In the

    United States Court of Appeals
                 For the Seventh Circuit
                     ____________________
No. 16-3845
UNITED STATES OF AMERICA,
                                                   Plaintiff-Appellee,

                                 v.

MONTA GROCE,
                                               Defendant-Appellant.
                     ____________________

         Appeal from the United States District Court for the
                   Western District of Wisconsin.
            No. 3:15-cr-78 — William M. Conley, Judge.
                     ____________________

     ARGUED DECEMBER 7, 2017 — DECIDED MAY 23, 2018
                     ____________________

   Before BAUER, MANION, and SYKES, Circuit Judges.
    MANION, Circuit Judge. Monta Groce appeals witness-
retaliation and sex-trafficking convictions. The government
concedes the retaliation jury instruction failed to state a
particular unsupported element. We vacate the retaliation
conviction and remand for resentencing. Regarding sex
trafficking, Groce raises several challenges. He argues the
court erred by 1) excluding evidence of the victims’ alleged
prostitution histories; 2) barring cross-examination of a victim
2                                                         No. 16-3845

on her alleged prostitution history after she testified she had
no such history; 3) issuing an instruction lowering the mens
rea required for sex trafficking; and 4) admitting prejudicial
evidence of uncharged sex trafficking. He also argues
cumulative error requires retrial. We affirm the sex-trafficking
convictions.
                          I. Background 1
    Groce faced nine counts: 1–3) sex trafficking; 4) conspiracy
to engage in interstate transportation for prostitution; 5)
interstate transportation for prostitution; 6) maintaining a
drug house; 7) using or carrying a firearm in maintaining the
drug house; 8) attempted sex trafficking; and 9) witness
retaliation. The jury heard evidence he abused and coerced
two women to cause them to prostitute involuntarily. He
preyed on their drug addictions and other vulnerabilities,
manipulated debts, and physically abused or threatened
them. The jury also heard evidence he caused a third woman
to prostitute involuntarily. He was convicted on all but Count
8, and sentenced to 25 years in prison. He only appeals the
sex-trafficking and retaliation convictions.
A. Lisa Tischer (Count 1)
   When Lisa Tischer met Groce in November 2012, she was
a heroin addict. He led her to believe he had romantic feelings
for her. Soon she lost her job and violated drug-related
probation. He offered a place to stay, so she lived with him in
Sparta, Wisconsin. He gave her heroin. At first he did not
charge or she paid $30 to $40. Soon he said she could do


1We draw the facts and quotations in this section from the trial record.
We present summaries of each woman’s testimony.
No. 16-3845                                                  3

calls—have sex for money—to get heroin from him. Groce
said if she loved him, she would do the calls. He told her she
would earn $150 to $500. So she prostituted. He arranged and
controlled the prostitution. At first she got 40% and did five to
fifteen calls on an average day. She continued using heroin,
buying it with prostitution funds. He reduced her share.
Finally, he wanted it all. He imposed rules, and isolated and
punished her. She could only leave if he approved. He
slapped her face and fined her $500 for meeting with
someone. He said she was disgusting and he advertised her
for full service for $50. She tried to leave but he stopped her
by guarding the stairs. He controlled her heroin access and
induced her to prostitute before giving her heroin. He
withheld heroin if she tried to leave or keep money. She felt
“dope sick,” “[v]ery sick, depressed, useless.” He burned her
with a cigarette when she kept funds. After hearing she talked
to the police, he said he would rape and kill her mother and
sister. Tischer testified she did not want to do calls, but did
them to make him happy and to avoid dope sickness. Once,
when he was out, she used his phone to get a ride to leave.
But he returned, saw her stuff packed, slapped her face a few
times, and made her stay downstairs. Once, he threatened to
kill a young man and told her to get his gun. She hesitated.
Groce said if she did not get it, he would get it and she and
the man would be sorry. So she got the gun for Groce.
   She left around January 2013, but he found her. He said he
changed and was sorry. So she moved into his small room.
After locking her in twice, he asked her to do a call. She
refused. He locked her in again. She felt withdrawals. He said
she must do a call. Seeing it as her only escape, she did it.
Later, he beat her for reporting to authorities.
4                                                 No. 16-3845

B. Mirika Stuhr (Count 2)
    Mirika Stuhr met Groce in November 2012. He supplied
her heroin. She started living with him at the Sparta house.
She had a “crush” on him. After suffering much abuse,
including a cigarette burn to her face, Tischer got a ride and
left with Stuhr’s help. Groce blamed Stuhr and asked her to
do a call. She agreed, but Groce had to teach her what to do.
Groce kept $60, gave her $40, and also gave her heroin. She
was addicted and regularly bought it from him. She testified
heroin addiction means “you can’t go without it. It means you
will do anything at any cost to make sure that you have it.”
She testified she had never taken calls for anyone else.
    She continued prostituting. Groce cut off free heroin. So
she used her $40 a call to buy it, but he charged $50. So she
always owed him. She had trouble leaving because if she
missed a call she would owe him. He took her phone
sometimes. Once, he allowed her out, so she left and used
meth. Then he called to say she had a customer. She returned
around 3:00 am. She had picked her legs bloody and raw due
to meth. Unable to sit still, she asked for heroin so she could
do the call. But he refused as she had missed calls and owed
him. She said she could not do it. He eyed his gun and said,
“‘You always have a choice.’” Scared, mad, and alone, she
cried and did the call. Besides owing for drugs and missing
calls, she also owed for unplugging his phone while cleaning,
taking too long on his laundry, and failing to report. Once,
when she withheld funds, he told her she was a dead duck,
was cut off, and would not get calls or drugs. She felt scared,
alone. Once, he punished her by isolating her, taking her
phone, and depriving her of drugs and food. Suicidal,
suffering withdrawal, and under a warrant, she had nowhere
No. 16-3845                                                    5

to go. Finally he asked, “‘Are you ready to make some
money[?]’” meaning, “Are you ready to take a call[?]” Her
testimony shows her dungeon’s depravity: “In one way that’s
all I mattered for and on one side, thank God I can finally feel
better.” After she took a call on Groce’s bed, he beat her, and
she left. But she suffered withdrawals and resumed buying
drugs from him. She later lived with him again and continued
prostituting, giving him all the funds. She still used drugs.
She also testified about texts tending to corroborate her.
C. Amanda Ryan (Count 3)
   Amanda Ryan was a certified nursing assistant on heroin
when she moved to the Sparta house. She could not function
without drugs, which Groce sold her. Struggling to pay, she
agreed to prostitute “against [her] better judgment.” She kept
prostituting for him, halving the funds, but using hers to buy
drugs from him. He was “manipulative, narcissistic,
controlling.” He “had the heroin, so it was basically what he
said goes.” He “had a gun and he wasn’t afraid to show it.”
She lost his debit card. He insisted she prostitute to repay. She
said she had to go to work. He persisted: “‘You’re not going
until you do this call, otherwise I’m cutting you off—I’m not
giving you any heroin.’” Seeing no choice, she did a call
against her will, felt like trash, then got drugs. She did not
really want to do any calls, but only did them for drugs. Groce
threatened to cut her off.
D. Melissa Copeland (Count 4—not appealed)
    Melissa Copeland testified she and Groce were childhood
friends. In April 2013, he asked if she wanted to make $150
and she agreed. She considered him a friend and did not think
he meant anything harmful. Someone drove her to a
6                                                 No. 16-3845

residence, which she entered, still not knowing what to
expect. A male asked her to engage in a sex act. She did. He
paid. The driver returned her to Groce, who demanded
money. When she refused he threw her down, forced her
head to the pavement, reached in her bra, and took some
money. She saw his gun. He said essentially, “‘They’re not
going to catch me.’” She testified she had never done anything
like that before. On cross Groce’s attorney challenged her,
asking if she remembered prostituting in Milwaukee. She
again denied being a prostitute. The attorney pressed: “Never
done that before?” She responded: “I don’t even have it on my
record.” The government objected, and the court sustained.
                        II. Discussion
    Groce appeals multiple issues. We evaluate his arguments
in turn.
A. Witness-retaliation conviction
    Groce seeks dismissal of the retaliation conviction because
the instruction lacked an element: the witness communicated
with a federal officer. The government concedes. The
instruction was erroneous, and the evidence did not support
conviction. We vacate the Count 9 conviction and remand for
resentencing on the remaining convictions.
B. Exclusion of victims’ alleged prostitution histories
   For sex trafficking, the government had to prove Groce
acted “knowing, or in reckless disregard of the fact, that
means of force, threats of force, fraud, coercion … or any
combination of such means will be used to cause the person
No. 16-3845                                                            7

to engage in a commercial sex act.” 18 U.S.C. § 1591(a). 2 Groce
insists he could not have known or recklessly disregarded
that force, et cetera, would be used to cause the victims to
prostitute because he knew they prostituted before working
for him. He claims the victims’ prostitution histories were
relevant to his mens rea and the court erred by excluding this
evidence under Rule 412, yet it allowed the government to
elicit testimony from Stuhr that she never prostituted before
meeting Groce. He contends this gutted his defense.
Specifically, under Rule 412(a) the government moved in
limine to exclude evidence of the victims’ other sexual
behavior or sexual predisposition. It also sought exclusion per
Rule 403 for unfair prejudice and potential confusion. Groce
claimed relief under the Rule 412(b)(1)(C) “constitutional
rights” exception. Relying on United States v. Cephus, 

, 708 (7th Cir. 2012), the court excluded the evidence per
Rule 412, and agreed Rule 403 also bars it.
   Groce seeks de novo review, claiming the exclusion
violated his constitutional rights. But the government urges
only plain-error review because the basis for Groce’s
challenge on appeal is new: below he claimed the victims’
prior prostitution was relevant to whether they voluntarily
prostituted for him; but now he claims it was relevant to his
mens rea. Usually we review evidentiary decisions for abuse
of discretion. See United States v. Fifer, 

, 767 (7th
Cir. 2017). But under any standard, Groce loses.
   Federal Rule of Evidence 412(a) bars “evidence offered to
prove that a victim engaged in other sexual behavior.” An


2 We refer to “means of force, threats of force, fraud, coercion … or any
combination of such means” as “force, et cetera.”
8                                                  No. 16-3845

exception allows admission of “evidence whose exclusion
would violate the defendant’s constitutional rights.” Fed. R.
Evid. 412(b)(1)(C). Groce claims the evidence of the victims’
prior prostitution was vital as virtually the only evidence of
his state of mind. He argues if the jury knew he knew of the
prior prostitution, it might have concluded he reasonably
believed the women were prostituting voluntarily. Or if not,
at least it could have concluded he was not criminally reckless
in disregarding the fact that force, et cetera, would be used to
compel them to prostitute. Groce argues Ryan was
legitimately employed, willingly engaged in prostitution to
support her heroin habit, and independently expanded her
prostitution business. He claims he never threatened her with
force. He argues he only denied Tischer and Stuhr heroin
when they could not pay for it. He insists none of the violence
against them was used to compel prostitution. His basic point
is he could not have known or recklessly disregarded that
force, et cetera, were used to compel the women to prostitute
because he knew they were already prostitutes.
     This argument fails for several reasons. Most importantly,
we already rejected it. In United States v. Cephus, we said,
“even if [a victim] knew going in, from her prior [prostitution]
experience, that [defendant] probably would beat her, it was
still a crime for him to do so.” 

. Groce
argues Cephus did not address the relevance of the victims’
prior prostitution to a defendant’s state of mind, but only
prohibited the use of prior prostitution to prove the victims’
consent to subsequent prostitution. But, as the government
notes, we recently rejected that argument in United States v.
Carson, where we held a victim’s prior sexual conduct is
irrelevant to the sex-trafficking mens rea: “whether the victims
had previously worked as prostitutes was irrelevant to the
No. 16-3845                                                             9

required mens rea for the crime.” Carson, 

, 593 (7th
Cir. 2017). Groce ultimately concedes Carson forecloses his
argument. He asks us to overrule Carson, but we decline. The
district court did not err when it excluded irrelevant
evidence. 3
C. Stuhr’s testimony regarding lack of prior prostitution
   The government elicited testimony from Stuhr that she
never prostituted before meeting Groce. He complains that
despite a proffer that this testimony was untrue, the court
refused to allow him to cross her on this issue, thereby
violating his right to confront the government’s key witness.
As noted, Groce concedes Carson forecloses his argument that
Tischer’s and Ryan’s prior prostitution was relevant to his
mens rea. Still, he argues Carson does not control the outcome
regarding Stuhr because unlike the government in Carson, the
government here elicited testimony that Stuhr had not
previously prostituted. Groce claims the government opened
the door and put her prostitution history at issue.
   A court has broad discretion to limit cross, within the
Confrontation Clause’s bounds. 

. The
Confrontation Clause “guarantees a defendant an
opportunity for effective cross-examination, but there is no
guarantee of cross-examination to whatever extent the
defense might wish.” United States v. Recendiz, 

,
530 (7th Cir. 2009) (internal quotation marks and alteration


3  Moreover, overwhelming evidence established he did not merely
recklessly disregard that his conduct caused the victims to prostitute. He
knew it. The evidence showed a pattern of physical abuse, threats, and
coercion including controlling heroin access and manufacturing debt. He
was not merely a bystander; he was the controller and actor.
10                                                  No. 16-3845

omitted). We review a limit on cross de novo if it directly
implicates the Confrontation Clause’s core values; otherwise
we review for abuse of discretion. 

witness is
a core value. United States v. Clark, 

, 583 (7th Cir.
2011). Exposing “a witness’s motivation, biases or incentives
for lying” is a core value. 

. But “once a
trial court permits a defendant to expose a witness’s
motivation, it is of peripheral concern to the Sixth
Amendment how much opportunity defense counsel gets to
hammer that point home to the jury.” 

(internal quotation marks omitted). The Confrontation Clause
“does not give a defendant a boundless right to impugn the
credibility of a witness.” 

. The court has
“wide latitude … to impose reasonable limits on such cross-
examination based on concerns about … harassment,
prejudice, confusion of the issues, the witness’ safety, or
interrogation that is repetitive or only marginally relevant.”
Delaware v. Van Arsdall, 

, 679 (1986). “If the
defendant already has had a chance to impeach the witness’s
credibility and establish that she has a motive to lie, then any
constitutional concerns vanish and we review the district
court’s decision to limit additional inquiries only for abuse of
discretion.” 

; see also United States v.
Kielar, 

, 743 (7th Cir. 2015). Even if the court errs
in barring cross, “that error is harmless depending upon
factors such as the importance of the witness’s testimony in
the prosecution’s case, whether the testimony was
cumulative, the presence or absence of corroborating or
contradictory evidence, and the overall strength of the
prosecution’s case.” 

.
No. 16-3845                                                  11

    We review for abuse of discretion because Groce had
ample opportunity to impeach Stuhr on cross and through
another witness. Groce impeached Stuhr on cross by raising
her past drug use, past convictions, and flawed memory. He
further challenged Stuhr’s credibility through the testimony
of Brandy Eddy that Stuhr prostituted before meeting Groce.
After all, Groce argues Eddy’s testimony casts significant
doubt on the truthfulness of Stuhr’s testimony. Abuse of
discretion is, of course, a highly deferential standard. We give
special deference to evidentiary rulings “because of the trial
judge’s first-hand exposure to the witnesses and the evidence
as a whole, and because of the judge’s familiarity with the
case and ability to gauge the impact of the evidence in the
context of the entire proceeding.” United States v. Suggs, 

, 516 (7th Cir. 2004) (citations omitted). A trial court
abuses its discretion when “no reasonable person could take
the view adopted by the trial court.” United States v. Cash, 

, 564 (7th Cir. 2005). Here, given the other methods
employed to impeach Stuhr, given the record as a whole, and
given the requirements of Rule 412, the court did not abuse its
discretion in barring Groce from crossing Stuhr on her alleged
prostitution history.
D. Sex-trafficking jury instruction
   Two states of mind support sex-trafficking: knowledge or
reckless disregard. 18 U.S.C. § 1591(a). The court instructed
the jury on the definition of “recklessly disregards”:
       As used in Counts 1, 2, 3 and 8, a person
       recklessly disregards a fact when he is aware of,
       but consciously or carelessly ignores, facts and
       circumstances that would reveal the fact that
       force, threats of force, or coercion would be
12                                                          No. 16-3845

        used to cause another person to engage in a
        commercial sex act.
(Jury Instr., Groce’s Separate App. at 77, emphasis in
original.)
    Groce argues the court plainly erred by instructing the
jury it could find he acted with reckless disregard if he
carelessly ignored the relevant facts and circumstances. Groce
argues this lowered the mens rea from criminal recklessness
(which requires actual awareness of a substantial risk and
conscious disregard of it) to mere negligence. He claims this
plain error impaired his substantial rights because although
he might have been careless, there is a reasonable probability
a jury would not have found him reckless. 4 Groce’s main
point is the instruction misstated the law by failing to require
for conviction that he consciously disregarded the relevant
facts and circumstances. He argues that because the court
excluded evidence that he did not have the requisite mens rea
for the offense (because he knew about the victims’ prior
prostitution), and then lowered the mens rea with the
erroneous instruction (allowing mere negligence to suffice),
the court allowed the jury to convict him of sex trafficking
without requiring proof of all elements.
    Normally we review de novo whether instructions
accurately state the law, giving substantial discretion to the
district court over the precise wording “so long as the final
result, read as a whole, completely and correctly states the
law.” Karahodzic v. JBS Carriers, Inc., 

, 1016 (7th

4 Groce concedes the district court’s definition of “recklessly disregards”
was based on a Committee Comment in our pattern jury instructions, but
argues neither case cited in that comment supports the definition.
No. 16-3845                                                   13

Cir. 2018). But Groce did not object below to the instruction
under Federal Rule of Criminal Procedure 30(d), so our
review is limited to plain error. Fed. R. Crim. P. 30(d) and
52(b); United States v. Cheek, 

, 1060 (7th Cir. 1993).
He concedes and only requests plain-error review. “A plain
error is not just one that is conspicuous but one whose
correction is necessary to prevent a miscarriage of justice.”
United States v. Kerley, 

, 937 (7th Cir. 1988)
(internal quotation marks omitted).
    But Groce arguably did more than merely forfeit his
argument by not objecting; he arguably waived it by telling
the district court he had no objection to the proposed
instructions, which included the “or carelessly ignores”
language. In United States v. Natale, 

, 729–31 (7th
Cir. 2013), we examined the important distinctions between
passive forfeiture and affirmative waiver. A defendant who
forfeits his argument by not objecting to an instruction before
deliberation may attack that instruction on appeal only for
plain error, but a defendant who waives his argument cannot
even seek plain-error review. The problem sometimes is
determining when waiver occurred. Waiver “occurs only
when a defendant makes a knowing and intentional decision
to forgo a challenge before the district court.” 

(internal quotation marks omitted). We noted that
“affirmative statements as simple as ‘no objection’ or ‘no
problem’ when asked about the acceptability of a proposed
instruction have resulted in waiver” because of the difficulty
in determining the subjective motivations behind such
statements. 

Since this approach can produce
“especially harsh results,” we proposed alternative theories.

But we did not resolve the applicability of these
14                                                  No. 16-3845

theories because even under plain-error review, we found no
error requiring a new trial there. 

    So here. Even under plain-error review, we find no error
requiring a new trial. Under plain-error review, we will
reverse only for an obvious error that affects the defendant’s
substantial rights and seriously impugns the fairness,
integrity, or public reputation of judicial proceedings. Id.;
United States v. Anderson, 

, 1002 (7th Cir. 2010).
The government concedes the instruction was wrong. Let us
say it was obviously wrong, and should not have been given
in any case. Still, Groce cannot show this error affected his
substantial rights. That is, he cannot show a reasonable
probability that but for the error the outcome would have
differed, because overwhelming evidence demonstrated he
did not merely recklessly disregard but he knew force, threats of
force, and coercion were used to cause the victims to engage
in commercial sex acts. Overwhelming evidence
demonstrated he knew, and did not merely recklessly
disregard, that his deliberate pattern of physical abuse,
threats, and heroin control caused the victims to prostitute.
    For example, he confined Tischer to the Sparta house
where she performed calls, not allowing her to leave without
his permission. He controlled her heroin access, punished her,
physically assaulted her, and burned her with a cigarette. He
threatened her. He locked her inside the second residence
several times. He forced her to prostitute. He also controlled
Stuhr’s access to heroin. He manufactured debt for her,
confiscated her phone, isolated her, and threatened her with
a gun. He deprived her of heroin and even food until finally
he asked if she was ready to take a call. He forced her to
prostitute. He also controlled Ryan’s access to heroin. He
No. 16-3845                                                   15

insisted she engage in a commercial sex act to repay him for
losing a debit card. He forced her to prostitute. The evidence
against Groce is overwhelming. There is no reasonable
probability the erroneous jury instruction changed the
outcome.
E. Copeland evidence
     The Copeland evidence was relevant to the charged
conspiracy. Groce does not appeal that conviction but he does
appeal the admission of this evidence due to risk of unfair
prejudice on the sex-trafficking charges. Copeland and Groce
were childhood friends, but he sandbagged her to prostitute,
battered her, and took her money. He complains the court
erred by admitting this evidence, which had minimal
relevance and was cumulative of other conspiracy evidence.
He claims the Copeland evidence was unfairly prejudicial
because it created a substantial risk the jury would rely on it
to decide his guilt on the sex-trafficking charges. He argues
the evidence was disputed regarding whether the sex-
trafficking victims prostituted voluntarily, but the
government injected into the sad combination of bizarre and
drug-infested relationships Copeland’s stark testimony,
which might have persuaded the jury he was the type to sex-
traffic. He argues the court should have barred it under Rule
403.
     There is debate on the standard of review but under
either plain-error or abuse-of-discretion, Groce loses. On
abuse-of-discretion review we “defer to the district court
unless no reasonable person could adopt its view.” United
States v. Schmitt, 

, 532 (7th Cir. 2014). Plain-error
review requires an obvious error affecting Groce’s substantial
rights and seriously impugning the fairness, integrity, or
16                                                  No. 16-3845

public reputation of judicial proceedings. 

; United States v. Klemis, 

, 440–42, 445 (7th Cir.
2017). That is, Groce must show a reasonable probability he
would have been acquitted had the court barred this
evidence. 

. Rule 403 allows barring if
the “probative value is substantially outweighed by a danger
of … unfair prejudice, confusing the issues, misleading the
jury, undue delay, wasting time, or needlessly presenting
cumulative evidence.” Fed. R. Evid. 403. But Groce loses his
challenge because the Copeland evidence was direct evidence
of the charged conspiracy. “We start with the premise that
direct evidence of a crime is almost always admissible against
a defendant.” United States v. Gorman, 

, 717 (7th
Cir. 2010). This was not merely evidence of other bad acts; this
was direct evidence of a charged crime. He asks us to reweigh
it on the Rule 403 scale and argues dangers of needless
accumulation and unfair prejudice substantially outweigh its
slight probative value. But we see no reason to disturb the
court’s decision. The sex-trafficking evidence was
overwhelming.
F. Cumulative error
     Groce claims the cumulative effect of the errors denied
him a fair trial on sex trafficking. Cumulative error exists
where at least two errors committed during a trial denied
defendant a fundamentally fair trial. United States v. Adams,

, 419 (7th Cir. 2010); Alvarez v. Boyd, 

,
824 (7th Cir. 2000). To demonstrate cumulative error, Groce
must establish at least two errors occurred, and “considered
together along with the entire record, the multiple errors so
infected the jury’s deliberation that they denied [him] a
fundamentally fair trial.” United States v. Allen, 

,
No. 16-3845                                                           17

847 (7th Cir. 2001). On a claim of cumulative error, we
consider both—but only—plain or preserved errors. United
States v. Christian, 

, 708 (7th Cir. 2012). We only
reverse if “the errors, considered together, could not have
been harmless.” 

.
      Here, no claimed errors warrant reversal of the sex-
trafficking convictions as any errors were harmless.
Overwhelming evidence proved he committed sex trafficking.
The jury heard extensive testimony about his assaults, threats,
and heroin control. He manipulated debt. He punished,
isolated, and detained his victims. There is no reason to think
any two or more potential errors combined to deprive him of
a fundamentally fair trial. The record demonstrates his guilt
“such that none of the asserted errors, either individually or
cumulatively,” could have affected the verdict. 

                           III. Conclusion
    We VACATE the conviction for witness retaliation and
REMAND for resentencing. We AFFIRM the district court in
all other respects. 5




5 We close with a reminder that the jury convicted Groce on all but Count
8 of nine counts. He appeals only the convictions on sex trafficking
(Counts 1–3) and retaliation (Count 9). The 25-year sentence was for the
convictions we affirm, the conviction we vacate, and the convictions he
did not appeal.