized” the comment by giving multiple curative instructions and
statements. United States v. Milner, 962 F.2d 908, 911–12 (9th Cir. 1992). Nor
were there “extraordinary” circumstances raising the inference that Juror K was
impliedly biased. United States v. Mitchell, 568 F.3d 1147, 1151, 1154 (9th Cir.
2009).
The district court did not err by denying Pruitt’s motion to suppress A.D.’s
journal, because the female who opened the door to Pruitt’s apartment had
apparent authority to consent to the officers’ entry into the apartment; the female
stated she lived in the apartment, and there were no substantial indicia to the
contrary. See United States v. Reid, 226 F.3d 1020, 1025 (9th Cir. 2000).1
1 We reject Pruitt’s factual argument, raised for the first time on appeal, that the consent was involuntary. The district court did not plainly err, because there is no applicable case holding that the facts here constituted involuntary consent. See Reid, 226 F.3d at 1026; see also Depue, 912 F.3d at 1234 (holding that an “error is plain if it is contrary to the law at the time of appeal” (citation omitted)). 2 The district court did not constructively amend the indictment when it
crafted a jury instruction saying that “the defendant knew or recklessly disregarded
the fact that anyone would cause A.D. to engage in a commercial sex act,” because
18 U.S.C. § 1591(a)(2) does not require the government to prove that the defendant
will cause the minor to engage in a commercial sex act. See United States v.
Shryock, 342 F.3d 948, 988 (9th Cir. 2003); 18 U.S.C. § 1591(a)(2).
Nor did the government engage in prosecutorial misconduct, because Pruitt
opened the door to use of the cell-phone evidence, and Pruitt’s counsel waived any
challenge to its use by stating “I don’t really care if the phone comes in or not to be
honest with you.” See United States v. Depue, 912 F.3d 1227, 1234 (9th Cir. 2019)
(en banc).
The district court did not abuse its discretion by allowing Detective Petrulli
to testify. Detective Petrulli’s training and experience qualified him as an expert
on sex trafficking, juvenile sex trafficking, and “the relationships between pimps
and prostitutes.” United States v. Brooks, 610 F.3d 1186, 1195 (9th Cir. 2010).
His testimony was helpful to the jury in interpreting coded language used by pimps
and prostitutes, and it was relevant to rebut Pruitt’s argument that his relationship
with A.D. was romantic. The testimony was not unduly prejudicial. See United
States v. Taylor, 239 F.3d 994, 998 (9th Cir. 2001); Fed. R. Evid. 403. Pruitt does
3 not identify any case holding that a district court must give a limiting instruction
when an expert witness gives expert testimony but not lay testimony. Therefore,
the district court did not plainly err by failing to give a limiting instruction as to
Detective Petrulli’s testimony. See Depue, 912 F.3d at 1234.
The district court did not err by admitting Pruitt’s jailhouse phone call to
A.D. acknowledging that he was “not supposed to be communicating” with her. At
the first trial, the evidence was relevant to the witness-tampering count, 18 U.S.C.
§ 1512(b), because it tended to show Pruitt’s consciousness of wrongdoing and that
he knowingly corruptly persuaded A.D. with the intent to influence, delay, or
prevent the testimony of A.D. in the case. At the second trial, Pruitt opened the
door to this evidence when his counsel implied that Pruitt had financial reasons for
using the identification of other inmates to call A.D., rather than because he knew
his calls violated a no-contact order. See United States v. Sine, 493 F.3d 1021,
1038 (9th Cir. 2007).
Because the district court did not err (or any errors were harmless), there was
no cumulative error. See United States v. Fernandez, 388 F.3d 1199, 1256–57 (9th
Cir. 2004). Likewise, there was sufficient evidence to convict Pruitt, because
taking the evidence in the light most favorable to the prosecution, a rational trier of
fact could have found Pruitt guilty of child-sex trafficking, transportation of a
4 minor for prostitution, and witness tampering. See United States v. Maggi, 598
F.3d 1073, 1080 (9th Cir. 2010) overruled on other grounds by United States v.
Zapeda, 792 F.3d 1103 (9th Cir. 2015) (en banc). As to child-sex trafficking, a
rational trier of fact could have found Pruitt guilty based on A.D.’s testimony and
the prison-call evidnce. See Vega v. Ryan, 757 F.3d 960, 969 (9th Cir. 2014). As
to transportation of a minor for prostitution, a rational trier of fact could have
found, based on the testimony of Pruitt and A.D., that Pruitt drove A.D. from
California to Nevada to engage in prostitution. And a rational trier of fact could
have found that Pruitt’s instructions to A.D. to change her phone number and
throw away her phone so the police could not track her constituted witness
tampering.
An indictment’s omission of the element that the defendant “knew he
belonged to the relevant category of persons barred from possessing a firearm” in
violation of 18 U.S.C. § 922(g)(1), Rehaif v. United States, 139 S. Ct. 2191 (2019),
does not deprive the district court of jurisdiction. See United States v. Cotton, 535
U.S. 625, 631 (2002); United States v. Velasco-Medina, 305 F.3d 839, 845–46 (9th
Cir. 2002). The jury instructions for the § 922(g)(1) offense were not plainly
erroneous, given that one of the Pruitt’s prior felonies was for being a felon in
possession of a firearm, and such a conviction proved beyond a reasonable doubt
5 that Pruitt had the knowledge required by Rehaif. See United States v. Benamor,
937 F.3d 1182, 1189 (9th Cir. 2019).2
The district court did not abuse its discretion by applying a two-level
enhancement for use of a computer. See U.S.S.G. § 2G1.3(b)(3). Section
2G1.3(b)(3) does not require that the defendant himself use the computer, and the
plain language of the Guidelines, rather than any contrary language in the
application notes, see U.S.S.G. § 2G1.3 cmt. n.4 (2016), is controlling. See United
States v. Jackson, 697 F.3d 1141, 1146 (9th Cir. 2012). Nor did the district court
abuse its discretion by failing to apply a downward adjustment for acceptance of
responsibility, see U.S.S.G. § 1B1.1(a)(5), after Pruitt stipulated to only one of
several counts, see United States v. Ginn, 87 F.3d 367, 370 (9th Cir. 1996). And,
although the district court erred by failing to group the witness tampering count
with the underlying offense count, the error was harmless. See United States v. Ali,
620 F.3d 1062, 1074 (9th Cir. 2010). The district court stated that, even if it made
a mistake in the guidelines calculation, it would have imposed the same
2 To the extent Pruitt argues that his stipulation to the elements of the felon- in-possession charge is invalid in light of Rehaif, he has not shown that he would have entered a different stipulation in light of Rehaif or that he did not enter the stipulation with “sufficient awareness of the relevant circumstances and likely consequences.” United States v. Larson, 302 F.3d 1016, 1021 (9th Cir. 2002) (citation omitted). 6 sentence—which was 60 months below the guidelines range—because of “the
seriousness of the offense and the nature of [the] crimes.”
As to the conditions of supervised release, the place restriction is not
unconstitutionally vague or overbroad. See United States v. Blinkinsop, 606 F.3d
1110, 1121 (9th Cir. 2010); United States v. Evans, 883 F.3d 1154, 1160 (9th Cir.
2018). Nor did the district court plainly err by imposing the pornography
conditions or the polygraph condition, which are similar to conditions that we have
upheld. See United States v. Daniels, 541 F.3d 915, 926, 927 (9th Cir. 2008).
There is no contrary controlling authority on point. See United States v. Gnirke,
775 F.3d 1155, 1164 (9th Cir. 2015). The risk-notification condition is nearly
identical to the language in Sentencing Guideline Manual § 5D1.3(c)(12), which
we approved in United States v. Magdirila, 962 F.3d 1152, 1159 (9th Cir. 2020)
and Evans, 883 F.3d at 1164. Thus, the district court did not plainly err by
implementing that condition.
The parties agree that we should order a limited remand so that the district
court can conform its written judgment to its oral sentence on the following
conditions: 1. Substance Abuse Treatment; 4. Place restriction; 11. Mental Health
Treatment. The parties also agree that a limited remand is necessary to allow the
district court to consider the enhancement for obstruction of justice, see U.S.S.G.
7 § 3C1.1, and either make an express finding of willfulness or resentence the
defendant without the enhancement. See United States v. Castro-Ponce, 770 F.3d
819, 823 (9th Cir. 2014); United States v. Herrera-Rivera, 832 F.3d 1166, 1175
(9th Cir. 2016).
We therefore affirm Pruitt’s conviction, vacate the obstruction enhancement
and order a limited remand so that the district court can reconsider the obstruction
enhancement and conform its written judgment to its oral sentence.
AFFIRMED in part, VACATED in part, and REMANDED.