UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
March 23, 2009
UNITED STATES OF AMERICA, PLAINTIFF,
GLADYS VASQUEZ VALENZUELA ET AL., DEFENDANTS.
The opinion of the court was delivered by: Margaret M. Morrow United States District Judge
ORDER DENYING DEFENDANT' MARIA DE LOS ANGELES VICENTE'S MOTION FOR JUDGMENT OF ACQUITTAL UNDER RULE 29 AND HER MOTION FOR NEW TRIAL UNDER RULE 33
I. FACTUAL BACKGROUND
In this multi-defendant prosecution, defendants were charged collectively with conspiracy to (a) import aliens for immoral purposes (i.e., prostitution) and (b) commit sex trafficking offenses in violation of 18 U.S.C. § 371. They were also charged individually with substantive counts of (1) sex trafficking of children or by force, fraud, or coercion in violation of 18 U.S.C. § 1591(a)(1); (2) transportation of minors with intent to engage in criminal sexual activity in violation of 18 U.S.C. § 2423(a); (3) importation of aliens for immoral purposes in violation of 8 U.S.C. § 1328; (4) harboring certain aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(iii) and (a)(1)(B)(i); and (5) transporting certain aliens in violation of 8 U.S.C. § 1324(a)(1)(A)(ii) and (a)(1)(B)(i).*fn1
A jury trial commenced on January 6, 2009 and concluded on February 3, 2009. On February 11, 2009, the jury returned guilty verdicts on twenty-one of the charged counts. The jury was deadlocked as to the remaining nineteen counts.
Pursuant to a joint stipulation,*fn2 defendant Maria de los Angeles Vicente filed a written brief on her pre-verdict Rule 29 motion; she also filed a new post-verdict motion for a new trial.*fn3 She seeks judgment of acquittal under Rule 29 of the Federal Rules of Criminal Procedure or, in the alternative, a new trial under Rule 33. The government opposed Vicente's motion on March 11, 2009.*fn4
A. Legal Standard for Judgment of Acquittal Pursuant to Rule 29
Under Rule 29 of the Federal Rules of Criminal Procedure, the court must order the entry of a judgment of acquittal "if the evidence is insufficient to sustain a conviction." FED.R.CRIM.PROC. 29(a); United States v. Tisor, 96 F.3d 370, 379, n. 6 (9th Cir. 1996); United States v. Affinito, 873 F.2d 1261, 1264 (9th Cir. 1989). Motions for judgment of acquittal made after the return of a guilty verdict must be made within seven days or "within any other time the court sets during the 7-day period." FED.R.CRIM.PROC. 29(a); United States v. Navarro Viayra, 365 F.3d 790, 792 (9th Cir. 2004). Here, the court extended the seven day period immediately following the jury's return of a verdict, and defendant filed within the extended time set by the court.*fn5
Entry of a judgment of acquittal is proper only if the court concludes, after viewing the evidence in the light most favorable to the government, and drawing all reasonable inferences in the government's favor, that no reasonable juror could find the defendant guilty of the crime charged beyond a reasonable doubt. United States v. Leos-Maldonado, 302 F.3d 1061 (9th Cir. 2002) ("'. . . this court must review the evidence presented against the defendant in the light most favorable to the government to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt,'" quoting United States v. Pacheco-Medina, 212 F.3d 1162, 1163 (9th Cir. 2000)); United States v. Reyes, 302 F.3d 48, 52 (2d Cir. 2002) ("[A] district court can enter a judgment of acquittal on the grounds of insufficient evidence only if, after viewing the evidence in the light most favorable to the prosecution and drawing all reasonable inferences in the government's favor, it concludes no rational trier of fact could have found the defendant guilty beyond a reasonable doubt"); United States v. Medina, 161 F.3d 867, 872 (5th Cir. 1998) ("A motion for a judgment of acquittal challenges the sufficiency of the evidence to convict. . . . We review the denial of this motion de novo. In doing so, we consider the evidence, all reasonable inferences drawn from it and all credibility determinations in the light most favorable to the Government, and affirm if a reasonable jury could find the offense's essential elements beyond a reasonable doubt"); United States v. Cunningham, 108 F.3d 120, 123 (7th Cir. 1997) ("'We review the evidence and all reasonable inferences in the light most favorable to the government, and will reverse a conviction only if no rational trier of fact could have found the essential elements of the offense charged beyond a reasonable doubt,'" quoting United States v. Sax, 39 F.3d 1380, 1385 (7th Cir. 1994)).
B. Whether Defendant's Motion for Acquittal Must Be Granted
Defendant argues that the evidence presented at trial was insufficient to prove beyond a reasonable doubt that she was guilty of importation and harboring of aliens for purposes of prostitution, as charged in Count 27 of the second superseding indictment.*fn6
Count 27 charged defendant with violating 8 U.S.C. § 1328 by importing alien victim Kathy into the United States for purposes of prostitution. Section 1328 provides in pertinent part:
"The importation into the United States of any alien for the purpose of prostitution, or for any other immoral purpose, is forbidden. Whoever shall, directly or indirectly, import, or attempt to import into the United States any alien for the purpose of prostitution or for any other immoral purpose, or shall hold or attempt to hold any alien for any such purpose in pursuance of such illegal importation, or shall keep, maintain, control, support, employ, or harbor in any house or other place, for the purpose of prostitution or for any other immoral purpose, any alien, in pursuance of such illegal importation, shall be fined under Title 18, or imprisoned not more than 10 years, or both." 8 U.S.C. § 1328.
At trial, the jury was instructed that, before a defendant could be found guilty of violating § 1328, the government had to prove each of the following elements beyond a reasonable doubt: (1) a person who was an alien was imported into the United States for purposes of prostitution; (2) the defendant knew that the person was an alien; and (3) the defendant either (a) knowingly imported (directly or indirectly) the alien into the United States for the purpose of prostitution, or (b) knowingly kept, maintained, controlled, supported, employed, or harbored the alien in furtherance of the alien's importation into the United States for the purpose of prostitution.*fn7
Defendant challenges the sufficiency of the evidence to satisfy the third prong of this standard.*fn8 She argues that the testimony provided at trial regarding Kathy indicates that co-defendant Gladys Vasquez Valenzuela ("Valenzuela") recruited Kathy to come to the United States, funded Kathy's trip from Guatemala by paying her smuggling fee, and picked Kathy up upon her arrival in Los Angeles.*fn9 Vicente also argues that victim-witness Rosaura testified that she overheard a conversation between Vicente and Valenzuela in which Vicente stated she did not want the new woman (Kathy) because she was older than expected.*fn10 Likewise, Vicente references the testimony of victim-witness Tania, who stated that Valenzuela said Vicente had refused to "take" Kathy because she was too old.*fn11 Defendant argues that taxi driver witness Joaquin Huerta testified that, after Kathy and Rosaura escaped, he overheard former co-defendant Albertina Vasquez Valenzuela, aka Christina, state that Kathy was a "joke" Vicente had played on Valenzuela.*fn12 Vicente also references the testimony of co-defendant Flor Morales Sanchez, who denied being involved in Kathy's recruitment.*fn13 Citing this testimony, defendant contends that no rational trier of fact could have found beyond a reasonable doubt that she imported and/or harbored Kathy in violation of § 1328.
The government counters that Kathy's testimony established that Vicente's sister-in-law recruited her to leave Guatemala and travel to the United States to work for Vicente.*fn14 Kathy testified that she understood that she would be working for Vicente, and that Vicente would pay her smuggling fee.*fn15 The government asserts that other witnesses offered corroborating testimony that similarly supports the jury's verdict. First, Rosaura testified that Vicente had expected a 15-year-old girl to come work for her as a prostitute, and that, when "older" Kathy arrived instead, Vicente gave her to Valenzuela.*fn16 Similarly, Tania testified that Vicente gave Kathy to Valenzuela because she "looked so old."*fn17 The government argues that these victim-witnesses' testimony is "entirely consistent" with the testimony of taxi driver witness Juan Montez Velazco, who testified that the co-defendants would regularly trade the victim prostitutes.*fn18
Finally, the government maintains that the undercover recordings introduced into evidence at trial independently establish Vicente's responsibility for unlawfully importing Kathy into the United States, and corroborate the other witnesses' testimony to this effect.*fn19 The recordings, made immediately after Kathy and Rosaura escaped, contain Valenzuela's reaction, which includes cursing Vicente for trading or giving Kathy to her. At one point in the recording, Valenzuela telephoned Vicente and spoke with her directly, blaming her for saddling Valenzuela with Kathy.*fn20
At another point, Valenzuela spoke with Vicente's brother, Armando, and said that she made a mistake taking Kathy when Kathy had been intended for Vicente all along.*fn21
Having reviewed this and other trial evidence, the court concludes that there was sufficient evidence at trial for the jury to find beyond a reasonable doubt that Vicente was guilty of importing victim Kathy in violation of 8 U.S.C. § 1328, as charged in Count 27. Accordingly, defendant's motion for acquittal is denied.
C. Legal Standard for Motions for New Trial Under Rule 33
Rule 33 provides that "[u]pon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires." FED.R.CRIM.PROC. 33(a). "Any error of sufficient magnitude to require reversal on appeal is an adequate ground for granting a new trial." 3 Wright, King, Klein, & Leipold, FEDERAL PRACTICE & PROCEDURE CRIMINAL 3d § 556; see also, e.g., United States v. Wall, 389 F.3d 457, 474 (5th Cir. 2004) (citing Wright); United States v. McDarrah, No. 05 Cr. 1182(PAC), 2007 WL 273799, *8 (S.D.N.Y. Jan. 31, 2007) ("The standard for reviewing Rule 33 motions based on asserted errors of law has not been specifically stated in the Second Circuit. Courts in other circuits, however, have adopted some version of the standard that 'any error of sufficient magnitude to require reversal on appeal is an adequate ground for granting a new trial.' . . . The ultimate test on a Rule 33 motion remains 'whether letting a guilty verdict stand would be a manifest injustice,'" quoting United States v. Ferguson, 246 F.3d 127, 134 (2d Cir. 2001)).
Grounds for a Rule 33 motion may include erroneous jury instructions and/or a variance between the indictment and the proof. Wright, et al. FEDERAL PRACTICE & PROCEDURE CRIMINAL 3d § 556. As with Rule 33 motions premised on newly discovered evidence, "motions for a new trial are not favored, and are granted only with great caution." Wall, 389 F.3d at 474 (quoting United States v. O'Keefe, 128 F.3d 885, 898)); see also United States v. Barr, No. 86-5249, 1988 WL 26631, *5 (9th Cir. Mar. 24, 1988) (Unpub. Disp.) ("Motions for new trials are not favored by the courts and must be viewed with great caution" (citations omitted)).
D. Whether Defendant's Motion for New Trial Must Be Granted
Vicente seeks a new trial on both Count 27 and Count 17. As respects Count 27, the court, having weighed the evidence, concludes that it does not preponderate heavily against the jury's verdict, and that no serious miscarriage of justice occurred. Accordingly, Vicente's motion for a new trial on this count is denied.
Defendant's motion for a new trial on Count 17 advances two arguments: first, that the jurors could have been divided as to whether the offense was committed by force or fraud or coercion;*fn22 and second, that there is a variance between the language of the indictment, which is conjunctive, and the language of the statute and/or jury instruction, which is disjunctive.*fn23
1. Force, Fraud, or Coercion
Defendant contends that the court erred in declining to instruct the jury that it "was required to find unanimously that the offense was committed either by 'force,' 'fraud,' or 'coercion'" before finding defendant guilty of violating 18 U.S.C. § 1591(a).*fn24 Citing Castillo v. United States, 530 U.S. 120, 123 (2000), she argues that "[e]ach element of a crime must be found by a unanimous jury to have been proven beyond a reasonable doubt" before a guilty verdict is appropriate.*fn25 Although she does not elaborate, the court understands her argument to be that "force, fraud, or coercion" are elements of the § 1591(a) charge, rather than means by which the law can be violated.
It is undisputed that jurors must unanimously conclude that each element of an offense has been proven beyond a reasonable doubt before returning a guilty verdict. As the Ninth Circuit has explained, however, jurors need not agree on the particular means by which an offense was committed. See, e.g., United States v. UCO Oil Co., 546 F.2d 833, 838 (9th Cir. 1976) ("It is not a valid objection that . . . the jury, in arriving at a unanimous verdict, may not agree on the particular means by which the offense was committed").
Vicente implies that § 1591(a) sets out multiple offenses: sex trafficking by force, sex trafficking by fraud, sex trafficking by coercion, etc. To determine whether a statute creates separate offenses or instead simply describes alternative means of committing the same crime, courts in this circuit employ the framework set forth in UCO Oil. See, e.g., United States v. Arreola, 467 F.3d 1153, 1157 (9th Cir. 2006). This analysis examines "several relevant factors, including (1) [the] language of the statute itself, (2) the legislative history and statutory context, (3) the type of conduct proscribed, and (4) the appropriateness of multiple punishment for the conduct charged in the indictment." Id. (quoting UCO Oil, 546 F.2d at 836-38 (quotation marks omitted)).
As charged in Count 17,*fn26 section 1591(a) provides: "Whoever knowingly . . . in or affecting interstate or foreign commerce, . . . recruits, entices, harbors, transports, provides, or obtains by any means a person . . . knowing that force, fraud, or coercion described in subsection (c)(2) will be used to cause the person to engage in a commercial sex act, or that the person has not attained the age of 18 years and will be caused to engage in a commercial sex act, shall be punished as provided in subsection (b)." 18 U.S.C. § 1591. "Coercion" is defined in § 1591(c)(2).*fn27 The statute does not define "force" or "fraud."
The government contends that the UCO Oil factors compel the conclusion that "force, fraud, or coercion" describe alternative means of committing the same crime. The court agrees. First, the phrase "force, fraud, or coercion" is contained in a single paragraph which also includes an alternative means of violating § 1591 -- namely, trafficking a victim who has not attained the age of 18. Additionally, § 1591(a)(1) is directed at "a single evil," i.e., compelling a person to engage in a commercial sex act.*fn28 The statute criminalizes sex trafficking when committed by certain means, which are described in the disjunctive and presented as alternatives in the text of the statute; they are not fundamental elements of the criminal activity proscribed by the statute.
More broadly, § 1591 is part of a group of laws in Chapter 77 of Title 18 that address different forms of criminal human trafficking and slavery.*fn29 The statutory context, therefore, reveals an intent to criminalize one type of act (sex trafficking), regardless of which of several means are used to commit the act.*fn30 There is no indication that Congress intended to punish defendants separately or additionally for causing sex trafficking by each of the listed methods. In fact, there is no variance in the punishment for violation of § 1591(a)(1) if the crime is committed through force as opposed fraud, or through fraud as opposed to coercion.*fn31
For all these reasons, the court concludes that "force, fraud, or coercion" are means rather than elements of the crime of sex trafficking defined in 18 U.S.C. § 1591, and that defendant's arguments to the contrary are unavailing. See, e.g., Arreola, 467 F.3d at 1157 ("The fact that 'a statute encompasses various modes of violation requiring different elements of proof . . . does not compel' the conclusion that the statute creates separate offenses" (quoting UCO Oil, 546 F.2d at 838)); see also United States v. Paris, No. 03:06-CR-64(CFD), 2007 WL 3124724 at *12 (D. Conn. Oct. 24, 2007) (holding, in a § 1591 prosecution, that "[j]urors are required to unanimously conclude that the elements of an offense are satisfied, but are not required to unanimously agree on which means a defendant used to commit a particular element. Force, fraud and coercion are alternate means to accomplish a single element. Accordingly, the jurors were not required to unanimously decide which of force, fraud, or coercion Paris used to cause Jennifer and Melissa to commit commercial sex acts" (citations omitted)); United States v. Powell, No. 04 CR 885, 2006 WL 1155947, *1 (N.D. Ill. Apr. 28, 2006) ("Counts 15 and 18 [which alleged violations of § 1591] are not duplicitous because each alleges only one offense -- that Powell used force, fraud or coercion to cause someone to engage in sex for money. . . . [A]s the Supreme Court has noted, jurors are not required to unanimously agree by which means a defendant committed a crime," citing Schad v. Arizona, 501 U.S. 624, 632 (1991) ("We see no reason, however, why the rule that the jury need not agree as to mere means of satisfying the actus reus element of an offense should not apply equally to alternative means of satisfying the element of mens rea")).
2. The Alleged Variance
Vicente next argues that there is a variance between the language of the indictment, which is conjunctive, and the language of the statute and/or jury instruction. It is true that the second superseding indictment references the potential means of violating § 1591 conjunctively, stating that defendant acted with knowledge "that force, fraud and coercion would be used . . . and . . . that each of the females had not attained the age of 18. . . ." A charge "need not follow any particular form or be couched in any particular terminology, [however,] and in particular, need not be charged in the language of the statute." 1 Wright, King, Klein, & Leipold, FEDERAL PRACTICE & PROCEDURE CRIMINAL 3d § 125; see also, e.g., United States v. Cluchette, 465 F.2d 749, 753 (9th Cir. 1972) ("The crime need not be charged in the precise language of the statute"). Moreover, many statutes specify a variety of ways a particular crime can be committed; as discussed, § 1591(a) is one such law. In such a circumstance, "the indictment may allege commission of the offense by all the acts mentioned if it uses the conjunctive 'and' where the statute uses the disjunctive 'or.'" Wright, et al. FEDERAL PRACTICE & PROCEDURE CRIMINAL 3d § 125; see also, e.g., United States v. Lopez-Morales, No. 07-30188, 2008 WL 4107235, *1 (9th Cir. Aug. 29, 2008) (Unpub. Disp.) ("Although the indictment conjunctively charged Lopez with conspiring to distribute cocaine and methamphetamine, the district court did not constructively amend or prejudicially vary the indictment by instructing the jury that Lopez could be found guilty if he conspired to distribute either cocaine or methamphetamine" (collecting cases)); United States v. Booth, 309 F.3d 566, 571-72 (9th Cir. 2002) ("It is apparent from the disjunctive 'or' in the above statute that the crime may be committed with either of the two specified states of mind. Booth's indictment, however, did not plead the two states of mind disjunctively; it alleged conjunctively that Booth conducted the unlawful financial transactions [with both states of mind]. When Booth's case was submitted to the jury, the instructions reverted to the disjunctive form: the jury was permitted to convict if it found that Booth had conducted the money laundering transactions either with the intent to promote the unlawful activity or knowing that the transactions were designed to conceal. There was no reversible error in this sequence of events. When a statute specifies two or more ways in which an offense may be committed, all may be alleged in the conjunctive in one count and proof of any one of those conjunctively charged acts may establish guilt" (collecting cases)); United States v. Bonanno, 852 F.2d 434, 441 (9th Cir. 1988) ("Where a statute specifies two or more ways in which an offense may be committed, all may be alleged in the conjunctive in one count and proof of any of those acts conjunctively charged may establish guilt" (citations omitted)); United States v. Bettencourt, 614 F.2d 214, 219 (9th Cir. 1980) ("Bettencourt argues, finally, that the district court erred when it instructed the jury on the elements of the offense, adopting the disjunctive language of 18 U.S.C. § 111, rather than the conjunctive wording that had been used in the indictment. Bettencourt's assertion that the trial judge 'substantially altered' the language of the indictment is baseless. In the absence of a variance or other fatal defect in the indictment, a jury may convict on a finding of any of the elements of a disjunctively defined offense, despite the grand jury's choice of conjunctive language in the indictment . . . Here, the court, by instructing the jury in the disjunctive, simply and properly informed the jurors that they need not find all elements charged in the indictment to convict" (citations and footnotes omitted)). In view of this precedent, Vicente's implied argument that differences between the indictment and the statute/jury instructions necessitate a new trial on Count 17 is unavailing. Defendant's Rule 33 motion is, accordingly, denied.
For the reasons stated, the court denies defendant's motion for a judgment of acquittal or, in the alternative, for a new trial.