           Case: 18-13773   Date Filed: 08/20/2019   Page: 1 of 8




                                                         [DO NOT PUBLISH]



             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 18-13773
                         Non-Argument Calendar
                       ________________________

                D.C. Docket No. 1:17-cr-00003-MW-GRJ-1



UNITED STATES OF AMERICA,

                                                               Plaintiff-Appellee,

                                  versus

ARTHUR LARANGE LEE, JR.,

                                                         Defendant-Appellant.

                       ________________________

                Appeal from the United States District Court
                    for the Northern District of Florida
                      ________________________

                             (August 20, 2019)

Before MARTIN, FAY, and ANDERSON, Circuit Judges.

PER CURIAM:
               Case: 18-13773     Date Filed: 08/20/2019    Page: 2 of 8


      Arthur Lee Jr. appeals his convictions for sex trafficking by force, in

violation of 18 U.S.C. § 1591(a)(1), (b)(1) and two counts of racketeering by

prostitution, in violation of 18 U.S.C. § 1952(a)(3). On appeal, he challenges the

district court’s entry of judgments of convictions for two racketeering by

prostitution offenses under 18 U.S.C. § 1952, and the entry of a judgment of

conviction for both a § 1952 violation and a violation of 18 U.S.C. § 1591, on the

grounds that doing so violated his rights under the Double Jeopardy Clause.

      As an initial matter, both of Lee’s challenges raise double jeopardy claims

that were not preserved for appellate review, and Lee concedes this point. We

typically review claims of double jeopardy de novo but review claims not properly

raised before the district court for plain error. United States v. Bobb, 577 F.3d

1366, 1371 (11th Cir. 2009). To satisfy plain error, a defendant must show: “(1)

there was an error in the district court proceedings; (2) the error was plain; (3) the

error affected the defendant’s substantial rights; and (4) the error “seriously

affect[ed] the fairness, integrity, or public reputation of judicial proceedings.” Id.

(citations omitted). “An error is not plain unless it is contrary to explicit statutory

provisions or to on-point precedent in this Court or the Supreme Court.” United

States v. Schultz, 565 F.3d 1353, 1357 (11th Cir. 2009).

      The Double Jeopardy Clause of the Fifth Amendment protects against,

among other things, multiple punishments for the same offense. Brown v. Ohio,


                                           2
                Case: 18-13773    Date Filed: 08/20/2019   Page: 3 of 8


432 U.S. 161, 165 (1977). However, that danger may not be present where the

sentences for multiplicitous counts are run concurrently. See United States v.

Pacchioli, 718 F.3d 1294, 1308 (11th Cir. 2013); United States v. Langford, 946

F.3d 798, 805-06 (11th Cir. 1991). While there are serious collateral consequences

for receiving multiple convictions, where a defendant failed to object to the

multiplicity of an indictment before trial, his challenge on appeal may be construed

as a challenge to his sentence. See Bobb, 577 F.3d at 1372; Pacchioli, 718 F.3d at

1308. And where the arguably multiplicitous counts resulted in concurrent

sentences, harmless error results. See Pacchioli, 718 F.3d at 1308.

      Separate statutory crimes need not have the same elements or require the

same proof in order to be the same within the meaning of double jeopardy. Brown,

432 U.S. at 164. The established rule, as stated in Blockburger v. United States,1 is

that, where the same act constitutes a violation of two distinct statutory provisions,

the test to determine whether there are two offenses is whether each provision

requires proof of an additional fact which the other does not. Id. at 166. Unless

each statute requires proof of an additional fact which the other does not, the

offenses are the same, and the Double Jeopardy Clause prohibits multiple

punishments for that single offense. Id. at 165. In conducting a double jeopardy

analysis, we consult “the precise manner in which an indictment is drawn.”


      1
          Blockburger v. United States, 284 U.S. 299, 304 (1932).
                                           3
              Case: 18-13773     Date Filed: 08/20/2019    Page: 4 of 8


Sanabria v. United States, 437 U.S. 54, 65-66 (1978). “Our analysis focuses on

the proof necessary to establish the statutory elements of each offense, not the

actual evidence presented at trial.” Bobb, 577 F.3d at 1372.

                                          I.

      Multiplicity, as the concept is known, is the charging of a single offense in

more than one count. Langford, 946 F.3d at 802. To determine whether an

indictment is multiplicitous, we must determine the “allowable unit of

prosecution.” Id.; see also United States v. Jones, 601 F.3d 1247, 1259 (11th Cir.

2010). We also apply the Blockburger test “to determine whether an indictment is

multiplicitous, verifying that each count requires an element of proof that the other

counts do not require.” Jones, 601 F.3d at 1258 (citations omitted).

      Section 1952 of Title 18 of the United States Code punishes anyone who:

“travels in interstate or foreign commerce or uses the mail or any facility in

interstate or foreign commerce, with intent to . . . otherwise promote, manage,

establish, carry on, or facilitate the promotion, management, establishment, or

carrying on, of any unlawful activity, and thereafter performs or attempts to

perform [said unlawful activity].” 18 U.S.C. § 1952(a)(3), (a)(3)(A). We have not

yet determined the unit of prosecution for a violation of § 1952.

      Here, the district court did not plainly err by entering judgments of

conviction for the two racketeering offenses because there is no statutory provision


                                          4
               Case: 18-13773     Date Filed: 08/20/2019     Page: 5 of 8


or binding case law holding that the use of an interstate “facility” is solely a

jurisdictional component that may not be considered in a double jeopardy analysis.

See Schultz, 565 F.3d at 1357. There is no binding case law of either this Court or

the Supreme Court holding that the “facilities” component of § 1952 is purely a

jurisdictional element, that jurisdictional elements are ignored for the purposes of

conducting a Blockburger analysis, or, to the government’s contention, that the

facilities in a § 1952 violation are the unit of prosecution. While Lee relies on

Torres v. Lynch, 136 S. Ct. 1619 (2016), and United States v. Perrin, 580 F.2d 730

(5th Cir. 1978)), neither case stands for the propositions for which Lee has cited

them. Perrin, which did not involve double jeopardy, explained that, under the

Travel Act, the use of interstate facilities is a federal jurisdiction predicate and that

the government does not have to prove that a defendant had knowledge of, or

intent to use, interstate facilities. Perrin, 580 F.2d at 738. Torres was an

immigration case, which also did not involve double jeopardy, in which the

Supreme Court explained that federal criminal laws often include both substantive

and jurisdictional elements, and that a mens rea is generally not required as to

jurisdictional elements. Torres, 136 S. Ct. at 1630-31. Torres held that

jurisdictional elements in a federal criminal statute may sometimes be ignored

when comparing federal and state criminal laws to determine which will apply

when both prohibit the same conduct. Id. at 1631-32. In Lee’s case, there is no


                                            5
                Case: 18-13773    Date Filed: 08/20/2019    Page: 6 of 8


issue about Lee’s intent to use or knowledge of the interstate facilities, or about the

relationship between state and federal crimes. Thus, neither Perrin nor Torres is

on-point precedent showing that the district court plainly erred. See Schultz, 565

F.3d at 1357.

      Lee’s indictment was not multiplicitous because the unit of prosecution of a

§ 1952 violation is the interstate use of a facility, and each racketeering offense in

Lee’s indictment alleged the use of a different facility. Under the Blockburger test,

the prosecution for each offense required proof of that offense’s charged facility,

namely use of either the internet or a cell phone. See Brown, 432 U.S. at 166;

Jones, 601 F.3d at 1258. Lee’s argument that the government failed to prove that

the two racketeering offenses resulted from separate acts is immaterial because he

has not shown that the district court was required to ignore the facilities element of

the offense, and under Blockburger, the actual evidence presented at trial is not

considered. See Bobb, 577 F.3d at 1372.

      Additionally, even if this Court were to find that the district court plainly

erred, Lee’s challenge would not satisfy the prejudice prong of the plain error

standard because his sentences for both racketeering counts were run concurrently

with his sentence for the sex trafficking offense and Lee failed to object to the

multiplicity of his indictment before trial. See id. at 1371; Pacchioli, 718 F.3d at

1308; Langford, 946 F.3d at 805-06. Accordingly, the district court did not plainly


                                           6
              Case: 18-13773     Date Filed: 08/20/2019    Page: 7 of 8


err by entering a judgment of conviction for each of the charged racketeering

offenses, and we affirm.

                                          II.

      Section 1591 of Title 18 of the United States Code punishes anyone who

knowingly harbors, transports, provides, obtains, advertises, or maintains a person

(“the harboring element”), knowing that means of force, threats of force, fraud,

coercion, or any combination of such means (“the coercion element”) will be used

to cause the person to engage in a commercial sex act. 18 U.S.C. § 1591(a)(1).

      Applying the Blockburger test, the two offenses are not the same within the

meaning of the Double Jeopardy Clause. Lee’s challenge fails the Blockburger

test. The government did not have to show that Lee harbored the victim to prove

the racketeering offense, and it likewise did not have to show that Lee used an

interstate facility to prove the sex trafficking offense. See id. The two offenses

therefore do not satisfy the Blockburger test because each requires proof of an

element that the other does not. See Brown, 432 U.S. at 165.

      Lee’s argument that the two offenses are the same relies on two arguably

erroneous inferences: (1) that the facility element of a § 1952 violation is solely

jurisdictional and must be ignored for the purposes of conducting a double

jeopardy analysis, and (2) that the district court was required to consider the actual

evidence presented at trial as opposed to the statutory elements that the


                                          7
              Case: 18-13773     Date Filed: 08/20/2019    Page: 8 of 8


government was required to prove. As explained above, there is no binding

precedent holding that the facility element of a § 1952 violation is solely a

jurisdictional element or that jurisdictional elements must be ignored when

conducting a double jeopardy analysis. And this Court’s precedent makes clear

that courts are not to consider the actual evidence presented at trial but should

instead focus on the proof necessary to establish the statutory elements of an

offense. See Bobb, 577 F.3d at 1372. Thus, the district court did not plainly err by

entering judgments of convictions for both the sex trafficking offense and the

racketeering offenses because no double jeopardy violation occurred.


      AFFIRMED.




                                          8
