United States v. Kashamba John

Opinion

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

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No. 20-3225

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UNITED STATES OF AMERICA

v.

KASHAMBA JOHN,

Appellant

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On Appeal from the United States District Court for the Eastern District of Pennsylvania (D. C. Criminal No. 2-18-cr-00218-001)

District Court Judge: Honorable Eduardo C. Robreno

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Submitted Pursuant to Third Circuit L.A.R. 34.1(a) on July 16, 2021

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Before: McKEE, GREENAWAY, JR., and RESTREPO, Circuit Judges

(Opinion filed: June 2, 2022)

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OPINION*

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*

This disposition is not an opinion of the full Court and under I.O.P. 5.7 does not constitute binding precedent.

McKEE, Circuit Judge.

Kashamba John appeals the District Court’s denial of his motion for a new trial

following his convictions for sex trafficking and conspiracy to commit sex trafficking by

force, threats of force, fraud, or coercion.1 John argues the District Court erred by (1)

concluding the government’s belated mid- and post-trial disclosures of evidence did not

violate Brady v. Maryland;2 (2) allowing the government to introduce improper co-

conspirator hearsay; and (3) allowing separate conspiracies to be charged as a single

conspiracy under one count. For the reasons that follow, we will affirm the District

Court.3

I.

“A Brady violation occurs if: (1) the evidence at issue is favorable to the accused,

because either exculpatory or impeaching; (2) the prosecution withheld it; and (3) the

defendant was prejudiced because the evidence was ‘material.’”4 Under Brady, evidence

is material if “there is a reasonable probability that, if the evidence had been disclosed,

the result of the proceeding would have been different.”5 A “reasonable probability” of a

different result is shown if the “evidentiary suppression ‘undermines confidence in the

1 Appellant Br. 5; Gov. Br. 4. 2 373 U.S. 83 (1963). 3 The District Court had jurisdiction pursuant to 18 U.S.C. § 3231. This Court has jurisdiction pursuant to 28 U.S.C. § 1291. 4 Breakiron v. Horn, 642 F.3d 126, 133 (3d Cir. 2011) (citations omitted). 5 Wilson v. Beard, 589 F.3d 651, 665 (3d Cir. 2009).

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outcome of the trial.’”6 “No denial of due process occurs if Brady material is disclosed . .

. in time for its effective use at trial.”7 In addition, “[a]ny possible prejudice . . . resulting

from disclosure at trial can be easily cured by the district court.”8

The government’s first belated disclosure was a missing person’s report about one

of the underage victims of John’s sex trafficking scheme, E.J.9 The government

disclosed the report after E.J.’s testimony but prior to the close of its case-in-chief.10

John argues the report could have been used to impeach E.J.’s credibility because it

contradicts E.J.’s testimony in several respects.11

Although the report was Brady material,12 the Court provided a seven-part remedy

to ensure the belated disclosure did not violate John’s due process rights.13 Among other

things, the Court allowed John to cross-examine the author of the report, at which time

the jury heard the evidence impeaching E.J.’s testimony; it informed the jury that the

6 Id. (quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)). 7 United States v. Higgs, 713 F.2d 39, 44 (3d Cir. 1983). 8 Id.; see, e.g., United States v. Claxton, 766 F.3d 280, 304 (3d Cir. 2014) (finding no Brady violation where the jury had heard additional cross-examination in light of belatedly disclosed evidence). 9 United States v. John, 391 F. Supp. 3d 458, 460–461 (E.D. Pa. 2019). 10 Id. at 461. 11 Id. at 460–61 (summarizing E.J.’s testimony and the content of the missing person’s report that contradicts her testimony); Appellant Br. 13 (arguing that “[t]he 42 page report included statements made by ‘E.J.’ to other individuals, electronic evidence tending to show that she had unrestrained movement, free contact with friends and associate[s], and most critically, had access to, and used, electronic communications in a time period during which she claimed to have been held captive by Appellant after he discarded her phone.”). 12 See id. at 462 (“[T]he [missing persons] report was favorable, withheld, and material.”). 13 See id. at 465–66.

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delay was due to the government’s late disclosure; and it required the government to

make E.J. available for re-cross-examination—which, no doubt for sound tactical

reasons, John chose not to do.14 Altogether, the Court’s remedies ensured that the jury

learned the contents of the report.15

The second set of belated disclosures, which occurred after John’s conviction,

included two reports that John argues could have been used to corroborate his position

that he did not abuse or coerce the women who worked for him as prostitutes.16 The

District Court did not err in concluding this evidence was not “material” under Brady.17

If the evidence had been disclosed, it would likely not have “undermined confidence in

the outcome of the trial.”18 Given the “substantial evidence regarding multiple other

women,” the fact that John may have afforded some modicum of “leeway” to some

victims hardly undermines the conclusion that he used force, fraud, and/or coercion in

dealing with his sex trafficking victims.19

14 Id.

15 In fact, the jury did not convict John of a conspiracy to sex traffic minors, which suggests John was not prejudiced by E.J.’s testimony. Id. at 466. 16 United States v. John, No. 18-CR-00218-01, 2020 WL 4721970, at *11 (E.D. Pa. Aug.

11, 2020). The first piece of evidence is the “Lavigne Report,” in which an investigator claimed to visit a prostitute working for John and reported no signs of abuse. Supp. App. 1614. The second piece of evidence is a law enforcement report that contained a “tip” from a man whose wife worked as a prostitute for John, but would still call him and occasionally come home to visit their children. Supp. App. 1615–16. 17 John, 2020 WL 4721970, at *12. 18 Wilson, 589 F.3d at 665 (quoting Kyles, 514 U.S. at 434).

19 John, 2020 WL 4721970, at *12; see also Supp. App. 0173 (J.S. testified that she felt trapped and forced to comply with John’s orders because she “had nowhere to go,” “no money to leave,” and was afraid John and his accomplices would hurt her and

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II.

Next, John argues that the District Court improperly admitted hearsay statements

of “Daisy,” an unindicted co-conspirator, through the testimony of victim G.L.20 John

argues that Daisy’s statements were not independently corroborated and thus should not

have been admitted.21 We review the District Court’s findings regarding the

admissibility of co-conspirator statements for clear error.22

Under Federal Rule of Evidence 801(d)(2)(E), “a statement is not hearsay if it is

offered against an opposing party and ‘was made by the party’s coconspirator during and

in furtherance of the conspiracy.’”23 To admit co-conspirator hearsay, the district court

must find by a preponderance of the evidence “(1) that a conspiracy existed; (2) the

declarant and the party against whom the statement is offered were members of the

conspiracy; (3) the statement was made in the course of the conspiracy; and (4) the

her mother as they had her addresses); Supp. App. 0558-0559 (L.E. testified that she told John that she did not want to go to Colorado, and instead wanted to go home, but he made her board the plane because “[t]here’s money to be made.” She testified that she “had no where to go” and that “[John] took all the money.” L.E. started messaging friends for help as she did not want to go to Colorado.); Supp. App. 0719-0721 (J.W. testified that when she entered John’s car to perform a sex act, John reached across her abdomen with a pocketknife, took her phone, and drove her to Tampa against her will. He said that if she tried to run, “he had [her] family[’s]” information and “he loves when they run because he loves to search for them and kill them.”); Supp. App. 0848-0854 (G.L. testified that after John gave her lean, she lost consciousness in the back of his car, woke up in a hotel room and was ordered to perform commercial sex acts on multiple occasions, during which she “was barely conscious” and asleep in between acts due to the lean.). 20 Appellant’s Br. 19–20. 21 Id. at 20. 22 United States v. Vega, 285 F.3d 256, 264 (3d Cir. 2002). 23 United States v. Turner, 718 F.3d 226, 230 (3d Cir. 2013) (quoting Fed. R. Evid. 801(d)(2)(E)).

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statement was made in furtherance of the conspiracy.”24 To prove these elements, the

government “may rely on the co-conspirator's statements themselves, if they are

corroborated by independent evidence.”25

The District Court did not clearly err in admitting Daisy’s statements. In United

States v. Gambino, we held that a witness’s testimony of his or her firsthand observations

of a defendant’s interactions with a co-conspirator is sufficient “independent evidence” to

admit the co-conspirator hearsay.26 Here, the District Court properly concluded that

Daisy’s statements were independently corroborated by G.L.’s extensive personal

observations of John and Daisy’s conspiratorial efforts.27 For example, G.L. testified,

among other things, that Daisy recruited her to work for John, took her shopping for

clothes with John, showed her how she operates internet advertisements for John’s sex

trafficking business, and took pictures of G.L. to create such an advertisement.28

III.

Finally, John argues that the verdict cannot be sustained because the evidence

presented at trial alleges two distinct conspiracies, rather than a single conspiracy as

charged in count one.29 Because this claim was not preserved in the District Court, we

review for plain error.30

24 United States v. McGlory, 968 F.2d 309, 333 (3d Cir. 1992) (citing Bourjaily v. United States, 483 U.S. 171, 175 (1987)). 25 Turner, 718 F.3d at 231 (citing Bourjaily, 483 U.S. at 181). 26 926 F.2d 1355, 1362 (3d Cir. 1991). 27 John, 2020 WL 4721970, at *8. 28 Supp. App. 0841-49. 29 Appellant Br. 25. 30 United States v. Boone, 279 F.3d 163, 174 n.6 (3d Cir. 2002).

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“A conviction must be vacated when (1) there is a variance between the

indictment and the proof presented at trial and (2) the variance prejudices a substantial

right of the defendant.”31 A variance exists where “a single conspiracy is alleged in the

indictment, . . . [but] the evidence at trial proves only the existence of multiple

conspiracies.”32

The essential elements of a conspiracy are “(1) a shared ‘unity of purpose,’ (2) an

intent to achieve a common goal, and (3) an agreement to work together toward the

goal.”33 Multiple conspiracies, unlike a single conspiracy, are “separate networks

operating independently of each other.”34 However, a “finding of a master conspiracy

with sub-schemes does not constitute a finding of multiple, unrelated conspiracies and,

therefore, would not create an impermissible variance.”35 Furthermore:

A variance does not prejudice a defendant's substantial rights (1) if the indictment sufficiently informs the defendant of the charges against him so that he may prepare his defense and not be misled or surprised at trial, [or] (2) if the variance is not such that it will present a danger that the defendant may be prosecuted a second time for the same offense.36

Despite conceding that the “scheme between the two proposed conspiracies were

essentially identical,” John argues that the two alleged conspiracies were distinct because

31 United States v. Kelly, 892 F.2d 255, 258 (3d Cir. 1989) (citing United States v. Schurr, 775 F.2d 549, 553 (3d Cir. 1985)). 32 Id. 33 United States v. Perez, 280 F.3d 318, 342 (3d Cir. 2002) (citations omitted). 34 Id. at 346 (quoting United States v. Barr, 963 F.2d 641, 648 (3d Cir.1992)). 35 Kelly, 892 F.2d at 258 (citation omitted). 36 United States v. Daraio, 445 F.3d 253, 262 (3d Cir. 2006) (alteration in original) (quoting United States v. Schoenhut, 576 F.2d 1010, 1021–22 (3d Cir. 1978)).

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he had employed different people and prostituted different women.37 However, a “single

conspiracy is not transformed into a series of unrelated, multiple conspiracies merely

through a change in its membership.”38 The District Court found “ample evidence . . . to

support a finding that John conspired with multiple people to use force, threats, fraud, or

coercion to cause [multiple women and girls] to engage in commercial sex.”39 The fact

that John employed different people at different times during the conspiracy does not

change the conclusion that this was a single conspiracy to “[i]dentify women to

prostitute, then prostitute them.”40

Moreover, even if two separate conspiracies should have been charged, John failed

to show that finding a single conspiracy prejudiced his substantial rights. He was

adequately informed of the charges against him and was not prevented from preparing his

defense or otherwise misled or surprised at trial.

IV.

For the foregoing reasons, we will affirm the District Court.

37 See Appellant Br. 25–26 (arguing that his prostitution activities involving Daisy and G.L. in 2011 were distinct from his conduct in 2012 and later, when he prostituted other women and girls with assistance from a different person, Arianna Somerville). 38 Kelly, 892 F.2d at 259. 39 John, 2020 WL 4721970, at *3. 40 Appellant Br. 26.