United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
Virginia M. Kendall United States District Court Judge.
October 8, 2013, a special grand jury returned a one-count
indictment against Defendant DaJuan Key, charging him with
knowingly transporting a minor in interstate commerce with
the intent that the minor engage in prostitution in violation
of 18 U.S.C. § 2423(a). (Dkt. No. 16). On September 10,
2014, Key moved to suppress evidence acquired from
warrantless searches of his motel room and rental car.
(See Dkt. Nos. 47, 48). The Court held a suppression
hearing to resolve these issues and entered an order denying
Key's motion to suppress evidence recovered from his
rental car and granting in part his motion to suppress
evidence recovered from his motel room. (Dkt. No. 99).
Specifically, the Court suppressed cellphones and a notebook
recovered from the motel room and admitted prepaid credit
cards, a computer tablet, and cash. (See id.)
Government, recognizing its errors from the first hearing, in
that it had failed to present evidence regarding the cell
phones and notebook, moved this Court to reconsider its
suppression of Key's cell phone and reopen the hearing
for supplemental testimony and evidence. (Dkt. No. 107). Key,
meanwhile, moved to suppress his post-arrest statements
despite having missed the deadline for filing of pretrial
motions by nearly a year. (Dkt. No. 104). On January 22,
2016, in the interest of justice, the Court exercised its
discretion and granted both parties' requests to consider
suppression issues that each had failed to raise and ordered
a hearing on both issues to be held on January 26, 2016.
(Dkt. No. 117). Also on January 22, 2016, Key filed a motion
to strike the Court's previous order on suppression in
light of an alleged violation of the Government's
Brady obligations. (Dkt. No. 118). On February 5,
2016, the Court denied Key's Motion to Strike based on
the alleged Brady violation, see Dkt. No.
144; and, after careful consideration of the evidence
presented at the second suppression hearing, the Court
vacated its previous order suppressing Key's cellphone
and granted Key's motion to suppress all of his
post-arrest statements, see Dkt. No. 145.
of its order regarding the suppression issues, the Court
found the testimony of Special Agent Carrie Landau
inconsistent with other evidence presented by the Government,
including video of Key and law enforcement in a holding cell
area prior to Key making his post-arrest statement as well as
video of his statement. The Government moved the Court to
“clarify” its order, see Dkt. No. 149,
which resulted in a post-trial credibility hearing at which
the Court heard additional evidence that had not been
presented at the second suppression hearing. After carefully
reviewing the transcript of the first hearing on the Motion
to Suppress, the second hearing on the Motion to Suppress,
the videotape of the cell block area, the audiotape, and the
transcript from the third hearing regarding the agent's
credibility, the Court withdrew p. 14 (starting at line 4) to
p. 26 of its opinion dated 2/5/16 . (Dkt. No. 169).
meanwhile, following a four-day jury trial, was convicted on
the sole count of the Indictment on February 11, 2016.
(See Dkt. No. 158). About a month later, Key-through
counsel-filed a motion for acquittal under Federal Rule of
Criminal Procedure 29(b) or, alternatively, a new trial under
Federal Rule of Criminal Procedure 33(a), arguing that the
Court erred in a number of its decisions regarding
suppression, jury instructions, and other evidentiary
matters. (See Dkt. No. 167). Key, pro se,
then filed a supplemental motion for judgment of acquittal
, as well as a motion to reconsider the motion to
suppress , and a motion for reconsideration of the
motion to dismiss the indictment -though he quickly
withdrew the last motion. The Court held a status hearing on
April 27, 2016. Key requested to proceed pro se and
after the Court questioned Key, thoroughly advised him of his
rights, and found that he knowingly and voluntarily waived
his right to have an attorney, the Court allowed Key's
second appointed defense counsel to withdraw and allowed Key
to proceed pro se and informed him that he would not
be entitled to a third appointed attorney. (Dkt. No. 181).
The Court now considers the motion for acquittal or new trial
filed by Key's prior counsel ; Key's pro
se supplemental motion for judgment of acquittal ;
and Key's pro se motion to reconsider the motion
to suppress . For the following reasons, all three of
these motions are denied.
The Record Contains Ample Evidence to Support the Jury's
motion for judgment of acquittal challenges the sufficiency
of the evidence against a defendant. See Fed. R.
Crim. P. 29. Key faces “a nearly insurmountable
hurdle” in contending that the jury had insufficient
evidence to convict him on any of the charged counts. See
United States v. Miller, 782 F.3d 793, 797 (7th Cir.
2015) (citing United States v. Torres-Chavez, 744
F.3d 988, 993 (7th Cir. 2014)). Once the Defendant is
convicted, the Court reviews the evidence presented to the
jury in the light most favorable to the Government and makes
all reasonable inferences in the Government's favor.
See United States v. Cejas, 761 F.3d 717, 726 (7th
Cir. 2014) (citing United States v. Larkins, 83 F.3d
162, 165 (7th Cir. 1996)). The Court may overturn the
jury's guilty verdict “only if the record is devoid
of evidence from which a reasonable jury could find guilt
beyond a reasonable doubt.” United States v.
Jones, 713 F.3d 336, 340 (7th Cir. 2013) (quoting
United States v. Stevenson, 680 F.3d 854, 855-56
(7th Cir. 2012)).
convicted of knowingly transporting a minor across state
lines with the intent that the minor engage in prostitution
in violation of 18 U.S.C. § 2423(a). Though the briefs
submitted by prior defense counsel and Key do not identify
what they think was insufficient about the evidence presented
by the Government at trial, prior counsel argued in her oral
motion for acquittal following the close of the
Government's case that the Government failed to prove the
“specific intent on Mr. Key's part to have April
engage in an act of prostitution after either trip from
Wisconsin to Illinois.” (Trial Tr. 447). Specifically,
she submitted that there was no temporal proximity between
Key's sending of a text message stating that he
“need[ed] another girl” and his transportation of
April from Wisconsin, nor was there evidence that Key
mentioned prostitution to April prior to her arrival in
Romeoville. (See id. at 450-51). Neither argument
warrants overturning the jury's verdict.
Government presented overwhelming evidence of Key's
specific intent. The factual story was presented through the
testimony of a minor victim named April and another young
woman, Dache Crayton, who were both prostituted by Key.
Crayton testified that on September 6, 2013, Key was looking
on backpage.com “to see if he can get some girls over
there.” (Id. 225). Crayton stated that she saw
Key looking on his computer tablet at an ad with a girl
(later identified as April) from Wisconsin and that he spoke
on the phone with that girl “a few times.”
(Id. 226-27). She further testified that Key went to
pick the girl up from Wisconsin on September 8th or 9th and
returned with her to Crayton's hotel room later that same
day. (Id. 227-28). Key and April left Crayton's
room about ten minutes later, though he subsequently returned
to get lingerie and the computer tablet so that he could post
April on backpage.com. (Id. 231-233). Crayton also
testified that Key told her that April did not know she was
going to be brought to Illinois from Wisconsin. (Id.
minor victim, April, testified similarly. She stated that
around September 6, 2013, Key contacted her on her cellphone
based on a backpage.com advertisement that had been posted of
her. (Id. 123-24). According to April, backpage.com
was for advertising sex in exchange for money and she did not
receive calls from backpage.com that were not related to sex.
(Id. 128). On September 8, 2013, Key requested a
photo of April and she texted him one. (Id.
129-130). They discussed meeting and Key told April that he
was in Chicago at the time. (Id. 130). Later that
day, on September 8, 2013, Key went to meet April in Madison.
(Id. 131-32). April was at a friend's house when
Key arrived. (Id. 132).
point on the 8th, Key and April left April's friend's
house together in his rental car. (Id. 133). Key
told April that he was taking her to Milwaukee to pick-up his
brother and sister and that he would take her home.
(Id.) April only realized she was not going to
Milwaukee when she saw the signs heading toward Chicago.
(Id. 134). April had no money or way to get home to
Madison. (Id. 134-35). The two eventually arrived at
a Super 8 hotel in Romeoville, Illinois late on the night of
September 8, 2013. (Id. 136-37; 215).
there, April testified that she told Key that she wanted him
to take her home and that she was upset he had taken her
there. (Id. 137). Key brought her into the motel to
meet Crayton. (Id. 138). Crayton handed Key some
money and told them that she “had someone coming to
meet her;” Key and April left the room. (Id.
140). April further testified that Key told her that Crayton
“did the same thing [she] did” (i.e.,
posted advertisements on backpage.com to prostitute,
according to April). (Id. 141). April told him that
she wanted to go home and Key said that he would take her
home the next day. (Id. 142). He told her that he
had rented her a room. (Trial Tr. 143). April told him that
she had not agreed to stay at the motel, though she
eventually agreed to stay in the room since she was in the
middle of nowhere, had no money, and could not call anyone.
April entered the second motel room and Key said they were
going to take some pictures to put on backpage.com.
(Id. 143-44). Despite April's statements that
she wanted Key to take her home, he insisted on the
photographs. (Id. 145). Key told April to put on
lingerie and he showed her how to pose; he then photographed
her on his computer tablet. (Id. 145-46). Key told
April that he used the name Lola for her in the backpage.com
advertisement. (Id. 149).
began receiving calls once the ad was posted. (Id.
150). At first, she did not answer the calls; then, Key told
her that she needed to start taking them and to tell people
there was a hundred dollar special. (Id.) April took
her first “client” from backpage.com the night
she began taking the calls. (Id. 151-153). April and
Crayton testified that April went on three
“dates” and made about $300 during the days they
were all together in Romeoville. (Id. 236-37). April
also testified that Key bought her tampons and soft cups.
(Id. 166-67). April said that she had never seen
soft cups before and that Key told her that they were used
“so you could have sex while you was on your
period.” (Id. 167).
addition to this testimony, the Government provided
corroborating evidence, including a text message sent on
September 6, 2013 from Key's cellphone to a woman named
Nikki that read, “I need you I got to many calls and
only one girl, ” see Dkt. No. 167, 6-7; Ex.
44; printouts of the advertisements of April that were posted
on backpage.com; text messages between Key and April as well
as between April and friends from home; the email address
that created the advertisements; motel records; a
surveillance video of April and Key buying the soft cups at a
drug store, and photographs of April extracted from the
computer tablet all of which corroborated the testimony of
April and Crayton. Viewing the evidence in the light most
favorable to the Government, there was more than enough
evidence from which a reasonable jury could find that Key had
the specific intent to transport April for the purpose that
she engage in prostitution. Key was looking at advertisements
on backpage.com to find other girls; went to Wisconsin to
pick April up just days after conveying to both Crayton and
Nikki that he was looking for other girls; and he brought
April directly from Wisconsin to a motel in Romeoville where
prostitution was taking place. Within hours of their arrival
in Romeoville, Key had rented April a room; given her
lingerie; shown her how to pose; taken pictures of her to
post an advertisement of her on backpage.com; and in fact
created an advertisement of her on backpage.com. April
completed sex acts in exchange for money and provided all of
that money directly to Key. Key, moreover, provided April all
of her needs, including food, shelter, and tampons because
she did not have any money to provide for herself. He also
provided her with soft cups-which April testified she had
never seen before-so that she could have sex while on her
April and Crayton, the two witnesses that provided the bulk
of the testimony regarding Key's specific intent, were
truth-tellers was a determination to be made by the jury.
See United States v. Rollins, 544 F.3d 820, 835 (7th
Cir. 2008) (“It is up to the jury to weigh the evidence
and determine the credibility of the witnesses; [courts do]
not second-guess the jury's assessment of the
evidence.”); see also Goodwin v. MTD Products,
Inc., 232 F.3d 600, 609 (7th Cir. 2000) (“Rather,
credibility questions are within the province of the trier of
fact, in this case a jury.”); Hasham v. Ca. State
Bd. of Equalization, 200 F.3d 1035, 1047 (7th Cir. 2000)
(“We will not second-guess a jury on credibility
issues.”). The jury credited their testimony or relied
on the corroborating evidence to find Key guilty beyond a
reasonable doubt. Key's motion for a judgment of
acquittal is denied.
Court also notes that Key, in his pro se
Supplemental Motion for Judgment of Acquittal, also argues
extensively that the Government “failed to prove that a
state law was ‘actually violated or that the defendant
attempted or intended to bring about a violation of state
law.” (See Dkt. No. 173, 3-4). The Government
did not, however, charge Key with the prong of Section
2423(a) related to a violation of state law. Section 2423(a)
A person who knowingly transports an individual who has not
attained the age of 18 years in interstate or foreign
commerce, or in any commonwealth, territory or possession of
the United States, with intent that the individual engage in
prostitution, or in any sexual activity for which any person
can be charged with a criminal offense, shall be fined under
this title and imprisoned not less than 10 years or for life.
18 U.S.C. § 2423(a). The Government charged the first
prong of this Section, which relates to prostitution: not the
second prong related to “any sexual activity for which
any person can be charged with a criminal offense.”
“Prostitution” for purposes of the charged
conduct is defined in the commentary of the Seventh Circuit
Pattern Jury Instructions as “knowingly engaging in or
offering to engage in a sexual act in exchange for money or
other valuable consideration.” Pattern Criminal
Jury Instructions of the Seventh Circuit 2423(a) (2012).
Key's arguments involving Illinois laws are irrelevant to
the charged conduct and do not warrant a new trial or
judgment of acquittal.
A New Trial is Not Warranted Because The Court Did Not
33(a) of the Federal Rules of Criminal Procedure states that,
“[u]pon the defendant's motion, the court may
vacate any judgment and grant a new trial if the interest of
justice so requires.” See also United States v.
Berg, 714 F.3d 490, 500 (7th Cir. 2013); United
States v. Smith, 674 F.3d 722, 728 (7th Cir. 2012).
Unlike in evaluating a motion for acquittal under Rule 29,
the Court is not required to view the evidence in the light
most favorable to the Government in ruling on a motion for a
new trial under Rule 33. United States v.
Washington, 184 F.3d 653, 657 (7th Cir. 1999); 58 Am.
Jur. 2d New Trial § 391(2001). “A defendant is
entitled to a new trial if there is a reasonable possibility
that a trial error had a prejudicial effect upon the
jury's verdict.” United States v. Van Eyl,
468 F.3d 428, 436 (7th Cir. 2006); see also United States
v. Eberhart, 388 F.3d 1043, 1048 (7th Cir. 2004)
(“ ‘[C]ourts have interpreted [Rule 33] to
require a new trial in the interests of justice in a variety
of situations in which the substantial rights of the
defendant have been jeopardized by errors or omissions during
trial.' ”) (quoting United States v.
Kuzniar, 881 F.2d 466, 470 (7th Cir. 1989))), overruled
on other grounds, 546 U.S. 12 (2005). Despite the more
lenient standard, however, Rule 33 motions are disfavored and
courts should generally only grant them in “the most
extreme cases.” See United States v. Linwood,
142 F.3d 418, 422 (7th Cir. 1998); see also United States
v. Kamel, 965 F.2d 484, 490 n. 7 (7th Cir. 1992).
“A jury verdict in a criminal case is not to be
overturned lightly, and therefore a Rule 33 motion is not to
be granted lightly.” United States v. Santos,
20 F.3d 280, 285 (7th Cir. 1994) (citations omitted). Key and
his prior counsel present a number of arguments in support of
their motions seeking new trial; none of which has merit.
Jury Instruction Regarding Consent
argues that the Court erred in instructing the jury that
April's consent to engage in prostitution was irrelevant
because it was not a clarifying instruction for any defense
presented by Key and therefore confused the jury.