from the United States District Court for the Southern
District of Texas
WIENER, SOUTHWICK, and COSTA, Circuit Judges.
H. SOUTHWICK, Circuit Judge.
convicted Charles Fulton, Sr. on four counts of sex
trafficking and one count of conspiracy. The most significant
issue concerns a long-delayed search of his cell phone.
Fulton also makes arguments premised on the Confrontation and
Grand Jury clauses, and he challenges the sufficiency of the
evidence. We find no basis to disturb the judgment. We
AND PROCEDURAL BACKGROUND
October 2014, a Galveston juvenile probation officer learned
from the father of a juvenile she supervised that the girl
was pictured in an online advertisement offering her services
as an "escort," or in effect, a prostitute. The
probation officer began to investigate and saw that a
particular house where the girl had been arrested was a
location where other young girls consistently were arrested.
She began monitoring incoming police reports, spoke with some
of the girls, compiled a list of names and ages, and gathered
information from other probation officers. Her investigation
revealed common links among the girls: Charles Fulton, Sr.
and a residence on Avenue L. In February and early March
2015, the Galveston Police Department, in tandem with the
FBI, began an investigation. Police discovered that Fulton
acted as the girls' pimp, directing them to prostitution
dates; providing them with food, condoms, housing, and drugs;
and having sex with some of them as young as 15.
2016, Fulton was indicted in the U.S. District Court for the
Southern District of Texas on six counts of sex trafficking
in violation of 18 U.S.C. § 1591(a)-(b) (2015), with a
different minor victim identified in each count. Fulton was
also charged with a seventh count for conspiracy to commit
sex trafficking under 18 U.S.C. § 1594(c). He was found
guilty after a jury trial on four of the substantive counts
and on the conspiracy count. The district court sentenced him
to prison for concurrent life terms.
analyze four issues. First, Fulton asserts the district court
admitted evidence obtained from his cell phone in violation
of the Fourth Amendment. Second, he argues the district court
violated the Confrontation Clause by prohibiting him from
questioning one of the minor victims about a purported
aggravated assault charge. Third, he argues that special
findings made by the jury in two of his counts of conviction
were not supported by sufficient evidence. Finally, Fulton
contends the district court violated the Grand Jury Clause by
constructively amending the indictment.
Search of Fulton's phone
February 2015, Galveston police obtained a search warrant on
the Avenue L house where the prostitution was based, but the
warrant was part of a separate investigation into
Fulton's narcotics activities. Fulton's cell phone
was seized. Nine days later, police obtained a second warrant
to examine its contents but were unable to bypass the
phone's security features. Around this same time, the FBI
agent assisting with the Fulton sex-trafficking investigation
learned that the Galveston police had the phone. The agent
acquired it to determine if the FBI could access the
phone's data. Three weeks later, that agent obtained a
federal warrant to search the phone. Still, it was a year
later before the data on the phone was accessed. The FBI
discovered evidence on the phone that helped piece together
Fulton's involvement with the minor victims. Fulton moved
to suppress the evidence, but the district court denied the
motion. At trial, the Government introduced evidence of the
phone's contents through the testimony of the FBI agent
and of minor victims. The district court also admitted
evidence such as text messages, a photograph, and the results
of searches of the phone's files for specific terms,
linking Fulton to five minor victims and behaviors consistent
with sex trafficking.
appeal, Fulton argues that the phone's seizure in the
February 2015 raid violated the Fourth Amendment. He
alternatively argues that even if the initial seizure had
been lawful, the nine-day delay in obtaining a warrant to
search it was unconstitutional. At oral argument,
Fulton's counsel stated that those two arguments are the
limit of the objections to the search and seizure. Thus, no
issue is made about the FBI's obtaining the phone,
procuring its own search warrant, and finally accessing the
data on the phone a year later.
review a ruling on a motion to suppress "in the light
most favorable to the verdict," accepting "the
district court's factual findings unless clearly
erroneous or influenced by an incorrect view of the law"
and reviewing "questions of law de novo."
United States v. Carrillo-Morales, 27 F.3d 1054,
1060-61 (5th Cir. 1994). The disagreements here are ones of
law. We review the sufficiency of the warrant authorizing the
seizure of Fulton's phone de novo. United
States v. Cavazos, 288 F.3d 706, 709 (5th Cir. 2002). We
also review the district court's determination of the
reasonableness of a search or seizure de novo.
United States v. Jones, 133 F.3d 358, 360 (5th Cir.
Whether the narcotics warrant authorized the phone's
start with whether the initial seizure of the phone was
proper. Fulton contends "the warrant did not
particularly describe the phone as one of the items to be
seized." The Constitution states that a warrant should
not issue without "particularly describing" what is
to be seized. U.S. Const. amend. IV. A warrant's
particularity is sufficient if "a reasonable officer
would know what items he is permitted to seize," which
does not mean all items authorized to be taken must be
specifically identified. United States v. Aguirre,
664 F.3d 606, 614 (5th Cir. 2011). "We have upheld
searches as valid under the particularity requirement where a
searched or seized item was not named in the warrant, either
specifically or by type, but was the functional equivalent of
other items that were adequately described."
narcotics warrant did not refer to telephones. The alleged
functional equivalent was a reference to "ledgers."
A "ledger" is a "book . . . ordinarily
employed for recording . . . transactions."
Ledger, Oxford English Dictionary (2d ed. 1989). We
have held that a "cell phone . . . used as a mode of
both spoken and written communication and containing text
messages and call logs, served as the equivalent of records
and documentation of sales or other drug activity."
Aguirre, 664 F.3d at 615. Here, the officer who took
Fulton's phone was a nine-year veteran of his
department's narcotics unit. He testified at the
suppression hearing to a belief the phone was used in
narcotics activity. The belief was reasonable, making this