United States v. Groce

891 F.3d 260

UNITED STATES of America, Plaintiff-Appellee,

v.Monta GROCE, Defendant-Appellant.

No. 16-3845

United States Court of Appeals, Seventh Circuit.

Argued December 7, 2017

Decided May 23, 2018

Elizabeth Nash, Thomas E. Chandler, Attorneys, DEPARTMENT OF JUSTICE, Civil Rights Division, Appellate Section, Washington, DC, Julie Suzanne Pfluger, Attorney, OFFICE OF THE UNITED STATES ATTORNEY, Madison, WI, for Plaintiff-Appellee.

Michelle Parthum, Justin Weiner, Attorneys, MOLOLAMKEN LLP, Chicago, IL, Jessica Ortiz, Attorney, MOLOLAMKEN LLP, New York, NY, for Defendant-Appellant.

Before Bauer, Manion, and Sykes, Circuit Judges.

Manion, Circuit Judge.

Monta Groce appeals witness-retaliation and sex-trafficking convictions. The government concedes the retaliation jury instruction failed to state a particular unsupported element. We vacate the retaliation conviction and remand for resentencing. Regarding sex trafficking, Groce raises several challenges. He argues the court erred by 1) excluding evidence of the victims’ alleged prostitution histories; 2) barring cross-examination of a victim on her alleged prostitution history after she testified she had no such history; 3) issuing an instruction lowering the mens rea required for sex trafficking; and 4) admitting prejudicial evidence of uncharged sex trafficking. He also argues cumulative error requires retrial. We affirm the sex-trafficking convictions.

I. Background¹

Groce faced nine counts: 1–3) sex trafficking; 4) conspiracy to engage in interstate transportation for prostitution; 5) interstate transportation for prostitution; 6) maintaining a drug house; 7) using or carrying a firearm in maintaining the drug house; 8) attempted sex trafficking; and 9) witness retaliation. The jury heard evidence he abused and coerced two women to cause them to prostitute involuntarily. He preyed on their drug addictions and other vulnerabilities, manipulated debts, and physically abused or threatened them. The jury also heard evidence he caused a third woman to prostitute involuntarily. He was convicted on all but Count 8, and sentenced to 25 years in prison. He only appeals the sex-trafficking and retaliation convictions.

A. Lisa Tischer (Count 1)

When Lisa Tischer met Groce in November 2012, she was a heroin addict. He led her to believe he had romantic feelings for her. Soon she lost her job and violated drug-related probation. He offered a place to stay, so she lived with him in Sparta, Wisconsin. He gave her heroin. At first he did not charge or she paid $30 to $40. Soon he said she could do calls—have sex for money—to get heroin from him. Groce said if she loved him, she would do the calls. He told her she would earn $150 to $500. So she prostituted. He arranged and controlled the prostitution. At first she got 40% and did five to fifteen calls on an average day. She continued using heroin, buying it with prostitution funds. He reduced her share. Finally, he wanted it all. He imposed rules, and isolated and punished her. She could only leave if he approved. He slapped her face and fined her $500 for meeting with someone. He said she was disgusting and he advertised her for full service for $50. She tried to leave but he stopped her by guarding the stairs. He controlled her heroin access and induced her to prostitute before giving her heroin. He withheld heroin if she tried to leave or keep money. She felt "dope sick," "[v]ery sick, depressed, useless." He burned her with a cigarette when she kept funds. After hearing she talked to the police, he said he would rape and kill her mother and sister. Tischer testified she did not want to do calls, but did them to make him happy and to avoid dope sickness. Once, when he was out, she used his phone to get a ride to leave. But he returned, saw her stuff packed, slapped her face a few times, and made her stay downstairs. Once, he threatened to kill a young man and told her to get his gun. She hesitated. Groce said if she did not get it, he would get it and she and the man would be sorry. So she got the gun for Groce.

She left around January 2013, but he found her. He said he changed and was sorry. So she moved into his small room. After locking her in twice, he asked her to do a call. She refused. He locked her in again. She felt withdrawals. He said she must do a call. Seeing it as her only escape, she did it. Later, he beat her for reporting to authorities.

B. Mirika Stuhr (Count 2)

Mirika Stuhr met Groce in November 2012. He supplied her heroin. She started living with him at the Sparta house. She had a "crush" on him. After suffering much abuse, including a cigarette burn to her face, Tischer got a ride and left with Stuhr’s help. Groce blamed Stuhr and asked her to do a call. She agreed, but Groce had to teach her what to do. Groce kept $60, gave her $40, and also gave her heroin. She was addicted and regularly bought it from him. She testified heroin addiction means "you can’t go without it. It means you will do anything at any cost to make sure that you have it." She testified she had never taken calls for anyone else.

She continued prostituting. Groce cut off free heroin. So she used her $40 a call to buy it, but he charged $50. So she always owed him. She had trouble leaving because if she missed a call she would owe him. He took her phone sometimes. Once, he allowed her out, so she left and used meth. Then he called to say she had a customer. She returned around 3:00 am. She had picked her legs bloody and raw due to meth. Unable to sit still, she asked for heroin so she could do the call. But he refused as she had missed calls and owed him. She said she could not do it. He eyed his gun and said, " ‘You always have a choice.’ " Scared, mad, and alone, she cried and did the call. Besides owing for drugs and missing calls, she also owed for unplugging his phone while cleaning, taking too long on his laundry, and failing to report. Once, when she withheld funds, he told her she was a dead duck, was cut off, and would not get calls or drugs. She felt scared, alone. Once, he punished her by isolating her, taking her phone, and depriving her of drugs and food. Suicidal, suffering withdrawal, and under a warrant, she had nowhere to go. Finally he asked, " ‘Are you ready to make some money[?]’ " meaning, "Are you ready to take a call[?]" Her testimony shows her dungeon’s depravity: "In one way that’s all I mattered for and on one side, thank God I can finally feel better." After she took a call on Groce’s bed, he beat her, and she left. But she suffered withdrawals and resumed buying drugs from him. She later lived with him again and continued prostituting, giving him all the funds. She still used drugs. She also testified about texts tending to corroborate her.

C. Amanda Ryan (Count 3)

Amanda Ryan was a certified nursing assistant on heroin when she moved to the Sparta house. She could not function without drugs, which Groce sold her. Struggling to pay, she agreed to prostitute "against [her] better judgment." She kept prostituting for him, halving the funds, but using hers to buy drugs from him. He was "manipulative, narcissistic, controlling." He "had the heroin, so it was basically what he said goes." He "had a gun and he wasn’t afraid to show it." She lost his debit card. He insisted she prostitute to repay. She said she had to go to work. He persisted: " ‘You’re not going until you do this call, otherwise I’m cutting you off—I’m not giving you any heroin.’ " Seeing no choice, she did a call against her will, felt like trash, then got drugs. She did not really want to do any calls, but only did them for drugs. Groce threatened to cut her off.

D. Melissa Copeland (Count 4—not appealed)

Melissa Copeland testified she and Groce were childhood friends. In April 2013, he asked if she wanted to make $150 and she agreed. She considered him a friend and did not think he meant anything harmful. Someone drove her to a residence, which she entered, still not knowing what to expect. A male asked her to engage in a sex act. She did. He paid. The driver returned her to Groce, who demanded money. When she refused he threw her down, forced her head to the pavement, reached in her bra, and took some money. She saw his gun. He said essentially, " ‘They’re not going to catch me.’ " She testified she had never done anything like that before. On cross Groce’s attorney challenged her, asking if she remembered prostituting in Milwaukee. She again denied being a prostitute. The attorney pressed: "Never done that before?" She responded: "I don’t even have it on my record." The government objected, and the court sustained.

II. Discussion

Groce appeals multiple issues. We evaluate his arguments in turn.

A. Witness-retaliation conviction

Groce seeks dismissal of the retaliation conviction because the instruction lacked an element: the witness communicated with a federal officer. The government concedes. The instruction was erroneous, and the evidence did not support conviction. We vacate the Count 9 conviction and remand for resentencing on the remaining convictions.

B. Exclusion of victims’ alleged prostitution histories

For sex trafficking, the government had to prove Groce acted "knowing, or in reckless disregard of the fact, that means of force, threats of force, fraud, coercion ... or any combination of such means will be used to cause the person to engage in a commercial sex act." 18 U.S.C. § 1591(a).² Groce insists he could not have known or recklessly disregarded that force, et cetera, would be used to cause the victims to prostitute because he knew they prostituted before working for him. He claims the victims’ prostitution histories were relevant to his mens rea and the court erred by excluding this evidence under Rule 412, yet it allowed the government to elicit testimony from Stuhr that she never prostituted before meeting Groce. He contends this gutted his defense. Specifically, under Rule 412(a) the government moved in limine to exclude evidence of...