Tuesday, April 23, 2013

No Sex Act Required for Child Sex Trafficking; Harboring Counts for Same Victims in Different Locations Not Plain Error

United States v. Garcia-Gonzalez, No. 11-41097 (Apr. 17, 2013) (Higginbotham, Smith, Elrod)

Garcia was convicted of three counts of child sex trafficking, one count of conspiracy to harbor illegal aliens, and six counts of harboring illegal aliens. He arranged for four minor illegal female aliens to be smuggled from Honduras into the United States under the false pretenses that they would be working in a restaurant. Instead, Garcia made them work in his bar and kept their "wages" to pay down the $4,500 smuggling debt they "owed" him. The only way the girls could earn money to keep for themselves was through having sex with his customers. Two of the four girls had sex with customers; the others did not. Garcia threatened to harm them and their families if they escaped, and the girls were constantly supervised by Garcia or one of his employees.

No Sex Act Required for Child Sex Trafficking
The panel, in affirming a supplemental instruction given by the district court judge, found that a sex act did not have to occur in order for Garcia to be guilty of child sex trafficking under 18 U.S.C. § 1591(a). The panel reasoned that the future verb tense in the statutory language—"will be caused to engage in a commercial sex act"—"indicates that a sex act does not have to occur to satisfy the elements of the child-sex-trafficking offense." The panel also found that the evidence was sufficient to support Garcia’s conviction on all three child-sex-trafficking counts, even though one of those victims did not engage in prostitution. "[A] rational trier of fact could have concluded that Garcia knowingly harbored C.M. and B.Y., and created a situation in which he knew, or at the very least, recklessly disregarded, that his actions would cause C.M. and B.Y. to engage in prostitution with his customers."

Harboring Counts for Same Victims in Different Locations Not Plain Error
Garcia also challenged, for the first time on appeal, three of the six convictions for alien harboring on multiplicity grounds. He was charged with harboring the same three girls in a house and, in separate counts, with harboring them in his bar. The only difference between the counts was the location of the harboring. The statute prohibits harboring "in any place." 8 U.S.C. § 1324(a)(1)(A)(iii). Concluding that "any" is ambiguous because it can mean "one" or "some," the panel determined that the error was not plain. Further, Garcia did not demonstrate a miscarriage of justice resulting from this possible error. Circuit Judge Higginbotham dissented on this point, arguing that the rule of lenity counseled finding plain error and vacating one of the two alien-harboring convictions for each of the three victims.

Sentencing Challenges
Garcia also challenged his 360-month Guidelines sentence, but the panel rejected Garcia’s four arguments. First, the panel found that the two-level increase pursuant to § 2L1.1(b)(6) was not clearly erroneous because "Garcia’s actions intentionally or recklessly created a substantial risk of serious bodily injury by coercing them to engage in prostitution for financial support, regardless of their age." Even if it was clearly erroneous, the error would have been harmless.

Next, the panel rejected Garcia’s argument that the district court should not have applied the § 2L1.1(b)(6) enhancement and the six-level § 2L1.1(b)(8)(B) enhancement to the alien-harboring offenses based on the same conduct: the prostitution of minor aliens. The panel found no error because the enhancements did not necessarily implicate the same conduct since the § 2L1.1(b)(6) enhancement could apply to the one adult victim and the § 2L1.1(b)(8)(B) enhancement only applies to the minor victims. Further, even if the enhancements double-counted the same conduct, the panel stated it was not erroneous since the guidelines in question do not specifically forbid such double-counting.

Garcia also objected to the use of uncharged conduct to be treated as a separate count of conviction for sentencing purposes pursuant to § 2G1.3(d)(1). The panel held this was permissible since the uncharged conduct was relevant conduct under § 1B1.3.

Lastly, Garcia argued that the child-sex-trafficking counts should not have been grouped separately from the harboring counts for the purposes of the multi-count adjustment under § 3D1.4 since all of the ten counts substantially involve the same harm. On plain error review, the panel determined that the error did not affect Garcia’s substantial rights since the adjusted offense level would have been the same. The panel hinted, though, that this was error since the PSR used the same facts from the child-sex-trafficking counts to apply the § 2L1.1(b)(8)(B) enhancement to the alien-harboring counts.

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