United States v. Johnson

concurring in part and dissenting in part:

I concur in the resolution of all issues except as to Defendant Johnson’s conviction on Count 12. In my view the evidence plainly supported his conviction on that count, notwithstanding the reversal on the conspiracy count. In this regard, the majority impermissibly second-guesses the jury and fails to follow our most closely analogous precedent.

Count 12 charged that, in or about August 1998, the defendants (including Johnson) “knowingly transported, or did aid and abet in the transportation of R.D. ..., an individual under the age of 18, in interstate commerce from the District of Montana to Seattle, Washington, ... with the intent that such individual engage in prostitution.” The court gave proper instructions to define the elements of aiding and abetting. The evidence proved beyond a reasonable doubt — and thus the jury was entitled to find — that Johnson was guilty of Count 12 as an aider and abettor.

Title 18 U.S.C. § 2 (a) provides that “[wjhoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.” (Emphasis added.) Encouragement to…

concurring.

I concur. As we reverse conspiracy convictions because non-federal offenses were included as objects of the alleged conspiracy, I write to add the view that the evidence was insufficient to establish conspiracy even if all objects submitted to the jury had been federal crimes. The federal conspiracy laws are essential in the fight against the most organized and serious crimes and criminal enterprises. The conspiracy laws should not be watered down by misapplication to routine, individual crimes.

Defendants pimped, shared common interests, exchanged malign ideas, ate at Denny’s, hung out together, and sometimes loaned money to one another in hard times. Defendants’ individual crimes in promoting prostitution are despicable, and the government may prosecute each defendant to the fullest extent possible for each *761 defendant’s individual crimes. But proof of individual crimes and friendship among rogues and criminals is not the stuff of which a federal conspiracy charge is made.

In this case there was no agreement of the defendant pimps to share receipts of the illicit work of prostitutes; there was no agreement to pool .expenses for any expenditures of common…

MEMORANDUM *

Defendants were charged, 1 singly or in groups, in a sixteen-count information with one count of conspiracy, 18 U.S.C. § 371 ; five counts of attempting to persuade, entice, or coerce another to participate in interstate travel for the purpose of prostitution, 18 U.S.C. § 2422 (a); four counts of successful persuasion, enticement, or coercion, 18 U.S.C. § 2422 (a); three counts of transporting a minor in interstate commerce for the purpose of prostitution, 18 U.S.C. § 2423 (a); two counts of transporting a person in interstate commerce for the purpose of prostitution, 18 U.S.C. § 2421 ; and one count of violating the Travel Act, 18 U.S.C. § 1952 . 2 The prosecution requested a Pinkerton instruction, 3 which was given. The jury convicted Defendants on all counts.

First, we address the arguments that apply to all four Defendants. Second, we respond to the individual challenges to Defendants’ respective convictions. Third, we turn to the alleged sentencing errors.

A. Common Issues

1. Conspiracy

Defendants challenged the sufficiency of the evidence underlying their conspiracy conviction. Reviewing for plain error, we conclude that the conviction must be reversed…