Case 1:14-cr PLM Doc #19 Filed 11/17/14 Page 1 of 20 Page ID#54. v. Case No. 1:14-CR-158 GOVERNMENT S TRIAL BRIEF

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1 Case 1:14-cr PLM Doc #19 Filed 11/17/14 Page 1 of 20 Page ID#54 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION _ UNITED STATES OF AMERICA, Plaintiff, v. Case No. 1:14-CR-158 CHRISTOPHER TURRYLE BRYANT, Defendant. / HON. PAUL L. MALONEY United States Chief District Judge GOVERNMENT S TRIAL BRIEF The government submits this trial brief to present the anticipated evidence at trial, potential evidentiary issues, and the proposed number of government witnesses and exhibits. This case is scheduled for trial on December 2, 2014, with the final pretrial conference on November 19, STATEMENT OF FACTS On August 28, 2014, a grand jury indicted Bryant on four counts related to sex trafficking. (R.1: Indictment, Page ID #1-8.) On September 23, 2014, a grand jury returned a Superseding Indictment on five counts related to sex trafficking: Count One transportation for the purposes of prostitution (18 U.S.C. 2421); Count Two sex trafficking and attempted sex trafficking by force, fraud, or coercion (18 U.S.C. 1591(a)(1) and (b)(1)); Count Three sex trafficking of a minor or by force, fraud, or coercion (18 U.S.C. 1591(a)(1), (a)(2), (b)(1), and (b)(2)); and Counts Four and Five sex trafficking of a minor (18 U.S.C. 1591(a)(1) and (b)(2)). (R.8: Superseding Indictment, Page ID #18-26.) There are four alleged victims, whose initials are contained in the Superseding Indictment. 1

2 Case 1:14-cr PLM Doc #19 Filed 11/17/14 Page 2 of 20 Page ID#55 The government expects the evidence to show that Bryant commercially sex trafficked girls and women in Michigan and Arizona between August 2012 and July In 2012, Bryant, age 22, was living in Arizona and returned to Lansing, Michigan, to take a paternity test. Deemed to be the father of the child in question, he started a relationship with Y.W., age 26, the mother of the child. Bryant quickly became physically abusive to Y.W., and Y.W. lost her children to the state. When the state took Y.W. s children away, Bryant told Y.W. he was moving back to Arizona, and she was coming with him. Destitute and depressed, Y.W. went with Bryant to Grand Rapids, where Bryant instructed her to buy two bus tickets to Phoenix. He told her to buy his ticket under a false name. Y.W. s state aid money was the only money they used throughout the trip. Upon arrival in Phoenix, Bryant took Y.W. to a seedy motel, and she and Bryant got something to eat at a soup kitchen. He later took Y.W. to a store where he picked out an outfit for her to buy with her state aid money, which Y.W. described as a night-clubbing outfit. Bryant took Y.W. out to the strip in Phoenix, a main drag in the city, to walk the streets as a prostitute. Bryant followed her on the strip and told her how to walk to attract Johns. Bryant threatened that if she did not have sex with men for money, he would tell Child Protective Services (CPS) that she was a prostitute, and CPS would never give her kids back. When Y.W. refused to get into cars with Johns, Bryant became irate. They went back to the motel, where Bryant violently raped her and trapped her until morning. The following day, Y.W. escaped from Bryant while they were at a fast food restaurant, reported the rape, and stayed for a short time at a shelter until she returned to Michigan. The government expects the evidence to show that two years later, Bryant linked up with two other individuals in Lansing, Michigan, to sex traffic adolescent girls. He told people that he had girls and women working for him in Arizona and elsewhere. Around March 2014, Bryant, 2

3 Case 1:14-cr PLM Doc #19 Filed 11/17/14 Page 3 of 20 Page ID#56 age 24, met S.C., age 17, through a mutual friend who knew S.C. from a juvenile placement home. S.C. at first told Bryant she was over 18 but later told him her real age. Bryant and the other two individuals took photographs of S.C., posted a prostitution advertisement online, and rented a room together at a Lansing motel. A number of men responded to the online posting and paid to have sex with S.C. Bryant and the two others split the money and provided food, drugs, cigarettes, and alcohol to S.C. Bryant soon told S.C. they could make more money by breaking away on their own. Bryant rented a room at a different motel, posted another prostitution advertisement for S.C., and fielded responses on his cell phone. When S.C. stayed out one night instead of returning when Bryant told her, Bryant became violent, grabbing her and pinning her down. He yelled at her for fucking for free and told her he could kill her and nobody would know. Bryant arranged a few more commercial sex dates for S.C. after that, and then S.C. left him. Shortly thereafter, Bryant trafficked B.R., age 16, from about April to July Bryant met B.R. while she was hanging around a bus station in downtown Lansing, and he asked her if she wanted to make some money. She told him she was 16 years old. Bryant posted advertisements online selling her as a prostitute, and men responded to the ad to have sex with her. B.R. performed commercial sex acts in cars and at motels while working for Bryant, and she gave Bryant the money. Bryant was separated from B.R. when B.R. was put in juvenile detention for an unrelated issue. Bryant then met K.L., age 17, on Facebook. They started chatting online and by phone, and he offered her a way to make money. K.L. told Bryant she was only 17. At Bryant s request, K.L. sent him photographs of herself in various stages of undress. On July 4th weekend, 2014, Bryant picked up K.L. in a friend s car and took her to a motel in Lansing where another woman 3

4 Case 1:14-cr PLM Doc #19 Filed 11/17/14 Page 4 of 20 Page ID#57 already had a room for them. Using a prepaid card Bryant bought, he and the other woman posted an advertisement online selling K.L. for prostitution. Bryant gave K.L. drugs and fielded phone calls and text messages from Johns. A man showed up to the hotel and paid K.L. for sex, and K.L. gave the money to Bryant and the other woman. Bryant took K.L. to Detroit and back to Lansing before K.L. left him. COUNT ONE Y.W. Count One charges Bryant with transporting Y.W. from Michigan to Arizona for the purposes of prostitution, in violation of 18 U.S.C This statute is part of the Mann Act, which encompasses 18 U.S.C through 2424 and pertains to travel and transportation for prostitution or illegal sexual acts. The elements of 18 U.S.C are: 1. The defendant knowingly transported an individual in interstate or foreign commerce; and 2. The defendant intended that the individual engage in prostitution, or in any sexual activity for which any person can be charged with a criminal offense. 1. Element 1 - Knowingly transported in interstate commerce Bryant told Y.W. to go with him to Arizona, accompanied her to the bus station, made her buy their bus tickets, and traveled with her to Phoenix. This constitutes transporting under the Mann Act. See United States v. Holland, 381 F.3d 80 (2d Cir. 2004), cert. denied 543 U.S. 1075, (holding that the defendant need not be the one who does the driving to meet the definition of transporting within the meaning of the Mann Act, where the defendant recruited women for an interstate prostitution ring, persuaded them to travel, purchased bus tickets, and accompanied them on the journey). Bryant and Y.W. crossed state lines on a commercial bus line, which definitively constitutes travel in interstate commerce. 4

5 Case 1:14-cr PLM Doc #19 Filed 11/17/14 Page 5 of 20 Page ID#58 2. Element 2 - Intended that the individual engage in prostitution The purpose of the travel must be, in part, to have the person engage in prostitution, but that does not need to be the only purpose. See, e.g., United States v. Miller, 148 F.3d 207 (2d Cir. 1998) (prostitution or other criminal sexual activity needs to be one of the dominant purposes, but not the dominant purpose, of the travel). What Y.W. thought or believed was the purpose of the travel is irrelevant. See Osley v. United States, 751 F.3d 1214 (11th Cir. 2014). The person s consent is not a defense to a charge of violating the Mann Act. United States v. Lowe, 145 F.3d 45, 52 (1st Cir. 1998). The defendant s intent that the person engage in prostitution may be formed during the interstate journey but must be formed before the conclusion of the travel. See, e.g., DeVault v. United States, 338 F.2d 179 (10th Cir. 1964) (addressing predecessor to Mann Act). The intent may be shown by circumstantial evidence. See United States v. Farber, 336 F.2d 586 (6th Cir. 1964) (addressing predecessor to Mann Act). The government can prove the defendant possessed such intent before and during the travel by the temporal proximity of the travel and the criminal sexual activity. For example, in United States v. Bonty, 383 F.3d 575, 578 (7th Cir. 2004), Bonty was convicted at trial of violating 2423(a) (coercion and enticement to travel for illicit sexual activity), another Mann Act statute. Bonty and a friend picked up two adolescent girls at the mall in Missouri and drove them across state lines to Bonty s apartment in Illinois. Id. There, Bonty told the girls they could not leave the house because the neighborhood was dangerous, and he padlocked the door shut. Id. Within a few hours, Bonty tried to get the first minor into his bedroom, and she refused. Id. He held something to her head and told her it was a gun, and, screaming and vomiting, she went to the bedroom with him, where he raped her repeatedly. Id. The friend entertained the other girl 5

6 Case 1:14-cr PLM Doc #19 Filed 11/17/14 Page 6 of 20 Page ID#59 downstairs with the music too loud for her to hear the screams. Id. As they were leaving, the girls saw Bonty and his friend high-five each other and laugh. Id. Bonty appealed the conviction, arguing that he did not have the intent to rape the girl when he picked her up in Missouri and did not form the intent until she unexpectedly refused his advances at the apartment in Illinois. Id. The jury found that, given the circumstantial evidence, Bonty had the intent to rape the girl when he picked her up in Missouri. Id. In upholding the conviction, the Seventh Circuit reasoned, Bonty s optimistic scenario of the events is not wholly implausible, and perhaps some jury somewhere might have arrived at his conclusion. Bonty didn t get that jury. Instead, Bonty s jury reached the conclusion that, based on the evidence, he intended to commit rape that night. We do not believe this finding was irrational. Id. In that case, the court also explained that the government need only prove that a significant or compelling purpose of the trip not the dominant purpose was to commit aggravated assault. Id. The government intends to prove circumstantially that Bryant had the intention for Y.W. to prostitute before he got off the bus in Phoenix. When Bryant told Y.W. she was going with him to Arizona, Bryant did not have a legitimate job and had no source of income, either in Arizona or Michigan. He told others that he had girls and women working for him in Arizona, but he did not tell Y.W. When they arrived in Phoenix, Bryant and Y.W. only had money from Y.W. s state aid, and they had to eat at a soup kitchen. In need of money, Bryant took her to the Phoenix strip to walk the streets for money. When she refused, Bryant became irate and violently raped her. The proximity of these events to the interstate travel indicates that, at the time they traveled from Michigan to Arizona, it was Bryant s plan to use Y.W. as a prostitute for money. 6

7 Case 1:14-cr PLM Doc #19 Filed 11/17/14 Page 7 of 20 Page ID#60 COUNT TWO Y.W. Count Two charges Bryant with sex trafficking and attempted sex trafficking of Y.W. by force, fraud, or coercion, in violation of 18 U.S.C. 1591(a)(1). The elements of that offense are: 1. The defendant knowingly attempted to or did recruit, entice, harbor, transport, provide, obtain, or maintain a person by any means; 2. The defendant knew or acted in reckless disregard of the fact that threats of force, fraud, or coercion would be used to cause the person to engage in a commercial sex act; and 3. The act of recruiting, enticing, harboring, transporting, providing or obtaining was done in or affecting interstate commerce. 1. Element 1 - Knowingly attempted to or did recruit, entice, harbor, transport, provide, obtain, or maintain a person by any means In considering whether Bryant knowingly attempted to or did recruit, entice, harbor, transport, provide, obtain, or maintained Y.W., the jury may use the ordinary, everyday definitions of those terms because those terms are not defined by statute. See Smith v. United States, 508 U.S. 233, 228 (1993) ( When a word is not defined by statute, we normally construe it in accord with its ordinary or natural meaning ). Bryant attempted to and did recruit Y.W. into prostituting in Phoenix as a way to make money for the two of them. He transported her from Michigan to Arizona, and from the motel to the strip in Phoenix, for the purposes of prostitution. He maintained and harbored her by taking her to a soup kitchen for food and getting a motel room with her. 2. Element 2 - Knew or recklessly disregarded the fact that threats of force, fraud, or coercion would be used to cause a commercial sex act The term commercial sex act means any sex act, on account of which anything of value is given to or received by any person. 18 U.S.C. 1591(e)(3). The statute does not require that a commercial sex act actually be completed; rather, it only requires that the defendant be aware 7

8 Case 1:14-cr PLM Doc #19 Filed 11/17/14 Page 8 of 20 Page ID#61 that the situation into which he is recruiting, enticing, transporting, etc. the person will in the future most likely result in prostitution. See, e.g., United States v. Brooks, 610 F.3d 1186, 1197, n.4 (9th Cir. 2010) (even when person never engaged in a commercial sex act, knowledge of a future act is not required to be proven in the sense of certainty if the defendant is aware of a modus operandi that will in the future result in prostitution). The future verb tense of the phrase will be caused which precedes to engage in a commercial sex act indicates that a sex act does not have to occur to satisfy the elements of the [ ] sex-trafficking offense. To conclude otherwise erases the meaning of will be from the statutory text. United States v. Willoughby, 742 F.3d 229, 241 (6th Cir. 2014) (citing United States v. Garcia-Gonzalez, 714 F.3d 306, 312 (5th Cir. 2013)). Bryant s offense was complete the moment he dropped [Y.W.] off on the strip and put the wheels in motion for the commercial sex act to take place, not at the moment of penetration. Id. (citations omitted). Additionally, a completed sex act is not required because an attempt is also charged here under 18 U.S.C. 1594(a). Bryant knew that force, fraud, or coercion would be used to cause or attempt to cause Y.W. to engage in prostitution. Bryant knew this because he already established a controlling and abusive relationship over Y.W. in Michigan, and he tried to coerce her into prostitution by threatening to notify Child Protective Services that she was a prostitute. Bryant s resorted to force when he violently raped her for refusing to get into cars with Johns on the strip. He trapped her until the morning, and she escaped before he could try again. 3. Element 3 - The act of recruiting, enticing, harboring, transporting, providing, obtaining, or maintaining was done in or affecting interstate commerce The government must prove that the recruiting, enticing, harboring, transporting, providing, obtaining, or maintaining was done in or affecting interstate or foreign commerce. 8

9 Case 1:14-cr PLM Doc #19 Filed 11/17/14 Page 9 of 20 Page ID#62 18 U.S.C. 1591(a). An act or transaction that crosses state lines is in interstate commerce; an act or transaction that is economic in nature and affects the flow of money in the stream of commerce to any degree, however minimal, affects interstate commerce. Gonzales v. Raich, 545 U.S. 1, 17 (2005); see also 18 U.S.C. 10 (2012). The government need not prove that Bryant knew his actions were in or affecting interstate commerce. See, e.g., United States v. Feola, 420 U.S. 671, 677 n. 9 (1975); United States v. Sawyer, 733 F.3d 228, (7th Cir. 2013); United States v. Evans, 476 F.3d 1176, 1180 (11th Cir. 2007). Bryant transported Y.W. from Michigan to Arizona on a commercial bus line, used a motel in Phoenix as a base, and picked out clothing for Y.W. to wear for prostitution. These establish an interstate nexus to Bryant s recruitment, transportation, harboring, providing, etc. of Y.W. In Willoughby, the Sixth Circuit found there was sufficient interstate nexus to support a sex trafficking conviction where the defendant purchased condoms and clothes specifically for the victim to use while prostituting, those items were manufactured out-of-state, and the defendant used a cell phone in furtherance of his sex-trafficking activities. Willoughby, 742 F.3d at 240. Likewise, in United States v. Flint, 2010 WL (6th Cir. 2010) (unpublished), the Sixth Circuit found that purchasing drugs, clothing, hair extensions, fake nails, and renting a hotel room was sufficient to satisfy the interstate commerce element of sex trafficking. COUNT THREE S.C. Count Three charges Bryant with sex trafficking of a minor or sex trafficking by force, fraud, or coercion. These are charged in the alternative under various parts of 18 U.S.C The alleged victim in this count is S.C., age 17. 9

10 Case 1:14-cr PLM Doc #19 Filed 11/17/14 Page 10 of 20 Page ID#63 The elements of this offense are: 1. The defendant knowingly either: (a) Recruited, enticed, harbored, transported, provided, obtained, or maintained a person by any means (18 U.S.C. 1591(a)(1)); or (b) Benefited, financially or by receiving anything of value, from participation in a venture which has engaged in such acts (18 U.S.C. 1591(a)(2)); 2. The defendant knew or acted in reckless disregard of the fact either: (a) That means of force, fraud, or coercion, or any combination of such means, would be used to cause the person to engage in a commercial sex act (18 U.S.C. 1591(b)(1)); or (b) That the person had not attained the age of 18 years and would be caused to engage in a commercial sex act (18 U.S.C. 1591(b)(2)); and 3. The act of recruiting, enticing, harboring, transporting, providing, obtaining, or maintaining was done in or affecting interstate commerce. 1a. Element 1 - Knowingly recruited, enticed, harbored, transported, provided, obtained, or maintained a person by any means (18 U.S.C. 1591(a)(1)) Bryant told S.C. that they could make more money together if they left the other two individuals and went out on their own. He rented motel rooms, advertised S.C. online, provided her to other men for commercial sex, and gave S.C. drugs and food while she was with him. These acts constitute knowingly recruiting, harboring, providing, maintaining, etc. S.C. 1b. Element 1 (in the alternative) - Benefited, financially or by receiving anything of value, from participation in a venture which has engaged in such acts (18 U.S.C. 1591(a)(2)) In the alternative, the first element of the offense could be that Bryant benefited financially from participation in a venture that recruited and provided S.C. for commercial sex. The term venture means any group of two or more individuals associated in fact, whether or not a legal entity. 18 U.S.C. 1591(e)(5). Bryant acted in concert with one or more other individuals to sex 10

11 Case 1:14-cr PLM Doc #19 Filed 11/17/14 Page 11 of 20 Page ID#64 traffic S.C., and he benefited financially from this venture. 2a. Element 2 - Knew or recklessly disregarded fact that force, fraud, or coercion would be used to cause a commercial sex act (18 U.S.C. 1591(b)(1)) There are also two alternative theories for the second element. The first one relates to force, fraud, or coercion, and the second relates to the victim s age. When S.C. did not return at the prescribed time one night, Bryant threatened her and attacked her in the motel room, accusing her of fucking for free when she could be selling sex for money. S.C. performed at least one more commercial sex act before leaving Bryant. This threat constitutes force, fraud, or coercion against S.C. and, if proven, dictates a statutory minimum sentence of 15 years under 18 U.S.C. 1591(b)(1). 2b. Element 2 (in the alternative) - Knew or recklessly disregarded fact that the person was under 18 and would be caused to engage in a commercial sex act (18 U.S.C. 1591(b)(2)) The alternative second elements is that Bryant knew or recklessly disregarded the fact that S.C. was under 18 and would be caused to engage in a commercial sex act. Because S.C. was between 14 and 18 years old, a conviction under this alternative second element imposes a statutory minimum sentence of 10 years. 18 U.S.C. 1591(b)(2). If Bryant knew or recklessly disregarded that S.C. was a minor, then the government need not prove force, fraud, or coercion. To prove this alternative second element, the government must only prove that Bryant had a reasonable opportunity to observe S.C.: In a prosecution under subsection (a)(1) in which the defendant had a reasonable opportunity to observe the person so recruited, enticed, harbored, transported, provided, obtained or maintained, the Government need not prove that the defendant knew that the person had not attained the age of 18 years. 18 U.S.C. 1591(c). 11

12 Case 1:14-cr PLM Doc #19 Filed 11/17/14 Page 12 of 20 Page ID#65 Where the defendant had a reasonable time to observe the victim, 1591(c) imposes strict liability with regard to the defendant s awareness of the victim s age, thus relieving the government s usual burden to prove knowledge or reckless disregard of the victim s underage status under 1591(a). United States v. Robinson, 702 F.3d 22, 26 (2d Cir. 2012). Bryant had ample time to interact with and observe S.C., and therefore the government need not prove that he knew she was under 18. Nevertheless, the government intends to show that although S.C. initially told Bryant she was over 18, Bryant learned her true age during the time he sex trafficked her. 3. Element 3 - The act of recruiting, enticing, harboring, transporting, providing, obtaining, or maintaining was done in or affecting interstate commerce Bryant s actions with respect to recruiting, enticing, harboring, etc. of S.C. were done in or affecting interstate commerce, even though he never took her out of state. Purely intrastate sex trafficking can have sufficient nexus to interstate commerce to satisfy this prong. For example, the Sixth Circuit found that the interstate nexus element was satisfied when a defendant prostituted a 16-year-old girl solely within the city of Toledo, Ohio, because he bought clothes for her that were manufactured outside the state and used a cell phone in furtherance of his sex-trafficking activities. Willoughby, 742 F.3d at 240. The Sixth Circuit emphasized that Congress has specifically found that, in the aggregate, sex-trafficking activities substantially affect[ ] interstate and foreign commerce. Id. (citing 22 U.S.C. 7101(b)(12)). In Evans, the Eleventh Circuit held that the interstate and foreign commerce element was met when the defendant, who employed prostitutes solely within the state of Florida, used cell phones, motels servicing interstate travelers, and condoms manufactured outside the state in furtherance of his sex trafficking. Evans, 476 F.3d at Evans s enticement and recruitment 12

13 Case 1:14-cr PLM Doc #19 Filed 11/17/14 Page 13 of 20 Page ID#66 of an underage girl to engage in prostitution contributed, in the aggregate with similar conduct by others, to frustrate Congress's broader regulation of interstate and foreign economic activity. Id. The court noted that while the defendant s activities may be minor in the national and international market of trafficking children for commercial sex acts, his acts contribute to the market that Congress s comprehensive scheme seeks to stop. Id. Although many cases identify several links between sex trafficking and interstate or foreign commerce, only a single instrumentality affecting interstate or foreign commerce is required. For example, the Eleventh Circuit held that a defendant who furnishes prostitutes with condoms manufactured outside the state supports a finding that the enterprise affected interstate commerce. United States v. Pipkins, 378 F.3d 1281, 1295 (11th Cir. 2004), vacated on other grounds, 544 U.S. 902, opinion reinstated, 412 F.3d 1251 (11th Cir.), cert. denied, 546 U.S. 994 (2005). Bryant used his cell phone and the internet to arrange commercial sex dates for S.C. He also used multiple motels servicing interstate travelers as his base of operations. These satisfy the requirement that his sex trafficking of S.C. affected interstate commerce. COUNT FOUR B.R.; COUNT FIVE K.L. Counts Four and Five both charge Bryant with sex trafficking of a minor, in violation of 18 U.S.C. 1591(a)(1) and (b)(2). The victim in Count Four is B.R., age 16. The victim in Count Five is K.L., age 17. The elements are as follows: 1. The defendant knowingly recruited, enticed, harbored, transported, provided, obtained, or maintained a person by any means; 2. The defendant knew or acted in reckless disregard of the fact that the person had not attained the age of 18 years and would be caused to engage in a commercial sex act; and 13

14 Case 1:14-cr PLM Doc #19 Filed 11/17/14 Page 14 of 20 Page ID#67 3. The act of recruiting, enticing, harboring, transporting, providing, obtaining, or maintaining was done in or affecting interstate commerce. 1. Element 1 - Knowingly recruited, enticed, harbored, transported, provided, obtained, or maintained a person by any means Count Four: Bryant recruited B.R. near the bus station in Lansing and enticed her into commercial sex with the promise of making money. He drove her around, rented motel rooms, advertised her online, and provided her to men for sex. Although B.R. gave Bryant proceeds from the commercial sex acts, the benefited financially from a venture prong under 18 U.S.C. 1591(a)(2) (charged in Count Three) is not charged here, and thus the government need not show a financial benefit. Count Five: Bryant recruited and enticed K.L. into commercial sex when he met her online, and they discussed her making money. He drove her around, rented motel rooms, advertised her online, and provided her for commercial sex. Although K.L. gave the money to Bryant, the benefited financially from a venture prong under 18 U.S.C. 1591(a)(2) is also not charged here, and the government need not show a financial benefit. 2. Element 2 - Knew or recklessly disregarded fact that the person was under 18 and would be caused to engage in a commercial sex act Both B.R. and K.L. told Bryant they were under 18 years old. Bryant knew when he recruited them that they would be caused to engage in a commercial sex act, as he quickly advertised them online and arranged commercial sex dates for them. He knew they were under 18 years old and that they would be caused to engage in a commercial sex act. 3. The act of recruiting, enticing, harboring, transporting, providing, obtaining, or maintaining was done in or affecting interstate commerce Bryant used the internet, his cell phone, and motels for the purposes of prostitution. As 14

15 Case 1:14-cr PLM Doc #19 Filed 11/17/14 Page 15 of 20 Page ID#68 discussed above, these satisfy the interstate nexus requirement for this charge. TRIAL ISSUES This section addresses: (1) the primary issues at trial; (2) proposed stipulations; (3) witnesses and exhibits; (4) protection of the victims identities; and (5) Rule 412 exclusion of the victims sexual history or predisposition. 1. Primary issues at trial The government anticipates that the main contested issues at trial will be whether Bryant intended for Y.W. to engage in prostitution when he transported her from Michigan to Arizona; whether his use of force, fraud, or coercion against her was intended to cause her to engage in prostitution; and whether Bryant knew or acted in reckless disregard of the minors ages or, alternatively, had a reasonable opportunity to observe them. 2. Proposed stipulations For facts and issues regarded by the government as less contentious, the government will attempt to resolve the following by stipulation: (1) that the phone calls, text messages, motels, and online advertisements affected interstate commerce; and (2) that S.C. was 17, B.R. was 16, and K.L. was 17 at the time of the alleged offenses, but not that Bryant knew their ages at the time. 3. Witnesses and exhibits The government plans to call approximately 15 witnesses, including one expert witness (R.17: Notice of Expert Witness), and to present approximately 20 exhibits. The exhibits are documents and photographs. There are several online advertisements that are sexual in nature, and the government intends to redact explicit images before presentation to the jury. The minors faces will be visible so that they can identify the advertisements. The government will seek to reach an agreement with defense prior to trial on the admission of exhibits to avoid 15

16 Case 1:14-cr PLM Doc #19 Filed 11/17/14 Page 16 of 20 Page ID#69 unnecessary delay during the proceedings. 4. Protection of the victims identities The alleged victims full names should be withheld to protect them from potential harassment, undue embarrassment, and other adverse consequences that may result from the nature of their anticipated testimony. See the Victims Protections and Rights Act, 18 U.S.C. 3509(d)(3); and the Crime Victims Rights Act, 18 U.S.C. 3771(a)(8). The government requests that all four victims be sworn in and referred to throughout trial by first name only. The government used the victims initials in the Superseding Indictment and in this trial brief but intends to refer to them all by first name at trial to avoid confusion by other witnesses. Some of the other witnesses know the victims first names but not their last names, and so it would be impractical and confusing to have the witnesses refer to them by first and last initial. Either using just initials or just first names will protect their identities, and so the government proposes using their first names for simplicity and to avoid confusion during the testimony of other witnesses. This protection addresses the victims right to be treated with fairness and with respect for [their] dignity and privacy. 18 U.S.C. 3771(a)(8). Additionally, for the victims in Counts Four and Five, who are still minors, withholding their names from public disclosure is necessary to protect them from the significant possibility that such disclosure would be detrimental to the child. 18 U.S.C. 3509(d)(3). Referring to victims only be initials or first name is common in cases involving sex trafficking. See, e.g., Willoughby, 742 F.3d at 232 (Sixth Circuit case referring to child sex trafficking victim by initials only); United States v. Daniels, 653 F.3d 399, 405 (6th Cir. 2011) (same); United States v. Marcus, 628 F.3d 36, 45 (2d Cir. 2010) (adult sex trafficking case 16

17 Case 1:14-cr PLM Doc #19 Filed 11/17/14 Page 17 of 20 Page ID#70 rejecting defendant s argument that the district court erred by permitting witnesses to testify by first name only and protecting witnesses addresses and employment details from disclosure); Anderson, 139 F.3d 291, (1st Cir. 1998) (referring to child sex trafficking victims by first names only). Additionally, the government proposes that this protection extend to any other minors who testify at trial. The government anticipates calling one or more witnesses who are still minors who have been involved in prostitution. The government does not propose that this protection extend to any adult witnesses who have been involved in prostitution, and adult witnesses should be sworn in and referred to by full name. The victims and witnesses full names should be used during voir dire to inquire as to whether any potential jurors know them. See Anderson, 139 F.3d at 302 (the use of the minors full names is necessary only during voir dire). The transcript should be redacted to reflect only the victims and any minors first names if their full names are used in voir dire or elsewhere. 5. Rule 412 excludes evidence of victims sexual history and predisposition Evidence regarding the sexual history of the alleged victims, including prior or subsequent acts of prostitution, is prohibited by Federal Rule of Evidence 412, which bars evidence of a witness s prior sexual history and alleged sexual predisposition. Rule 412 is designed to encourage victims to come forward against offenders without invasion of their privacy, embarrassment, and unfair stereotyping that result from unnecessary questioning about their sexual past. See Advisory Committee Notes to Fed. R. Evid The rule implements several safeguards before a victim s prior or subsequent sexual conduct may be admitted including a notice and hearing requirement that have not taken place in this case. Even though Bryant has not indicated an intention to make use of Rule 412 evidence, the government presents this issue here to 17

18 Case 1:14-cr PLM Doc #19 Filed 11/17/14 Page 18 of 20 Page ID#71 emphasize the heightened concern for lines of questioning that involve sexual history. A defendant s right to cross-examine witnesses is not unlimited, and using a victim s prior or subsequent sexual history as impeachment is not a recognized exception to Rule 412. See Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986); United States v. Withorn, 204 F.3d 790, 795 (8th Cir. 2000); United States v. Torres, 937 F.2d 1469, (9th Cir. 1991). Rule 412 sets forth three limited exceptions that allow the use of this evidence in criminal cases, none of which applies here. The exceptions are: (a) specific instances of sexual behavior offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence; (b) specific instances of sexual behavior with the person accused of sexual misconduct either offered by the accused to prove consent, or offered by the prosecution; and (c) evidence that the exclusion would violate the defendant s constitutional rights. Fed. R. Evid. 412(b)(1). In a commercial sex trafficking case in the First Circuit, the defendant was precluded from eliciting testimony that the minors prostituted both before and after working for the defendant. Anderson, 139 F.3d at The defendant argued that the evidence would have been useful to impeach the minors credibility, but the First Circuit held, We fail to see how evidence of prostitution outside the offense conduct would have any probative value regarding the truthfulness of the two girls. Such a position seems to us to embody a particularly offensive form of stereotyping to which we are loath to give credence. Id. The court held that Rule 412 does not violate the defendant s Fifth or Sixth Amendment rights. Id. (citing United States v. Graham, 2013 WL , *4 (W.D.N.Y. Jan. 28, 2013) (unpublished), which found that exclusion of victims other acts of prostitution did not violate Sixth Amendment because such evidence does not contradict their testimony that the defendant transported, maintained, or recruited them... and questions about a witness s sexual morals is not a proper basis for impeachment. ) 18

19 Case 1:14-cr PLM Doc #19 Filed 11/17/14 Page 19 of 20 Page ID#72 The Second Circuit has also held that cross-examination about a prostitute s relationships with other men in general,... her drug use, and her sexual history is improper because these subjects are not relevant in a sex trafficking case. United States v. Griffith, 284 F.3d 338, 252 (2d Cir. 2002); Fed. R. Evid The witness s answers to these questions would not have tended to make more or less probable any fact at issue in this case. Id. Additionally, Rule 412 does not permit evidence about a witness s sexual predisposition offered to show that a minor consented to prostitution. Any claim that the minors were willing to engage in commercial sex or that they have ever voluntarily prostituted before is not a defense to the allegation that Bryant sex trafficked them. Voluntariness on behalf of children to be prostituted is simply irrelevant because minors cannot legally consent to commercial sex. For example, in United States v. Elbert, 561 F.3d 771, 777 (8th Cir. 2009), the Eighth Circuit held that minor victims cannot legally consent to perform sex acts under 18 U.S.C. 1591, and a child s acts of prostitution before or after the charged conduct by the defendant is irrelevant, and would only prove other people may be guilty of similar offenses of recruiting, enticing, or causing [her] to engage in a commercial sex act. See also Brooks, 610 F.3d at 1199 ( The victim s willingness to engage in sexual activity is irrelevant, in much the same way that a minor s consent to sexual activity does not mitigate the offense of statutory rape or child molestation. ) (internal citation omitted). The minors propensity to engage in sex for money either before or after the commission of the charged crimes makes it no more or less probable that Bryant engaged in sex trafficking of the victims as charged. See Anderson 139 F.3d at 303. Likewise, where Bryant is charged with using force, fraud, or coercion knowing that it would cause a commercial sex act (Count Two and Three), the government need only prove Bryant s state of mind and his use of force, fraud, or coercion. The government need not prove 19

20 Case 1:14-cr PLM Doc #19 Filed 11/17/14 Page 20 of 20 Page ID#73 that the force, fraud, or coercion was the only reason that the victim engaged in commercial sex acts, and that without such force, fraud, or coercion the victim would not have engaged in such acts. Therefore, the propensity of the victim to engage in commercial sex acts absent any force, fraud, or coercion is irrelevant, as it is not a defense to the charge and is not a recognized exception to Rule 412. Respectfully submitted, PATRICK A. MILES, JR. United States Attorney Dated: November 17, 2014 /s/ Tessa K. Hessmiller TESSA K. HESSMILLER Assistant United States Attorney P.O. Box 208 Grand Rapids, MI