7th Circuit Partially Vacates Sex Trafficking Convictions
Olivia Covington for www.theindianalawyer.com
The 7th Circuit Court of Appeals has vacated part of a man’s convictions for his involvement in a juvenile sex trafficking scheme, finding the statute under which he was convicted is unconstitutionally vague.
The case of United States of America v. Douglas D. Jackson, 15-3693, began in May 2014 when Jackson, who was then 25 years old, met 15-year-old J.T. and told her he was 17. Jackson asked J.T. if she wanted to make some money, then began paying for to alter her appearance and placing ads on the website Backpage.com
The ad listed a phone number of a prepaid flip phone Jackson had purchased, and he and J.T. used the phone to text customers, who paid $150 for 30 minutes with J.T. or $200 for an hour. The pair travelled from South Bend to Atlanta, Louisville and Grand Rapids, Michigan to meet customers.
While in Grand Rapids, police officers were conducting a routine patrol in an area known for prostitution when they saw J.T. leave the car with her underwear exposed and Jackson reaching into the floorboard of the vehicle. One of the officers shined a light into Jackson’s car and discovered a firearm, which he had a permit for.
Jackson was then arrested and J.T. was taken into custody. After J.T. admitted that she was engaged in prostitution, Jackson was charged by complaint with two counts of sex trafficking a minor. He was later indicted on several other counts, including one count of possession of a firearm during a crime of violence, namely, sex trafficking under 18 U.S. Code section 924(c), among others.
A jury found Jackson guilty as charged, but he moved under Federal Rule of Criminal Procedure 29 for acquittal of the charge under section 924(c), arguing that statute was unconstitutionally vague. The statute defines a “crime of violence” as a felony that, among other standards, “involves a substantial risk that physical force … may be used in the course of committing the offense.” That language, Jackson said, was subject to the same deficiencies that led to the invalidation of the residual clause Armed Career Criminal Act in Johnson v. United States, — U.S. –, 135 S.Ct. 2551 (2015).
The U.S. District Court from the Northern District of Indiana disagreed and denied Jackson’s motion. The court then determined his offense level should be increased by two levels because he was a manager or supervisor in the offense and another two levels because he falsely claimed ignorance of the prostitution.
Jackson was, thus, sentenced to 295 months, but on appeal he once again argued his conviction under section 924(c) must be vacated due to unconstitutional vagueness. The 7th Circuit Court of Appeals agreed, with Judge Ilana Rovner writing that Johnson has since been extended in United States v. Vivas-Ceja, 808 f.3d 719, to hold section 924(c)(3)(B) unconstitutionally vague. Based on the holding in Vivas-Ceja, that identical language of 18 U.S.C. section 16(b) was unconstitutionally vague, the court held in United States v. Cardena, 842 F.3d 959, 996 (7th Cir. 2016), that section 924(c) is also vague.
“We acknowledge that the case for distinguishing section 924(c)(3)(B) is not altogether unconvincing, but conclude that, unless we hear differently from the Supreme Court in (Sessions v. Dimaya, No. 15-1498), stare decisis and our recent precedents compel the conclusion that section 924(c)(3)(B) is unconstitutionally vague,” Rovner wrote.
Thus, the 7th Circuit vacated Jackson’s conviction under that statute, and also found the district court erred by enhancing his offense level as a manager or supervisor, because the victim of a crime cannot be a “participant.” Thus, the case was remanded for resentencing without the adjustment.