NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS FEB 17 2021

MOLLY C. DWYER, CLERK

FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS

UNITED STATES OF AMERICA, Nos. 19-50297 19-50303 Plaintiff-Appellee v. D.C. Nos. 3:18-cr-04187-WQH-2 CONOLY FRANKLIN III and ANDRE 3:18-cr-04187-WQH-1

ANTHONY FRANKLIN, AKA TOMMY

MARTIN, MEMORANDUM*

Defendants- Appellants.

Appeal from the United States District Court for the Southern District of California William Hayes, District Judge, Presiding

Argued and Submitted February 12, 2021 Pasadena, California

Before: BOGGS,** M. SMITH, and MURGUIA, Circuit Judges

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

** The Honorable Danny J. Boggs, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. Appellants Conoly Franklin and Andre Franklin, father and son, appeal from

their conviction for attempted enticement for prostitution, in violation of

18 U.S.C. § 2422. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we

affirm the district court.

The Franklins lived in Reno, Nevada. On August 30, 2018, they drove

together from Reno to San Diego, California to pick up three females (one adult, two

minors) whom they had recruited over the previous week to work as prostitutes.

Conoly used Facebook, texts, and phone calls to recruit Ash Lee, a 26-year-old in

San Diego, as well as her 16-year-old sister. Andre used texts and phone calls to

recruit Jamie, a 16-year-old in Napa, California. It turned out that all three women

were not real, but were personas created by undercover detectives from two different

task forces. When the Franklins arrived in San Diego, they were arrested and placed

in a police car where a recording device had been placed in the back seat prior to the

stop. Andre consented to search of his phone, which revealed that they were

planning to go from San Diego to Napa to pick up “Jamie.”

The Franklins, after waiving indictment, were charged in a four-count

information. Count I charged the Franklins with a sex-trafficking conspiracy, in

violation of 18 USC § 1591, 1594.1 Count II charged Conoly with attempting to

entice an adult to travel in interstate and foreign commerce to engage in “prostitution

1 The jury found both men not guilty of conspiracy.

2 or a sexual activity for which a person can be charged with a criminal offense” in

violation of 18 U.S.C. § 2422(a). Counts III and IV charged Conoly and Andre

respectively with using interstate or foreign commerce to entice a minor (under the

age of 18) to engage in prostitution, in violation of 18 U.S.C. § 2422(b). Conoly

was found guilty on Counts II and III, and Andre was found guilty on Count IV.

On appeal, the Franklins argue that the information failed to properly inform

them of the offenses for which they were charged and therefore denied them the

opportunity to adequately prepare their defense. Section 2422(a) and (b) prohibit

coercion and enticement of (a) an adult or (b) a minor to engage in “prostitution or

any sexual activity for which any person can be charged with a criminal offense.”

The Franklins argue that the language “to engage in . . . any sexual activity for which

any person can be charged with a criminal offense” requires that the charging

document specify the underlying offense.

The Franklins raise this claim for the first time on appeal. A claim brought

for the first time on appeal is reviewed for plain error. United States v. Guerrero,

921 F.3d 895, 897 (9th Cir. 2019) (per curiam). However, Federal Rule of Criminal

Procedure 12(b)(3) requires that an objection to a defective information be made

3 before trial. Fed. R. Crim. P. 12(b)(3). No such objection was made, so the claim

is waived.2 Guerrero, 921 F.3d at 898.

Even if it were not waived, the Franklins’ claim ignores the language of

18 U.S.C. § 2422, which refers in both of its subsections to causing a person (adult

or minor) “to engage in prostitution or any sexual activity for which any person can

be charged with a criminal offense.” § 2422(a) and (b) (emphasis added). The only

evidence brought before the jury related solely to “prostitution.” Under the plain

language of the statute, neither subsection requires that “prostitution” be in violation

of a specific criminal statute. See United States v. LeCoe, 936 F.2d 398, 402–03 (9th

Cir. 1991). The evidence in the record is overwhelming that the Franklins enticed

three women to engage in prostitution. The attack on the alleged deficiency or

ambiguity relating to the remainder of the statute is irrelevant.

The Franklins argue that the jury instructions also failed to identify the sexual

activity for which they could be charged with a criminal offense. This argument

fails for the reasons set forth above. Further, the jury instructions for Count II and

IV list only “prostitution” as the underlying conduct. This language follows this

circuit’s model jury instructions for both § 2422(a) and (b), which simply list

2 The Franklins do not show good cause for their failure to object to the information in the district court. See Fed. R. Crim. P. 12(b)(3); Guerrero, 921 F.3d at 898.

4 “prostitution” without any need to specify a criminal statute. Ninth Circuit Manual

of Model Criminal Jury Instructions § 8.192 and § 8.192A.

The Franklins’ alternative arguments also fail. They make two evidentiary

claims, insufficient evidence to support the conviction under Counts III and IV, and

exclusion of evidence obtained after Andre’s arrest. We review de novo whether

sufficient evidence existed to support the conviction. United States v. Rashkovski,

301 F.3d 1133, 1136 (9th Cir. 2002). Evidence is sufficient “if, viewing the evidence

in the light most favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.” Ibid. To

convict a defendant for attempt under § 2422 (b), the government must prove that

he knowingly (1) attempted (2) to persuade, induce, entice, or coerce (3) a minor (4)

to engage in prostitution. United States v. Goetzke, 494 F.3d 1231, 1234–35 (9th

Cir. 2007). The record taken as a whole and viewed in the light most favorable to

the government is more than sufficient for a rational juror to find the Franklins guilty

of Counts III and IV.

Andre argues that he was arrested without probable cause and therefore

statements made after his arrest should be suppressed. In determining whether

probable cause for the underlying arrest existed, the question is “whether, under the

totality of the circumstances, a prudent officer would have believed that there was a

fair probability that [the defendant] committed a crime.” United States v. Collins,

5 427 F.3d 688, 691 (9th Cir. 2005). The totality of the circumstances, including

evidence from social media, texts, phone calls, conversations, and the trip to

California with his father, supports the district court’s holding that probable cause

existed to arrest Andre.

Andre also argues that Count I and Count IV should have been severed

because the evidence of enticing prostitution under Count IV was stronger than

evidence of conspiracy under Count I, thereby tainting the jury as to Count I. The

jury found Andre guilty of the stronger case (Count IV) and not the weaker case

(Count I), so any alleged prejudice was harmless error.

Finally, the Franklins argue that the district court should have given an

entrapment instruction to the jury. This claim is reviewed for plain error since the

Franklins failed to make such a request to the district court. United States v.

Freeman, 6 F.3d 586, 600 (9th Cir. 1993). To establish entrapment, a defendant

must show “(1) that he was induced to commit the crime by a government agent; and

(2) that he was not otherwise predisposed to commit the crime.” Ibid. An

inducement consists of an opportunity and, for example, “persuasion, fraudulent

representations, threats, coercive tactics, harassment, promises of reward, or pleas

based on need, sympathy or friendship.” United States v. Cortes, 757 F.3d 850, 858

(9th Cir. 2014).

6 Conoly claims entrapment because the government unfairly created an online

profile of Ash Lee “an impossible person: a beautiful blonde in her mid-twenties

new to the game” and ready to prostitute herself for him. [Reply brief at 1-2.]

Conoly argues that “[f]alling for the inducement of having a beautiful young woman

come devote herself to him preys too much on human weakness to be considered

fair play.” [Id. at 29-30] But Conoly made the initial suggestion of prostitution to

both “Ash Lee” and “her minor sister.” Conoly also admitted that he had previously

pimped other women.

Likewise, the record shows that Andre introduced the idea of prostitution to

“Jamie” to entice her and proceeded despite learning that she was only 16 years old.

The Franklins were not entrapped. And evidence of the Franklins’ predisposition is

manifest. The district court did not commit plain error in denying an entrapment

jury instruction.

The district court is AFFIRMED.

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