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United States v. Gardner

United States Court of Appeals, Sixth Circuit

April 16, 2018

United States of America, Plaintiff-Appellee,
v.
Michael Taylor Gardner, Defendant-Appellant.

          Appeal from the United States District Court for the Eastern District of Michigan at Detroit. No. 2:16-cr-20135-1-Gershwin A. Drain, District Judge.

          Phillip D. Comorski, Detroit, Michigan, for Appellant.

          Andrew Goetz, UNITED STATES ATTORNEY'S OFFICE, Detroit, Michigan, for Appellee.

          Before: BATCHELDER, SUTTON, and WHITE, Circuit Judges.

          OPINION

          SUTTON, Circuit Judge.

         Michael Gardner shared a cell phone with his seventeen-year-old girlfriend, B.H., to facilitate her "sex dates" with other men. When one of B.H.'s clients turned out to be an undercover officer, she agreed to let police search the phone. A jury convicted Gardner of trafficking a minor for sex and producing child pornography, primarily based on evidence recovered from the phone. On appeal, Gardner urges us to vacate his convictions on the ground that the district court erroneously admitted the phone evidence during the trial, among other alleged errors. We decline the invitation and affirm.

         I.

         As a senior in high school, Gardner met B.H., then a freshman, and they became friends for a time. Three years later, they reconnected. The relationship became intimate, and more. On at least one occasion, Gardner used his iPhone to film them having sex. Before long, Gardner pressured B.H. to have sex with other men for money. She was seventeen years old, and Gardner knew it.

         In August 2015, Gardner began posting advertisements for sex with B.H. on Backpage.com, inviting potential customers to call or text her to arrange "dates" and listing Gardner's phone number. Gardner posted more than thirty advertisements for B.H., often attempting to attach explicit pictures of her that website administrators removed. Only Gardner posted the ads. But both Gardner and B.H. exchanged texts with customers to arrange details. When customers called, Gardner handed his phone to B.H. and told her to use the speakerphone so that he could hear the price. Gardner arranged the transportation for B.H.'s liaisons and gave her drugs to endure them. At the end of each encounter, he demanded the money the clients had paid her. The two of them usually stayed the night at motels, living out of the rooms where B.H. had liaised with clients. On days when B.H. "told him that [she] didn't want to do anything, " Gardner got angry. R. 106 at 29. More than once he put his hands around her throat, warning that "he could hurt [her] really bad" and get away with it. Id. at 30.

         Business started as usual on October 10, 2016. Gardner posted an ad for B.H. on Backpage.com. A customer called Gardner's phone in response to the ad. B.H. answered and arranged the time, the place, and the price. Gardner asked his cousin to drive them to a Red Roof Inn for the "trick." When they arrived, Gardner handed B.H. his phone and told her to call him after she was done. Gardner parked across the street and waited.

         Once in the motel room, the customer told B.H. that he was an undercover officer. He alerted task force officers, who entered the room, secured the premises, and spoke with B.H. Inside they found a white iPhone on a dresser next to B.H.'s purse. B.H. said it was hers, agreed to let the officers search it, and provided the passcode. Meanwhile, a separate group of officers approached Gardner and his friends in the parked car. They asked Gardner if he had a phone. He said that he did, a black cell phone somewhere "in the back seat of the car." R. 104 at 106. Officers never found it. They took B.H. and Gardner to the police station for interviews and released them that night.

         A few days later, B.H. agreed to move to Kentucky with Gardner to live with him and his mother. Pregnant, B.H. hoped that the two of them "were going to be able to start over" and that she wouldn't have to do any more "dates." R. 106 at 82. But within a week, Gardner pressured her to turn more tricks and became violent when she refused. B.H. left. She walked for an hour before someone picked her up and helped her return home to Detroit.

         A grand jury indicted Gardner. Count 1 charged him with trafficking a minor for sex. 18 U.S.C. § 1591(a)(1). Count 2 charged him with producing child pornography. Id. § 2251(a). Before trial, Gardner asked the district court to suppress any evidence from his phone because officers seized it in violation of the Fourth Amendment and to exclude any photographs showing his gang affiliation. The district court denied both motions. It ruled that B.H. consented to let officers search the phone and that she had actual and apparent authority to do so. And it ruled that the photographs were relevant to show an element of the sex trafficking charge-whether B.H. feared that Gardner would cause her "serious harm" if she refused to prostitute herself. Id. § 1591(e).

         The jury found Gardner guilty on both counts, and the court sentenced him ...


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