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United States v. Key

United States District Court, N.D. Illinois, Eastern Division

October 21, 2016

UNITED STATES
v.
DAJUAN KEY

          MEMORANDUM OPINION AND ORDER

          Virginia M. Kendall United States District Court Judge.

         On 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.)

         The 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.

         As part 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 [145]. (Dkt. No. 169).

         Key, 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 [173], as well as a motion to reconsider the motion to suppress [174], and a motion for reconsideration of the motion to dismiss the indictment [171]-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 [167]; Key's pro se supplemental motion for judgment of acquittal [173]; and Key's pro se motion to reconsider the motion to suppress [174]. For the following reasons, all three of these motions are denied.

         I. The Record Contains Ample Evidence to Support the Jury's Verdict

         A 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)).

         Key was 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.

         The 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. 232).

         The 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).

         At some 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).

         Once 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. (Id.)

         Key and 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).

         April 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).

         In 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 period.

         Whether 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.

         The 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) reads:

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.

         II. A New Trial is Not Warranted Because The Court Did Not Err

         Rule 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.

         A. Jury Instruction Regarding Consent

         Key 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. ...


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