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United States v. Carson

United States Court of Appeals, Seventh Circuit

August 29, 2017

United States of America, Plaintiff-Appellee,
v.
McKenzie J. Carson, Defendant-Appellant.

          Argued December 6, 2016

         Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 11 CR 918 - Elaine E. Bucklo, Judge.

          Before WOOD, Chief Judge, and ROVNER and Sykes, Circuit Judges.

          ROVNER, Circuit Judge.

         A jury convicted McKenzie Carson of four counts of violating the federal sex trafficking statute. Three of those counts alleged that Carson engaged in sex trafficking with knowledge that the victims were forced, threatened or coerced. The other count alleged that Carson was involved in the sex trafficking of a person under the age of eighteen. He asks this court to reverse his conviction and remand for a new trial, claiming that he was prevented from eliciting relevant testimony from his victims, that he was precluded from effectively cross examining a key witness, that the district court errantly admitted evidence of uncharged "bad acts, " and that he was prejudiced by incorrectly worded jury instructions. We find no reversible error and thus affirm the decision of the district court.

         I.

         Toward the end of 2009, Kaitlin Fratto's neighbor, Christopher Richardson asked her if she would be interested in working in an escort business run by his acquaintance, McKenzie Carson. Fratto, although only seventeen years old, was in need of money and expressed interest in the job. Richardson brokered a meeting, but not before telling Carson that Fratto was seventeen, as he worried that both of them could get "into potentially a lot of trouble" if Fratto worked as an escort while a minor. Tr. 12/2/13 at 165 (R. 161, pagelD 1495). Richardson drove Fratto to a Motel 6 in Joliet to meet Carson, reminding him again that Fratto was seventeen. Despite the warning, Carson asked Fratto to remove her clothing, took her to the bathroom and raped her, threatening to kill her if she told anyone. After the rape, another woman, Katie Smego arrived, and the four left for another hotel where Carson took provocative photographs of Fratto and Smego, including some in which the two were naked. Carson used the photographs to post advertisements for prostitution services on the website Backpage.com.

         In the two day period after Carson posted the advertisements, Carson arranged one commercial sex transaction for Fratto and two for Smego. He also arranged to have another man take more photographs of Fratto for additional adver- tisements on Backpage.com. As the photographs were being taken, Richardson reminded Carson that Fratto was only seventeen. After the photo session, Richardson drove Fratto to and from three or four more commercial sex transactions that night. Carson directed Richardson where to deliver the money Fratto earned, but when Richardson insisted that some of the money was his, a heated argument ensued in which Carson told Richardson that if Richardson did not bring both Fratto and the money back to him, "I'll kill you, I'll kill your kids, I'll kill your family." Tr. 12/2/13 at 183 (R. 161, pagelD 1513). Richardson relayed the threats to Fratto who stayed with Richardson instead of returning to Carson. Carson continued to call throughout the night, issuing more threats and threatening to kill Fratto if he did not get his money, and at one point telling Fratto that he had killed Smego.

         Eventually Fratto agreed to continue working for Carson, during which time she traded sex for money three or four times a day. During the time Carson was trafficking Fratto, he flattered her by telling her she was "his top notch bitch, " that she was pretty, and would get rich modeling. Tr. 12/3/13 at 410-11 (R. 162, pagelD 1740-41). He also tried to isolate Fratto from her mother, took her battery out of her phone and told her "he didn't want [her] talking to nobody, and he didn't want nobody to know where [she] was." Id. at 403 (R. 162, pagelD 1733).

         Fratto testified that she told Carson that she was seventeen and even showed him her identification card. In response, she testified that he said, "it was alright, that [they] would just have to keep it under the radar until [she] turned 18." Id.

         Unlike Fratto, the remaining three victims were not minors, but they were easily manipulable for other reasons. All of them were long-time drug addicts, homeless, desperate for drugs and had nowhere to go.

         Veronica Del Valle was in just such a desperate state when she met Carson. She testified that she had been using crack cocaine since the age of twelve, and at the height of her addiction any interruption left her throwing up, sweating, unable to sleep and eat. In late 2009 and early 2010 she was living in a crack house when another woman suggested she could work as a prostitute for Carson. On two occasions in 2010 Del Valle left the crack house with Carson who took her to a hotel, took seductive pictures of her for advertisements he posted on Backpage.com and supplied her with drugs. In the summer of 2010, he located her at the crack house again, bought her drugs and convinced her to work as a prostitute, promising that she would keep the money she earned and that she could decide for herself when she wanted to work. Del Valle ended up working for Carson for five to six months, engaging in commercial sex transactions up to as many as five times a day, staying with Carson at hotels, and using drugs that he provided for her.

         Del Valle testified that Carson took most of her money, took away her personal cell phone and gave her a phone she could use for "business" only. He checked her phone regularly to see if anybody out of the ordinary was calling her and told her he would use the phone's GPS to find her, which, in fact, he did one night when Del Valle tried to leave. Using the GPS to track her, he ran up and down a street at 3 a.m. screaming her name. He also took away her shoes and clothes to keep her from leaving the hotel where she stayed. But that was not enough control for Carson. He beat her with belts, slapped her face, anally raped her, gave her black eyes and cut lips and told her that if she "were to leave, he would kill [her] grandmother and [her] children." Tr. 12/4/13 at 548 (R. 163, pagelD 1879).

         Like Del Valle, Jessica Sikora was a heroin addict who experienced severe withdrawal-vomiting, sweating, and pain-when she stopped using heroin. Sikora testified that she too met Carson in 2010 when she was homeless. When another woman told Sikora that Carson could get her a job and a place to live, Sikora got into a car with Carson who took her straight to Chicago's west side to buy her heroin and then to a hotel where she met Del Valle. Carson promised he could "hook [her] up with dates, " that she would make money, he would buy her drugs, cosmetics, anything she needed, and give her a place to stay. Sikora knew she had nowhere to go and decided to stay. What she did not count on was the fact that Carson would require her to give him all of the money she earned, ordering her to strip naked so she could not hide money; that he would beat her with his hands, with a belt, with an extension cord; that he would hold a knife to her throat; and rape her orally, vaginally and anally, including one time while a woman and her newborn child watched. At one point, when she said she was too tired to work, Carson punched her in the eye leaving her with a permanently broken blood vessel.

         Nahrin Lazzar's story was nearly the same. She became addicted to heroin at 16 and was homeless in 2010 when Sikora introduced her to Carson. She testified that she agreed to join Carson's business because she was homeless, had no money, no food and was suffering from withdrawal symp- toms and needed drugs. As was the case with the others, Carson bought her drugs, brought her to a hotel room, and placed advertisements for her sexual services on Backspage, com. But in Lazzar's case, the physical violence began immediately. Shortly after arriving, Carson became upset with Lazzar and whipped her with a belt, leaving her back and buttocks "red and puffy with slash marks." Tr. 12/4/13 at 614 (R. 163, pagelD 1945).

         Carson required Lazzar to give him all the money she earned, and when she once tried to hide $100 in her pants, Carson whipped her with a belt and orally raped her. He then showed Lazzar a photograph of a buttocks with belt marks and welts and threatened her saying, "What I did to you is nothing [compared to] what I can do to you." Tr. 12/5/13 at 895-96 (R. 164, pagelD 2226-27). Lazzar also testified that Carson supplied her with drugs but sometimes withheld them from her so she would get ill from withdrawal. Throughout her time with Carson, he beat her, whipped her, and raped her orally, vaginally and anally.

         Lazzar eventually escaped from Carson by telling one of her clients about her circumstances and asking for a ride to Chicago. She left barefoot because Carson had taken her shoes. The night she left, Carson called her at least ten to twenty times.

         In addition to the testimony described above, the jury also heard from Margaret Hurley, who testified that from January through March 2010, Carson paid her to drive the women to their commercial sex transactions and retrieve drugs for them. She also testified that she saw Carson beat his victims, including Del Valle. Hurley testified that, as with the other women, Carson took pictures of her that he posted in advertisements on Backpage.com, but she never testified that she worked as a prostitute for Carson.

         The government also called Dr. Sharon Cooper, a sex trafficking expert who helped explain how the desperate situations in which victims find themselves make them easy targets for sex trafficking. Cooper testified that sex traffickers select victims who demonstrate vulnerabilities including homelessness, substance abuse, mental health issues, and histories of physical, emotional or sexual abuse. A typical trafficker recruits victims by telling them that he loves them, promising them a better life, providing them with shelter and drugs, and lying to them about the nature of the job. Traffickers often use one victim to recruit other victims as victims are more likely to trust someone of a similar age and gender than a stranger of the opposite gender.

         Cooper testified that traffickers control their victims through physical violence, sexual violence, psychological violence and grooming. Traffickers, she testified, groom victims with promises and compliments, but escalate to physical abuse, sexual assault and death threats. Often the trafficker will abuse a more experienced prostitute while younger victims watch. They also use psychological violence such as tearing a victim down, telling them they are worthless, socially isolating them, and controlling them financially and by taking advantage of a victim's drug dependency. Cooper noted that traffickers tend to be more violent with adult women because children and minors are far easier to intimidate.

         Importantly for this case, and for a general understanding of the complexity of trafficking in general, Cooper explained that victims often stay with their traffickers-or leave and then return-because they believe they have nowhere to go; that there is no one else out there for them, and no other options for them; they feel ashamed and guilty and stigmatized, thinking that they will not be accepted elsewhere. They are also afraid that if they leave, the trafficker will find them and harm them even more egregiously.

         Given the testimony of Dr. Cooper, it was not surprising that the jury heard testimony that could be construed as evidence that the victims had chosen their lot. For example, the jury heard evidence that Fratto and Del Valle both left Carson and then returned, and that at times both could have left but did not do so. The jury heard evidence intended to convince them that these women willingly agreed to work as prostitutes. But whether they willingly agreed to essentially become enslaved-that is, to turn over all of their money and freedom and suffer abuse-is another question, and the one at the heart of the sex trafficking statute, of course. Del Valle, for example, testified that she had the combination to the safe where Carson kept her earnings, but that Carson had threatened that he would kill her if she took the money without permission. They also heard that some of the women called themselves girlfriends of Carson and used terms of endearment with him, although Del Valle, for example, said she merely "played the role" and "acted like [she was] his girlfriend" because it made her life easier. Tr. 12/4/13 at 671 (R. 163, pagelD 2002). And they heard plenty of evidence of victims who did not want to leave Carson because he fed their heroin addictions, kept them from overdosing, gave them a place to stay, and paid for their food and other needs. The jury also heard evidence of women who turned to Carson for emotional support-to figuratively bail them out of difficult situations and literally bail them out of jail. But all of this evidence is not inconsistent with coercion and force. Victims of sex trafficking may make decisions that look voluntary at times due to the incredible weight of coercion and force upon them. And they may make some decisions along the way that are truly voluntary. Those decisions do not take away from the fact that they have been held hostage, coerced, forced, or threatened to engage in commercial sexual acts. Sometimes that coercion and force may be subtle, leading a fact-finder to have to decipher whether the mens rea has been met. But this is not such a case. There is nothing subtle about rape, beatings, death threats, and taking women's clothes and phones so that they cannot readily escape. Carson kept these victims under his control by using a tightly woven web of rape, physical assault, threats, manipulation, isolation, and fear.

         The jury convicted Carson on all four counts of violating the federal sex-trafficking statute, and Carson had the opportunity at sentencing to submit expert testimony about his Bipolar I Disorder, his problems with drug abuse, and his abusive family background. Despite Carson's submissions, the district court sentenced Carson to forty-seven years' imrisonment and five years of supervised release on each count, with the sentences to run concurrently. The court sentenced Carson below the Sentencing Guideline recommendation of life and below the government's recommended 55-year sentence.

         II.

         The federal sex trafficking statute under which Carson was ...


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