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United States v. Smith

United States Court of Appeals, Fifth Circuit

July 13, 2018

UNITED STATES OF AMERICA, Plaintiff - Appellee
v.
TYRONE LARRY SMITH, also known as Marques Stewart, also known as Tyrone Letron Smith, also known as Tyrone Latron Smith, also known as Tyrone L. Smith, also known as Troy Green, also known as Antoine Lavell Franklin, also known as Michael Mummadd, also known as Taz; LACOYA WASHINGTON, Defendants - Appellants

          Appeals from the United States District Court for the Western District of Louisiana

          Before HIGGINBOTHAM, JONES, and GRAVES, Circuit Judges.

          PATRICK E. HIGGINBOTHAM, CIRCUIT JUDGE

         Defendants Tyrone Smith and Lacoya Washington were convicted of sex trafficking involving a fourteen-year-old girl. On appeal, Washington challenges the sufficiency of the evidence against her, the denial of her motion for severance, and the reasonableness of her sentence. Finding no error, we AFFIRM her conviction. Smith challenges the sufficiency of the evidence against him, the denial of his motion to suppress, and the denial of his motion to reassert his right to counsel. We find that the district court erred in denying Smith's motion for counsel. We REVERSE his convictions.

         I.

         In the summer of 2015, Tyrone Smith resided with Lacoya Washington and her four children at Washington's apartment in Shreveport, Louisiana. During this time, Smith met B.R., a fourteen-year-old from Texas, on the dating website Plenty of Fish. The relationship moved to texting and telephone calls. B.R. told Smith that she was nineteen. Smith suggested that B.R. come to Louisiana and live with him, and B.R. agreed.

         In June 2015, B.R. took a Greyhound bus to Shreveport. B.R. testified that Washington picked her up at the bus station and the two met Smith at the apartment. Shortly after her arrival, Smith told B.R. "there's someone outside waiting and you pretty much need to go to the car, have sex with him, get money, and come inside." B.R. testified that when she objected, Smith told her that if she refused, she would "get in trouble for it." She said that after the incident Smith told her "[t]his is what you're going to be doing from now on. You better be okay with it." Smith arranged similar "car dates" three or four times.

         Smith later instructed B.R. to take photographs on his cell phone, some of which he sent to Washington. Smith used the photographs to create an online advertisement for prostitution on the website Backpage.com. He paid for the ad with a prepaid gift card bought with Washington's money. Smith used Washington's email address and his phone number. B.R. claimed that Smith and Washington collaborated on the text of the ad. The next day, Smith posted a second ad using his own email address.

         B.R. testified that when men responded to the ad, Smith or Washington told her what to charge. B.R. estimated that she had sex with six men who responded to the ad. She testified that Washington or Washington's boyfriend drove her to the motels to meet the men. Washington also paid for the motel rooms, using money that Smith gave her from customers. B.R. testified that after a customer left, they would "keep [the room] for the night" and "drink [and] do coke." Washington provided the cocaine.

         On July 6, Smith and B.R. got into a fight because she had locked him out of the hotel room. Smith slapped B.R. and told Washington to leave the room. The fight continued. B.R. said she wanted to leave and locked herself in the bathroom. Smith entered the bathroom and hit B.R. approximately three times with a closed fist. He then got his gun, threatened suicide, and pointed the gun at B.R. The two eventually "calmed down" and went to sleep.

         On July 7, Shreveport Police Department Officer Miles discovered the online ads, suspected that B.R. was a minor, and arranged a sting operation. Miles called the listed number to set up a meeting. When they arrived at the hotel, SPD officers detained B.R., who told them that she was a minor, that Smith was her pimp, and that he had beaten her. Officers searched the room and found Smith's telephone, the prepaid gift card, and a loaded gun.

         Officers learned that the room was rented under Washington's name, located her, and took her into custody where she made a statement. Washington told the police she believed B.R. continued to engage in prostitution because she was afraid of Smith. Officers also located Smith, who provided a statement where he admitted that he had met B.R. online and that he knew she was having sex with adult men in Shreveport.

         Smith and Washington were charged with sex trafficking in violation of 18 U.S.C. § 1591(a)(1) & (b)(1)-(2). Smith was also charged with interstate prostitution by coercion or enticement under 18 U.S.C. § 2242. Smith and Washington were jointly tried in a three-day bench trial. As explained in more detail below, Smith proceeded pro se. Washington was represented by counsel.

         Both were convicted as charged. Smith received a 384-month sentence for Count 1 and a concurrent 240-month sentence for Count 2. Washington was sentenced to 292 months.

         II.

         On appeal, Washington challenges the sufficiency of the evidence against her, the district court's denial of her motion for severance, and the reasonableness and constitutionality of her sentence.

         A.

         Washington argues that the government provided insufficient evidence that she intentionally assisted or participated in trafficking B.R.[1] She admits that she participated in a series of "otherwise innocent conduct" including renting the hotel rooms, driving Smith and B.R. to hotels, and socializing with them. She further concedes that "at some point she became aware of what was going on and did nothing to stop it," but argues that "failure to protect B.R. is not equivalent to intentionally assisting in the crime."

         "When a defendant challenges a bench-trial conviction on sufficiency-of-the-evidence grounds, we focus on 'whether the finding of guilt is supported by substantial evidence, i.e., evidence sufficient to justify the trial judge, as the trier of fact, in concluding beyond a reasonable doubt that the defendant is guilty.'"[2] In doing so, "[w]e 'should not weigh evidence, nor should [we] determine the credibility of witnesses.'"[3] Instead, "we must 'view all evidence in the light most favorable to the government and defer to all reasonable inferences by the trial court.'"[4]

         The record is replete with evidence of Washington's involvement. At trial, the government presented evidence that Washington permitted Smith to use her money and email address to post an online prostitution advertisement. Washington allegedly approved the ad's text and some of the photographs. According to B.R., Washington told her how much to charge customers, drove her to meet clients, and obtained the hotel rooms. Washington denied many of these claims at trial; however, the trial court made clear that it found Washington's innocent explanations "noncredible," and there is ample evidence supporting her knowing involvement.

         B.

         Washington also contends that the district court erred in trying her alongside Smith. We review the denial of a motion to sever for abuse of discretion.[5] "The threshold for finding such discretion to have been abused . . . is especially high when the trial is to be to the court rather than a jury."[6] "[T]he defendant bears the burden of showing specific and compelling prejudice that resulted in an unfair trial, and such prejudice must be of a type against which the trial court was unable to afford protection.'"[7] Washington "is entitled to reversal . . . only if [s]he identifies specific events during trial and demonstrates that these events caused [her] substantial prejudice."[8]

         Before trial, Washington filed a motion for severance, arguing that her involvement in the crime was "minimal" and expressing concern that she "risk[ed] being punished for the alleged acts of Mr. Smith." The trial court originally granted this motion, and reconsidered its ruling after the parties later agreed to a bench trial. Upon reconsideration, the district court found that severance was "no longer warranted."[9]

         Washington now argues that she was unfairly prejudiced by being tried alongside Smith because "[t]hroughout the whole proceeding, [he] displayed disruptive and erratic behavior" and "[t]he acrimonious environment he created made it impossible for [Washington] to get a fair trial." We find no abuse of discretion here. Washington does not identify "specific events" that caused "substantial prejudice."[10] Instead, she alleges only general "disruptive" and "erratic" behavior. The mere fact that a co-defendant proceeded pro se does not, on its own, create a "serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the [factfinder] from making a reliable judgment about guilt or innocence."[11] This is particularly true where, as here, the case was tried to a judge, creating an "especially high" threshold for abuse of discretion.

         C.

         Finally, Washington challenges her sentence as procedurally, substantively, and constitutionally unsound. First, she contends that the court committed procedural error when it applied two-level enhancements for "undue influence" and "use of a computer." Next, she claims her sentence is substantively unreasonable. Finally, she argues that her sentence is cruel and unusual punishment violative of the Eighth Amendment.

         Washington's PSR assigned her a base offense level of 34 with four two-level enhancements, resulting in a total offense level of 42. With a criminal history level I, this resulted in a Guidelines range of 360 months to life. At sentencing, Washington objected to three of the enhancements. The court granted Washington's objection to an obstruction of justice enhancement, but it applied two-level enhancements for undue influence and use of a computer service. These adjustments lowered Washington's offense level to 40 and her Guidelines range to 292 to 365 months. The court then sentenced Washington to 292 months.

         "This court reviews a sentencing decision for reasonableness using a two-step process. First, the court determines whether the district court committed any significant procedural error. Under the first step, this court reviews the district court's interpretation or application of the sentencing guidelines de novo, and its factual findings for clear error. If there is no procedural error or the error is harmless, this court then reviews the substantive reasonableness of the sentence imposed for abuse of discretion."[12]

         1.

         The Sentencing Guidelines impose a two-level enhancement when a participant in the criminal activity "unduly influenced a minor to engage in prohibited sexual conduct."[13] This enhancement applies where "a participant's influence over the minor compromised the voluntariness of the minor's behavior," and there is a rebuttable presumption that such influence occurs when the participant is at least ten years older than the minor victim.[14] To apply a sentencing enhancement, the court must find facts supporting the enhancement by a preponderance of the evidence.[15]

         Washington argues that the evidence failed to prove she unduly influenced B.R. to engage in prostitution. She concedes that Smith did so, but claims she was "not a part of that plan." The district court did not err in applying this enhancement. First, as the court noted, the rebuttable presumption applied due to Washington's age, and she did not offer any evidence to rebut that presumption. Second, the record contains evidence to support the district court's findings that Washington was "actively involved in this entire matter, beginning almost immediately upon [B.R.]'s arrival to Shreveport," and that she exercised undue influence over B.R.

         2.

         The Guidelines authorize a two-level enhancement when the offense involves "the use of a computer or an interactive computer service to . . . entice, encourage, offer, or solicit a person to engage in prohibited sexual conduct with the minor."[16]

         Washington argues that this enhancement should not apply because she personally "had no involvement with a computer or computer service." However, the computer use enhancement can apply even where the defendant was not the one directly soliciting customers.[17] Moreover, the district court found that Washington was involved in a "jointly undertaken criminal activity," a finding which is supported by the record. Because of that, Washington is responsible for all reasonably foreseeable "acts and omissions of others" within the scope of the criminal activity taken in furtherance of the criminal activity.[18] As the district court noted at sentencing, the record supports the conclusion that Smith operated a Backpage.com account to entice people to engage in sexual conduct with ...


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