from the United States District Court for the Western
District of Texas
STEWART, Chief Judge, and SMITH and DENNIS, Circuit Judges.
E. STEWART, Chief Judge.
a Federal Bureau of Investigation ("FBI") inquiry
into a child sex trafficking ring, a jury found
Defendants-Appellants guilty of various crimes charged in an
eleven-count indictment. All four appeal the jury's
guilty verdicts. We AFFIRM each conviction, with one
exception. Finding that the district court's jury
instructions regarding 18 U.S.C. § 1591 (Sex Trafficking
of Children) constructively amended the indictment, we VACATE
and REMAND Appellant McCullouch's conviction as to that
Background and Procedural History
May 1, 2012 and March 31, 2013, Appellants prostituted
underage girls, ranging from fifteen- to seventeen-years-old.
After the National Center for Missing and Exploited Children
discovered a suspicious advertisement featuring a
sixteen-year-old girl on Backpage.com, a website notorious
for facilitating prostitution, the FBI began collecting
Appellants' hotel, phone, Facebook, and e-mail records.
Through its investigation, the FBI learned that Appellants
were pooling their money together to rent hotel rooms,
solicit johns over the Internet, and transport underage girls
to and from hotel rooms, in some cases crossing state lines
to do so.
conspiracy began when Appellants Deion Lockhart ("D.
Lockhart"), Emmanual Lockhart ("E. Lockhart"),
and Richard Gray ("Gray")-all members of the Folk Nation Gangster
Disciples ("Folk Nation") gang-decided to begin
prostituting teenage girls instead of dealing drugs. After
meeting the victims-SH, KB, LA, AG, and ANJ-and convincing
them to "work" for them, the men used prepaid
credit cards to post advertisements for escort services on
Backpage.com. The men would then rent adjoining hotel rooms,
using one room for "meeting dates" and the other
for "hanging out."
McCullouch ("McCullouch"), another member of Folk
Nation, became part of the conspiracy after he and Gray met
ANJ and LA in a hotel room in June 2012. ANJ initially met
Gray at a downtown club. She and Gray corresponded over
Facebook, and eventually ANJ invited Gray and McCullouch to
meet her and LA in ANJ's hotel room. When McCullouch
entered the room, ANJ and LA both recognized him as an
officer from the juvenile facility where they had been
previously confined. After this meeting, ANJ began living
with and prostituting for McCullouch, and LA began
prostituting for Gray.
ensure that the girls continued working for them, Gray
regularly beat LA while his coconspirators and the other
victims watched. The men controlled the girls' movements
and forced them to give all of the money they earned to
Appellants. The victims testified that they felt they had no
choice but to prostitute for the men.
trial, the district court denied E. Lockhart's motion to
sever and Appellants' joint motion to exclude evidence of
their gang affiliation. The court also ruled that it would
not admit evidence of the victims' prior or subsequent
prostitution. At trial, the Government solicited testimony
from Officer Robert Ontiveros. Through his testimony, Officer
Ontiveros explained to the jury what his job as a gang
investigator entails, the specialized training he had
received, and his particular knowledge of Folk Nation. After
the court accepted him as a gang expert, he testified that
all four of Appellants are confirmed Folk Nation members.
close of the Government's case-in-chief, all four
Appellants moved for a Rule 29 judgment of acquittal as to
each count against them, which the court denied. At the close
of the evidence, each Appellant renewed his motion, which the
court again denied.
deliberating, the jury found D. Lockhart guilty of Sex
Trafficking by Force, Fraud or Coercion; Aiding and Abetting
Sex Trafficking of Children; and Conspiracy to Sex Traffic
Persons. The jury acquitted Gray on Count Three, Sex
Trafficking by Force, Fraud or Coercion with respect to KB,
but found him guilty of Sex Trafficking by Force, Fraud or
Coercion with respect to LA; Sex Trafficking of Children;
Conspiracy to Sex Traffic Persons; and Transportation for
Prostitution. The jury found McCullouch guilty of Sex
Trafficking of Children and Conspiracy to Sex Traffic
Persons, and found E. Lockhart guilty of Conspiracy to Sex
6, 2015, E. Lockhart filed a motion seeking an evidentiary
hearing, as the jury found him guilty of only Count Nine, the
conspiracy count, but had not specified on which object
offense(s) it had based his guilt, as U.S.S.G. § 1B1.2
requires. The district court denied that motion. The court
thereafter sentenced E. Lockhart to 240 months'
imprisonment to be followed by five years' supervised
release and sentenced Gray to life imprisonment, among other,
lesser sentences to be served concurrently. In determining
Gray's sentence, the court applied U.S.S.G. §
2A3.1(b)(1), thereby increasing his base offense level by
raise a host of arguments on appeal. They first challenge the
sufficiency of the evidence as to each of their convictions,
and relatedly, the district court's denial of their
motions for judgment of acquittal. They next assert that the
district court erred in excluding evidence of the
victims' prior-and post-indictment prostitution and in
including evidence of their shared gang affiliation. E.
Lockhart contends that the district court erred in denying
his motion to sever and in applying U.S.S.G. § 1B1.2 to
his sentence. McCullouch argues that the district court's
jury instructions regarding 18 U.S.C. § 1591
constructively amended the indictment. Finally, Gray avers
that the district court misapplied U.S.S.G. §
2A3.1(b)(4)(B) when it added a four-point enhancement to his
offense level. We address each argument in turn.
Sufficiency of the Evidence
review the denial of a motion for judgment of acquittal de
novo. United States v. Floyd, 343 F.3d 363, 370 (5th
Cir. 2003). Still, this court's review of a jury's
verdict is "highly deferential." United States
v. McNealy, 625 F.3d 858, 870 (5th Cir. 2010). Thus, the
relevant question is whether, "viewing the evidence and
the inferences that may be drawn from it in the light most
favorable to the verdict, a rational jury could have found
the essential elements of the offenses beyond a reasonable
doubt." United States v. Clark, 577 F.3d 273,
284 (5th Cir. 2009) (internal quotation marks omitted);
see Jackson v. Virginia, 443 U.S. 307, 319 (1979).
trial, three of Appellants' victims and two
coconspirators who had already pleaded guilty testified
against Appellants. These witnesses explained how the men
decided to prostitute young girls instead of selling drugs,
took turns posting advertisements to Backpage.com and shared
the profits, and that Gray would regularly beat AG in front
of the other coconspirators and victims. The Government also
presented physical evidence that linked Appellants to
Backpage.com through e-mail and cell phone records, showed
that Gray transported LA across state lines for the purpose
of prostitution, and corroborated the witnesses'
testimony with hotel rental receipts and Facebook
conversations. Finally, the victims' testimony
demonstrated that Appellants knew, or at the least recklessly
disregarded the fact that, their victims had not yet attained
the age of eighteen. Viewing this evidence "and all
inferences to be drawn from it in the light most favorable to
the verdict, " United States v. Burton, 126
F.3d 666, 669 (5th Cir. 1997), a rational jury could find all
four Appellants guilty beyond a reasonable doubt of the
crimes for which the jury convicted them.
Evidence of Prior and Post-Indictment Acts of
argue that the district court erred when it barred admission
of evidence showing the victims' prior and subsequent
acts of prostitution. They aver that Rule 412 applies
primarily to rape cases, and that even if the Rule does apply
to this case, barring the evidence violated their Fifth and
Sixth Amendment rights. We review the district court's
limitation of cross- examination for an abuse of discretion.
United States v. Davis, 393 F.3d 540, 548 (5th Cir.
2004) (citing United States v. Gordon, 780 F.2d
1165, 1175 (5th Cir. 1986)). When a defendant alleges that
the district court's limitation violated a constitutional
right, however, this court reviews that limitation de novo.
See United States v. Hitt, 473 F.3d 146, 156 (5th
Cir. 2006); Gochicoa v. Johnson, 118 F.3d 440, 445
(5th Cir. 1997).
"criminal proceeding involving alleged sexual
misconduct, " Rule 412 prohibits evidence offered
"to prove that a victim engaged in other sexual
behavior, " as well as evidence offered "to prove a
victim's sexual predisposition." Fed.R.Evid. 412(a).
Further, Rule 412(a) prohibits a defendant from introducing
or eliciting evidence of the victim's "other sexual
behavior, " even if it is offered "as substantive
evidence or for impeachment." Fed.R.Evid. 412 (1994
Advisory Committee Notes). Forced prostitution undoubtedly
involves sexual misconduct. Moreover, Appellants offer
evidence of the victims' pre-and post-indictment acts of
prostitution to prove their predisposition and to impeach
their credibility. Thus, Rule 412 applies here.
exception to Rule 412, however, allows a defendant to
introduce otherwise inadmissible evidence if the
"exclusion would violate the defendant's
constitutional rights." Fed.R.Evid. 412(b)(1)(C). In
this case, Appellants allege that the district court's
refusal to admit evidence of the victims' prior and
subsequent prostitution violated their Fifth Amendment right
to present a defense and their Sixth Amendment right to
confront the witnesses against them. We address each argument