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United States v. Anthony

United States Court of Appeals, Tenth Circuit

October 31, 2019

UNITED STATES OF AMERICA, Plaintiff - Appellee,

          Appeal from the United States District Court for the Western District of Oklahoma (D.C. No. 5:15-CR-00126-C-5)

          Dean Sanderford, Assistant Federal Public Defender, Denver, Colorado, for Defendant-Appellant.

          K. McKenzie Anderson, Assistant United States Attorney, Oklahoma City, Oklahoma, for Plaintiff-Appellee.

          Before MATHESON, EBEL, and PHILLIPS, Circuit Judges.


         A jury convicted Curtis A. Anthony of child-sex trafficking and conspiracy to commit child-sex trafficking, in violation of 18 U.S.C. §§ 1591(a)(1), (b)(2), (c) and 1594(c). The district court sentenced Anthony to the statutory mandatory-minimum 10 years' imprisonment and ordered that he pay restitution to the two child victims- R.W. and M.M-in the amount of $327, 013.50 and $308, 233.50, respectively. On appeal, Anthony contends that these amounts exceed actual losses resulting from his two offenses of conviction. He raises two issues with the restitution order: (i) that it impermissibly compensates harms that R.W. suffered from an earlier, unrelated sex-trafficking criminal enterprise run by a different wrongdoer; and (ii) that, for his conspiracy count, it compensates R.W.'s and M.M.'s harms beyond a smaller conspiracy proved at trial (a subset of the broad, charged conspiracy). We agree with Anthony on both issues, but we disagree that he has established plain error on the second issue. Thus, exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm the district court's restitution order as covering the broad, charged conspiracy, but we vacate the order and remand for a recalculation of losses to ensure that no restitution is awarded for harms that R.W. suffered during the earlier sex-trafficking offense.


         In May and June 2014, when R.W. was 14 years old, a pimp named William Johnson prostituted her in the Oklahoma City, Oklahoma area. William pleaded guilty in 2015 to a federal charge of sex trafficking a minor, was later sentenced to 30 years in prison, and was ordered to pay R.W. $900, 000 in restitution. See Amended Judgment, United States v. Johnson, No. CR 14-0341-F (W.D. Okla. Jan. 13, 2016), ECF No. 83. In a victim-impact statement prepared for that case, R.W. reported that William had taken her virginity, had "beat the mess out of" her, and had "brainwashed" her "into practically being a slave." ROA vol. 2 at 70. R.W. described the psychological effects of this abuse, including her not "know[ing] how to act around people [her] age" and feeling "no worth whatsoever." Id. at 71. R.W. also reported numerous symptoms of psychological trauma such as nightmares, fear for her safety, fear of being alone, fear of adults and strangers, anxiety, depression, anger, crying spells, and feelings of helplessness.

         On October 8, 2014, after law-enforcement officers rescued R.W., and she had returned home, she received Facebook messages from another pimp, Maurice M. Johnson (no relation to William) and one of his adult prostitutes, Chelsee A. Griffin, offering to pick her up to "make money." Id. vol. 3 at 345. After midnight on October 9, Maurice picked up R.W., photographed her, and had a longtime associate, Tonya Gay Gum, post the photos on websites advertising escort services. For a share of the escort revenue, Gum operated a "call center" with over twenty publicly listed phone numbers-all of which forwarded to two personal cell phones-through which she fielded requests for sexual services and arranged for escorts to meet with customers. Id. at 38-39. After using these services to traffic R.W. for about two weeks, Maurice had her recruit her friend, 15-year-old M.M., to work as a prostitute. M.M. did so for about a week before law enforcement halted the operation. In their time with Maurice, R.W. and M.M. together brought in about $40, 000 from prostitution.

         On the evening of October 24, 2014, Anthony called one of Gum's escort lines. Anthony stated only that he was "looking for company" at his office. See id. at 254-55. Gum sent R.W. to the office, but when she arrived, Anthony couldn't locate his wallet, so he and R.W. drove to an ATM to withdraw cash for the transaction. But Anthony was unable to make a withdrawal without his wallet, so R.W. left with Maurice, who had followed them to the ATM along with M.M., Griffin, and two others. Minutes later, while the group was heading back, Anthony called again and asked for R.W. to return because he had located his wallet and now had cash. Maurice turned around and drove R.W. back to Anthony's office, this time sending M.M. in with her. Anthony paid the girls to strip naked, touched their bodies, and stated that he wanted to finish "the date with M.M." Id. at 443. So R.W. gave M.M. a condom and waited outside while M.M. and Anthony had sex for money.

         On October 27, 2014, law-enforcement officers, while running an undercover-sting operation, located and rescued R.W. and M.M. Maurice had kept the girls in a hotel room where he forced them into commercial sex transactions. He and Gum split the proceeds. Maurice used psychological manipulation, threats of force, and physical abuse to control the girls. As R.W. later testified, Maurice had treated her "[l]ike a slave, basically." Id. at 446. Griffin also testified that Maurice was a violent and dangerous man.

         On June 16, 2015, a federal grand jury sitting in the Western District of Oklahoma indicted Anthony on child-sex-trafficking charges. On January 6, 2016, the grand jury returned a superseding indictment charging Anthony with: (i) child-sex trafficking, in violation of 18 U.S.C. § 1591(a)(1), (b)(2), and (c); and (ii) conspiracy to commit child-sex trafficking, in violation of 18 U.S.C. § 1594(c).[1] The superseding indictment named as coconspirators Anthony and two other adult customers-Trung N. Duong and William M. Baker, both of whom pleaded guilty-who had paid R.W. for sexual services. None of the three men knew each other. Gum-who had pleaded guilty to the original indictment-was named as an unindicted coconspirator. Maurice was prosecuted in a separate action. See United States v. Johnson, No. 14-CR-0342-C-1 (W.D. Okla. Aug. 6, 2019).

         The superseding indictment alleged a conspiracy spanning the time that R.W. had spent with Maurice-from October 8 to 27, 2014. The conspiracy's charged objective was "to operate and perpetuate a prostitution enterprise that recruited, enticed, provided, obtained, and maintained minors."[2] ROA vol. 1 at 65. The enterprise allegedly benefited Maurice and Gum financially and benefited Duong, Baker, and Anthony by enabling them to complete commercial sex transactions.[3] With R.W.'s and M.M.'s prostitution earnings, Gum funded her escort business, and Maurice recruited and controlled his prostitutes. The superseding indictment alleged as specific "acts in furtherance of the conspiracy" (i) Maurice's recruitment of R.W. (but not M.M.); (ii) Maurice's making R.W. available to Gum as a prostitute; and (iii) Gum's arranging the commercial sex transactions for Duong, Baker, and Anthony. See id. at 67-70.

         In mid-June 2017, Anthony went to trial. Both R.W. and M.M. testified as government witnesses, as did Maurice, Gum, and Duong. Gum testified that, in October 2014, she fielded over 10, 000 calls on her escort phone lines scheduling commercial sex appointments. She testified about sending R.W. on four calls during the alleged conspiracy: once to Baker, twice to Duong, and once to Anthony. Maurice, meanwhile, testified that he would meet Gum five to six times on a normal workday to give her proceeds from completed appointments.[4]

         After the close of the government's case-in-chief, Anthony orally moved for a general judgment of acquittal under Rule 29 of the Federal Rules of Criminal Procedure. The district court reserved decision until after the close of all the evidence, at which point it denied the motion for the substantive trafficking count. The next day, the court denied the motion for the conspiracy count. Anthony did not renew his Rule 29 motion at the end of trial.

         On June 19, 2017, the jury returned a guilty verdict on both counts. On September 18, 2017, the government moved for restitution awards totaling $530, 000 for R.W. And $510, 000 for M.M., including $300, 000 each for a lifetime of psychological treatment, $200, 000 each for a lifetime of lost income, and $30, 000 for R.W. and $10, 000 for M.M. for Maurice and Gum's ill-gotten gains. The government requested that the district court hold the coconspirators jointly and severally liable for the full amounts. See 18 U.S.C. § 3664(h).

         The government submitted victim-impact statements to support its request for restitution. For R.W., it submitted her statement from William's case and a statement about psychological trauma resulting from the instant conspiracy. In the latter statement, R.W. expressed that she "look[s] at men very different" and is "scared that all men are like this." ROA vol. 2 at 67. She further reported experiencing the same symptoms of psychological trauma that she had reported in William's case. For M.M., the government submitted a declaration from M.M.'s guardian ad litem attesting that M.M.'s encounter with Anthony "made her feel less than human, humiliated and ashamed." Id. at 108. She also attested that M.M. now experiences trouble concentrating and sleeping, nightmares, and feelings of shame, sadness, and anger.

         On October 24, 2017, the district court sentenced Anthony to the statutory mandatory-minimum term of ten years' imprisonment, to be followed by five years' supervised release. At the hearing, the court stated that, though it was "not entering an order of restitution at this time," it intended to order "joint and several" restitution among the coconspirators. Id. vol. 3A at 56. Anthony waived his right to attend any future restitution hearing.

         On December 11, 2017, in a one-page response to the government's restitution motion, Anthony argued that his "role in the conspiracy to which he was convicted was that he called an 'escort' line which sent R.W. and M.M., minors, to his home [sic] for sexual services without him knowing or having reason to know that they were minors." Id. vol. 1 at 226. Anthony stressed that "[t]his was a one-time event." Id. Beyond that, Anthony simply adopted Duong's response and surreply. Duong's response first faulted the government for failing to disaggregate from the request for future therapy costs the psychological harm that William had caused R.W. long before the instant conspiracy had even begun. Addressing lost future income, Duong's response argued that the requested amount failed to account for R.W.'s and M.M.'s abilities to increase their earning potential by pursuing high-school or college degrees. And, finally, Duong's response argued that Maurice and Gum should be solely responsible to reimburse the victims for all money obtained by prostituting them. In his surreply, Duong argued that the court should apportion his restitution liability under 18 U.S.C. § 3664(h) to reflect his "small role" in the conspiracy. Id. vol. 2 at 210-11.

         On February 21, 2018, the district court granted in part the government's motion for restitution. The court declined to order that Anthony pay restitution for lost future income, but it did require that he pay restitution for the estimated $40, 000 that Maurice and Gum had earned from prostituting R.W. and M.M., and for the full cost of R.W.'s and M.M.'s anticipated future therapy expenses-totaling $327, 013.50 and $308, 233.50, respectively. The court held Anthony, Gum, Duong, Baker, and Maurice jointly and severally liable for the full awards. This appeal followed.


         Anthony raises two issues on appeal. First, he argues that the district court erred by ordering that he pay restitution for losses that R.W. had sustained while with William, months before the instant conspiracy. And second, he argues that the district court erred by ordering restitution for all the losses that R.W. and M.M. suffered during the charged three-week conspiracy, when at most he had joined a subset of that broad conspiracy by conspiring to obtain sexual services one time, on October 24, 2014. In short, Anthony argues that the district court erred by ordering restitution against him for losses beyond those he caused.

         I. The Restitution Statutes

         Courts may award restitution only as authorized by statute. United States v. Gordon, 480 F.3d 1205, 1210 (10th Cir. 2007). Here, the district court ordered that Anthony pay restitution to R.W. and M.M. under the Mandatory Victims Restitution Act (MVRA), 18 U.S.C. § 3663A, and the Trafficking Victims Protection Reauthorization Act (TVPRA), 18 U.S.C. § 1593. Anthony argues that neither statute authorizes the full restitution award against him, because the award compensates the victims for losses that he did not cause. We review de novo the district court's interpretation of the restitution statutes, review for clear error its factual findings, and review for abuse of discretion the restitution amount. See United States v. Camick, 796 F.3d 1206, 1223 (10th Cir. 2015); United States v. Gallant, 537 F.3d 1202, 1247 (10th Cir. 2008). A district court abuses its discretion if it orders a restitution amount based on an "erroneous view of the law or on a clearly erroneous assessment of the evidence." United States v. Howard, 784 F.3d 745, 750 (10th Cir. 2015) (citation omitted).

         Restitution may be ordered only for losses actually resulting from the offense of conviction. United States v. West, 646 F.3d 745, 751 (10th Cir. 2011). So before ordering restitution, the district court must determine whether the victim's losses result from the offense of conviction. See United States v. Zander, 794 F.3d 1220, 1233 (10th Cir. 2015). The government bears the burden of proving the amount of loss by a preponderance of the evidence. United States v. Galloway, 509 F.3d 1246, 1253 (10th Cir. 2007). It "bears the same burden regarding the subordinate question of what harms are properly included in the loss ...

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