United States v. Kendal Ray Williams, AKA Wren, AKA Paris Carpenter

291 F.3d 1180 UNITED STATES of America, Plaintiff-Appellee, v. Kendal Ray WILLIAMS, aka Wren, aka Paris Carpenter, Defendant-Appellant. No. 00-30409. United States Court of Appeals, Ninth Circuit. Argued and Submitted January 7, 2002. Filed June 5, 2002. COPYRIGHT MATERIAL OMITTED COPYRIGHT MATERIAL OMITTED Daniel P. Buckley, Berg, Lilly & Tollefsen, P.C., Bozeman, Montana, for the defendant-appellant. Michael A. Rotker, United States Department of Justice, Washington, DC, for the plaintiff-appellee. Appeal from the United States District Court for the District of Montana; Jack D. Shanstrom, District judge, Presiding. D.C. No. CR-99-00112-JDS. Before: THOMAS, GRABER, and GOULD, Circuit Judges. PER CURIAM; Concurrence by Judge GRABER. PER CURIAM: 1 A jury convicted Defendant Kendal Ray Williams of four counts of persuading, inducing, enticing, or coercing a person to travel in interstate commerce to engage in prostitution, 18 U.S.C. § 2422 (a), and four counts of transporting a minor in interstate commerce with the intent that the minor engage in prostitution, 18 U.S.C. § 2423 (a) (referred to herein collectively as "the Mann Act counts"). The jury also convicted…

PER CURIAM; Concurrence by Judge GRABER.

A jury convicted Defendant Kendal Ray Williams of four counts of persuading, inducing, enticing, or coercing a person to travel in interstate commerce to engage in prostitution, 18 U.S.C. § 2422 (a), and four counts of transporting a minor in interstate commerce with the intent that the minor engage in prostitution, 18 U.S.C. § 2423 (a) (referred to herein collectively as “the Mann Act counts”). The jury also convicted Defendant of one count of interstate travel in aid of racketeering, 18 U.S.C. § 1952 (“the Travel Act count”).

On appeal, Defendant challenges his convictions on the grounds that (1) the government violated his rights under the Double Jeopardy Clause by charging him under two separate provisions of the Mann Act for each interstate trip; (2) venue did not he in the District of Montana for the Travel Act count because he lacked intent to commit a crime of violence while he was in Montana; (3) the district court abused its discretion in admitting “other acts” evidence; (4) the district court should not have admitted the statement he made to FBI agents because the agents violated his right to counsel by conducting an interview…

specially concurring:

I agree with the majority’s analysis except in one respect: the holding that separate, specific notice is required before a district judge may depart through the imposition of consecutive sentences. • Accordingly, I concur specially.

There are four reasons why I disagree with the majority’s holding concerning notice of contemplated consecutive sentences. (1) The holding of United States v. Brady, 928 F.2d 844 (9th Cir.1991), abrogated in part on other grounds by Nichols v. United States, 511 U.S. 738 , 114 S.Ct. 1921 , 128 L.Ed.2d 745 (1994), has been vitiated by a later Supreme Court decision and by a clarifying decision from this court. (2) The majority’s logic is inconsistent with the clear holding of our other cases that consecutive sentences are merely a form of departure, not a separate species. (3) There is no policy justification for the majority’s holding. (4) Because Defendant had notice of the possibility of consecutive sentences, before the sentencing hearing took place, he is not entitled to any relief even under the majority’s theory. I will discuss each of those reasons in turn.

First, in the light of subsequent cases, Brady does not…