United States v. Jaquorey Carter

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 16, 2021
• Docket: 20-10299
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS DEC 16 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-10299

Plaintiff-Appellee, D.C. No. 2:18-cr-00255-WBS v.

JAQUOREY RASHAWN CARTER. MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of California William B. Shubb, District Judge, Presiding

Submitted December 10, 2021** San Francisco, California

Before: MURGUIA, Chief Judge, and IKUTA and VANDYKE, Circuit Judges.

Defendant-Appellant Jaquorey Rashawn Carter appeals count one of his

conviction involving sex trafficking of a minor, pursuant to 18 U.S.C. § 1591(a)(1),

(b)(2). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Carter was charged with sex trafficking of a minor (count one) and sex

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

1 trafficking by force, threats of force, or coercion (count two) pursuant to 18 U.S.C.

§ 1591(a)(1), (b)(1), and (b)(2). The first count—sex trafficking of a minor—was

based on Carter’s alleged trafficking of then-minor Bobbi Thomas, while the second

count—sex trafficking by force, threats of force, or coercion—involved Carter’s

alleged trafficking of Kayla Culbert. Before trial, Carter moved in limine to preclude

evidence of his alleged involvement in an assault on sex worker Melonie Dyett as

impermissible “other act” evidence under Federal Rule of Evidence 404(b) or

prejudicial under Rule 403.1 Antonio Long, an associate of Carter’s, trafficked Dyett

and brutally assaulted her during the event at issue. The government sought to

introduce evidence of the Dyett assault in support of count two of the indictment,

alleging that Long’s conduct—and Carter’s inaction during the incident—

contributed to the government’s theory regarding the violent and forceful nature of

1 Rule 404(b) states, in relevant part:

(b) Other Crimes, Wrongs, or Acts. (1) Prohibited Uses. Evidence of any other crime, wrong, or act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character. (2) Permitted Uses. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.

Fed. R. Evid. 404(b)(1)–(2). Even if the evidence is admissible under Rule 404(b)(2), it must still be excluded pursuant to Rule 403 “if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403. 2 Carter’s prostitution enterprise. The court ruled the evidence admissible, and a jury

found Carter guilty of both offenses.

Following a series of post-trial motions, however, the district court found that

Carter was not involved in the Dyett assault to the degree the government had

initially posited. The district court feared the graphic nature of the attack prejudiced

the jury’s decision-making as to count two. It therefore vacated the jury’s verdict as

to count two and ordered a new trial pursuant to Federal Rule of Criminal Procedure

33(a) on that count only. The government did not appeal the district court’s order

vacating the jury verdict and ordering a new trial, nor did it retry Carter on count

two.

On September 8, 2020, the district court sentenced Carter to 168 months’

imprisonment on count one. Carter now appeals, arguing that because the Dyett

assault evidence was just as likely prejudicial to count one as count two, his verdict

should similarly be vacated and remanded on count one. Carter also argues that the

district court erred by applying a 2-level specific offense characteristic enhancement

for “commission of a sex act or sexual contact,” pursuant to U.S.S.G. §

2G1.3(b)(4)(A) of the United States Sentencing Commission Guidelines.

“Where a district court errs in admitting other act evidence, we review

for harmless error.” United States v. Carpenter, 923 F.3d 1172, 1181 (9th Cir. 2019)

(citing United States v. Hill, 953 F.2d 452, 458 (9th Cir. 1991)). If “it is more

3 probable than not that the error did not materially affect the verdict,” then the error

was harmless, and “[r]eversal is not required.” United States v. Lague, 971 F.3d

1032, 1041 (9th Cir. 2020), cert. denied, 141 S. Ct. 1695, 209 L. Ed. 2d 469 (2021)

(quoting United States v. Bailey, 696 F.3d 794, 803 (9th Cir. 2012)). The Ninth

Circuit has “found harmless error despite the erroneous admission of evidence”

where “the properly admitted evidence was highly persuasive and overwhelmingly

pointed to guilt.” Id. (quoting Bailey, 696 F.3d at 804).

This Court reviews “a district court’s application of the Sentencing Guidelines

to the facts of a given case” for abuse of discretion. United States v. Gasca-Ruiz,

852 F.3d 1167, 1170 (9th Cir. 2017) (en banc). “A district court abuses its discretion

when it bases its decision on an erroneous view of the law or a clearly erroneous

assessment of the facts.” United States v. Morales, 108 F.3d 1031, 1035 (9th Cir.

1997).

Federal Rule of Criminal Procedure 33(a) allows a court to “vacate any

judgment and grant a new trial if the interest of justice so requires.” Fed. R. Crim.

Pro. 33(a); see also United States v. French, 748 F.3d 922, 934 (9th Cir. 2014). The

burden rests with the defendant, United States v. Alvarez-Moreno, 657 F.3d 896, 901

(9th Cir. 2011), and “a motion for new trial is directed to the discretion of the

[district] judge,” United States v. Pimentel, 654 F.2d 538, 545 (9th Cir. 1981). Such

motions are granted only in exceptional circumstances. Id.

4 Here, the district court found that its admission of the Dyett assault evidence

warranted a new trial as to count two—but not count one—under Federal Rule of

Criminal Procedure Rule 33(a) because Carter had little to no involvement in the

Dyett assault, and the evidence did not suggest that Carter ever actually used force

against any of the women involved in his enterprise. In fact, on the one occasion of

record that Carter allegedly threatened Culbert, she laughed at him. The district

court therefore found that the jury was likely unfairly prejudiced by the graphic

nature of the Dyett assault evidence when finding that Carter similarly trafficked

Culbert using force or threats of force.

We find that any error in admitting evidence of the Dyett assault was harmless

as to count one. The government presented overwhelming evidence supporting the

sex-trafficking-of-a-minor offense, and the Dyett assault evidence in no way related

to Carter’s trafficking of Thomas—the then-minor whom Carter was charged with

trafficking. See, e.g., Carpenter, 923 F.3d at 1183 (finding that, although evidence

of drug use was prejudicial under Federal Rule of Evidence 403, such evidence was

nonetheless harmless “[c]onsidering the mountain of evidence against” the

defendant). Indeed, the sex trafficking of a minor count had nothing to do with

prostitution by force or threats of force and instead turned on the fact that Thomas

was a minor when she engaged in sex acts as part of Carter’s prostitution enterprise.

Because it is unlikely that the Dyett assault evidence prejudiced the jury against

5 Carter as to the sex trafficking of a minor count, we affirm the jury’s verdict as to

count one.

An offense level enhancement under the United States Sentencing

Commission Guidelines must generally be supported by a preponderance of the

evidence. See United States v. Valle, 940 F.3d 473, 479 (9th Cir. 2019). Section

2G1.3(b)(4)(A) triggers a 2-level increase to a defendant’s offense level if “the

offense involved the commission of a sex act or sexual contact.” U.S.S.G. §

2G1.3(b)(4)(A). A “sex act” is defined as:

(A) contact between the penis and the vulva or the penis and the anus, and for purposes of this subparagraph contact involving the penis occurs upon penetration, however slight;

(B) contact between the mouth and the penis, the mouth and the vulva, or the mouth and the anus;

(C) the penetration, however slight, of the anal or genital opening of another by a hand or finger or by any object, with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person;

(D) the intentional touching, not through the clothing, of the genitalia of another person who has not attained the age of 16 years with an intent to abuse, humiliate, harass, degrade, or arouse or gratify the sexual desire of any person.

18 U.S.C. § 2246(2). “[T]he term ‘sexual contact’ means the intentional touching,

either directly or through the clothing, of the genitalia, anus, groin, breast, inner

thigh, or buttocks of any person with an intent to abuse, humiliate, harass, degrade,

or arouse or gratify the sexual desire of any person[].” 18 U.S.C. § 2246(3). 6 Trial evidence supported the district court’s finding that Thomas engaged in

sex acts and sexual contact, which the jury found persuasive beyond a reasonable

doubt. Such evidence therefore far surpasses the preponderance of the evidence

standard necessary for the sentencing enhancement. Thomas testified that she began

prostituting at the age of 15. She explained that between 2014 and 2016, she engaged

in prostitution in Sacramento, Stockton, Sunnyvale, Oakland, and several other cities

in Southern California. Thomas also explained that Carter rented hotel and motel

rooms to facilitate her prostitution and that her sex acts were advertised on

prostitution websites such as Backpage.com and Redbook.

Thomas also testified that, on March 28, 2015—when she was 16 years old—

Carter placed her and two adult women in a Sunnyvale, California motel room to

engage in prostitution. That room was later raided by the police. “[P]hotographs

from the evidence in the room included items consistent with sex acts having already

occurred . . . including cash that one could infer came from paying customers,

condoms, . . . sex toys,” and the women’s cell phones all contained online

advertisements consistent with soliciting sex.

Carter attempts to argue that Thomas did not always engage in sex acts. Even

so, “18 U.S.C. § 1591 does not require that the victim actually commit a sex act”;

all that is needed is sufficient evidence that a pimp “had plans for [that victim] to be

caused to engage in prostitution in the future.” United States v. Hornbuckle, 784

7 F.3d 549, 553 (9th Cir. 2015) (quoting United States v. Brooks, F.3d 1186, 1197 (9th

Cir. 2010)). Accordingly, the evidence presented at trial supports the district court’s

finding that Thomas engaged in sex acts as well as sexual contact, so the court did

not abuse its discretion by properly applying U.S.S.G. § 2G1.3(b)(4)(A).

AFFIRMED.