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             IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                     FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
                       ________________________ ELEVENTH CIRCUIT
                                                             JUNE 3, 2008
                             No. 07-14177                  THOMAS K. KAHN
                         Non-Argument Calendar                 CLERK
                       ________________________

                   D. C. Docket No. 07-20214-CR-CMA

UNITED STATES OF AMERICA,


                                                            Plaintiff-Appellee,

                                   versus

LUROY JENNINGS,
DARRYL JOHN JENNINGS,


                                                        Defendants-Appellants.


                       ________________________

                Appeals from the United States District Court
                    for the Southern District of Florida
                      _________________________

                               (June 3, 2008)

Before BIRCH, DUBINA and BLACK, Circuit Judges.

PER CURIAM:
      Luroy Jennings and Darryl John Jennings appeal their convictions and

sentences for aiding and abetting the sex trafficking of a minor for financial

benefit, in violation of 18 U.S.C. § 1591(a). The Jennings assert several issues on

appeal, which we address in turn. After review, we affirm the Jennings’

convictions and sentences.

                              I. MOTION TO SUPPRESS

      The Jennings were passengers in a car the police stopped in order to

investigate whether the car’s temporary tag was expired or altered. After the

occupants were ordered out of the car, the minor victim, J.B., made statements

indicating the Jennings and the driver of the car, codefendant Sammy Carpenter,

were holding her against her will, and, accordingly, the three men were arrested.

Prior to trial, Carpenter and the Jennings filed motions to suppress physical

evidence and statements arising out of the traffic stop, which the district court,

following hearings, denied.

      The Jennings assert the police lacked probable cause to believe the car’s tag

was expired and to arrest for a car-registration violation and, accordingly, lacked

the authority to conduct a full search of the vehicle. They contend the police failed

to employ the least intrusive means necessary to confirm or dispel their concerns

regarding the car’s temporary tag and engaged in an illegal “fishing expedition”



                                           2
because they lacked reasonable articulable suspicion the occupants of the vehicle

had contraband or were armed and dangerous. They assert the police engaged in a

“full field-type search” of the car, where they discovered a joint in the ashtray,

prior to a conversation about the joint and while the occupants were already in

handcuffs. The Jennings also contend the officers’ conduct can only be explained

as racially motivated, and, because the detectives commenced their investigation

based on race, “the entire stop” should have been suppressed pursuant to the

Fourteenth Amendment.

       We review a district court’s denial of a defendant’s motion to suppress under

a mixed standard of review, reviewing the district court’s findings of fact for clear

error and its application of law to those facts de novo. United States v. Smith,

, 1290 (11th Cir. 2006), cert. denied, 

(2007). We

accord great deference to district court credibility determinations, United States v.

Clay, 

, 1302 (11th Cir. 2004), and must accept the district court’s

credibility findings “unless we are left with the definite and firm conviction that a

mistake has been committed,” United States v. Chirinos, 

,

1102 (11th Cir. 1997) (quotations omitted).

       An officer may conduct a brief investigatory stop of a vehicle “if the seizure

is justified by specific articulable facts sufficient to give rise to a reasonable



                                            3
suspicion of criminal conduct.” United States v. Strickland, 

,

940 (11th Cir. 1990). The Supreme Court has held that, once a motor vehicle has

been lawfully stopped for a traffic violation, a police officer may order the driver

and passengers to exit the vehicle without violating the Fourth Amendment.

Maryland v. Wilson, 

, 885-86 (1997). Following a stop for the

purpose of issuing a traffic citation, the officer may lengthen the detention for

further questioning, beyond that related to the initial stop, if the officer has an

objectively reasonable and articulable suspicion that illegal activity has occurred or

is occurring. United States v. Pruitt, 

, 1220 (11th Cir. 1999).

      “[W]hen the totality of the circumstances indicate that an encounter has

become too intrusive to be classified as a brief seizure, the encounter is an arrest

and probable cause is required.” United States v. Espinosa-Guerra, 

,

1506 (11th Cir. 1986). In considering whether an investigative detention was

sufficiently limited to not ripen into a full-scale, de facto arrest unsupported by

probable cause, we apply four non-exclusive factors: (1) “the law enforcement

purposes served by the detention,” (2) the diligence with which the officers pursue

the investigation; (3) “the scope and intrusiveness of the detention,” and (4) “the

duration of the detention.” United States v. Acosta, 

, 1146 (11th Cir.

2004). In examining the law-enforcement purposes, “the most important



                                            4
consideration is whether the police detained the defendant to pursue a method of

investigation that was likely to confirm or dispel their suspicions quickly, and with

a minimum of interference.” 

Regarding the scope,

intensity, and duration of a detention, we held, in United States v. Gil, 

, 1350-51 (11th Cir. 2000), that a detention did not ripen into a full arrest,

where the stop lasted 75 minutes and Gil was handcuffed and put in the back of a

police car while officers searched her house because there was not a female officer

present to search Gil, a woman, and the officers did not know if she was armed.

      Regarding searches, the “search incident to a lawful arrest is a traditional

exception to the warrant requirement of the Fourth Amendment.” United States v.

Robinson, 

, 471 (1973). Likewise, a warrantless inventory search

permits a thorough search of property lawfully in police custody, as long as that

search is consistent with the police caretaking function. United States v. O’Bryant,

, 1534 (11th Cir. 1985).

      As an initial matter, the district court appears to have orally denied the

Jennings’ motion to suppress based on their failure to demonstrate racial profiling

and their lack of standing to challenge the admission of certain items because they

failed to establish an “ownership interest” in the items. It does not appear the

district court explicitly addressed the Jennings’ Fourth Amendment challenge to



                                           5
the initial stop and detention. However, it did state, after rejecting the Jennings’

Fourteenth Amendment claims, that it was “satisfied based on what [it] heard and

saw in the Government’s recommend[ation] to deny the motion to suppress on all

defendants.” Accordingly, in denying the motions to suppress, the district court

appears to have agreed with the Government’s reasoning that the initial stop was

proper, the search was conducted incident to lawful arrests, and the Jennings

lacked standing to challenge the search because they did not manifest a subjective

expectation of privacy in the car.1

       The district court did not err in denying the Jennings’ suppression motions.

The decision to stop Carpenter was reasonable because Det. Archer believed that

the out-of-state temporary tag was expired and potentially had been altered, which

would constitute a traffic violation. See 

. Upon

approaching the car, the detectives were permitted to order the occupants out of the

car as a matter of course for officer safety while they investigated the tag issue.

See 

. Det. Archer testified that, upon being asked

whether there were any weapons in the car, Carpenter stated there was a joint in the

       1
           The Jennings’ argument that a new trial is necessary in light of error under Brendlin v.
California, 

, 2403 (2007), is unavailing, as the district court did not deny their
motions on the basis of lack of standing to challenge the stop or find the Jennings, as passengers,
were not seized under the Fourth Amendment. To the extent the Jennings sought to suppress all
items found in the car based on an expectation of privacy in their luggage, the district court did
not err in finding they lacked standing on that basis, as they never established any of the items
were found in their luggage.

                                                 6
ashtray, and this admission provided objectively reasonable and articulable

suspicion to extend the detention of the stop. See 

. As to

the Jennings’ claim the car was searched prior to Carpenter’s admission of

possessing marijuana, the district court appears to have credited Det. Archer’s

testimony that the officers did not discover the joint until after Carpenter admitted

it was in the ashtray, and there is nothing in the record to leave “the definite and

firm conviction that a mistake has been committed” in so crediting Det. Archer’s

testimony. See 

.

      Regarding the Jennings’ argument the scope and duration of the detention

were excessive, the totality of the circumstances does not indicate the stop became

so intrusive that it became an arrest unsupported by probable cause. See Espinosa-

. As to the first factor, the law enforcement purposes

served by the detention, an examination of the registration documents and running

of the VIN was likely to confirm or dispel the detectives’ suspicions. See 

. The second factor, the diligence with which the officers pursued

the investigation, likewise suggests that the stop did not ripen into an arrest, as Det.

Archer searched the glove compartment, with Carpenter’s consent, and ran the VIN

immediately after having the occupants sit on the curb. See 

factor,

the scope and intrusiveness of the detention also suggests the stop did not ripen



                                           7
into an arrest because the detectives only had the occupants exit the car and did not

handcuff the Jennings until probable cause for their arrest was established. Finally,

as to the fourth factor, the detention only lasted ten minutes, and there was no

indication that it was unnecessarily prolonged. See 

.

      Regarding the searches, according to Det. Archer, the searches were

conducted after Carpenter and the Jennings were arrested, first as a general

inventory search prior to towing, and second, as a more thorough inventory search

at the police station. See 

. The evidence demonstrates

these searches were properly conducted incident to valid arrests and for inventory

purposes. See 

; 

.

      Likewise, the record demonstrates the Jennings failed to establish racial

profiling, violative of the Fourteenth Amendment, and the district court did not err

in this determination. Det. Archer testified he had all occupants exit the vehicle,

and while he ordered all of them to sit on the curb, he permitted J.B. to stand

because she stated that her back hurt. There is no indication he would not have

permitted any of the other occupants to stand if they had so requested. Det. Archer

also testified J.B. appeared to be “very young” woman. To the extent Det. Archer

treated J.B. differently than Carpenter and the Jennings, it was not unreasonable for

Det. Archer to believe that adult men presented a greater danger than a “very



                                          8
young” woman, and the Jennings’ allegation does not sufficiently demonstrate that

Det. Archer’s reasonable and limited precautionary measures were based on race.

Other than this conclusory allegation, the Jennings have presented no evidence that

Det. Archer’s stop of the car was based on race.

      In summary, the district court did not err in denying the Jennings’ motions to

suppress because: (1) a detective had reasonable suspicion to investigate what

appeared to be an expired or altered out-of-state temporary tag and then had

probable cause to arrest the Jennings based on the minor victim’s statements on the

scene that she was being held against her will; (2) the detention did not ripen into

an arrest unsupported by probable cause; (3) the searches of their persons were

conducted incident to valid arrests; and (4) the search of the car was conducted for

inventorying purposes prior to towing the car.

                             II. FED. R. EVID. 404(b)

      During the Jennings’ trial, Charlene Walton provided Federal Rule of

Evidence 404(b) testimony, testifying that Darryl and Luroy had attempted to

recruit her into prostitution. The Jennings challenge the admission of Walton’s

testimony, asserting the only reason the Government introduced Walton’s

prejudicial testimony was to use it for the impermissible purpose of proving their




                                           9
character, in order to show their actions in the instant case were in conformity

therewith.

      We review a district court’s evidentiary rulings for an abuse of discretion.

United States v. Jiminez, 

, 1249 (11th Cir. 2000). Pursuant to

Federal Rule of Evidence 404(b):

      Evidence of other crimes, wrongs, or acts is not admissible to prove
      the character of a person in order to show action in conformity
      therewith. It may, however, be admissible for other purposes, such as
      proof of motive, opportunity, intent, preparation, plan, knowledge,
      identity, or absence of mistake or accident, provided that upon request
      by the accused, the prosecution in a criminal case shall provide
      reasonable notice in advance of trial . . . of the general nature of any
      such evidence it intends to introduce at trial.

We apply a three-part test to determine whether evidence is admissible under Rule

404(b): “(1) the evidence must be relevant to an issue other than defendant's

character; (2) the probative value must not be substantially outweighed by its

undue prejudice; and (3) the government must offer sufficient proof so that the jury

could find that defendant committed the act.” United States v. Ramirez, 

, 1354 (11th Cir. 2005).

      “A defendant who enters a not guilty plea makes intent a material issue

which imposes a substantial burden on the government to prove intent, which it

may prove by qualifying Rule 404(b) evidence absent affirmative steps by the

defendant to remove intent as an issue.” United States v. Zapata, 

,

                                          10
1358 (11th Cir.1998). A “mere presence” defense forces the government to prove

a defendant’s criminal intent so as to negate any innocent explanation for his

presence. United States v. Delgado, 

, 1365 (11th Cir. 1997). “Where

the extrinsic offense is offered to prove intent, its relevance is determined by

comparing the defendant's state of mind in perpetrating both the extrinsic and

charged offenses.” United States v. Dorsey, 

, 1060 (11th Cir.1987).

“Thus, where the state of mind required for the charged and extrinsic offenses is

the same, the first prong of the Rule 404(b) test is satisfied.” United States v.

Edouard, 

, 1345 (11th Cir. 2007). Finally, the risk of undue

prejudice can be reduced by a district court’s limiting instruction. United States v.

Ramirez, 

, 1354 (11th Cir. 2005).

      The district court did not abuse its discretion in admitting Walton’s

testimony as evidence of the Jennings’ intent. Regarding the first prong of the

Rule 404(b) test, intent was at issue, as the Jennings pled not guilty and asserted

that, while they were knowledgeable of Carpenter’s actions, they were merely

present. See 

; 

. The uncharged

extrinsic offenses included Darryl’s enticement or coercion of Walton into

prostitution, and Luroy’s potential attempt to entice Walton into prostitution, and

the charged conduct consisted of the Jennings’ aiding and abetting the recruiting,



                                           11
enticing, or harboring of a person, knowing the person is a minor who will be

caused to engage in a commercial sex act, and receiving something of value for

participation in the venture. See 18 U.S.C. § 1591. Although the elements of the

charges that could have been brought for the extrinsic offenses and the elements of

the charged offenses are not identical, the offenses are sufficiently analogous and

require a sufficiently similar state of mind, i.e., the intent to have women commit

commercial sex acts, so as to satisfy the first prong of the Rule 404(b) test. See

; 

.

      Similarly, the second prong was met because the Jennings’ defense was

based on their assertion they were merely present. Thus, Walton’s testimony

Darryl had acted as her pimp and Luroy had stated he was a pimp and would act as

her pimp in the months prior to the instant offenses was highly probative of the

Jennings’ intent to aid and abet in the harboring of J.B. knowing she would engage

in commercial sex acts for their profit. See 

. Moreover,

contrary to the Jennings’ argument, the fact the jury requested the district court to

repeat its limiting instruction demonstrates the jury was aware Walton’s testimony

could be used only for limited purposes. This limiting instruction, which was read

prior to Walton’s testimony, was emphasized by Darryl in his closing argument,

and was included in the jury instructions, reduced the risk of undue prejudice. See



                                          12
Ramirez, 

. Finally, the third prong of the Rule 404(b) test was met

because: (1) Walton testified to the events and conversations with Darryl and

Luroy; (2) Walton’s testimony was unrebutted; and (3) the jury could credit her

testimony, which would sufficiently establish the conduct.

                        III. SUFFICIENCY OF THE EVIDENCE

       The Jennings further contend there was insufficient evidence for conviction

because the evidence demonstrated, at most, their mere presence with Carpenter

and the minor victim. They assert there was insufficient evidence to show they:

(1) aided and abetted in enticing, recruiting, harboring, or transporting J.B. to

Florida for purposes of prostitution; (2) aided and abetted J.B.’s participation in a

commercial sex act; (3) associated in any venture; (4) received any financial

benefit from the venture; or (4) knew that J.B. was a minor.2

       We review the district court’s denial of a motion for a judgment of acquittal

de novo, viewing the facts and drawing all inferences in the light most favorable to

the government. United States v. Descent, 

, 706 (11th Cir. 2002). We


       2
           Luroy argue for the first time on appeal that the Government did not prove he
knowingly transported J.B. in interstate commerce. Arguments not raised in the district court are
reviewed for plain error. United States v. Raad, 

, 1323 (11th Cir. 2005). An error
cannot be plain unless it is clear under current law. United States v. Aguillard, 

,
1321 (11th Cir. 2000). Regarding the interstate commerce element, we have rejected an
appellant’s request to construe § 1591(a) as requiring knowledge by a defendant that his actions
were in or affecting interstate commerce. United States v. Evans, 

, 1180 n.2 (11th
Cir.) cert. denied, 

(2007). Thus, the district court could not have committed plain
error.

                                                13
accept “all reasonable inferences and credibility choices made in the government’s

favor, to determine whether a reasonable trier of fact could find that the evidence

established guilt beyond a reasonable doubt.” United States v. Calhoon, 

, 523 (11th Cir. 1996).

         The statute at issue provides punishment for:

               (a) Whoever knowingly—

                      (1)    in or affecting interstate or foreign commerce . . .
                             recruits, entices, harbors, transports, provides, or
                             obtains by any means a person; or

                      (2)    benefits, financially or by receiving anything of
                             value, from participation in a venture which has
                             engaged in an act described in violation of
                             paragraph (1),

         knowing . . . that the person has not attained the age of 18 years and
         will be caused to engage in a commercial sex act . . . .

18 U.S.C. § 1591(a). Pursuant to 18 U.S.C. § 2, whoever aids or abets the

commission of an offense against the United States is punishable as a principal. To

sustain a conviction for aiding and abetting, the evidence must show the Jennings

shared the criminal intent of Carpenter and committed an overt act in furtherance

of the criminal venture. See United States v. Leonard, 

, 909 (11th Cir.

1998).




                                            14
      The jury could infer Luroy knew J.B. was a minor from J.B.’s testimony that

Luroy stated he had a partner who had been arrested “for messing with a youngster

that was 15, 16,” after J.B. and Carpenter discussed changing her birth date so she

could get into clubs and buy cigarettes. The jury likewise could infer Darryl knew

J.B. was a minor from J.B.’s testimony that Carpenter told Darryl she was 16 years

old, after which Darryl stated he had “a partner who went to jail for doing it with

youngsters.”

      A closer question is presented by the Jennings’ challenge to the sufficiency

of the evidence proving they committed an overt act to aid and abet the harboring

of J.B. in the motel rooms. Although the Jennings did not procure or pay for the

motel rooms, the jury could infer the Jennings were indeed “pimp partners” in the

general venture of prostituting J.B., based on J.B.’s testimony that: (1) the

Jennings would look at her as she walked Orange Blossom Trail, (2) Carpenter

stated the Jennings were “pimp partners” whom she would have to support through

prostitution because they all were broke, (3) if she were to have stated to Carpenter

or the Jennings she was leaving, there “would have been an argument about if [she]

was going to stay or not,” and (4) she did not think she could have left because

Carpenter or the Jennings “would have been right there.” Accordingly, the jury

could infer that, as part of the venture (1) the Jennings’ sleeping in the same motel



                                          15
rooms as Carpenter and J.B., and (2) the Jennings’ apparent guarding of J.B.’s

ability to leave the motel room, constituted overt acts that aided and abetted

Carpenter’s harboring of J.B.

      As to Count Two, the jury could infer the Jennings benefitted financially

from their participation in the venture based on J.B.’s uncontradicted testimony

that: (1) she saw Carpenter pay for gas; (2) she never saw the Jennings pay for

anything; (3) Carpenter stated he was broke shortly after receiving and spending

$250 from J.B. and $50 from Diamond; and (4) Carpenter stated her “role in the

family” was to get him and his partners money through prostitution. Thus, there

was sufficient evidence for the jury to infer the Jennings benefitted from the gas

used to drive to South Beach and Fort Lauderdale and Carpenter’s renting of the

room at the Red Roof Inn, which were paid for, at least in part, by J.B.’s

commercial sex acts.

                             IV. CUMULATIVE ERROR

      Luroy argues his “mere presence was certainly tipped towards conviction”

by an accumulation of errors. “The cumulative error doctrine provides that an

aggregation of non-reversible errors (i.e., plain errors failing to necessitate reversal

and harmless errors) can yield a denial of the constitutional right to a fair trial,

which calls for reversal.” United States v. Baker, 

, 1223 (11th Cir.



                                            16
2005) (quotations omitted). However, because Luroy has not demonstrated any

reversible error in his trial, the cumulative error doctrine does not apply.

                            V. U.S.S.G. § 2G1.3(b)(1)(B)

      Luroy argues a two-level increase for J.B. being in his custody, care, or

supervisory control was inappropriate because, according to the commentary,

§ 2G1.3(b)(1)(B) applies only to individuals like “teachers, day care providers,

baby-sitters, or other temporary caretakers,” and the record contains no evidence

that he: (1) exercised, or was in a position to exercise, any custody, care, or control

over J.B.; or (2) interacted with J.B. at the level of a teacher, day care provider, or

baby-sitter. Darryl argues there was an insufficient factual basis for the increase

because J.B. was not “entrusted” to his or Carpenter’s care, and J.B. made her own

decision to travel to Florida.

      We review a district court’s interpretation of the Guidelines de novo, and its

factual findings for clear error. United States v. Jordi, 

, 1214 (11th

Cir. 2005). A two-level increase is applicable “[i]f (A) the defendant was a parent,

relative, or legal guardian of the minor; or (B) the minor was otherwise in the

custody, care, or supervisory control of the defendant.” U.S.S.G. § 2G1.3(b)(1).

The application note to the subsection states that (b)(1):

      is intended to have broad application and includes offenses involving
      a victim less than 18 years of age entrusted to the defendant, whether

                                           17
      temporarily or permanently. For example, teachers, day care
      providers, baby-sitters, or other temporary caretakers are among those
      who would be subject to this enhancement. In determining whether to
      apply this enhancement, the court should look to the actual
      relationship that existed between the defendant and the minor and not
      simply to the legal status of the defendant-minor relationship.

      As to Darryl’s argument that J.B. was not entrusted into Carpenter’s care,

J.B. testified she stated to Carpenter she would have to talk to her mother before

going to Miami, and her mother apparently assented, as she did not prevent J.B.

from going. Accordingly, J.B. was entrusted into Carpenter’s care. Moreover, the

guideline and commentary language do not exclude a minor’s entrustment of

herself to a defendant. See U.S.S.G. § 2G1.3(b)(1)(B), comment. (n.2(A)). The

commentary states the provision is to have broad application, and it precedes

“temporary caretakers” with the qualifier “other”–not “other similar”–cutting

against Luroy’s argument that “other temporary caretakers” was limited by the

terms preceding it. See 

was sufficient to demonstrate the

Jennings directly oversaw J.B. and slept in the motel room with her, and, as aiders

and abettors of the prostitution venture, were partially responsible for J.B.’s

custody and supervisory control. Accordingly, the district court did not err in

applying the increase.




                                          18
                                 VI. MINOR ROLE

      Finally, Luroy contends he should have received a minor-role reduction

because his involvement with the relevant conduct was, at best, minimal. He

contends the failure to apply the reduction is contrary to one of the Sentencing

Guidelines’ primary objectives, i.e., to impose comparable sentences for similar

acts, because his conduct was substantially less than Darryl’s, but he received the

same sentence.

       A court’s finding regarding a defendant’s role in the offense is reviewed for

clear error. United States v. De Varon, 

, 937 (11th Cir. 1999) (en

banc). The proponent of the reduction always bears the burden of proving a

mitigating role in the offense by a preponderance of the evidence. 

A

defendant may receive a two-level reduction in his base offense level where his

role in the offense was minor. U.S.S.G. § 3B1.2(b). The district court’s ultimate

determination of the defendant’s role in the offense should be informed by: (1) the

defendant’s role in the relevant conduct for which he has been held accountable for

at sentencing; and (2) his role as compared to that of other participants in his

relevant conduct. De 

.

      Luroy was held accountable for the offense that he was directly involved in,

i.e., his aiding and abetting the harboring of J.B. The district court rejected his



                                           19
argument of mere presence, finding the jury verdict supported his participation in

the venture. Moreover, Luroy’s role in aiding and abetting the venture was

essentially the same as Darryl’s as they both stayed in the motel rooms with J.B.

and Carpenter and monitored J.B. as she was in the room and walked the Orange

Blossom Trail. Thus, his role in the offense for which he was held accountable

was comparable to Darryl’s role. See De 

. Accordingly, the

district court did not err in denying Luroy a minor-role reduction.

      AFFIRMED.




                                          20