                                                                     NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                        __________

                                   Nos. 08-4800, 08-4801
                                        __________

                            UNITED STATES OF AMERICA

                                              v.

                    ERIC HAYES, a/k/a International Ross, a/k/a Ross

                                              Eric Hayes, Appellant
                                        __________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
               (D.C. Criminal Nos. 1-05-cr-00443-009, 1-07-cr-00293-001)
                       District Judge: The Honorable Yvette Kane
                                       __________

                        Submitted Under Third Circuit LAR 34.1(a)
                                      May 4, 2011

          BEFORE: BARRY, HARDIMAN, and NYGAARD, Circuit Judges.

                                   (Filed: June 29, 2011)

                                        __________

                                OPINION OF THE COURT
                                      __________

NYGAARD, Circuit Judge.

       Eric Hayes appeals his conviction by a jury for: one count of conspiracy to

transport individuals with intent to engage in prostitution, and intent to distribute the
proceeds of prostitution, in violation of 18 U.S.C. §§ 371, 2421 and 1952(a); two counts

of coercing and enticing individuals to travel in interstate commerce for prostitution, in

violation of 18 U.S.C. §§ 2422(a), and 1952(a)(3) and (2); and one count of

transportation of an individual in interstate commerce with intent to engage in

prostitution, in violation of 18 U.S.C. § 2421. The District Court sentenced him to 420

months of imprisonment, three years of supervised release, assessments of $100 for each

count, and a fine of $4,000 on Count One.

       Quoting from Hayes’ brief, he asserts the following issues on appeal.

              I. Does a proper view of the evidence reveal that Eric Hayes
              actually agreed with others to participate in illegal activity?

              II. Does the evidence reveal that [A.P.] chose of her own
              volition and without persuasion, coercion, inducement or
              enticement from Eric Hayes to cross state lines for purposes
              of engaging in prostitution?

              III. Was the effect of Dr. Sharon Cooper’s testimony so
              prejudicial that no efforts to limit the juries’ [sic] application
              of it could prevent undue prejudice and deprive Mr. Hayes of
              his right to a fair trial by an impartial jury?

              IV. Did the trial court incorrectly calculate the sentencing
              guidelines for Mr. Hayes and did the court deny Mr. Hayes
              his constitutional right against ex post facto application of
              those rights.

Appellant’s Brief, p. 2. We will affirm.

       We apply a deferential standard in determining whether a jury verdict is supported

by sufficient evidence, viewing the evidence in a light most favorable to the government.

We will sustain the verdict if any rational trier of fact could have found the elements of

the crime beyond a reasonable doubt. United States v. Dent, 149 F.3d 180, 187 (3d Cir.


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1998). Hayes admits to being a pimp, and to interacting with other pimps who pleaded

guilty to the conspiracy. Nonetheless, he asserts that there is no substantial evidence that

he entered into an agreement with any of these people to participate in any illegal

activity. The government presented evidence that Hayes had an informal agreement in

which he exchanged advice and assistance with his “pimp partners.” It was such

information sharing that prompted Hayes and his “pimp partners”—almost all of whom

were from Toledo, Ohio—to move their operations to a truck stop in Harrisburg,

Pennsylvania. Hayes and his “pimp partners” also set prices for prostitution services and

enforced an unwritten code of conduct among the pimps. We conclude that the

government presented sufficient evidence for a reasonable jury to decide that there was a

meeting of the minds among Hayes and his co-conspirators.

       Next, while Hayes does not dispute that he transported a minor (identified as A.P.)

across state lines for the purpose of engaging in prostitution, he argues that he did not

entice, induce, or coerce A.P. to travel with him. See 18 U.S.C. § 2422(a). Hayes

supports his position by relying upon statements from A.P. that she chose to be a

prostitute, was excited to travel with Hayes, and that her agreement to go to Las Vegas

did not take any “arm-twisting.” Hayes ignores evidence of A.P.’s youth and instability,

that he encouraged A.P. to believe that she was his girlfriend (a scheme used by other co-

conspirators), and that he—within the context of this ruse—enticed A.P. to travel to Las

Vegas with promises of riches and a good life. Moreover, Hayes prostituted A.P. in other

states and, throughout this time, he increased his control over her through isolation,

threats, and brutality. Although Hayes attempts to distinguish his abuse of A.P. from his


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intent to continue prostituting her in various states, a reasonable jury could conclude that

Hayes enticed and/or coerced A.P. to travel interstate for purposes of prostitution.

       Hayes also asserts that the District Court abused its discretion in allowing the

testimony of a government witness, Dr. Sharon Cooper, because it was unduly

prejudicial. Before trial, the District Court ruled that Dr. Cooper was qualified to testify

on the general topic of the sexual exploitation of children, but she was not permitted to

testify about specific victims in this case. Hayes argues that Dr. Cooper’s testimony

should have been completely excluded or, upon hearing the actual testimony, the District

Court should have stricken it from the record. Nothing in the trial transcript supports

Hayes’ contention. The District Court sustained Hayes’ objection to one question by the

prosecution, and issued a proper curative instruction. Beyond this, Dr. Cooper testified

without objection from Hayes, staying within the parameters that the District Court

established. Moreover, the District Court gave Hayes opportunity to cross-examine Dr.

Cooper. We conclude that the District Court did not abuse its discretion.

       With regard to Hayes’ sentence, we are not persuaded by his argument that the

cross-reference constituted an ex post facto violation. 1 The conduct for which Hayes was

convicted included acts occurring after November 1, 2004, the effective date of relevant

amendments to the Guidelines. Both he and his co-conspirators were still prostituting

victims in 2005, and the District Court reasonably concluded that the acts of Hayes’ co-

conspirators were foreseeable and attributable to him, given his relationship with his

1
  Hayes mistakenly references United States v. Bertoli, 40 F.3d 1384 (3d Cir. 1994) in
support of his argument. However, Bertoli referred to separate counts of a conviction
that spanned the effective date of new Guidelines, a scenario not present here.

                                              4
“pimp partners.” Therefore, the District Court properly applied to Hayes the Guidelines

incorporating amendments that became effective after November 1, 2004, which

permitted the cross-reference to U.S. Sentencing Guidelines Manual § 2A3.1 (2007).

       We easily dispose of Hayes’ assertion that the District Court erred by applying a

four-level special characteristic for conduct described in 18 U.S.C. § 2241 (a) or (b),

pursuant to section 2A3.1(b)(1). He avers that he did not force anyone to engage in

sexual acts. Hayes and his co-conspirators threatened and severely beat minors and

young women to establish dominance over them for the purpose of prostituting them. He

and his co-conspirators created an environment of fear that forced their victims to

continue to prostitute. The District Court properly applied the enhancement for forcing

an individual to engage in a sexual act.

       His challenge to the two-level vulnerable victim enhancement, pursuant to section

3A1.1(b)(1), also lacks merit. Hayes recruited a cognitively impaired minor and

prostituted a girl with a bi-polar disorder. Moreover, testimony established that the

conspiracy targeted “lost girls” (a reference to minors from troubled personal or familial

circumstances such as homelessness or severely unstable families). These conditions

were not incidental to the victimization. The record provides sufficient basis for the

District Court’s application of the vulnerable victim enhancement.

       With regard to Hayes’ challenge to the leader/organizer enhancement (section

3B1.1(a)) the record provides evidence that he trained at least one other co-

conspirator/pimp in this large, multi-state operation. The District Court did not err by

applying this enhancement.


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      For all of these reasons, we will affirm the District Court’s judgment of conviction

and sentence.




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