United States v. Diaz

597 F.3d 56, 81 Fed. R. Serv. 728, 2010 U.S. App. LEXIS 4433, 2010 WL 716325
CourtCourt of Appeals for the First Circuit
DecidedMarch 3, 2010
Docket08-1766
StatusPublished
Cited by15 cases

This text of 597 F.3d 56 (United States v. Diaz) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
United States v. Diaz, 597 F.3d 56, 81 Fed. R. Serv. 728, 2010 U.S. App. LEXIS 4433, 2010 WL 716325 (1st Cir. 2010).

Opinion

LIPEZ, Circuit Judge.

Appellant Victor Diaz was found guilty of conspiring to engage in the sexual trafficking of children based on his involvement in a prostitution business, operated by his niece, that employed several minors. See 18 U.S.C §§ 371, 1591. On appeal, he asserts that his right to a fair trial was compromised by the district court’s failure to investigate an incident of premature jury deliberations. He also claims that the court improperly admitted two sets of hearsay statements: (1) comments made by two minors during the course of prostitution calls that had been set up by police officers in Boston and Cambridge, and (2) statements made by his niece during the Cambridge sting operation.

We conclude that the district court did not abuse its discretion in the handling of the jury deliberation issue and that all of the statements were either properly admitted or harmless. We therefore affirm appellant’s conviction.

I.

A federal grand jury returned a six-count indictment charging Diaz and his niece, Evelyn Diaz, 1 with conspiracy to engage in the sexual trafficking of children, in violation of 18 U.S.C. §§ 371 and 1591. Evelyn pled guilty to the conspiracy charge and the other five counts, which alleged substantive sex trafficking offenses that did not involve Diaz. A jury found Diaz guilty of the conspiracy charge after a four-day trial. 2

*59 The facts underlying the charge, as the jury could have found them, are as follows. Evelyn operated a prostitution business in the Boston area from at least 2003 through the time of Diaz’s arrest in April 2005. Evelyn, who sometimes used the name “Messiah,” advertised her business as an escort service in various publications and online, including on Craigslist, under the name “Messiah’s Adult Entertainment.” Her group of prostitutes included her two teenage sisters, “C” and “P,” who were both under age eighteen.

Diaz knew that Evelyn ran a prostitution business whose employees included minors. In 2001, he had urged his girlfriend, Evalicia Torres, who was then fourteen years old, to stay away from Evelyn because she was reputed to be a prostitute. Torres, however, moved in with Evelyn and two other women in July 2004, when she was still a minor, and began working as a prostitute for her. The women would entertain customers at the house where they lived, at customers’ homes or in hotels.

Law enforcement officers investigating prostitution activities set up sting operations in March and April 2005, first in Cambridge and then in Boston. On March 25, Cambridge police officers occupied two adjoining rooms in a Cambridge hotel, one for the undercover activity and one for surveillance. From the undercover room, Detective Louis Cherubino called a phone number listed on one of Evelyn’s Craigslist ads and asked for a girl pictured in the ad who was identified as “Jenna.” A short time later, a girl who said she was “Jenna” returned the call and made plans to meet Cherubino at the hotel. Evelyn drove to the hotel with her sister, C, who entered Cherubino’s room and asked him for $175. When asked what he would get in return, C replied “a full service.” C handed Cherubino a condom and said, “Put it on, you won’t be disappointed.” The officers from the adjoining surveillance room then entered, arrested C and took her into the surveillance room. At the officers’ direction, C called Evelyn and asked her to come up to the room. Upon entering, Evelyn told C to “shut up.” Evelyn was read her Miranda rights, after which she told the officers that C was eighteen years old and that Evelyn drove her to various locations to give massages.

The second sting operation occurred on April 14 at a Boston hotel, where officers again took two adjoining rooms. 3 Detective Steven Blair called a telephone number listed in one of Evelyn’s Craigslist ads and asked for “two girls,” specifying that “they have to be young.” The person on the other end, apparently a woman, said “we can help you out,” and gave Blair a price. A short time later, Blair received a call from a man telling him that the girls were “on their way.”

An officer conducting surveillance outside the hotel, Sergeant Paul Mahoney, subsequently saw a red Jeep pull up in front of the hotel to drop off two females. The Jeep’s driver, appellant Diaz, drove the car to a parking lot behind the hotel. About twenty minutes after the second phone conversation, two women knocked on Blair’s door and entered the hotel room. The older one appeared to be eighteen to twenty years old and the younger one between thirteen and fifteen. The younger one, Evelyn’s sister P, placed a call on her cell phone and told the man on the other end that “[wje’re in.” 4

*60 A conversation ensued about the services to be provided and their cost. The older woman, Chavonne Lewis, stated that she would provide “straight oral and masturbation” for $300. When Blair asked if both women would do this, P stated, “I don’t fuck. I’ll jerk you off.” After Blair gave Lewis the $300, P said, “[g]ive me the money, give me the money. I’ll run it downstairs.” The officers in the adjoining room then entered, and Mahoney was instructed to arrest the driver of the red Jeep. In a search of the vehicle, Mahoney found, inter alia, cell phones, a business card with the word “Messiah” and escort information, including phone numbers, and a pink bag that contained condoms, among other items.

Diaz was arrested and, after signing a waiver of his Miranda rights, admitted in an interview with FBI Agent Tamara Harty and Sergeant Detective Kelly O’Connell of the Boston Police Department that he had driven P and Lewis to the hotel at Evelyn’s request. Harty, who had begun investigating Evelyn’s escort service about ten months earlier, testified that Diaz said that Evelyn expected him to let her know when the prostitution call was completed. He also admitted to driving females who worked for Evelyn to prostitution calls on other occasions, including P, whom he knew was thirteen years old. He said he was not paid for his help, but drove the girls as a favor to Evelyn.

In his own testimony at trial, Diaz denied driving P to prostitution calls or telling Agent Harty that he had done so. He claimed that he did not know that C was involved in prostitution until the March sting operation and did not know that P was involved before his arrest. Diaz admitted driving the two women to the hotel at Evelyn’s request. He had expected, however, to pick up only Lewis and said that P explained that she was going into the hotel with Lewis so that Lewis would not be alone. He also said he was not planning to pick up the women after the call, but pulled into the parking lot so that he could watch a wrestling match on the television in the car.

Diaz further explained that he had agreed to drive Lewis at Evelyn’s request because she threatened not to let him use her car again.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

United States v. Carter
19 F.4th 520 (First Circuit, 2021)
United States v. Feliz
794 F.3d 123 (First Circuit, 2015)
United States v. Arias
94 F. Supp. 3d 93 (D. Massachusetts, 2015)
United States v. McDonnell
64 F. Supp. 3d 783 (E.D. Virginia, 2014)
United States v. Bowles
751 F.3d 35 (First Circuit, 2014)
United States v. Tavares
705 F.3d 4 (First Circuit, 2013)
United States v. Murdock
699 F.3d 665 (First Circuit, 2012)
United States v. Nunez
673 F.3d 661 (Seventh Circuit, 2012)
United States v. Wayne Bryant
655 F.3d 232 (Third Circuit, 2011)
United States v. Luna
649 F.3d 91 (First Circuit, 2011)
United States v. Jadlowe
First Circuit, 2010
United States v. DeCologero
530 F.3d 36 (First Circuit, 2008)
United States v. Rodriguez
525 F.3d 85 (First Circuit, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
597 F.3d 56, 81 Fed. R. Serv. 728, 2010 U.S. App. LEXIS 4433, 2010 WL 716325, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-diaz-ca1-2010.