Opinion
CV-21-01928-PHX-SPL (JZB) CR-16-00734-SPL-1
12-02-2022
Terrill Smith, Movant, v. United States of America, Respondent.
Honorable Steven P. Logan, United States District Judge
REPORT & RECOMMENDATION
Honorable John Z. Boyle United States Magistrate Judge
Movant Terrill Smith has filed a Motion to Vacate Conviction and Sentence Under 28 U.S.C. § 2255. (Doc. 1.)
“Doc.” refers to the docket in the instant civil case. “CR Doc.” refers to the docket in the criminal case, No. CR-16-00734-SPL-1 (D. Ariz.). “COA Doc.” refers to the docket in the appellate case, No. 18-10289 (9th Cir.). The Court will cite to the ECF page numbers except as noted in n.2, infra.
I. Summary of Conclusion.
Movant seeks a new trial on the ground that he was denied effective assistance of counsel at trial. Because none of Movant's claims are meritorious under the standards set forth in Strickland v. Washington, 466 U.S. 668 (1984), the Court recommends that Movant's Motion be denied and dismissed with prejudice.
II. Background.
A. Facts of the Case.
As summarized in the Presentence Investigation Report:
On May 7, 2015, the Phoenix Human Trafficking Taskforce of the Federal Bureau of Investigation initiated an investigation regarding human trafficking by making contact with individuals who were using Facebook to locate and recruit women into a life of prostitution. Undercover employees (UCE's) created undercover Facebook accounts which depicted them as young women from Arizona who had no history of being involved in prostitution. These undercover Facebook accounts were then used to communicate with subjects suspected of being involved in pimping and human trafficking.
On September 20, 2015, UCE's identified a Facebook account belonging to Vegas Rell, later identified as [Movant], as being used in human trafficking. UCE's created an undercover Facebook account bearing the name, Vanessa Thompson, and sent a friend request to [Movant], which he accepted, and the UCE began communicating with [Movant] via Facebook messenger. Several messages were exchanged on this application; however, the communication between [Movant] and “Vanessa” subsequently transitioned to cellular telephone text messages. [Movant] indicated he lived in Las Vegas. “Vanessa” described herself to the defendant as a dancer who lived in Chandler, Arizona, and indicated she lost her job. In response, [Movant] invited “Vanessa” to travel to Las Vegas and stated, “Down to travel too?” “I could definitely teach you a lot of profitable things.” [Movant] then asked for “Vanessa's” cellular telephone number, and by text message, [Movant] introduced himself as Terrill. “Vanessa” asked for clarification for what she would do in Las Vegas. [Movant] stated, “I'm gonna set something up for this week. Get you to bigger and better things.” [Movant] then stated to “Vanessa,” “You don't have to do anything you don't want to. I will show you how to hustle.” In a subsequent text message conversation [Movant] stated, “I don't even like the word pimp. I'll help you, and you can do what you want if it doesn't work.” In subsequent text message conversations “Vanessa” questioned how she and [Movant] would be paid. [Movant] stated, “I'm gonna help you get everything started, then go from there. I don't take all your money, if that's what you're thinking.”
Between September 21, and October 11, 2015, [Movant] and “Vanessa” had numerous communications regarding how [Movant] would drive to Chandler to pick up “Vanessa,” and how they would travel to Las Vegas. On October 12, 2015, [Movant] sent a cellular telephone text message to “Vanessa,” and they arranged for [him] to pick her up October 15, 2015, in Chandler, and he would drive her back to Las Vegas in his vehicle. On October 15, 2015, Chandler Police Department officers observed [Movant's] vehicle arrive at the predetermined location. [Movant] was arrested on a warrant for the instant offense June 28, 2017.
During an interview with case agents, [Movant] indicated he used his Facebook account under the name Vegas Rell, to communicate with “Vanessa,” who was going through a hard time financially. [Movant] told “Vanessa” he lived in Las Vegas, and he knew places where she could make money by dancing. [Movant] indicated he drove from Las Vegas to Chandler to meet “Vanessa,” but she was not going to be a prostitute or escort. [Movant] indicated he knew individuals involved in escorting; however, “Vanessa” could make her own decision. Agents observed [Movant] matched the appearance of the individual depicted in several photographs uploaded to the Facebook account bearing the name Vegas Rell. A further review of [Movant's] Facebook account revealed images posted by [Movant] referencing the life of prostitution.
The case agent, FBI Special Agent Blake Childress, was interviewed telephonically. He indicated [Movant] discussed securing a Greyhound bus ticket for Vanessa to travel from Phoenix to Las Vegas, and he asked “Vanessa” for identification. UCE's provided [Movant] with a copy of an undercover ID bearing the name Vanessa Thompson, which was found during a search of his cellular telephone.(CR Doc. 71 at 4-6.)
B. Procedural History.
On June 14, 2016, Movant was charged with attempting to transport an individual with the intent that the individual engage in prostitution or other criminal sexual activity in violation of 18 U.S.C. § 2421 (Count 1) and attempting to induce an individual to travel to engage in prostitution or other criminal sexual activity in violation of 18 U.S.C. § 2422(a) (Count 2). (CR Doc. 1.) During a four-day trial in April 2018, the government presented testimony from law enforcement officials involved in Movant's investigation, including Agent Childress and Chandler Police Detective Michael Russo, the undercover agent who had posed as “Vanessa,” and various exhibits, including the phone and text conversations between Movant and “Vanessa” and Movant's social media records; Movant did not present any evidence or witnesses. (See CR Docs. 88-91 (trial transcripts); CR Doc. 58 (witness list); CR Doc. 59 (exhibit list); Doc. 1-3 at 544-759 (copies of select trial exhibits).) The jury convicted Movant on Count 1 but was unable to reach a verdict on Count 2. (CR Doc. 62.) On August 1, 2018, the Court sentenced Movant to 20 months in prison followed by 60 months of supervised release. (CR Doc. 73.) On August 17, 2020, the Ninth Circuit affirmed the conviction and sentence. United States v. Smith, 817 Fed.Appx. 450 (9th Cir. 2020).
In referring to the trial exhibits in Exhibit 6 of Movant's Motion (doc. 1-3 at 544-759), the Court will cite to the internal page numbers on the bottom right. In referring to the trial transcript, the Court will cite to the internal page numbers on the top right.
As noted in the November 18, 2021 Service Order: “At some point Movant was released from prison and sought modification of his supervised release conditions. On October 1, 2019, the Court denied the motion. Effective March 8, 2021, Movant's release supervision was transferred to the District of Nevada.” (Doc. 3 at 1; see CR Doc. 107 (motion to stay conditions of supervised release), CR Doc. 109 (minute entry denying motion), CR Doc. 118 (order transferring jurisdiction).)
A copy of the Ninth Circuit's decision is attached as Exhibit 4 of Movant's Motion. (Doc. 1-3 at 537-39.)
On November 12, 2021, Movant filed the present Motion pursuant to 28 U.S.C. § 2255. (Doc. 1; CR Doc. 120.) The Motion is timely.
A one-year statute of limitations applies to § 2255 petitions. 28 U.S.C. § 2255(f). The one-year period runs from the date on which the judgment of conviction becomes final. § 2255(f)(1). A judgment becomes final when the Supreme Court “affirms [the] conviction on the merits on direct review or denies a petition for a writ of certiorari, or when the time for filing a certiorari petition expires.” Clay v. United States, 537 U.S. 522, 527 (2003). Supreme Court Rule 13 provides that a petition for writ of certiorari must be filed within 90 days after entry of the judgment or order sought to be reviewed. Movant's conviction therefore became final 90 days after the Ninth Circuit affirmed it.
III. Post-Conviction Relief Under 28 U.S.C. § 2255.
“A federal prisoner may collaterally attack the legality of his conviction or sentence through a motion to vacate, set aside, or correct his sentence under § 2255.” United States v. Jackson, 21 F.4th 1205, 1212 (9th Cir. 2022). A federal prisoner may seek relief on the ground that “the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law.” 28 U.S.C. § 2255(a). If the court finds the prisoner is entitled to relief, it must vacate and set aside the judgment and “discharge the prisoner or resentence him or grant a new trial or correct the sentence as may appear appropriate.” 28 U.S.C. § 2255(b).
Generally, “claims not raised on direct appeal may not be raised on collateral review unless the petitioner shows cause and prejudice.” Massaro v. United States, 538 U.S. 500, 504 (2003); see also United States v. Ratigan, 351 F.3d 957, 962 (9th Cir. 2003) (“A § 2255 movant procedurally defaults his claims by not raising them on direct appeal and not showing cause and prejudice or actual innocence in response to the default.”). However, “an ineffective-assistance-of-counsel claim may be brought in a collateral proceeding under § 2255, whether or not the petitioner could have raised the claim on direct appeal.” Massaro, 538 U.S. at 504.
Issues resolved on direct appeal may not be relitigated in a collateral proceeding under 28 U.S.C. § 2255. Egger v. United States, 509 F.2d 745, 748 (9th Cir. 1975) (“Issues raised at trial and considered on direct appeal are not subject to collateral attack under 28 U.S.C. § 2255.”); United States v. Redd, 759 F.2d 699, 701 (9th Cir. 1985) (“Redd raised this precise claim in his direct appeal, and this court expressly rejected it. Therefore, this claim cannot be the basis of a § 2255 motion.” (citing Egger, 509 F.2d at 748)).
IV. Movant's Claims to Relief.
Movant seeks a new trial on the ground that he was denied effective assistance of counsel at trial. (Doc. 1; see also Doc. 3 at 1-2.) Movant asserts counsel was ineffective for failing to: (1) call an expert witness to counter testimony that escorting and prostitution are interchangeable, (2) challenge the reliability of said testimony, (3) object to hearsay, and (4) request complete jury instructions on “attempt.” (Doc. 1 at 2-3, 33-50.) Movant also asserts “cumulative error” resulted. (Id. at 51.) In support of his claims that counsel's performance was deficient, Movant provides a declaration from Laura Udall, a criminal defense attorney in Tucson. (Doc. 1-3, Ex. 9, at 777-82.) The government responded. (Doc. 6.) Movant replied. (Doc. 11.)
V. Discussion.
The Sixth Amendment guarantees a defendant the right to counsel, which the Supreme Court has interpreted as “the right to the effective assistance of counsel.” Strickland, 466 U.S. at 686 (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970)); see U.S. Const. amend. VI. To establish a violation of this right, a defendant must show: (1) counsel's performance “fell below an objective standard of reasonableness,” measured by “prevailing professional norms,” and (2) prejudice attributable to the deficient performance, i.e., “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. at 688, 694.
“[C]ounsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment.” Id. at 690. To show deficient performance, the defendant “must rebut this presumption by proving that [the] representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy.” Kimmelman v. Morrison, 477 U.S. 365, 384 (1986). To show sufficient prejudice, the defendant must show “a substantial, not just conceivable, likelihood of a different result.” Kayer v. Shinn, 141 S.Ct. 517, 523 (2020) (internal quotation marks and citations omitted). “This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687.
“Failure to make the required showing of either deficient performance or sufficient prejudice defeats the ineffectiveness claim.” Id. at 700 (emphasis added); see also Rios v. Rocha, 299 F.3d 796, 805 (9th Cir. 2002) (“Failure to satisfy either prong of the Strickland test obviates the need to consider the other.”). “If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, . . . that course should be followed.” Strickland, 466 U.S. at 697.
A. Counsel was not ineffective for not calling an expert witness to testify on lawful escort services.
1. Background.
At trial, the government presented the testimony of Det. Russo, the undercover agent who posed as “Vanessa,” and Det. Christina Decoufle of the Phoenix Police, who testified as a blind expert on the prostitution and escorting industries. (See CR Doc. 88 at 167-76, 181-90 (Russo, direct); CR Doc. 89 at 211-43 (Russo, direct cont'd), 244-75 (Russo, cross), 285-309 (Decoufle, direct), 309-19 (Decoufle, cross); CR Doc. 33 (notice of expert testimony).)
There was no redirect of either witness.
Det. Russo testified, inter alia, that prostitution and escorting “are essentially the same” and that “essentially an escort is a prostitute,” testifying that both involve “some sort of sex acts that's [sic] performed for money” and that “escorting” is simply “the more politically correct term or the term that will get you in less amount of trouble.” (CR Doc. 89 at 272-74.) Nonetheless, Det. Russo conceded it was “not impossible” for a person to be an escort without being a prostitute and that “[i]t could happen,” though he could recall only “a handful of times” in his 18 years of working on prostitution cases when that had been the case. (Id. at 273-74.)
Det. Decoufle similarly testified, inter alia, that the terms “prostitution” and “escorting” are “interchangeable” and that “escorting” is “just a word to slap on top of prostitution to not make it look so bad, or to try to make it seem legal.” (Id. at 307.) She testified that every instance of so-called “escorting” she encountered in her 13 years of working on prostitution cases was found to be prostitution. (Id.) However, Det. Decoufle, like Det. Russo, conceded it was “possible” for a person to be an escort without being a prostitute. (Id. at 310.)
In its closing argument, the government urged the jurors to discredit Movant's allegations that he did not intend to prostitute “Vanessa” and to rely, instead, on Det. Decoufle's testimony in finding that he did:
[Movant] didn't come out and say: Vanessa, I am a pimp, directly, and what I would like you to do is to sell your body in exchange for money. He didn't use legal terminology. He didn't say: I would like you to engage in a commercial sex act. He used the terms that are common in the industry, and you heard Detective Decoufle explain each one of those terms to you. You heard her talk about what escorting really is.(CR Doc. 90 at 388-89.)
In response, the defense argued, inter alia, there was insufficient evidence that Movant intended to prostitute “Vanessa,” that there was no “pimp/prostitute” relationship between her and Movant, and that the government had been “running a one-size-fits-all-theory about pimps.” (Id. at 410, 414, 416-17, 419.) It further argued that not everything termed “escorting” involved sex, appealing to notions of common sense:
Sure, it's common knowledge to everybody in this room - let's not be cute -a lot of escorts do sleep with their clients. I mean, we just know that by being Americans and being human, right? A lot of strippers probably do too. But here's the other thing, do you honestly believe that every stripper sleeps with the guys, or do you think really just a small percentage do? Don't a lot of college girls do this to make money? Don't a lot of professionals, before they become professionals, do this and make money? Do you think they go over the line and start having sex with people? Of course not. Is it such a new concept for some guy who has money to want to be seen with a woman for whatever reason? No. We know that happens too, we're adults. We know that happens, and we know that that doesn't always mean sex. Sometimes it just means you would be paid to hang out with this guy, go see a show with him, keep him company, because we know people will pay for company.(Id. at 410-11 (emphasis added).)
In rebuttal, the government again urged the jury to reject the defense's contentions and rely instead on the testimony of Det. Russo and Det. Decoufle-the “experts” on prostitution:
[The defense is] asking you just to rely upon your notion of what a pimp is, instead of the experts.... [Y]ou heard both Russo and Detective Decoufle talk to you about how many pimps and prostitutes they have talked to. It's in the thousands. They are experts in this field.(Id. at 440.)
2. Movant's Argument.
Movant asserts that Det. Russo and Det. Decoufle's testimony “that virtually all escorting is actually prostitution was not accurate” and “seriously undermined the credibility of [his] defense,” namely, “that he never intended that [‘Vanessa'] engage in prostitution or other criminal sexual offenses when she got to Las Vegas.” (Doc. 1. at 3536.) Movant asserts their testimony was “based exclusively on interactions with pimps and prostitutes in the context of criminal investigations” and that counsel was ineffective for failing to counter it with expert testimony on the prevalence of “escort services or other forms of adult entertainment that do not involve sexual acts.” (Id. at 36, 39.)
Movant provides a declaration from trial counsel in which counsel confirms he “did not consider retaining an expert for the case on any issue, including the nature of escorting and related services in Las Vegas.” (Doc. 11 at 26 ¶ 2.)
Movant provides a declaration from Barbara Brents, a sociology professor at the University of Nevada-Las Vegas, who has done extensive research on the sex industry in Nevada. (Doc. 1-3, Ex. 8, at 770-75.) According to Professor Brents, there is a “wide range of formal and informal, adult, entertainment, leisure, and intimate services that individuals who may be considered attractive may provide in tourist towns like Las Vegas that do not include sex.” (Id. at 772.) Professor Brents provides a number of examples of services that “do not include penetration, touching of genitals or other illegal acts” in her declaration, including: modeling, product promotion, dinner dates, dancing, house shows, “tickle parties,” sensual massages, “sugaring” (receiving financial compensation in exchange for “emotional labor, dating, or conversation”), professional domination services, and financial domination (receiving “money or expensive gifts” in exchange for “almost nothing”), among other things. (Id. at 772-74.)
Movant argues “there was no strategic reason” for counsel to not present testimony from Professor Brents (or an individual with similar knowledge) regarding these services and that there is “at least a reasonable probability” the jury would not have convicted him had such testimony been presented because it “would have alerted the jury to the fact that escorting and related services that do not entail sex acts are indeed common and quite lucrative in tourist destinations such as Las Vegas.” (Doc. 1 at 39-40.) Movant asserts that whether he “could have been referring to legal escort services” in his discussions with “Vanessa” was a “key issue” in both parties' closing arguments and that, in its closing argument, the government had “leaned heavily” on the detectives' testimony and “the defense's failure to present any testimony in support of its theory.” (Id. at 40-41.) Movant further asserts the jurors “appear[ed] to have been struggling with their decision [to convict],” noting their failure to reach a verdict on Count 2 and their question during deliberations on whether a lawful escort encounter could transform into an illegal prostitution if the escort performed a sex act during the encounter. (Doc. 1 at 40; see CR Doc. 61 at 4).) Movant argues this “shows” the jurors were “grappling” with whether the evidence was sufficient. (Doc. 1 at 40.) Therefore, Movant argues, “[i]f defense counsel had presented testimony such as Professor Brents's, jurors may well have harbored a reasonable doubt about [his] guilt.” (Id. at 41.)
3. Analysis & Conclusion.
a. Counsel's Performance.
The Court finds counsel's performance was objectively reasonable. Movant argues there was no strategic reason for counsel to fail to call an expert in his case. But there are at least two reasons why the failure to call an expert was not ineffective assistance of counsel. First, the government's witnesses agreed that it was possible for a person to be a legal escort without engaging in prostitution. While the government's witness testified that it was rare for a person to be an escort without engaging in sexual acts, the fact was admitted by the expert. (See, e.g., doc. 1-3, Ex. at 197. ER 214. “Q: So at the end of the day, you can be an escort without having to be a prostitute? A: It could - it could happen.”)
Second, and more importantly, a defense expert may have been forced to agree that many of Movant's statements were consistent with an attempt to transport Vanessa with the intent that she engage in illegal prostitution. The Ninth Circuit found that a reasonable jury “could find that Smith intended for Vanessa to engage in unlawful sexual conduct, based on Smith's assurances to Vanessa that she could choose which sexual acts she would perform and Smith's explanation of the legal consequences if she were ‘caught.'” United States v. Smith, 817 Fed. App'x. 450, 451 (9th Cir. 2020). Several conversations between the undercover agent and Movant reflect a strong suggestion that illegal conduct would be occurring with the Vanessa.
THE CHS: Yeah. And, like, at that point, like, you know how you said, like, you would have my back, it's like you wouldn't be -- it's not like you'd be getting in the car with me. You know, so that's why I want to just make sure that, you know, I could really trust you, like, if I ever got in trouble or something like that, that you would -- you'd still have my back. You know?
MR. SMITH: Definitely that. And like I got connections out here to the point where, like, if something like that was to ever happen, then, you know what I'm saying, like, it would -- it would be taken care of. And it wouldn't even be like it happened, because there's lawyers involved. And there's people that can erase it. ...
if you have a bails bondsman or a -- a lawyer that you connected with, then anything, if you was ever to get in trouble or -- you know. . . they would -they would make the bail and they would, you know what I'm saying, appear in court for you. So you wouldn't even have to show up to court. And then, basically, like you would pay a fine and take a class. And then it would erase from your record.(Doc. 1-3 at 562.)
THE CHS: . . . So is it -- is it a felony? Or is it just, you know, like a slap on the wrist kind of thing?
MR. SMITH: It's a -- out here, it's like a slap on the wrist, because out here, you know what I'm saying, like, there's like a 48-hour hold, if -- you know what I'm saying, if you don't get bailed out.... But even if you don't -- even if you weren't to be bailed out, two days is all the time that they really keep you.
THE CHS: Sweet.
MR. SMITH: And it's -- it's a misdemeanor. It's not a felony.(Id. at 564.)
THE CHS: I mean, like, with -- with, like, protection and stuff, if -- because I'm -- I mean, I'm clean. I want to stay clean. I don't want to get like an STD or anything like that. If they're not wanting to use, like, condoms or anything, I can tell them no; right?
MR. SMITH: Fuck yeah. And not only that, but I mean like everything is fucking covered no matter if it's a fucking hand job.(Id. at 570.)
Considering the risk that Movant's own expert may have agreed that these conversations were consistent with prostitution, counsel did not provide ineffective assistance by failing to present expert testimony at trial.
b. Lack of Prejudice.
Movant also fails to demonstrate a “substantial” likelihood that the jury would not have convicted him had it been presented with testimony from Professor Brents or an individual with similar knowledge on lawful (non-sexual) escorting services. Movant's claim therefore fails on the prejudice prong of the Strickland test. “[W]hile the Constitution requires that a criminal defendant receive effective assistance of counsel, the presentation of expert testimony is not necessarily an essential ingredient of a reasonably competent defense.” Bonin v. Calderon, 59 F.3d 815, 834 (9th Cir. 1995). “[A] court hearing an ineffectiveness claim must consider the totality of the evidence before the judge or jury.” Strickland, 466 U.S. at 695.
Among what the Ninth Circuit referred to as the “extensive evidence of guilt,” Smith, 817 Fed. App'x at 451, was the audio recording of an October 13, 2015 phone call between Movant and Devynn Mitchell (posing as “Vanessa”). (CR Doc. 89 at 275-79; see Doc. 1-3 at 550-90 (transcript of phone call).) During the call, Movant and “Vanessa” discussed the work “Vanessa” would do in Las Vegas. Movant identified “dancing” as “one way” she could make money. (Doc. 1-3 at 556.) However, “Vanessa,” stated she wanted “to try to expand a little bit.” (Id.) Movant then brought up “escort services.” (Id.) “Vanessa” asked if Movant was referring to “streetwalking,” which he denied, stating, “Never that. Never jumping in and out of cars,” explaining that the safety risks associated with streetwalking were “not worth it.” (Id. at 560-61.)
As noted above, “Vanessa” asked Movant what would happen if she “got in trouble.” (Id. at 562.) Movant stated that he had “connections” who could “erase it,” specifically, that a lawyer would “make the bail” and “appear in court for [her]” and that “it would erase from [her] record” once she “pa[id] a fine and t[ook] a class.” (Id. at 56263.) “Vanessa” responded that she “always thought it was legal out there or something” and asked if “it” was “a felony” or “like a slap on the wrist kind of thing.” (Id. 564.) Movant stated it was the latter and that it was “a misdemeanor,” “not a felony.” (Id.) He stated she could be held in custody for 48 hours if she failed to make bail. (Id.)
Movant and “Vanessa” then discussed specific services “Vanessa” might provide. Movant told her people would give her money “to go out to eat” or “to go take you shopping and give you money on top of shopping just to kind of be seen with you.” (Id. at 566.) He also said someone might pay “to go to a show with you or whatever.” (Id. at 567.) He stated “it's not necessarily that you're just, like, fucking for money,” but that “anything that happens within the room is obviously . . . between you and whoever you're in the room with” and “everything's your choice.” (Id. at 568-69.) “Vanessa” expressed that she “want[ed] to stay clean” and not “get like an STD or anything like that....” (Id. at 570.) Movant responded, “Fuck yeah. And not only that, but I mean like everything is fucking covered no matter if it's a fucking hand job.” (Id.) Emphasizing once again that “everything's covered,” Movant further explained that “[t]here is no kissing . . . [and] no . . . letting people like eat your pussy . . . [o]r play with your pussy” and that “everything is so . . . strict as far as that goes.” (Id. at 571.) Later, he told “Vanessa” they would discuss “how to charge” and “how much to charge” on their way back to Las Vegas. (Id. at 573.)
In light of Movant's statements during this phone call, expert testimony on the existence and prevalence of lawful escort services in Las Vegas would have had little to no effect on the jurors and their decision to convict Movant. Such testimony was largely inapposite because, as evidenced by Movant's statements during the call, Movant did not intend for “Vanessa” to engage exclusively in lawful activity when she came to Las Vegas.
Although Movant and “Vanessa” discussed her earning money through various non-sexual encounters-e.g., dinner and shopping dates-they discussed her engaging in sexual encounters as well. In response to “Vanessa's concern that she might contract a sexually transmitted infection (“STI”) during an encounter with a client, Movant stated that “everything,” even a “hand job,” would be “covered” (i.e., with a condom). (Id. at 570.) He further stated that clients would not be allowed to kiss or perform oral sex on her. (Id. at 571.) But, in the jurors' minds, if Movant had truly intended for “Vanessa” to only engage in lawful (non-sexual) activity, his response to her concern regarding STI's likely would have been dramatically different. For instance, he likely would have assured her that there would not even be a risk of her contracting an STI because she would not be engaging in any activity posing such a risk-i.e., any sexual activity. But instead, Movant told “Vanessa” that any sexual activity she engaged in during the course of her work would be protected (“covered”) sexual activity.
Moreover, if Movant had only intended for “Vanessa” to engage in lawful activity, he would have no reason to discuss potential legal consequences she could face if she was caught engaging in such activity. Movant stated that what “Vanessa” would be doing was “a misdemeanor” and that she could be arrested and spend up to 48 hours in jail for it. (Id. at 564; see also CR Doc. 89 at 309 (Det. Decoufle confirms prostitution is a misdemeanor in Las Vegas).)
Movant therefore fails to show a reasonable probability that the jury would not have convicted him had it been presented with expert testimony on the prevalence of lawful escort services in Las Vegas. Movant's claim that counsel was ineffective for not presenting countervailing expert testimony therefore fails for lack of prejudice. See Kayer, 141 S.Ct. at 523; Strickland, 466 U.S. at 694, 700; see also Bean v. Calderon, 163 F.3d 1073, 1082-83 (9th Cir. 1998) (rejecting that counsel was ineffective for failing to investigate and present a theory that lacked support from the record and conflicted with other evidence).
B. Counsel was not ineffective in challenging the reliability of the detectives' testimony regarding escort services.
Movant claims counsel was ineffective for failing to challenge the reliability of Det. Russo and Det. Decoufle's testimony (discussed above) “that legal escorting is exceedingly rare, such that ‘escorting' really refers to prostitution.” (Doc. 1 at 41-42.) Movant argues that the detectives' opinions were premised on a “gross underestimation [of] the prevalence of legal escort services,” as purportedly demonstrated by Professor Brents's declaration. (Id. at 41-42.) Further, Ms. Udall, in her declaration, opines that counsel performed deficiently by “failing to object to the reliability of the expert testimony” on the grounds that “the Phoenix-area Police Department employees were in no way qualified to testify about the escort business in Las Vegas[,] Nevada.” (Doc. 1-3, Ex. 9, at 779-80 ¶ 6.b.) Movant asserts there is “at least a reasonable probability that the Court would have precluded those opinions and that the jury would not have convicted [him]” had counsel challenged their reliability “with contrary evidence.” (Doc. 1 at 42.)
The Court finds that counsel did not perform deficiently simply because he did not proceed as Ms. Udall, another lawyer, would have proceeded. “There are countless ways to provide effective assistance in any given case.” Strickland, 466 U.S. at 689. “The test is not whether another lawyer, with the benefit of hindsight, would have acted differently, but whether ‘counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.'” Babbitt v. Calderon, 151 F.3d 1170, 1173 (9th Cir. 1998) (quoting Strickland, 466 U.S. at 687, 689). Rather, the relevant inquiry is “whether the choices made by defense counsel were reasonable.” Id. (citation omitted).
What is more, the very objection Ms. Udall states should have been presented was, in fact, presented-and rejected-on direct appeal. (Doc. 1-3, Ex. 3, at 526-27.) The Ninth Circuit found Movant's “assertion that that Detective Decoufle's expertise was limited to prostitution in Arizona” to be “unpersuasive” in light of Det. Decoufle's “background and experience” and further found the district court did not err in admitting “expert testimony regarding the common behaviors and terminology of pimps.” Smith, 817 Fed. App'x at 451-52 (citing United States v. Taylor, 239 F.3d 994, 998 (9th Cir. 2001) (“By and large, the relationship between prostitutes and pimps is not the subject of common knowledge.”)).
Thus, counsel was not ineffective for failing to challenge the testimony on such grounds because such a challenge would likely have been futile. See Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996) (“[T]he failure to take a futile action can never be deficient performance.”); Ramirez, 327 Fed. App'x at 752 (“[E]ven assuming the failure of Ramirez's attorney to object to the admission of this testimony is deficient performance, Ramirez cannot show prejudice because the . . . testimony was admissible.”).
But even if, arguendo, there existed some meritorious challenge to the testimony that would guarantee its exclusion, counsel did not perform deficiently by failing to raise it because counsel had competently challenged the reliability of the testimony during crossexamination, eliciting favorable admissions from both detectives that not every “escort” is necessarily a prostitute:
Detective Russo
Q: Have you talked to every escort who works in the Valley?
A: I have not.
Q: What percentage do you think you have talked to?
A: Over a thousand.
Q: All right. Over a thousand percent?
A: Over a thousand escorts or prostitutes.
Q: And what percentage might that be in Maricopa County?
A: I couldn't tell you.
Q: So at the end of the day, you can be an escort without having to be a prostitute?
A: It could - it could happen.(CR Doc. 89 at 274 (emphasis added).)
Detective Decoufle
Q: While I would agree with you that the term “escorting” probably has got its reputation sullied over the last few years, but is it possible for
somebody to be an escort and not a prostitute?
A: It's possible, yes.
Q: Can somebody be a stripper and not a prostitute?
A: Correct, yes.
Q: And you can make money at both of those professions as well, right, without having sex with anybody?
A: Yes, people can.(Id. at 310 (emphasis added).)
By eliciting these admissions, counsel had established the critical point he had been trying to make in Movant's defense: that someone is not a prostitute simply because they are an escort. The total exclusion of the detectives' testimony was therefore not necessary for presentation of a competent defense. Counsel's challenge to the reliability of the detectives' testimony through competent cross-examination was a reasonable action under the circumstances. See Babbitt, 151 F.3d at 1173. Movant fails to rebut this presumption.
Moreover, Movant fails to show that the result of trial would have been any different had counsel taken a different course of action-i.e., moved for the exclusion of the testimony or objected to it. As discussed, such a course of action would likely have been unsuccessful and therefore futile. But even so, substantial evidence of guilt existed in Movant's own statements-independent of the detectives' testimony-namely, his own statements that “Vanessa” would engage only in protected sexual activity and that she could be arrested and put in jail for the work she would be doing for him because it was “a misdemeanor.” Thus, even if, arguendo, Movant could establish deficient performance here, his claim would still fail for failure to show sufficient prejudice. See Kayer, 141 S.Ct. at 523; Strickland, 466 U.S. at 694, 700.
C. Counsel was not ineffective for failing to object to testimony regarding another individual's conviction for sex-trafficking.
1. Background.
FBI Special Agent Childress testified that the “Vanessa Thompson” profile was created in response to a post written by a Facebook user by the name of “Mitchell Moola” (hereinafter, the “Moola post”) that was essentially an advertisement for women to become prostitutes. (CR Doc. 89 at 322, 324; see Doc. 1-3, Ex. 6, at 758 (Moola post, Trial Ex. 22).) The Moola post tagged 65 other Facebook users, including Movant, and stated that “anyone of these fine gentlemen can show a worthy lady of leisure who is really ready to change her life a righteous way to a righteous life.” (Doc. 1-3 at 758; see CR Doc. 89 at 322, 324-28.) Agent Childress testified that another one of the individuals tagged in the Moola post was an individual who had been previously convicted of sex trafficking in the District of Arizona. (CR Doc. 89 at 322.) At this point, the Court called a sidebar inquiring into the relevance of this testimony. (Id. at 322-23.) According to the government, the only connection between this individual and Movant was that they were both tagged in the Moola post. (Id. at 323.) The Court then asked if defense counsel had any objection to the testimony as unduly prejudicial under Fed.R.Evid. 403. (Id. at 323-24.) Counsel declined, stating it was “just a tag” and that he planned to “deal” with it in closing argument. (Id. at 324.) The sidebar concluded. (Id.)
The individual was Kenneth Becketts, who was indicted for sex trafficking of a minor in November 2013 and convicted pursuant to a plea agreement in March 2015 in Case No. CR-13-01637-001-PHX-SRB (D. Ariz.). (Doc. 1-3, Ex. 10, at 785, Ex. 11, at 787-81.) He was not mentioned by name at the trial but was mentioned by name in the search warrant used to obtain Movant's Facebook records. (Id., Ex. 10, at 785-86; see also Doc. 6 at 10-11.)
In closing, with respect to the “tag” issue, defense counsel essentially argued that just because Movant had been tagged in the Moola post did not mean he had any knowledge of it or that he was in involved or associated with it:
I don't know if anybody has Facebook, but when you're tagged in something, you're tagged in it. If I want to create an account right now that said FBI agents were on the take and I tagged Agent Childress, could he do anything about it? No. Does that mean he's on the take? No. Does that even mean he knows about it? No. But let's say he's investigated in the future for impropriety, are they seriously going to bring up this post that he may not know about and say, look, Mr. Childress, somebody said you're on the take? I mean, how does a person even defend themselves against something like that, something that they have no control over that somebody else wrote, somebody posted on their timeline?(CR Doc. 90 at 408-09.)
2. Argument.
Movant claims counsel was ineffective for failing to object to or move to exclude or strike Agent Childress's “highly prejudicial” testimony regarding the other individual's conviction as unduly prejudicial under Fed.R.Evid. 403 or as inadmissible hearsay under Fed.R.Evid. 803(22). (Doc. 1 at 43-45.) Movant also asserts counsel should have sought a cautionary instruction and moved for a mistrial based on this testimony. (Id. at 46.) Movant argues there is a “reasonable probability” that he would not have been convicted had counsel objected to this testimony. (Id.)
3. Analysis & Conclusion.
The Court finds that Movant fails to demonstrate a reasonable probability that the jury would not have convicted him had counsel successfully objected to or moved for the exclusion of Agent Childress's testimony regarding the conviction of one of the other individuals tagged in the Moola post. Agent Childress testified that the post invited women to reach out to the tagged individuals if they wanted to become a prostitute. The post was generated by “Moola” not Movant. The fact that one person out of 65 had a prior sex trafficking conviction would have very little relevance regarding Movant's conduct and statements. The introduction of this evidence would not have reasonably affected the outcome of Movant's case in light of Movant's own statements to “Vanessa.” See Smith, 817 Fed. App'x at 451. Movant's claim therefore fails for failure to show prejudice attributable to counsel's performance with respect to Agent Childress's testimony on this issue. See Kayer, 141 S.Ct. at 523; Strickland, 466 U.S. at 694, 700.
D. Counsel was not ineffective for failing to object to hearsay.
Movant argues that counsel provided ineffective assistance by failing to object to “a portion of” a Facebook message that addressed Movant as “P” (for “pimp”). Among the evidence presented at trial was a screenshot of a Facebook message sent to Movant from a user named “Cee Chizzle,” which stated:
Hey hey Happy holidays P hey this funny ass bitch on FB that try to add me and I didn't accept it because she seem like them PEOPLE so be safe and hit me back about it . . . Luv Ya Bro
(Doc. 1-3, Ex. 6, at 752 (Trial Ex. 20).) Explaining this message, Agent Childress testified that “P” meant “pimp” and “PEOPLE” meant “law enforcement.” (CR Doc. 89 at 337.)
Movant claims there is a “reasonable probability” the outcome of trial would have been different had counsel challenged the admissibility of the portion of the message referring to Movant as “P” as inadmissible hearsay offered to prove the truth of the matter asserted-i.e., that Movant was a pimp. (Doc. 1 at 47-48.)
Movant's claim lacks merit. On direct appeal, the Ninth Circuit affirmed the admission of the contents of the Facebook message. See Smith, 817 Fed. App'x at 451 (“The district court did not plainly err by failing to exclude as impermissible hearsay Smith's conversations with Bunny Jordan and a Facebook message from a friend warning that Vanessa might be an undercover officer. The district court could conclude that the evidence was offered not for the truth of the matter asserted, but to show Smith's knowledge and intent.”). Here, the letter “P” was a part of Facebook message that was not improperly admitted at trial. Counsel did not provide ineffective assistance by failing to object to the letter “P.” See Rupe, 93 F.3d at 1445 (9th Cir. 1996) (“[T]he failure to take a futile action can never be deficient performance.”); Ramirez, 327 Fed. App'x 751 at (“[E]ven assuming the failure of Ramirez's attorney to object to the admission of this testimony is deficient performance, Ramirez cannot show prejudice because the . . . testimony was admissible.”).
Movant argues that “counsel should have requested the excision of the hearsay within the message.” (Doc. 1 at 48.) Movant submits that “Agent Childress testified that, based on his training and experience, “P” referred to pimp [].” Movant concludes that because “this evidence was hearsay offered to prove the truth of the matter asserted, the failure to object was unreasonable.” (Id. at 48-49.) But the word “pimp” was not included in the Facebook message. Instead, it was the testimony of Agent Childress that interpreted “P” to mean “pimp.” The testimony of Agent Childress was not hearsay. While the testimony of Agent Childress may have been objectionable on other grounds, e.g., Rule 403, it was not hearsay. Movant's claim - that the failure to raise a hearsay objection was deficient - lacks merit.
E. Counsel was not ineffective for failing to request “complete” jury instructions on “attempt.”
Movant claims counsel was ineffective for failing to request a “complete jury instruction on ‘attempt.'” (Doc. 1 at 48-50.) With respect to Count 1, the jury was instructed as follows:
[T]he Government must prove each of the following elements beyond a reasonable doubt: First, the defendant knowingly attempted to transport a person in interstate commerce; second, the defendant attempted to transport a person with the intent that such person engage in prostitution or any sexual act activity for which a person can be charged with a criminal offense; and third, the defendant did something that was a substantial step towards committing the crime. Mere preparation is not a substantial step towards committing the crime. To constitute a substantial step, a defendant's act or actions must demonstrate that the crime will take place, unless interrupted by independent circumstances.(CR Doc. 90 at 457-58.)
Movant's claim of error here is identical to the one he raised on appeal. On appeal, Movant claimed these instructions were incomplete and that the jury should have been further instructed that “the third element . . . requires that the defendant did something that was a substantial step toward committing the crime and that ‘strongly corroborated the defendant's criminal intent' to commit the crime.” (Doc. 1-3, Ex. 3, at 509 (internal alterations and citation omitted).) Movant also claimed the jury should have been further instructed that “to constitute a substantial step, the defendant's act must ‘unequivocally' demonstrate that the crime will take place unless interrupted by independent circumstances.” (Id.) The Ninth Circuit, however, found that the instructions as given “were not ‘misleading or inadequate to guide the jury's deliberation'” and that, “given the extensive evidence of guilt, any error in the instruction did not prejudice [Movant].” Smith, 817 Fed. App'x at 451 (citation omitted).
Consistent with the Ninth Circuit's findings on appeal, Movant has not shown a reasonable probability that the jury would not have found him guilty had it been given these additional instructions. Id.; see Redd, 759 F.2d at 701 (“Redd raised this precise claim in his direct appeal, and this court expressly rejected it. Therefore, this claim cannot be the basis of a § 2255 motion.” (citing Egger, 509 F.2d at 748)). Movant's claim that counsel was ineffective for failing to ensure that these instructions were given therefore fails for lack of prejudice. See Strickland, 466 U.S. at 694, 700.
F. Movant fails to show cumulative error or prejudice.
Movant claims the “cumulative effect of [counsel's alleged] errors requires a new trial.” (Doc. 1 at 51.) However, Movant has not shown any constitutional error in counsel's performance, as discussed throughout this Report, and therefore fails to show cumulative error. See Hayes v. Ayers, 632 F.3d 500, 524 (9th Cir. 2011) (“Because we conclude that no error of constitutional magnitude occurred, no cumulative prejudice is possible.”); Franklin v. Small, 161 F.Supp.2d 1087, 1095 (N.D. Cal. 2001) (“[T]he cumulative error doctrine permits the court to consider the combined effect of several errors, but does not permit the court to consider the combined effect of several non-errors.” (emphasis added)).
VI. Conclusion.
Each claim in Movant's motion fails for lack of merit for failure to satisfy both prongs of the Strickland test. Movant therefore fails to demonstrate that he is entitled to a new trial or any other post-conviction relief under 28 U.S.C. § 2255. Accordingly, the Court will recommend that Movant's motion be denied and dismissed with prejudice. VII. Certificate of Appealability.
“The district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant.” Rule 11(a), Rules Governing Section 2255 Proceedings, 28 U.S.C. § 2255. To obtain a certificate of appealability, the movant must make “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). This requires the movant to demonstrate “that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Movant has not made either showing here.
Accordingly, the Court will recommend that a certificate of appealability be denied.
VIII. Recommendation.
Based on the foregoing analysis, IT IS RECOMMENDED the Motion to Vacate Conviction and Sentence (doc. 1) be denied and dismissed with prejudice.
IT IS FURTHER RECOMMENDED a certificate of appealability be denied.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Fed. R. App. P. 4(a)(1) should not be filed until entry of the District Court's judgment. The parties shall have 14 days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6, 72. Thereafter, the parties have 14 days within which to file a response to the objections.
Failure to file timely objections to the Magistrate Judge's Report and Recommendation may result in the acceptance of the Report and Recommendation by the District Court without further review. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003). Failure to file timely objections to any factual determinations of the Magistrate Judge may be considered a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to the Magistrate Judge's recommendation. See Fed.R.Civ.P. 72.