from the United States District Court for the Southern
District of Texas
WIENER, SOUTHWICK, and COSTA, Circuit Judges.
PETITION FOR REHEARING
H. SOUTHWICK, CIRCUIT JUDGE.
petition for rehearing is DENIED. The court's prior
opinion is withdrawn, and this opinion is substituted.
convicted Charles Fulton, Sr. on four counts of sex
trafficking and one count of conspiracy. The most significant
issue concerns a long-delayed search of his cellphone. Fulton
also makes arguments drawn from the Confrontation and Grand
Jury clauses of the Constitution, and he challenges the
sufficiency of the evidence. We AFFIRM.
AND PROCEDURAL BACKGROUND
October 2014, a Galveston juvenile probation officer learned
from the father of a juvenile she supervised that the girl
was pictured in an online advertisement offering her services
as an "escort" - in effect, a prostitute. The
probation officer began to investigate and saw that the house
where the girl had been arrested was a location where other
young girls consistently were arrested. She began monitoring
incoming police reports, spoke with some of the girls,
compiled a list of names and ages, and gathered information
from other probation officers. Her investigation revealed
common links among the girls: Charles Fulton, Sr. and a
residence on Avenue L. In February and early March 2015, the
Galveston Police Department, in tandem with the FBI, began an
investigation. Police discovered that Fulton acted as the
girls' pimp, directing them to prostitution dates;
providing them with food, condoms, housing, and drugs; and
having sex with some of them as young as 15.
2016, Fulton was indicted in the United States District Court
for the Southern District of Texas on six counts of sex
trafficking in violation of 18 U.S.C. § 1591(a)-(b)
(2015), with a different minor victim identified in each
count. Fulton was also charged with a seventh count for
conspiracy to commit sex trafficking under 18 U.S.C. §
1594(c). He was found guilty after a jury trial on four of
the substantive counts and on the conspiracy count. The
district court sentenced him to prison for concurrent life
analyze four issues. First, Fulton asserts the district court
admitted evidence obtained from his cellphone in violation of
the Fourth Amendment. Second, he argues the district court
violated the Confrontation Clause by prohibiting him from
questioning one of the minor victims about a purported
aggravated assault charge. Third, he argues that special
findings made by the jury in two of his counts of conviction
were not supported by sufficient evidence. Finally, Fulton
contends the district court violated the Grand Jury Clause by
constructively amending the indictment.
Search of Fulton's phone
February 2015, Galveston police obtained a search warrant on
the Avenue L house where the prostitution was based. The
warrant, though, was due to a separate investigation into
Fulton's narcotics activities. Fulton's cellphone was
seized. Nine days later, police obtained a second warrant to
examine its contents but were unable to bypass the
phone's security features. Around this same time, the FBI
agent assisting with the Fulton sex-trafficking investigation
learned that the Galveston police had the phone. The agent
acquired it to determine if the FBI could access the
phone's data. Three weeks later, that agent obtained a
federal warrant to search the phone. Still, it took a year
before the data on the phone was accessed. The FBI discovered
evidence that helped piece together Fulton's involvement
with the minor victims. Fulton moved to suppress the
evidence, but the district court denied the motion. At trial,
the Government introduced evidence of the phone's
contents through the testimony of the FBI agent and of minor
victims. The district court also admitted evidence such as
text messages, a photograph, and the results of searches of
the phone's files, linking Fulton to five minor victims
and revealing behaviors consistent with sex trafficking.
appeal, Fulton argues that the phone's seizure in the
February 2015 raid violated the Fourth Amendment. He
alternatively argues that even if the initial seizure had
been lawful, the nine-day delay in obtaining a warrant to
search it was unconstitutional. At oral argument,
Fulton's counsel stated that those two arguments are the
limit of the objections to the search and seizure. Thus, no
issue is made about the FBI's obtaining the phone,
procuring its own search warrant, and finally accessing the
data on the phone a year later.
review a ruling on a motion to suppress "in the light
most favorable to the verdict," accepting "the
district court's factual findings unless clearly
erroneous or influenced by an incorrect view of the law"
and reviewing "questions of law de novo."
United States v. Carrillo-Morales, 27 F.3d 1054,
1060-61 (5th Cir. 1994). The disagreements here are ones of
law. We review the sufficiency of the warrant authorizing the
seizure of Fulton's phone de novo. United
States v. Cavazos, 288 F.3d 706, 709 (5th Cir. 2002). We
also review the district court's determination of the
reasonableness of a search or seizure de novo.
United States v. Jones, 133 F.3d 358, 360 (5th Cir.
Whether the narcotics warrant authorized the ...