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United States v. Kettles

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

August 9, 2017

UNITED STATES OF AMERICA,
v.
BRITTAN EZEKIAL KETTLES.

          MEMORANDUM & ORDER

          ALETA A. TRAUGER UNITED STATES DISTRICT JUDGE.

         Pending before the court is a Second Motion to Dismiss (Docket No. 157) filed by the defendant, Brittan Ezekial Kettles, to which the government has filed a Response in opposition (Docket No. 177). For the reasons discussed herein, the motion will be denied.

         BACKGROUND

         On August 10, 2016, Kettles was indicted by a federal grand jury, along with co-defendant Stormy Whittemore, on two counts of violating 18 U.S.C. §§ 1951 and 1954, which prohibit sex trafficking. The § 1951 charges were brought under subsection (a)(1), which reads as follows:

(a) 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, maintains, patronizes, or solicits by any means a person; or
knowing, or, except where the act constituting the violation of paragraph (1) is advertising, in reckless disregard of the fact, that means of force, threats of force, fraud, coercion described in subsection (e)(2), or any combination of such means will be used to cause the person to engage in a commercial sex act, or that the person has not attained the age of 18 years and will be caused to engage in a commercial sex act, shall be punished as provided in subsection (b) (emphasis added).

         The indictment, consistent with the Sixth Circuit's Pattern Jury Instruction 16.12, slightly alters the verb tense of part of the statute. See Pattern Crim. Jury Instr. 6th Cir. 16.12 (2016 ed.). The indictment reads in relevant part as follows:

Beginning in and around June 16, 2016, and continuing through on or about June 19, 2016, within the Middle District of Tennessee, and elsewhere, defendants BRITTAN EZEKIEL KETTLES, a/k/a Low Low, and STORMY WHITTEMORE, knowingly conspired with each other and others, known and unknown to the Grand Jury, to recruit, entice, harbor, transport, provide, obtain, and maintain by any means, in and affecting interstate and foreign commerce, person "A, " a minor whose identity is known to the Grand Jury, knowing and in reckless disregard of the fact that "A" had not attained the age of 18 years and that "A" would be caused to engage in a commercial sex act, In violation of Title 18, United States Code, Sections 1591(a)(1) . . . (emphasis added).

         On July 27, 2017, Kettles filed a Second Motion to Dismiss. Kettles contends that the minor difference between the language in the indictment and the language in the governing statute-“would be caused” vs. “will be caused”- offends his due process rights because the government failed to charge him with the offense as stated in the statute and therefore did not provide him with fair notice of the charges against him. He argues that “would” connotes conditionality in a way that “will” does not, and, thus, the government's use of “would” instead of “will” lowers the prosecutorial burden of proving guilt.

         LEGAL STANDARD

         An indictment is constitutionally sufficient “if it, first, contains the elements of the offense charged and fairly informs a defendant of the charge against which he must defend, and, second, enables him to plead an acquittal or conviction in bar of future prosecutions for the same offense.” Hamling v. United States, 418 U.S. 87, 117 (1974). The Sixth Circuit has acknowledged the “historic drift away from the rules of technical and formalized pleading [which] culminated in Federal Rule of Criminal Procedure 52(a), which provides that [a]ny error, defect, irregularity, or variance ...


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