Appeal from the United States District Court for the Central District of California Stephen G. Larson, District Judge, Presiding D.C. No. CR-05-00627-
The opinion of the court was delivered by: Hawkins, Circuit Judge:
March 9, 2009-Pasadena, California
Submission Vacated March 24, 2009
Resubmitted August 20, 2009
Submission Vacated January 4, 2010
Resubmitted December 1, 2010
Before: Michael Daly Hawkins, Marsha S. Berzon and Richard R. Clifton, Circuit Judges.
Juan Rico Doss ("Doss") appeals his conviction and life sentence for sex trafficking of children, transportation of minors into prostitution, conspiracy to commit those offenses, and two counts of witness tampering. The issue before us is whether one can be convicted for witness tampering under 18 U.S.C. § 1512 by encouraging a witness to withhold testimony when that witness possesses a legal right or privilege not to testify. Doss also contends that the district court erred in applying Taylor's*fn1 modified categorical approach to find he had a qualifying prior sex offense involving a child under the age of 17, thus requiring a life sentence pursuant to 18 U.S.C. § 3559(e). For the reasons that follow, we largely affirm, but the reversal of one count and an error in sentencing require vacatur and re-sentencing.
FACTS AND PROCEDURAL HISTORY
Doss was indicted in 2005, along with his wife Jacquay Ford ("Ford"), for numerous counts of sex trafficking of children and transportation of minors into prostitution. At Doss's first trial, the government called a minor victim, C.F., as a witness, and she refused to testify. The government did not call Ford as a witness. A mistrial resulted when the jury was unable to reach a verdict.
A grand jury then issued a superseding indictment against Doss, adding three charges of witness tampering, involving C.F., Doss's wife, and a fellow prisoner, Mark Cohn. Count 7 alleged that Doss had tampered with juvenile witness C.F.:
Between on or about April 11, 2006 and April 13, 2006 . . . defendant Juan Rico Doss knowingly used intimidation, threatened and corruptly persuaded, and attempted to intimidate, threaten and corruptly persuade C.F., with the intent to influence and prevent the testimony of C.F. in an official proceeding, and with the intent to cause and induce C.F. to withhold testimony from an official proceeding, namely, United States v. Juan Rico Doss, CR 05-627 (A) -- ER.
In so attempting, defendant Juan Rico Doss did things that were substantial steps toward intimidating, threatening and corruptly persuading C.F., including among other things, between on or about April 11, 2006 and April 13, 2006 when defendant Juan Rico Doss was transported with C.F. to or from the official proceeding he told C.F., words to the effect that (1) if C.F. testified, everyone would get in trouble; and (2) if C.F. testified, it would be bad for C.F.
Count 8 alleged that Doss also tampered with his wife, Jac-quay Ford:
Between on or about May 16, 2006 and May 21, 2006, . . . defendant Juan Rico Doss knowingly corruptly persuaded, and attempted to corruptly persuade, Jacquay Quinn Ford with the intent to influence and prevent the testimony of Jacquay Quinn Ford in an official proceeding and with the intent to cause and induce Jacquay Quinn Ford to withhold testimony from an official proceeding, namely, United States v. Juan Rico Doss, CR 05-627(B) -- SGL.
In so attempting, defendant Juan Rico Doss did things that were substantial steps toward intimidating, threatening and corruptly persuading Jacquay Quinn Ford, including among other things: (1) in a letter dated May 16, 2006, defendant Juan Rico Doss encouraged Jacquay Quinn Ford to refuse to testify against him at trial by stating "Believe me if I got to go back to trial which is most likely I will if I don't get a 5 year deal, they are going to try you again to come testify which they made clear against me and if and when that time comes, I would expect you to hold strong and say NO that you won't even get on the stand period"; and (2) in letters dated May 16, 18, 21, 2006, defendant Juan Rico Doss encouraged Jacquay Quinn Ford to refuse to testify against him based on their marital status.
Doss moved to dismiss the witness tampering charges, contending they did not allege a crime because there was nothing inherently corrupt about urging someone not under a compulsion to testify to exercise their right not to testify. He also filed a motion to sever the tampering charges from the remaining counts. The district court denied both motions.
At Doss's second trial, C.F. testified against Doss, as did Doss's wife, Ford. As evidence of Count 8, the Government offered three letters written by Doss to his wife. The letters were written while both were in custody on the charges in the present case; all references to Doss's first trial were redacted from the versions presented to the jury. At the time Doss wrote these letters, he was unaware that Ford had entered into a cooperation agreement with the Government; it appears that, at most, Ford had told Doss that she had agreed to plead guilty. The relevant language from the first of these letters is quoted in the indictment, above.
In a second letter, Doss notified Ford of his anticipated trial date, then wrote, "I sure wish you were going to trial with me. You know the decision is yours to fire your attorney and take your plea back." In the third letter, Doss wrote, "Jacquay as husband [and] wife we go through certain things and we sometimes have to make [and] take sacrifices for one another and remain strong together as one because we are one."
With respect to witness tampering in Count 7, witness C.F. and a fellow prisoner, Mark Cohn, testified in substantially similar detail regarding a conversation that occurred between Doss and C.F. C.F. testified that one day she was transported back from the courthouse on the same van as Doss. She was placed in the front of the van, but separated from the male inmates by a metal divider and could not see who was speaking. She testified she could not recognize the voice and that she could not remember many specifics of the conversation. She did testify that the person had stated he knew she was there "to lie on them," and that he had said something "about a guy named Broham," saying "Broham did it" repeatedly. Broham was the name of C.F.'s pimp at the time she had met Doss.
Mark Cohn, another inmate who was transported from the courthouse during the same time frame for an unrelated matter, testified about overhearing a similar conversation. He described the layout of the van and accurately described C.F.'s appearance. Stating that he had been seated on the same side of the metal divider as Doss, Cohn identified Doss as the speaker. Cohn recalled the following about the conversation:
It starts by 'Hey, girl, how old are you? and her response is, 'Hell young; 15.' His response is, 'I didn't know you were that young.'
He proceeded to talk about, 'Are you going to testify?' and she says 'Yeah. That's why they brought me up here.' 'Well, you don't have to testify.'
She says, 'Well, that's why I'm here. 'Well, nobody has to testify. You don't testify. You don't talk.
Nobody talks." And then he said something like, 'It's all Broham."
Doss moved for acquittal on all counts at the close of the government's case and again at the close of trial, and the district court reserved ruling on the motion pursuant to Fed. R. Crim. P. 29(b). The jury convicted Doss on all counts except for tampering with witness Mark Cohn.*fn2 The court denied Doss's renewed motion for judgment of acquittal.
Doss agreed to a bench trial on the issue of whether he had a "prior sex conviction in which a minor was the victim" under 18 U.S.C. § 3559(e)(3)(1), which would qualify him for a mandatory life sentence. Applying the modified categorical approach, the district court determined that Doss's prior Nevada conviction for pandering a child qualified for the enhancement. Doss received a life sentence on four of the prostitution counts, 480 months ...