                 United States Court of Appeals
                             For the Eighth Circuit
                         ___________________________

                                 No. 15-2962
                         ___________________________

                             United States of America,

                        lllllllllllllllllllll Plaintiff - Appellee,

                                            v.

                              Tony Eugene Wardlow,

                      lllllllllllllllllllll Defendant - Appellant.
                                       ____________

                     Appeal from United States District Court
                for the Western District of Missouri - Kansas City
                                 ____________

                             Submitted: April 14, 2016
                               Filed: July 29, 2016
                                  ____________

Before COLLOTON and SHEPHERD, Circuit Judges, and MOODY,1 District
Judge.
                         ____________

MOODY, District Judge.

       A jury convicted Defendant Tony Eugene Wardlow of transportation of a minor
for prostitution, a violation of 18 U.S.C. §2423(a). The district court sentenced him

      1
       The Honorable James M. Moody, Jr, United States District Judge for the
Eastern District of Arkansas, sitting by designation.
to 250 months’ imprisonment. Wardlow appeals from his conviction and sentence,
specifically challenging two of the district court’s2 evidentiary rulings during trial and
the court’s application of the United States Sentencing Guidelines at sentencing. We
have jurisdiction over this appeal pursuant to 28 U.S.C. §1291. We affirm.

                                            I.

       At trial, the minor (“A.R.”) testified that in August of 2011 she met Wardlow
on Independence Avenue in Kansas City, Missouri, where she worked as a prostitute.
She was sixteen years old at the time. The Defendant became a “regular” client,
meaning that she engaged in sex with him in exchange for money two to three times
per week. She testified that having a “regular” provided a more stable income for her
than soliciting “tricks” on Independence Avenue. She testified that she would give
a “regular” more time and attention, but would not form an emotional attachment to
them. A.R. testified that Wardlow was sometimes nice but other times he would “say
things, inhumane things, place ideas into my head of fear, make me in fear, degrade
me, a lot of things like that.” (Trial Tr. vol.1, 23). A.R. stated that Wardlow would
pick her up and drive her to places in Missouri where “it’s very common for girls to
end up dead there,” and he would tell her that was where she would end up. Wardlow
told her that she was “just a black prostitute, that nobody would come and look for
[her].” Id. A.R. explained that Wardlow provided her with a mobile phone so that he
could contact her. When asked whether anyone else knew the phone number, A.R.
stated that she gave the phone number to someone else “because at that time I was in
fear that I wasn’t going to make it through anything, so I really just wanted somebody
to have a number to get ahold [sic] of me like if there was no more contact between
me and my family.” (Trial Tr. vol. 1, 24).




      The Honorable Dean Whipple, United States Senior District Judge for the
      2


Western District of Missouri.

                                           -2-
        A.R. testified that Wardlow, an over-the-road truck driver, took her along on
certain trips for the purpose of having sex with him and his friends. On one occasion,
the Defendant, A.R., and his friend, Tom Farrell, took a trip to St. Louis. A.R.
testified that she had sex with both men during the trip and was paid for the sex. This
testimony was corroborated by the government’s witness, Tom Farrell. A.R. testified
that she was always paid in cash because she had to pay her pimp in cash but
frequently the Defendant would supplement the cash with payment in kind. These
payments were given in the form of food, clothing, and drugs. Wardlow took A.R. to
Texas on another long-haul trip in late September of 2011. Again, Tom Farrell
traveled with them and testified that the Defendant brought A.R. along to have sex
with both men. A.R. testified that she had sex with Tom and Tony on this trip. Farrell
and A.R. both testified that Wardlow’s plan was to set A.R. up in an apartment in St.
Joe, Missouri, so that she would be available to Wardlow and his friends at any time.

                                          II.

       In a pretrial motion in limine, the Government argued that any reference to
A.R.’s sexual behavior after the time of the offense, specifically evidence of A.R.’s
prostitution activity with a man named Otis Warren, should be precluded. Mr. Warren
had also been charged and pled guilty to transporting A.R. for the purpose of
prostitution in 2011. The Government argued that the evidence was inadmissible
under Rule 412 of the Federal Rules of Evidence which precludes introduction of
evidence of a victim’s sexual behavior in a criminal sex offense case with specific
exceptions.

       The Government also argued that the evidence regarding Otis Warren was
irrelevant, prejudicial, and likely confusing to the jury. See Fed. R. Evid. 403. The
district court granted the Government’s motion in limine and precluded evidence of
A.R.’s prostitution activity with Otis Warren.



                                         -3-
       Wardlow argued at trial that he lacked the intent required to prove the
trafficking of a minor charge against him because he considered A.R. to be his
girlfriend. Wardlow attempted to cross-exam A.R. about her testimony that she would
not develop an emotional attachment to a client. Wardlow proffered his line of
questioning based upon a personal journal entry in which A.R. had stated that she had
established a boyfriend-girlfriend relationship with Warren after her relationship with
Wardlow ended. The district court affirmed its previous ruling and denied the proffer.
Wardlow contends the district court abused its discretion when it limited his cross-
examination of A.R. into this issue, violating his Sixth Amendment right to confront
the witnesses against him.

        Rule 412 excludes any “evidence offered to prove that a victim engaged in
other sexual behavior” or “evidence offered to prove a victim’s sexual predisposition”
from a civil or criminal proceeding involving alleged sexual misconduct.3 FED. R.
EVID. 412. Clearly, testimony elicited from A.R. about her prostitution activity with
Otis Warren would fall under the prohibition of Rule 412. Wardlow’s Sixth
Amendment right to confront a witness does not extend to any and all questions he
intends to ask. “A restriction on an accused’s right to introduce evidence may not be
arbitrary or disproportionate to the purpose that the restriction is designed to serve.
. . .” United States v. Papakee, 573 F.3d 569, 573 (8th Cir. 2009) (citing Michigan v.
Lucas, 500 U.S. 145, 151, 111 S.Ct. 1743, 114 L.Ed. 2d 205 (1991)). The purpose of
the Rule 412 restriction is “to safeguard the alleged victim against the invasion of
privacy, potential embarrassment and sexual stereotyping that is associated with
public disclosure of intimate sexual details and the infusion of sexual innuendo into
the factfinding process.” FED. R. EVID. 412 advisory committee’s note to 1994
amendment. This purpose outweighs Wardlow’s right to produce testimony showing



      3
       Rule 412 also requires a party to file a notice of intent to offer Rule 412
evidence at least 14 days before trial. Wardlow failed to file a notice.

                                         -4-
that the victim had an emotional relationship with a different client. Wardlow’s Sixth
Amendment right was not violated by the exclusion of this evidence.

      In addition, the proffered line of questioning by Wardlow was irrelevant.
Wardlow sought to prove that he believed A.R. was his girlfriend. The question
which he proffered regarding A.R.’s feelings for Mr. Warren did not tend to prove
Wardlow’s state of mind, but rather A.R.’s state of mind. In other words, the
testimony would be used to show that A.R. likely consented to the transportation for
sex.

      The consent or willing participation of [a minor] is insignificant and
      hardly relevant. “[W]hen sexual assaults are committed upon children
      . . . , consent is not a defense. The reason is that the victims in these
      cases, because of ignorance or deceit, do not understand what is
      happening to them. Therefore their ‘consent’ is of no significance.

United States v. Abad, 350 F.3d 793, 798 (8th Cir. 2003) (quoting Guarro v. United
States, 237 F.2d 578, 581 (D.C.Cir.1956)). See also Gebardi v. United States, 287
U.S. 112, 119, 53 S.Ct. 35, 37, 77 L.Ed. 206 (1932) (The “statute is drawn to include
those cases in which the woman consents to her own transportation.”).

       A trial, the Government called Detective Derrick Wilczek as a witness. Wilczek
is an officer with the FBI’s Child Exploitation Task Force and was involved with the
investigation of the Defendant. Wilczek conducted a recorded interview of Wardlow
on the day a search was conducted at Wardlow’s home. During Wilczek’s direct
examination, the Government played short audio clips of the interview, including
transcription, and stopped to ask Wilczek questions about that particular clip. After
playing the first audio clip, the following exchange occurred:

      Government:         . . . [H]ow does [Wardlow] refer to [A.R.] in this?

      Wilczek:            As a “streetwalker from the Avenue.”


                                         -5-
       Government:          Does he use variations about kind of the way he referred to
                            her? What other sorts of terms does he use to refer to her
                            during the course of this interview?

       Wilczek:             At times he calls her a whore, a lying bitch.

(Trial Tr. vol 1, 191).

        At the conclusion of Wilczek’s direct testimony and outside the presence of the
jury, the Defendant asked the district court whether he would be allowed to cross-
examine Wilzcek about Wardlow’s characterization of the victim. The defense argued
that the Government had opened the door to this line of questioning when the witness
testified that Wardlow called A.R. a “lying bitch.” The district court affirmed its pre-
trial order in which the court precluded any evidence relating to a mistake of fact
defense based on Wardlow’s mistaken belief that A.R. was eighteen years old. In
response to the Government’s motion in limine, the Defendant had argued that A.R.
was a critical and essential witness for the Government and the Defendant should be
allowed to inquire as to her reputation for truthfulness. The Defendant conceded that
there was no mistake of fact defense available to him. The court had reasoned that
whether A.R. lied about her age was irrelevant to the issues to be proven at trial.
Citing Rule 403 of the Federal Rules of Evidence, the court ruled that the information
would confuse the jury regarding a mistake of fact defense. At trial, the court ruled
that the Defendant could not cross examine Detective Wilczek regarding Wardlow’s
characterization of the victim as a “lying bitch” because it related to his belief that she
lied about her age. We agree.

       Rule 403 provides:

       The court may exclude relevant evidence if its probative value is
       substantially outweighed by a danger of one or more of the following:

                                           -6-
      unfair prejudice, confusing the issues, misleading the jury, undue delay,
      wasting time, or needlessly presenting cumulative evidence.

FED. R. EVID. 403. “Rule 403 ‘contemplates a flexible scheme of discretionary
judgments by trial courts designed to minimize the evidentiary costs of protecting
parties from undue prejudice.’” United States v. Dennis, 625 F.2d 782, 796 (8th Cir.
1980) (quoting United States v. Jackson, 405 F.Supp. 938, 945 (E.D.N.Y. 1975)). “In
determining whether evidence should have been excluded under Rule 403, a
reviewing court must give great deference to the trial judge who saw and heard the
evidence.” United States v. Ziesman, 409 F.3d 941, 951 (8th Cir. 2005) (quoting
United States v. Cody, 114 F.3d 772, 777 (8th Cir.1997)). “District courts are given
broad discretion in gauging the possibility of unfair prejudice under Rule 403, and we
will reverse only if a district court abuses this discretion.” United States v. Medicine
Horn, 447 F.3d 620, 622 (8th Cir. 2006) (citing United States v. Henderson, 416 F.3d
686, 693 (8th Cir.2005), cert. denied, 546 U.S. 1175, 126 S.Ct. 1343, 164 L.Ed.2d 57
(2006)).

       We find that the district court did not abuse its discretion. Evidence of
Wardlow’s characterization, or name calling, of the victim has very little, if any,
probative value to an issue in the case. When compared to the potential confusion to
the jury of the issues and available defenses, any probative value the evidence may
have had is substantially outweighed by a danger of unfair prejudice. Fed. R.Evid.
403. See also United States v. Bordeaux, 400 F.3d 548, 558 (8th Cir. 2005) (“In light
of the minimal probative value of the evidence and the important purpose of the
exclusion, then, exclusion of the statement was not disproportionate to the purpose
behind the exclusion.”).

      Wardlow appeals the district court’s application of United States Sentencing
Guidelines (“U.S.S.G.”) §§ 2A3.1(a)(2) and 2A3.1(b)(1) at sentencing. On appeal,
“[w]e review for clear error the district court's findings of fact and apply de novo


                                          -7-
review to the district court's interpretation and application of the Guidelines.” United
States v. Wood, 670 F.3d 883, 886 (8th Cir. 2012) (quoting United States v. Spikes,
543 F.3d 1021, 1023 (8th Cir. 2008)). We “must first ensure that the district court
committed no significant procedural error.” United States v. Feemster, 572 F.3d 455,
461 (8th Cir. 2009)(quoting Gall v. United States, 552 U.S. 38, 51, 128 S.Ct. 586,
597, 169 L.Ed.2d 445 (2007)). “A failure to properly calculate the advisory
Guidelines range is a significant procedural error, and a non-harmless error in
calculating the guidelines range requires a remand for resentencing.” Spikes, 543 F.3d
1021, 1023 (8th Cir. 2008) (internal quotation marks and citation omitted).

       Under U.S.S.G. §2G1.3(a)(3), a defendant sentenced for a crime under 18
U.S.C. § 2423(a), travel to engage in prohibited sexual conduct with a minor, has a
base offense level of 28. However, §2G1.3(c) instructs the district court that if the
offense involved conduct described in 18 U.S.C. §§ 2241 or 2242 it is appropriate to
look to the base offense level applicable under U.S.S.G. §2A3.1. If the base offense
level in §2A3.1 is greater than the base offense level in §2G1.3, the district court
should apply the greater base offense level of the two Guideline sections. In
Wardlow’s case, the base offense level under §2A3.1 was two levels greater than the
base offense level stated under §2G1.3. Therefore, the Court used the greater of the
two levels to determine Wardlow’s base offense level was 30.

      Wardlow argues that §2A3.1 did not apply in his case because the offense did
not involve conduct described under 18 U.S.C. §§ 2241 or 2242. The Commentary
to U.S.S.G. §2G1.3 explains:

      Conduct described in 18 U.S.C. § 2241(a) or (b) is engaging in, or
      causing another person to engage in, a sexual act with another person:
      (I) using force against the minor; (II) threatening or placing the minor
      in fear that any person will be subject to death, serious bodily injury, or
      kidnapping; (III) rendering the minor unconscious; or (IV) administering

                                          -8-
      by force or threat of force, or without the knowledge or permission of
      the minor, a drug, intoxicant, or other similar substance and thereby
      substantially impairing the ability of the minor to appraise or control
      conduct. . . .

U.S. SENTENCING GUIDELINES MANUAL § 2G1.3 cmt. n.5(B)(i) (U.S. SENTENCING
COMM’N 2014). See also 18 U.S.C. §2241(a). At sentencing, the district court found
that there was sufficient evidence that Wardlow used threats against A.R. to cause her
to have sex with him.

       In light of A.R.’s testimony that Wardlow drove her to areas of town where
girls were often found dead and tell her she would be there and that he “place[d] ideas
into [her] head of fear,” we conclude that the court did not clearly err in finding that
Wardlow’s offense of conviction involved conduct described in 18 U.S.C. §2241(a).
Under the Guidelines, Wardlow’s appropriate base offense level was 30. Because
U.S.S.G. §2A3.1(b)(1) prescribes a four-level enhancement for an offense that
involved conduct described in 18 U.S.C. §2241(a), the enhancement was also
appropriate.

       Wardlow contends that the district court erred in applying the five-level
enhancement under U.S.S.G. §4B1.5(b) for engaging in a “pattern of activity
involving prohibited sexual conduct.” U.S. SENTENCING GUIDELINES MANUAL §
4B1.5(b) (U.S. SENTENCING COMM’N 2014). Wardlow argues that there was
insufficient evidence for the district court to conclude that Wardlow engaged in a
pattern of prohibited sexual activity.

       Section 4B1.5(b) of the U.S.S.G. applies to “any case in which the defendant’s
instant offense of conviction is a covered sex crime . . . and the defendant engaged
in a pattern of activity involving prohibited sexual conduct.” Id. The application notes
to the subsection clarify that it applies where the defendant has engaged in a ‘pattern’

                                          -9-
of prohibited sexual conduct with a minor “on at least two separate occasions.” U.S.
SENTENCING GUIDELINES MANUAL §4B1.5, app. n.4(B)(i). “An occasion of
prohibited sexual conduct may be considered for purposes of subsection (b) without
regard to whether the occasion (I) occurred during the course of the instant offense;
or (II) resulted in a conviction for the conduct that occurred on that occasion.” U.S.
SENTENCING GUIDELINES MANUAL §4B1.5, app. n.4(B)(ii).

       Wardlow does not dispute that his conviction for transporting a minor for
prostitution is a covered sex crime and there is ample evidence in the record that
Wardlow had sex with A.R. on more than two separate occasions. However, Wardlow
argues that the sexual activity that occurred between Wardlow and A.R. within the
State of Missouri did not meet the definition of prohibited sexual conduct for
purposes of §4B1.5(b) because having sexual contact with a seventeen year old is not
a crime in Missouri. He contends that if the sexual activity in Missouri did not count
as prohibited sexual contact for purposes of §4B1.5(b), then there was insufficient
evidence that Wardlow had prohibited sexual contact with A.R. on two occasions. It
is true that in the State of Missouri consensual sex with a seventeen year old is not
prohibited by statute.

       The district court ruled that there was sufficient evidence of a pattern of sexual
activity between Wardlow and A.R. outside Missouri to support the application of §
4B1.5(b). There was testimony from A.R. and from Tom Farrell that Wardlow had
sex with A.R. on this trip. The trip lasted three days with stops in both Fort Worth and
Big Springs. Even assuming that sexual activity with A.R. after she turned seventeen
years old was not prohibited in Missouri, these facts support the application of §
4B1.5(b) enhancement for a pattern of prohibited sexual conduct with a minor. We
find no clear error in the district court’s findings of fact and no procedural error in
calculating the advisory Guidelines sentencing range. The sentence is affirmed.




                                          -10-
III.   CONCLUSION

      For these reasons, we affirm the district court’s rulings, and uphold Wardlow’s
conviction and 250 month sentence. The motion to seal filed by the United States on
March, 31, 2016 is granted.

                       ______________________________




                                        -11-
