Trevin Rounds was found guilty by a jury of being in possession of child pornography in violation of 18 U.S.C. § 2252(a)(4) (Count One) and using a facility of interstate commerce to persuade, induce, entice, or coerce a juvenile to engage in sexual activity in violation of 18 U.S.C. § 2422(b) (Count Two). He raises several issues on appeal, and we affirm.
Before trial, Rounds moved to suppress "any and all photographic and/or video evidence that was gathered by the seizure and subsequent search of his phone." The district court held an evidentiary hearing at which Rounds and sheriff's deputies Jeffery Whitson and Georgina Maritz testified. The court made the following findings: (1) Because Whitson "could not have viewed the contents of the phone without assistance from Defendant," Rounds consented to the search; and (2) "[b]ased on the totality of the circumstances ... [,] consent was freely and voluntarily given." Accordingly, the court denied the motion to suppress.
Shortly before trial, the government indicated that it planned to call Sheretta Trahan, Jane Doe's godmother; because she had not been previously listed as a witness, defense counsel objected. The court (1) continued the trial for one hour to allow counsel an opportunity to meet with Rounds and Trahan and (2) delayed her testimony for one day. An hour later, counsel informed the court that he had been able to meet the witness and to confer with his client, and the witness had answered his questions. Although the court had delayed the witness from testifying for another day, because counsel told the court "I'm ready to go forward," Trahan testified the same day.
Similarly, the night before trial, the government disclosed its intent to introduce Tagged.com messages between Jane Doe and Rounds. Defense counsel again objected to that late disclosure. In response, the court granted a one-day continuance and again delayed, for one day, the government's introduction of that evidence. Again, defense counsel indicated that he was ready to go forward.
The following evidence was presented at trial: In February 2012, Rounds contacted a fourteen-year-old female ("Jane Doe"), living in Houston, on the social networking website Tagged.com. She and Rounds began texting. She initially lied to Rounds about her age
In early March, after she ran away from home, Jane stayed approximately twelve nights with Rounds in a Houston hotel room and had sex there. Around March 12, Jane and Rounds got into an argument about her talking to other men online, including Brian Phea, who bought her a bus ticket from Houston to Amarillo. Rounds drove Jane to the bus station, and shortly after she arrived in Amarillo, she
Later that evening, Rounds's vehicle was pulled over in Eden, Texas, for a traffic violation. Whitson testified that he and his partner, Maritz, conducted the traffic stop. Whitson stated that during the course of the stop he obtained consent to search the vehicle and Rounds's iPhone, which was in the vehicle. At some point during the stop, Whitson decided to take Rounds and Jane to the police station, where Whitson again looked through the iPhone. This search uncovered a video that showed Rounds having intercourse with a young woman later determined to be Jane Doe. Jane's testimony confirmed that the video, which was admitted as evidence, was of Rounds and her having sex. Whitson also said that he seized a second cell phone — a flip phone that was being used by Jane — from Rounds's vehicle. Maritz's testimony corroborated much of Whitson's.
The government presented Lisa Upton as an expert in telephone cell site analysis. She testified that she had performed an analysis on the phone number registered to the iPhone seized from Rounds. As part of that analysis, she produced five maps pertaining to phone calls made from and received by Rounds's iPhone on March 17. Those maps showed that the iPhone was traveling within Texas, having left the Houston area around 5:00 a.m. on March 17, and arriving in Odessa about 1:00 p.m. Beginning at 12:20 a.m. on March 17, Rounds's iPhone had five consecutive incoming phone calls from the phone number associated with Jane Doe, followed by two outgoing calls to Jane's phone number. Next, between 3:41 a.m. and 4:20 a.m., Rounds's iPhone had two outgoing calls to, and two calls from, Jane's number.
Heath Hardwick, a Special Investigative Agent for the Department of Homeland Security, testified as an expert in computer forensics, including cell phone forensics. Hardwick analyzed the two phones seized during the March 17 traffic stop and produced a report for the iPhone seized from Rounds. The government introduced several text messages between Rounds and Jane.
Rounds brings five challenges on appeal. First, he questions the sufficiency of the evidence on Count Two. Second, he contends venue was not proper in the Western District of Texas. Third, he maintains that he did not have an adequate opportunity to prepare for trial because the government had a material witness testify at trial without adequate notice to the defense and did not timely disclose Exhibit 14. Fourth, Rounds avers that the government failed to disclose Brady material
The district court denied Rounds's Federal Rule of Criminal Procedure 29 motion, which challenged both the sufficiency of the evidence and venue as to Count Two. By moving for a judgment of acquittal at
"[R]eviewing courts must affirm a conviction if, after viewing the evidence and all reasonable inferences in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." United States v. Vargas-Ocampo, 747 F.3d 299, 301, 2014 WL 1303364, at *1 (5th Cir. Mar. 26, 2014) (en banc) (citing Jackson v. Virginia, 443 U.S. 307, 312, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)) (emphasis in Jackson). "[I]t is the responsibility of the jury — not the court — to decide what conclusions should be drawn from evidence admitted at trial." Cavazos v. Smith, ___ U.S. ___, 132 S.Ct. 2, 4, 181 L.Ed.2d 311 (2011). In assessing the sufficiency of the evidence, this court considers both circumstantial and direct evidence. See United States v. Terrell, 700 F.3d 755, 760 (5th Cir.2012), cert. denied, ___ U.S. ___, 133 S.Ct. 1834, 185 L.Ed.2d 843 (2013). "The evidence need not exclude every reasonable hypothesis of innocence or be completely inconsistent with every conclusion except guilt, so long as a reasonable trier of fact could find that the evidence established guilt beyond a reasonable doubt." Id.
Count Two charges Rounds with coercion and enticement in violation of 18 U.S.C. § 2422(b), which requires the government to prove that (1) Rounds used a facility of interstate commerce to commit the offense; (2) he was aware that Jane Doe was younger than eighteen; (3) by engaging in sexual activity with Jane, he could have been charged with a criminal offense under Texas law; and (4) he knowingly persuaded, induced, enticed, or coerced Jane to engage in criminal sexual activity.
Evidence can establish that a defendant intended to induce, persuade, entice, or coerce a minor by sending the minor sexually explicit messages. In United States v. Lundy, 676 F.3d 444, 447 (5th Cir.2012), for example, we concluded that a rational jury could have found that the defendant enticed a minor in light of the fact that he "made contact with and engaged in a string of sexually laced text
Contrary to Rounds's suggestion, the trial record does not compel the finding that Jane Doe begged him to come get her from Odessa.
The government presented extensive evidence demonstrating that Rounds and Jane had an illegal sexual relationship that continued for a substantial period of time. Rounds does not challenge that. Therefore, although many of the text messages from Rounds do not appear to be sexually explicit, the jury could have understood them in light of Rounds and Jane's illegal sexual relationship. Drawing every inference in favor of the verdict, a jury could have understood these messages as Rounds's attempt to control and continue the criminal sexual relationship. Moreover, Rounds sent Jane at least one sexually-explicit message: "Would you let a man lick your anal area?" As the government emphasizes, that message was the "opening salvo," by which the jury could have understood the entire relationship.
In light of that relationship, the sexually-explicit Tagged.com message, and numerous other text messages designed to have Jane return to him, a jury could have reasonably believed that Rounds intended to coerce her to continue having a sexual relationship with him. There is sufficient evidence on Count Two.
"We review the denial of a motion for judgment of acquittal de novo." United States v. Garcia Mendoza, 587 F.3d 682, 686 (5th Cir.2009). Where the motion questions venue, we affirm the denial "if, viewing all the evidence in the light most favorable to the government, a rational jury could conclude, from the evidence presented at trial, that the government established venue by a preponderance of the evidence." Id.
"The Trial of all Crimes ... shall be held in the State where the said Crimes shall have been committed." U.S. CONST. art. III, § 2, cl. 3. "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed." U.S. CONST. amend. VI.
Unless the charged statute provides otherwise, a proper venue of a continuing offense
Section 2422(b) constitutes a continuing offense. See United States v. Byrne, 171 F.3d 1231, 1235 n. 2 (10th Cir.1999). For proper venue, therefore, the government needs to have put forward sufficient evidence showing that Rounds committed "any single act that was part of the beginning, continuation, or completion" of Count Two in the Western District.
The government points to two ways to establish venue in the Western District: (1) phone calls and text messages sent on or about March 17 from Rounds to Jane, who was in Odessa in that district; and (2) Rounds's presence in Odessa on or about March 17. Because the phone calls and text messages sent on or about March 17 to the minor who was in the Western District constitute acts that were part of the completion of Count Two, the government
Rounds argues that he did not have an adequate opportunity to prepare for trial because the government had a "material witness," Trahan, testify without adequate notice to the defense. Rounds similarly complains that the government did not timely disclose Exhibit 14 — the Tagged messages between Rounds and Jane Doe. Rounds claims that the untimely disclosure prejudiced his defense by disallowing him an opportunity to investigate. Rounds can be understood to be making one of two arguments. One, he could be maintaining that the district court erred by allowing the government to introduce this evidence in light of the delayed disclosure. Or two, he could be suggesting that the court erred by not granting him another continuance to give him more time to investigate the government's evidence.
Beginning with the first theory, this court "review[s] a district court's evidentiary rulings for abuse of discretion, subject to harmless-error analysis." United States v. Girod, 646 F.3d 304, 318 (5th Cir.2011) (citation and internal quotation marks omitted). "[F]or any of the evidentiary rulings to be reversible error, the admission of the evidence in question must have substantially prejudiced [the defendant's] rights." United States v. Sanders, 343 F.3d 511, 519 (5th Cir.2003). We consider any error to be harmless when "substantial evidence supports the same facts and inferences as those in the erroneously admitted evidence." United States v. El-Mezain, 664 F.3d 467, 526 (5th Cir.2011).
First, assuming Rounds has challenged the admission of Trahan's testimony, he needs to demonstrate that its admission substantially prejudiced his rights. Even assuming he could somehow show that the court abused its discretion, the decision to allow Trahan to testify is not reversible error. The government called Trahan to prove that Rounds knew Jane Doe's age. The trial record, however, contains other substantial evidence demonstrating that Rounds knew she was younger than eighteen.
Addressing Rounds's second theory, we consider the decision whether to grant a continuance to be within the sound discretion of the trial court. See United States v. Shaw, 920 F.2d 1225, 1230 (5th Cir.1991). We reverse a denial "only when the district court has abused its discretion and the defendant can establish that he suffered serious prejudice." United
United States v. Walters, 351 F.3d 159, 170 (5th Cir.2003).
The district court did in fact grant a one-day continuance to both Trahan's testimony and the admission of Exhibit 14. After an hour's delay in the start of the trial, defense counsel confirmed multiple times on the record that he was "ready to go forward" as to both the testimony and the admission of Exhibit 14. Insofar as Rounds now believes he was entitled to a further continuance, he invited any possible error by conceding he was ready to go forward. See United States v. Green, 272 F.3d 748, 754 (5th Cir.2001).
Rounds contends that the government violated Brady when it failed to provide the defense with a copy of the notes that Maritz made the night of Rounds's initial arrest. Maritz used the notes during her testimony at the suppression hearing, which revealed that the notes included (1) the passcode for Rounds's cellphone; (2) the time at which Rounds consented to the search of his cellphone; and (3) "the initial identifying information from the juvenile."
Because Rounds did not raise a Brady argument in the district court, we review only for plain error. See United States v. Mares, 402 F.3d 511, 520 (5th Cir.2005). The plain-error standard requires first that there be error, a question we consider de novo. United States v. Garza-Lopez, 410 F.3d 268, 272-73 (5th Cir.2005). "To establish a Brady violation, the defendant must prove that (1) the prosecution suppressed evidence, (2) it was favorable to the defendant, and (3) it was material." United States v. Brown, 650 F.3d 581, 587-88 (5th Cir.2011). Whether the prosecutor acted in good faith is not relevant. See Kyles v. Whitley, 514 U.S. 419, 432, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995).
Rounds has not shown error, plain or otherwise. Even if the government somehow suppressed evidence, Rounds has not demonstrated that the notes would have been exculpatory. The cellphone passcode and the time notation demonstrate only that Rounds consented to the search of his cellphone, a fact not favorable to him. The notes identifying Jane Doe similarly would not have helped him. The Brady claim has no merit.
Rounds challenges the search of his cellphone, claiming that (1) he never consented to it, (2) even if he did, such consent was not voluntary, and (3) because the arresting officers accessed more than merely his text-message and call records, the full search exceeded the scope of a search incident to a lawful arrest. Rounds contends any evidence obtained was illegal fruit.
On appeal of the denial of a motion to suppress, this court reviews the district court's fact findings for clear error and its legal conclusions de novo. See United States v. Gomez, 623 F.3d 265, 268 (5th Cir.2010). "A factual finding is not clearly erroneous as long as it is plausible
Unless an exception applies, an officer, before conducting a search, must (1) have probable cause to believe that contraband or evidence of a crime will be found in a particular place and (2) obtain a warrant. A search conducted pursuant to consent, however, remains one of the well-settled exceptions to the Fourth Amendment's warrant and probable-cause requirements. United States v. Tompkins, 130 F.3d 117, 121 (5th Cir.1997). To rely on this exception, the government must prove, by a preponderance of the evidence, that the defendant voluntarily consented. Id. We treat the voluntariness of consent as a factual finding that we review for clear error, United States v. Solis, 299 F.3d 420, 436 (5th Cir.2002), considering the following non-exclusive six factors:
United States v. Jones, 234 F.3d 234, 242 (5th Cir.2000). No single factor is dispositive. See id. The prosecutor's "burden cannot be discharged by showing no more than acquiescence to a claim of lawful authority." United States v. Jenkins, 46 F.3d 447, 451 (5th Cir.1995) (quoting Bumper v. North Carolina, 391 U.S. 543, 548-49, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968)). Consent may not be "the product of duress or coercion, express or implied...." United States v. Mendenhall, 446 U.S. 544, 557, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980).
Rounds's first claim — that he never consented to any search of his cellphone — amounts to nothing more than a repetition of the factual arguments made during the suppression hearing and rejected by the district court. Although Rounds disagrees with the court's credibility determination, he provides no reason why the court clearly erred.
As to his second contention, Rounds argues that the consent cannot "have been voluntary and intelligent as to the sexually explicit videos since [the arresting officers'] discussion was directed to the issue of narcotics."
The judgment of conviction is AFFIRMED.