United States v. Slim

34 F.4th 642

UNITED STATES of America, Plaintiff - Appellee

v.Carlocito SLIM, also known as Carlocito Ponce Slim, Defendant - Appellant

No. 21-2693

United States Court of Appeals, Eighth Circuit.

Submitted: March 17, 2022

Filed: May 17, 2022

Sarah Boensch Collins, Eric D. Kelderman, Assistant U.S. Attorneys, U.S. Attorney's Office, Rapid City, SD, for Plaintiff - Appellee.

Terry Lee Pechota, Pechota Law Office, Rapid City, SD, Carlocito Slim, Pro Se, Anthony, NM, for Defendant - Appellant.

Before GRASZ, STRAS, and KOBES, Circuit Judges.

GRASZ, Circuit Judge.

Following the district court's denial of his motion to suppress, Carlocito Slim was convicted of attempted commercial sex trafficking of a minor, 18 U.S.C. §§ 1591(a)(1), (b)(2), and 1594(a), and attempted enticement of a minor for sexual activity using a facility of interstate commerce, 18 U.S.C. § 2422(b). Slim appeals the denial of his motion to suppress and his conviction on numerous grounds. We affirm.

I. Background

South Dakota Division of Criminal Investigation Agent Toby Russell, acting undercover as a pimp during a local motorcycle rally, posted an advertisement entitled "Who Wants to Be Naughty" on a classified advertising website in its dating section under the category "women seeking men." He attached three non-pornographic images of an adult law enforcement officer that were digitally altered to make her look younger. The ad's description stated: "If you feel like being naughty hit me up. DDF and Discreet." The ad also specified the "poster's" age was twenty and directed interested parties to text a phone number, which unbeknownst to readers was Russell's phone number.

Slim twice texted the ad's phone number on August 9, 2017, asking whether the photographed woman was "available" and whether she offered massages. Russell responded by texting Slim that the photographed woman—to whom he referred as a "gurl"—was "fresh as hell," "15 but gonna be 16," and would "do most nething."¹ Russell also texted Slim, "It 150 for hh an 200 for fh[,]" which Russell testified meant $150 for a half hour and $200 for a full hour of sexual intercourse. Slim responded with: "OK would like to see her first bro[.]"

Receiving no response by the next afternoon, Slim reinitiated the conversation by again texting Russell whether the alleged minor was available that night and if she could "do one hour2$$.00." Slim and Russell agreed to meet at 9:00 PM that night at a location to be decided.

A few hours later, the two men engaged in another text exchange:

Russell : Hey man u still in for 9?

Slim : Yes

Russell : Aight bro but u have to rock a condom cause bare cost extra.

Slim : Ok

Slim : Sounds good

Russell : The rules are u cant scare her or hurt her. I cant have her all brused up or nething like that.

Slim : Nothing like that of course! I got it bro

Russell : Hey man meet me at [a gas station] by the interstate. You don't have to pay up front I jus wanna make sure that u have the $ and condoms.

Russell : Then u can follow me to the room. What u driving?

Slim : A white car Chevy

Slim : I'll be there

Russell : Meet me by the country market sign

Slim : OK be there in 20

Slim then drove to the gas station where law enforcement arrested him. After his arrest, law enforcement searched the car Slim drove—which Slim claims he and his brother shared—and found condoms, $200 cash, and two cell phones.

A grand jury later indicted Slim for attempted commercial sex trafficking of a minor, 18 U.S.C. §§ 1591(a)(1), (b)(2), and 1594(a), and attempted enticement of a minor for sexual activity using a facility of interstate commerce, 18 U.S.C. § 2422(b). Slim moved to suppress the evidence taken from the car and statements he made after his arrest, which the district court² denied. As relevant here, the district court concluded law enforcement's arrest of Slim was supported by probable cause and the search of the car was authorized as both an inventory search and search incident to arrest.

The case proceeded to a bench trial before the district judge. During trial, Slim's prior attorney tried to testify Slim told him Slim contacted Russell to get a massage because Slim's back was hurting. The district court, however, excluded this testimony as inadmissible hearsay. The district court then found Slim guilty as charged and sentenced Slim accordingly.

II. Analysis

Slim appeals, arguing (A) the district court erroneously denied his motion to suppress; (B) his indictment was insufficient; (C) insufficient evidence supported his convictions; and (D) the district court erroneously excluded his prior attorney's testimony. We address each argument in turn.

A. Motion to Suppress

Slim argues the district court erroneously denied his motion to suppress. On appeal from the denial of a motion to suppress, "[w]e review the district court's legal conclusions de novo and its factual findings for clear error." United States v. Robinson , 982 F.3d 1181, 1184 (8th Cir. 2020). "We will affirm the denial of a motion to suppress unless the district court's decision was unsupported by substantial evidence, was based on an erroneous interpretation of applicable law, or was clearly mistaken in light of the entire record." United States v. Soderman , 983 F.3d 369, 373–74 (8th Cir. 2020), cert. denied , ––– U.S. ––––, 142 S. Ct. 159, 211 L.Ed.2d 60 (2021) (quoting United States v. Murillo-Salgado , 854 F.3d 407, 414 (8th Cir. 2017) ).

Slim first asserts law enforcement's warrantless arrest violated the Fourth Amendment's prohibition against "unreasonable ... seizures." See U.S. Const. amend. IV. We disagree. An "officer may, consistent with the Fourth Amendment, arrest someone without a warrant if the officer has probable cause to believe the person has committed a crime." United States v. Flores-Lagonas , 993 F.3d 550, 560 (8th Cir. 2021) (quoting Peterson v. Kopp , 754 F.3d 594, 598 (8th Cir. 2014) ). Probable cause exists "when the facts and circumstances are sufficient to lead a reasonable person to believe that the defendant has committed or is committing an offense." United States v. Green , 9 F.4th 682, 690 (8th Cir. 2021) (quoting Royster v. Nichols , 698 F.3d 681, 688 (8th Cir. 2012) ). When an officer assesses "whether a suspect possessed the state of mind required for the crime" while completing an arrest, "he need not rely on an explanation given by the suspect." Nader v. City of Papillion , 917 F.3d 1055, 1058 (8th Cir. 2019) (quoting Borgman v. Kedley , 646 F.3d 518, 524 (8th Cir. 2011) ).

Here, a reasonable person could believe Slim committed or was committing a crime. Slim texted Russell to ask whether the alleged minor on the sexually suggestive dating ad was available; reiterated his desire to see her even after Russell told him the alleged minor was fifteen years old; and agreed to bring condoms and cash to the gas station, to "rock a condom," and to refrain from scaring or hurting the alleged minor. He then drove to the gas station where he had agreed to meet Russell and the alleged minor. These facts sufficiently establish probable cause to believe that Slim was attempting to commit sex trafficking crimes. See, e.g. , United States v. Wolff , 796 F.3d 972, 975 (8th Cir. 2015) (holding a defendant's "subjective intent to engage in a commercial sex act with someone he believed to be a minor female, and the substantial steps he took toward commission of that offense by arriving at the set meeting place with $200 cash and condoms, constitute attempted sex trafficking of a minor"). Slim's post-arrest attempts to explain he was confused about the alleged minor's age and only wanted a massage do not alter the probable cause analysis. See Nader , 917 F.3d at 1058. We thus hold law enforcement had probable cause to arrest Slim without a warrant.³

Slim next asserts law enforcement violated the Fourth Amendment's prohibition against "unreasonable searches" by searching the car he drove without a warrant. We disagree. Under the search incident to arrest exception, officers may search a car incident to arrest and without a warrant if "it is reasonable to believe the vehicle contains evidence of the offense of arrest." United States v. Stegall , 850 F.3d 981, 984 (8th Cir. 2017) (quoting Arizona v. Gant , 556 U.S. 332, 351, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009) ). Here, officers reasonably believed the car contained evidence of attempted commercial sex trafficking of a minor and attempted enticement of a minor for sexual activity. Slim agreed to bring a condom for the meeting, to pay $200, and used a phone to plan his meeting with Russell. It was reasonable for officers to believe they would find this evidence in the car. We thus affirm the district court's denial of Slim's motion to suppress.

B. Sufficiency of the Indictment

Slim next argues his indictment was insufficient because he contends his crimes cannot be based on a non-existent victim. This argument contradicts our precedent. Our caselaw states a defendant may commit both attempted commercial sex trafficking of a minor and attempted enticement of a minor for sexual activity using a facility of interstate commerce—the two offenses for which Slim was charged—if, among other requirements, the defendant subjectively intended to have sex with someone he believed to be a minor, even if his belief was mistaken. See Wolff , 796 F.3d at 974–75 (applying 18 U.S.C. §§ 1591 and 1594) ; United States v. Helder , 452 F.3d 751, 756 (8th Cir. 2006) (applying 18 U.S.C. § 2422(b) ). We thus conclude Slim's argument fails.

C. Sufficiency of the Evidence

Slim next argues insufficient evidence supported either conviction. We review the sufficiency of evidence from a bench trial with the same standard we use to review jury verdicts. United States v. Morris , 791 F.3d 910, 913 (8th Cir. 2015). We "review the sufficiency of the evidence to sustain a conviction de novo, viewing the evidence in the light most favorable to the jury's verdict and reversing the verdict only if no reasonable jury...