Syntax or experience: what should determine if sex trafficking qualifies as a crime of violence?

• Author: Pfleger, Britteny
• Position: NOTE

1. INTRODUCTION

   The residents of Lebanon, Missouri, a small town in the southern part of the state, certainly did not believe their kind, generous neighbors were in fact sadistic slave owners. (1) Yet such brutality existed, lurking beneath one such family's gentle and caring facade. (2) In what was later described as the most horrific case of sex trafficking ever prosecuted in the state, a resident couple housed a mentally deficient runaway teenage girl with a troubled past and forced her to sign a never-ending sex-slave contract. (3) "Master Ed" branded his victim with a bar code tattoo, marking her as his property, and forced her to have sex with him and several "customers." (4) Over the next six years, Master Ed subjected the girl to waterboarding, electrocution, and beatings. (5) He repeatedly threatened his victim with a gun, exhibiting his ability to kill her if she did not comply. (6) The trafficking was not discovered until 2009, when the victim went into cardiac arrest after one of Master Ed's torture sessions, resulting in her hospitalization and emergency treatment. (7)

   While the circumstances in the Lebanon case were especially horrific, the practice of sex trafficking is not unique. The National Human Trafficking Resource Center ("NHTRC") reported 4136 cases of sex trafficking in the United States in 2015, (8) including 155 cases in Missouri between 2013 and 2015. (9) To combat these alarming statistics, Congress enacted the Trafficking Victims Protection Act ("TVPA") in 2000 to "ensure just and effective punishment of traffickers." (10) The TVPA criminalizes the trafficking of people in the commercial sex industry by force, fraud, or coercion. (11) A conviction under this statute subjects a defendant to a minimum of fifteen years in federal prison. (12)

   Separately, Congress authorized federal prosecutors to charge defendants who possess a gun while committing a "crime of violence" under 18 U.S.C. [section] 924(c). (13) A conviction under this statute is punishable by at least five years, served in addition to the underlying crime of violence. (14) To convict a defendant under [section] 924(c), prosecutors must show (1) the defendant possessed or used a gun in the commission of his or her crime and (2) the crime committed is characterized as a "crime of violence." (15) Prior to 2015, federal courts agreed the sex trafficking of minors was a "crime of violence." (16) However, in August 2015, the U.S. Court of Appeals for the Fourth Circuit went against this trend, declaring sex trafficking of an adult victim not to be a crime of violence. (17)

   This Note analyzes the Fourth Circuit's opinion in United States v. Fuertes, ultimately concluding that, contrary to the decision in Fuertes, sex trafficking should be considered a crime of violence under 18 U.S.C. [section] 924(c). Part II of this Note details the acts of German Ventura, a defendant charged with sex trafficking and possession of a gun during a crime of violence. Part III explores the purpose of [section] 924(c) and courts' interpretations of "crime of violence"; it then considers federal circuit courts' bases for finding sex trafficking under the TVPA to be a violent crime under a variety of statutes. Part IV summarizes the Fourth Circuit's decision to depart from established precedent. Part V scrutinizes the court's theory that sex trafficking cannot be a violent crime, ultimately resolving that, while sex trafficking should be considered a crime of violence, Congress must change the statute to expressly reflect the violent nature of sex trafficking.

2. FACTS AND HOLDING

   By early 2008, German Ventura owned and operated several brothels throughout Annapolis, Maryland, quickly becoming a top competitor in the commercial sex industry. (18) Ventura arranged for prostitutes to work in his brothels on a weekly basis. (19) The women communicated with Ventura by phone, traveled to Washington, D.C., by bus, and were transported by Ventura or his employees to a brothel. (20) Ventura charged customers, commonly called johns, thirty dollars for fifteen minutes of sex and paid the women half the gross receipts, minus expenses for food, hygiene products, and other trade expenses. (21)

   Ventura had a particularly violent relationship with Rebeca Duenas Franco ("Duenas"), who Ventura pimped out to several johns over the course of several years. (22) Duenas, an undocumented worker with only a third grade education, (23) was under the control of another pimp when Ventura met her. (24) Ventura extricated Duenas from the pimp's employment and provided her with a place to stay. (25) Their relationship became sexual in nature, and Duenas subsequently gave birth to Ventura's son. (26)

   Ventura soon reintroduced Duenas to prostitution by giving her a box of condoms and telling Duenas to "go to work." (27) When Duenas resisted, Ventura beat her until she complied. (28) While other women received payment for their services, Duenas did not. (29) Ventura continued to threaten and harm Duenas, including beating her with a belt and cutting her foot when she refused to perform sexual acts. (30) Through fear and control, Ventura held Duenas against her will. (31)

   Duenas's fear of Ventura grew as she witnessed other violent acts he committed against others. (32) Duenas observed Ventura threaten those he perceived as competitors by displaying weapons and making harassing phone calls. (33) She saw Ventura beat a woman who he believed had sent people to rob one of his brothels. (34) On another occasion, Duenas watched as Ventura assaulted a male employee for threatening to go to the police. (35) Perhaps most terrifying, Duenas witnessed Ventura celebrating the murder of a competing pimp, who he had previously threatened to kill. (36) Ventura disclosed to Duenas that one of the prostitutes working for the murdered pimp had also been killed during the crime. (37)

   On November 15, 2010, following the serious assault of a competing pimp, police arrested Ventura. (38) Subsequently, a federal grand jury indicted Ventura on charges of conspiracy; transportation of individuals for prostitution; and sex trafficking by force, fraud, or coercion. (39) In addition, the grand jury charged Ventura with possession and use of a firearm in relation to a crime of violence based on the sex trafficking charge. (40)

   Proceeding to trial, a jury found Ventura guilty on all counts. (41) Denying Ventura's post-trial motions for judgment of acquittal or new trial, the district court sentenced Ventura to 420 months' imprisonment: 360 months for the several prostitution and sex trafficking counts and 60 months for the possession of a gun while committing the crime of sex trafficking. (42) On appeal, the U.S. Court of Appeals for the Fourth Circuit upheld the jury's convictions on all counts save one. (43) In overturning Ventura's conviction for possession and use of a firearm to commit a crime of violence under 18 U.S.C. [section] 924(c), the court found sex trafficking by force, fraud, or coercion "is not a categorical crime of violence." (44)

3. LEGAL BACKGROUND

   In 1968, Congress enacted 18 U.S.C. [section] 924(c) with the intention of preventing criminals from carrying and using firearms during the commission of federal felonies. (45) To convict a defendant under [section] 924(c), the court must first find the underlying crime to be a "crime of violence" as defined by statute. (46) Courts frequently look to similar provisions containing "crime of violence" or "violent crime" language in making this determination. (47) While circuit courts have not evaluated sex trafficking under [section] 924(c), courts have evaluated this issue under similar "crime of violence" clauses and concluded sex trafficking qualifies as a violent crime. (48)

   1. Defining Crimes of Violence Under 18 U.S.C. [section] 924(c) and Similar Statutes

      Section 924(c) currently provides a mandatory minimum of five years' imprisonment for "any person who, during and in relation to any crime of violence... uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm." (49) A conviction under this statute must be served consecutively to the underlying crime. (50)

      Congress created two distinct definitions under which a felony may qualify as a "crime of violence" under [section] 924(c). (51) First, under the "force clause," a felony that "has as an element the use, attempted use, or threatened use of physical force against the person or property of another" is a crime of violence. (52) Second, the "residual clause" expresses that a felony will be considered a crime of violence if, "by its nature, [the felony] involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense." (53) When determining whether a crime fits within either "crime of violence" definition, courts commonly look at (1) the defendant's conviction of a particular crime and (2) the "statutory definition of the offense." (54) In most cases, the court cannot consider particular facts of a defendant's case when making the crime of violence determination. (55)

      Application of this legal principle to [section] 924(c)'s force clause is straightforward: a crime that requires the use, attempt, or threat of force for conviction qualifies as a crime of violence. (56) Conversely, when a statute defines a felony using elements that "allow[] for both violent and nonviolent means of commission, the offense is not a... crime of violence." (57)

      The Supreme Court has not defined what constitutes a violent crime under the residual clause of [section] 924(c). (58) Circuit courts have looked to similar language in other statutes to evaluate specific crimes, including the criminal code's general definition found in 18 U.S.C. [section] 16(b), the U.S. Sentencing Guidelines ("U.S.S.G." or "Sentencing Guidelines") [section]4B1.2, and the Armed Career Criminal Act's ("ACCA") definition...