United States District Court, M.D. Tennessee, Nashville Division
MEMORANDUM & ORDER
A. TRAUGER UNITED STATES DISTRICT JUDGE.
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.
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).
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).
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.
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 ...