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United States v. Kettles

United States District Court, M.D. Tennessee, Nashville Division

May 15, 2017

UNITED STATES OF AMERICA,
v.
BRITTAN EZEKIEL KETTLES.

          MEMORANDUM & ORDER

          ALETA A.TRAUGER United States District Judge.

         Pending before the court is a Motion to Dismiss the Indictment (Docket No. 108) filed by the defendant, Brittan Ezekiel Kettles, to which the United States has filed a Response (Docket No. 121), and the defendant has filed a Reply (Docket No. 127). With leave of the court, the defendant has also filed a Supplemental Memorandum (Docket No. 135) in support of the motion, to which the United States has filed a Response (Docket No. 142). For the reasons discussed herein, the motion will be denied.

         BACKGROUND

         On August 10, 2016, Kettles was indicted by a federal grand jury on two counts of violating federal laws prohibiting sex trafficking. (Docket No. 32.) In Count One of the Indictment, Kettles is charged with violating 18 U.S.C. §§ 1591(a)(1) and 1594(c) by “knowingly conspir[ing]” with his co-defendant, Stormy Whittemore, to “recruit, entice, harbor, transport, provide, obtain, and maintain by any means, in and affecting interstate and foreign commerce, . . . a minor . . ., knowing and in reckless disregard of the fact that [the minor] had not attained the age of 18 years and . . . would be caused to engage in a commercial sex act.” (Id.) In Count Two, Kettles is charged with violating 18 U.S.C. §§ 1591(a)(1) and 1591(b)(1) by “knowingly” recruiting, enticing, harboring, transporting, providing, obtaining, and maintaining “by any means, in and affecting interstate and foreign commerce, . . . a minor . . ., knowing and in reckless disregard of the fact that [the minor] had not attained the age of 14 years and . . . would be caused to engage in a commercial sex act.” (Id.) Both counts allege that the violations occurred “[b]eginning in and around June 16, 2016, and continuing through on or about June 19, 2016, within the Middle District of Tennessee, and elsewhere.” (Id.)

         On March 7, 2017, Kettles filed a Motion to Dismiss the Indictment on the grounds that “the underlying substantive offense, 18 U.S.C. § 1591(a), is unconstitutionally vague, overbroad and ambiguous[, ] and his prosecution under it and the conspiracy count violates his due process rights under the U.S. Constitution.” (Docket No. 108, p. 1.) The challenged section provides for the punishment of any person who knowingly undertakes certain conduct related to sex trafficking - including recruiting, transporting, or enticing an individual - knowing that the trafficked individual “has not attained the age of 18 years and will be caused to engage in a commercial sex act.” 18 U.S.C. § 1591(a) (emphasis added). In his motion, Kettles argues that the statute's use of the passive voice - “will be caused” - renders it too vague or ambiguous to provide sufficient notice of the conduct it prohibits, because it “makes it unclear who is causing the commercial sex act.” (Docket No. 108, pp. 3-4.) Moreover, Kettles contends, “the evidence will show that he was merely present while his co-defendant Whittemore solicited and directed the alleged victim to engage in commercial sex, ” conduct that should not be criminal but that, “according to the expansive view of [§ 1591(a)] advanced by the Government, ” would be subject to prosecution. (Id. at pp. 5-6.) For these reasons, Kettles requests that the court apply the rule of lenity and dismiss the charges against him.

         On March 21, 2017, the government filed a Response in opposition to the Kettles' motion (Docket No. 121), accompanied by a report containing text messages extracted from the minor victim's cell phone (Docket No. 121-1) and a disc containing a recording of Kettles' post- Miranda interview with law enforcement (Docket No. 121-2). In the Response, the government notes that federal courts have consistently found that § 1591(a) provides defendants with “fair notice” of the conduct that it proscribes as criminal, though none of these courts has been presented with a constitutional challenge to the statute's use of the phrase “will be caused.” (Docket No. 121, pp. 2-4 (citing United States v. Mozie, 752 F.3d 1271, 1281-83 (11th Cir. 2014) (rejecting challenge to § 1591(a)'s use of the phrase “reckless disregard” as unconstitutionally vague and ambiguous)).) Moreover, the government argues that substantial evidence - including text messages sent from the minor victim to both defendants and admissions made by Kettles during his interview with law enforcement - demonstrates that Kettles engaged in specific culpable acts and was not, as he argues, “merely present” while his co-defendant engaged in sex trafficking of a minor. (Id. at pp. 3-4.) Finally, the government argues that a “plain reading” of § 1591(a) shows that the statute is not ambiguous but, rather, clearly proscribes “participat[ion] in the prostitution of a thirteen-year-old minor victim” and, therefore, the rule of lenity does not apply. (Id. at pp. 4-5.)

         On March 24, 2017, Kettles filed - under seal - a Reply in support of his motion, in which he primarily “disputes that the SMS Extraction Report attached to the Government's Response . . . defeats his Motion to Dismiss.” (Docket No. 127, p. 1.) In the Reply, Kettles describes a number of the text messages found in that report and argues that their content demonstrates that he was “not involved at all” in trafficking the minor victim. (Id. at pp. 2-4.)

         After obtaining leave from the court, Kettles filed - under seal - a Supplemental Memorandum in support of the pending motion, in which he argues that (1) no credible evidence in the record establishes that he knew the alleged victim was a minor, and (2) based on the recorded statement of his co-defendant, Whittemore, he faces a “prejudicial and constructive amendment and variance of the Indictment at trial in this case because the Government's evidence substantially diverges from the charges set forth in the Indictment.” (Docket No. 135.) The government filed a Response to the Supplemental Memorandum, in which it argues that specific portions of Kettles' interview with law enforcement demonstrate that he knew the victim to be a minor and that Whittemore's recorded statement does not diverge from the charges set forth in the Indictment, as Kettles argues it does. (Docket No. 142.)

         LEGAL STANDARD

         A motion to dismiss the indictment is governed by Rule 12 of the Federal Rules of Criminal Procedure, which states that “[a] party may raise by pretrial motion any defense, objection, or request that the court can determine without a trial on the merits.” Fed. R. Crim. P. 12(b). The Sixth Circuit guides district courts to “dispose of all motions before trial if they are capable of determination without trial of the general issue.” United States v. Jones, 542 F.2d 661, 664 (6th Cir. 1976). A defense raised in a motion to dismiss the indictment is “capable of determination if trial of the facts surrounding the commission of the alleged offense would be of no assistance in determining the validity of the defense.” Id. at 665 (quoting United States v. Covington, 395 U.S. 57, 60 (1969)). On a motion to dismiss the indictment, “the [c]ourt must view the [i]ndictment's factual allegations as true, and must determine only whether the [i]ndictment is ‘valid on its face.'” United States v. Campbell, No. 02-80863, 2006 WL 897436, at *2 (E.D. Mich. Apr. 6, 2006) (quoting Costello v. United States, 350 U.S. 359, 363 (1956)). Accordingly, the court must resolve factual issues in this case, such as they exist, in favor of the allegations in the indictment.

         ANALYSIS

         Kettles has been charged with offenses that involve the sex trafficking of a minor pursuant to 18 U.S.C. § 1591(a), which provides as follows:

Whoever knowingly--
(1) in or affecting interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States, recruits, entices, harbors, transports, provides, obtains, advertises, ...

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