     Case: 12-51031   Document: 00512663083    Page: 1   Date Filed: 06/13/2014




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                                United States Court of Appeals
                                                                         Fifth Circuit

                                                                       FILED
                                No. 12-51031                       June 13, 2014
                                                                  Lyle W. Cayce
UNITED STATES OF AMERICA,                                              Clerk


                                          Plaintiff–Appellee,

v.

BRIAN TERRELL PHEA, also known as Brian Phea,

                                          Defendant–Appellant.




                Appeal from the United States District Court
                     for the Western District of Texas


Before REAVLEY, PRADO, and OWEN, Circuit Judges.
PRISCILLA R. OWEN, Circuit Judge:
      A jury convicted Brian Terrell Phea of causing a person under the age of
18 to engage in a commercial sex act in violation of 18 U.S.C. § 1591(a) and
aiding and abetting the promotion of prostitution in violation of 18 U.S.C.
§ 1952(a)(3). He received concurrent sentences of 312 months and 60 months
of imprisonment, respectively. Phea challenges his conviction under § 1591(a)
and his sentence on various grounds.
      We affirm.
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                                   No. 12-51031
                                        I
      Phea’s conviction under § 1591(a) resulted from his involvement in the
prostitution of K.R., a fourteen-year-old female. Phea came into contact with
her on the social networking website Tagged.com.            K.R.’s profile on that
website said that she was eighteen years old. Phea says that after engaging in
“sexual banter” over the internet, he asked K.R., who lived in Houston, Texas,
to travel to and meet him in Amarillo, Texas. He initially sought to buy an
airline ticket for her, but she told him that she did not have any identification
documents. Phea purchased a Greyhound bus ticket that K.R. used to travel
from Houston to Amarillo. In Amarillo, Phea met her at the bus station and
took her to his mother’s house where he and K.R. had sexual intercourse. Phea
then drove K.R. to Odessa, Texas, which was a five-hour trip, and paid for a
room at the Quality Inn Hotel that K.R. shared with another woman, who
worked as a prostitute for Phea.
      Phea bought K.R. new clothes, shoes, and a mobile phone. The phone’s
number corresponded to a number listed in an advertisement for prostitution
services that Phea and another individual had placed on a website called
Backpage.com. After K.R. received the phone, she was contacted by men she
did not know to inquire about “selling [her] body” and related costs.
      K.R. spent four days in Odessa with Phea and women working as
prostitutes for Phea.    During this time, K.R. quarreled with one of these
women, and K.R. told Phea that she did not want to work as a prostitute. In
response, Phea beat and tased K.R., rupturing her eardrum.                He then
instructed her to go with him to a hotel to meet a man from Louisiana who had
contacted K.R. earlier to solicit sex. Phea told K.R. how much to charge the
man, and later, when the man did not have sufficient funds, instructed her to
accept the money he did have. K.R. then had sexual relations with this man.


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                                 No. 12-51031
Phea picked her up afterwards and took the money K.R. had received before
driving her back to the Quality Inn.
      Phea was charged with violating 18 U.S.C. §§ 1591(a) and 1952(a)(3). A
jury found Phea guilty. It also made a special finding that Phea had committed
the offense of sex trafficking under § 1591(a) by force, threats of force, fraud,
or coercion.   At sentencing, Phea objected to the application of a two-level
enhancement for the use of a computer.         The district court overruled the
objection and sentenced Phea to a term of 312 months of imprisonment, to run
concurrently with his sentence of 60 months for his convictions for aiding and
abetting the promotion of prostitution under § 1952(a)(3). Phea now appeals
his conviction and sentence under § 1591(a).
                                       II
      Phea maintains that he did not know and had no reason to know that
K.R. was less than eighteen years of age. Her online identifying information
when he communicated with her through Tagged.com indicated that she was
eighteen years old; when she was arrested by police after leaving Amarillo with
her boyfriend, she told the officers that she was nineteen; and she never told
Phea, any of his associates, or anyone at the Amarillo hotels she frequented
that she was under the age of eighteen. Phea challenges the sufficiency of the
evidence and the charge to the jury regarding his culpable mental state in this
regard.
                                       A
      Phea asserts that he could be convicted under § 1591(a) only if he either
knew K.R. was under the age of eighteen or acted in reckless disregard of that
fact. He contends that the evidence was insufficient to establish either of these
mental states. Phea moved for a judgment of acquittal under Federal Rule of
Criminal Procedure 29. When a defendant moves for a judgment of acquittal
at the close of the government’s case and after the defense rested, we review
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                                     No. 12-51031
his claims regarding the sufficiency of the evidence de novo. 1 “All evidence is
reviewed in the light most favorable to the verdict to determine whether a
rational trier of fact could have found that the evidence established . . . guilt
beyond a reasonable doubt.” 2 We conclude that there is evidence from which a
rational trier of fact could have found beyond a reasonable doubt that Phea
caused K.R. to engage in a commercial sex act in reckless disregard of the fact
that she had not attained the age of eighteen. There is also evidence that would
support a finding that Phea had a reasonable opportunity to observe K.R.
      It is undisputed that Phea knew that K.R. did not have identification
that was sufficient to allow her to obtain a ticket on an airline. While this
evidence, standing alone, might not support the jury’s verdict, it is evidence
that the jury may properly consider. Her lack of identification is at least some
evidence that would tend to put a person on inquiry that K.R. may not have
been eighteen years of age. Most importantly, we cannot ignore the undisputed
evidence that Phea spent a significant amount of time with K.R. and had
sexual intercourse with her. K.R. testified at trial. The jury was entitled to
evaluate K.R.’s appearance in deciding whether Phea acted in reckless
disregard of the fact that she was fourteen, not eighteen, years old. There is
no evidence in the trial record that K.R. appeared to be four or more years older
than her age of fourteen. The jury was entitled to draw its own conclusions,
from its own direct observations, regarding K.R.’s appearance and behavior,
unless the record reflects that no reasonable person could have suspected that
K.R. was under the age of eighteen. There is no such evidence in the record
before us.



      1 United States v. Harris, 666 F.3d 905, 907 (5th Cir. 2012) (citing United States v.
Penaloza-Duarte, 473 F.3d 575, 579 (5th Cir. 2006)).
      2   Id.
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                                 No. 12-51031
      Phea asserts that the Government failed to adduce any expert testimony
or to employ a “heuristic method such as the Tanner Scale of Human
Development for Females.” We have found no authority, and Phea cites none,
that holds expert testimony is necessary to establish a fact question for a jury
as to a victim’s age under the circumstance of a case such as this. Phea also
points to two exhibits in the record as evidence that K.R. had physical
attributes that made her appear to be at least eighteen years of age. One of
these exhibits is a pre-printed form showing the bare outline of a female that
was used by a nurse to make notes when she examined K.R. for injuries. It is
not a depiction of K.R. or a representation that K.R.’s physical appearance was
similar to that of the figure’s outline. In any event, females under the age of
eighteen have physical attributes similar to those of the very basic, almost
crudely drawn, female outline appearing on this pre-printed form. The other
exhibit on which Phea relies is a photograph of a small area of K.R.’s chest.
That photo is not necessarily indicative of an age of eighteen. It indicates only
that K.R. appeared to be post-pubescent.
      Because the jury saw and heard K.R. at trial and was in the best position
to determine whether Phea knew, or acted in reckless disregard, of the fact
that K.R. was less than eighteen years old, there is sufficient evidence to
support the conviction.
                                       B
      Phea asserts that the charge to the jury was erroneous because it
permitted the jury to reach a guilty verdict solely on the basis that Phea had a
reasonable opportunity to observe K.R.      He argues that the district court
submitted a strict liability theory in this regard. He further contends that the
Government must prove both that Phea had a reasonable opportunity to
observe K.R. and that he recklessly disregarded her age.


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                                 No. 12-51031
      As an initial matter, we disagree with Phea’s construction of § 1591(a) in
at least one respect.   A conviction may be obtained against a defendant who
recklessly disregards a victim’s age even if the defendant did not have a
reasonable opportunity to observe the victim. Facts other than the victim’s
appearance or behavior may support a finding of reckless disregard of the
victim’s age, such as information from the victim, or others, or documentation
that would cause a reasonable person to question whether the victim was
actually eighteen years old. Circumstances of which a defendant was aware,
such as the victim’s grade level in school, or activities in which the victim
engaged, could also constitute the basis for a finding of reckless disregard.
      However, we agree with Phea that the charge did not instruct the jury
that it could find, as an alternative basis for conviction, that Phea acted in
reckless disregard of the fact that K.R. had not attained the age of eighteen.
The jury was instructed as follows regarding K.R.’s age:


                               COUNT ONE:
          SEX TRAFFICKING OF CHILDREN BY FORCE, FRAUD,
      OR COERCION
            Title 18, United States Code, Section 1591 (a), makes it a
      federal crime or offense for anyone to affect interstate commerce
      by causing a person under the age of 18 to engage in a commercial
      sex act.
             The Defendant can be found guilty of that offense only if all
      of the following facts are proved beyond a reasonable doubt:
            First: That on or about March 16, 2012, in the Western
      District of Texas and the Northern District of Texas, the Defendant
      knowingly recruited, enticed, harbored, transported, provided,
      obtained, or maintained by any means a person who had not
      attained the age of eighteen (18) years;




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                                        No. 12-51031
             Second: That the Defendant did so knowing or in reckless
       disregard of the fact that the person would be caused to engage in
       a commercial sex act; and
             Third: That the Defendant’s acts were in or affected
       interstate commerce.
                                            ....
       Knowledge of the Age of the Juvenile
             If the Government proves beyond a reasonable doubt that
       the defendant had a reasonable opportunity to observe the person
       recruited, enticed, harbored, transported, provided, obtained, or
       maintained, then the Government does not have to prove that the
       defendant knew that the person had not attained the age of
       eighteen (18) years.
       The only instruction regarding reckless disregard pertained to “reckless
disregard of the fact that the person would be caused to engage in a commercial
sex act.”      The jury was instructed in the section of the charge captioned
“Knowledge of the Age of the Juvenile” that the Government did not have to
prove that Phea “knew” K.R. had not attained the age of eighteen if there is
proof beyond a reasonable doubt that Phea had a reasonable opportunity to
observe K.R. The jury therefore could have convicted Phea by finding only that
he had a reasonable opportunity to observe K.R. It was not required to find
that Phea knew she had not attained the age of eighteen or that Phea acted in
reckless disregard of the fact that she had not attained that age.
       Congress is not categorically precluded from imposing strict liability. 3
Although courts take particular care “to avoid construing a statute to dispense
with mens rea where doing so would criminalize a broad range of apparently
innocent conduct,” 4 that is not the situation we face here. The trafficking of a


       3 See United States v. Garrett, 984 F.2d 1402, 1409 (5th Cir. 1993) (“The Congress is
fully capable of creating strict liability crimes when it is their intent to do so.”).
       4   Amouzadeh v. Winfrey, 467 F.3d 451, 457 (5th Cir. 2006) (emphasis in original).
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                                          No. 12-51031
person—of any age—in interstate commerce for the purpose of prostitution is
illegal, 5 and is thus not within the range of “apparently innocent conduct.” 6
Additionally, a number of Courts of Appeals have upheld the application of
strict liability with respect to a minor’s age in offenses under 18 U.S.C.
§ 2423(a), which prohibits the transportation of minors with the intent to
engage in criminal sexual activity. 7                The provision under which Phea’s
conviction was obtained could arguably be characterized as “a public welfare
offense,” 8 and the Supreme Court has explained that “a public welfare offense
[is] traditionally excepted from the background principle favoring scienter.” 9
       Phea notes in his briefing that “strict liability generally raises due
process concerns with respect to criminal statutes,” but Phea does not actually
contend that the statute is unconstitutional. He has not raised or briefed a
constitutional challenge in this court and did not do so in the district court.
       The Government contends that the jury charge was a correct
embodiment of the law and urges us to agree with the Second Circuit, 10 which




       5See 18 U.S.C. § 2421 (prohibiting the transport in interstate or foreign commerce of
any individual with the intent that the person engage in prostitution).
       6 See United States v. Daniels, 653 F.3d 399, 410 (6th Cir. 2011) (explaining that
because “a defendant commits a crime any time he transport an individual for the purpose of
prostitution . . . age . . . is not a factor that distinguishes criminal behavior from innocent
conduct.”) (internal quotation marks omitted); United States v. Griffith, 284 F.3d 338, 351
(2d Cir. 2002) (“[A] defendant is already on notice that he is committing a crime when he
transports an individual of any age in interstate commerce for the purpose of prostitution.”).
       7 See, e.g., United States v. Tavares, 705 F.3d 4, 19-20 (1st Cir. 2013); Daniels, 653
F.3d at 410; United States v. Cox, 577 F.3d 833, 836-38 (7th Cir. 2009); United States v. Jones,
471 F.3d 535, 538-39 (4th Cir. 2006); Griffith, 284 F.3d at 350-51; United States v. Taylor,
239 F.3d 994, 996 (9th Cir. 2001); United States v. Hamilton, 456 F.2d 171, 173 (3d Cir. 1972).
       8   See generally United States v. X-Citement Video, Inc., 513 U.S. 64, 71 (1994).
       9   Id. (citing Morissette v. United States, 342 U.S. 246, 255 (1952)).
       10   United States v. Robinson, 702 F.3d 22 (2d Cir. 2012).
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                                        No. 12-51031
has held that § 1591(c) 11 “imposes strict liability” and “relieve[s] the
government’s usual burden to prove knowledge or reckless disregard of the
victim’s underage status under § 1591(a).” 12 Because Phea did not object to
the district court’s charge to the jury in the district court, our review is for plain
error. 13 In light of the Second Circuit’s decision, and because our court has not
addressed the issue, it unnecessary to resolve whether § 1591(a) permits a
conviction based solely on a finding that the defendant had a reasonable
opportunity to observe the victim. As the Supreme Court has explained, “a
substantive legal question that was unsettled at the time the trial court acted
. . . foreclos[es] the possibility that any error could have been ‘plain’” unless it
becomes settled by the time of appellate review. 14                 Any error in the jury
instruction could not have been plain.
                                              III
       An element of § 1591(a) refers to “in or affecting interstate or foreign
commerce.” 15 Phea challenges his conviction on several grounds that pertain
to the interstate commerce nexus.
                                               A
       Phea argues that the evidence was insufficient to establish an interstate
nexus because all of the commerce at issue was intrastate and, if there was an



       1118 U.S.C. § 1591(c) (“In a prosecution under subsection (a)(1) in which the defendant
had a reasonable opportunity to observe the person so recruited, enticed, harbored,
transported, provided, obtained or maintained, the Government need not prove that the
defendant knew that the person had not attained the age of 18 years.”).
       12   Robinson, 702 F.3d at 26.
       13   United States v. McRae, 702 F.3d 806, 835 & n.14 (5th Cir. 2012).
       14Henderson v. United States, 133 S. Ct. 1121, 1124-25 (2013); see also United States
v. Broussard, 669 F.3d 537, 550-51 (5th Cir. 2012) (concluding that any error by the district
court could not be plain when this court had never addressed the issue).
       15   18 U.S.C. § 1591(a)(1).
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                                        No. 12-51031
interstate commerce nexus, that the Government failed to prove that he knew
of an effect on interstate commerce. This is incorrect. Phea purchased a mobile
phone for K.R., and that phone’s number was included in an advertisement for
prostitution services that Phea and another individual placed on the internet.
K.R. was contacted on this phone by men who inquired about the cost of having
sexual contact with her. In addition, the man with whom Phea directed K.R.
to have sexual intercourse as a prostitute was from Louisiana.
                                              B
        Phea contends that Congress could not validly regulate purely local
activity under the Commerce Clause, arguing that the conduct at issue in his
case “falls outside the ambit” of the Supreme Court’s decision in Gonzalez v.
Raich. 16 This issue was not raised in the district court, but in any event, it
fails on the merits because there was evidence of an interstate nexus in this
case.
                                              C
        Phea argues that the district court erred in its charge to the jury because
it failed to require the Government to prove that Phea knew of the effect his
conduct had on interstate commerce. Because Phea did not object to the
instruction the district court gave, and therefore did not preserve his challenge
regarding the proper interpretation of § 1591(a), our review is for plain error. 17
        The district court instructed the jury that it could find Phea guilty of
violating § 1591(a) if it found the following facts were proven beyond a
reasonable doubt:
              First:      That . . . the Defendant knowingly recruited,
        enticed, harbored, transported, provided, obtained, or maintained



        16   545 U.S. 1, 17 (2005).
        17   McRae, 702 F.3d at 835 & n.14.
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                                     No. 12-51031
      by any means a person who had not attained the age of eighteen
      (18) years;
            Second:     That the Defendant did so knowingly or in
      reckless disregard of the fact that the person would be caused to
      engage in a commercial sex act; and
            Third:     That the Defendant’s acts were in or affected
      interstate commerce.
      In instructing the jury more specifically as to whether Phea’s acts were
in or affected interstate commerce, the district court said:
            In determining whether the Defendant's conduct was “in or
      affected interstate or foreign commerce,” you may consider
      whether the Defendant used means or facilities of interstate
      commerce, such as telephones, the Internet, or hotels that serviced
      interstate travelers.

            If you decide that there would be any effect at all on
      interstate commerce, then that is enough to satisfy this element.
      The effect can be minimal.

             If the Government proves beyond a reasonable doubt that
      any of the acts of harboring a person who had not attained the age
      of 18 years for commercial sex acts affected the flow of money,
      goods or services in interstate commerce to any degree, you may
      find that the interstate commerce requirement has been
      satisfied. 18

      Whether § 1591(a) requires that a defendant know that his conduct is in
or affects interstate commerce is an issue of first impression in this circuit.
The relevant portion of § 1591 provides,
      (a) Whoever knowingly—

            (1) in or affecting interstate or foreign commerce . . . recruits,
      entices, harbors, transports, provides, obtains, or maintains by any
      means a person; . . .



      18   R. at 636-37.
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                                         No. 12-51031
              knowing, or 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). 19

      Phea argues that the word “knowingly” in § 1591(a) modifies not only the
actions “recruits, entices, harbors, transports, provides, obtains, or maintains,”
but also the clause “in or affecting interstate or foreign commerce.” He relies
primarily on the Supreme Court’s decision in Flores–Figueroa v. United
States. 20 Phea points to statements in that opinion which say that “courts
ordinarily read a phrase in a criminal statute that introduces the elements of
a crime with the word ‘knowingly’ as applying that word to each element,” and
that “[a]s a matter of ordinary English grammar, it seems natural to read the
statute’s word ‘knowingly’ as applying to all the subsequently listed elements
of the crime.” 21
      In Flores–Figueroa, a defendant was convicted of aggravated identity
theft under 18 U.S.C. § 1028A(a)(1), which punishes a person who “knowingly
transfers, possesses, or uses, without lawful authority, a means of
identification of another person” during and in relation to the commission of
certain enumerated crimes. 22             The defendant conceded that he had used
counterfeit documents but argued that the Government could not prove that
he knew that the Social Security numbers on those documents were assigned




      19   18 U.S.C. § 1591(a).
      20   556 U.S. 646 (2009).
      21   Flores–Figueroa, 556 U.S. at 650, 652.
      22   Id. at 647; see also 18 U.S.C. § 1028A(a)(1).
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                                        No. 12-51031
to other people. 23 The Supreme Court reversed the conviction, holding that
“knowingly” in the statute’s text applied not only to the acts of transferring,
possessing, or using the identification without lawful authority, but it also
required knowledge that the means of identification belonged to “another
person.” 24
      The Court’s conclusion in Flores–Figueroa was based on the text of the
statute and that “[a]s a matter of ordinary English grammar, it seems natural
to read the statute’s word ‘knowingly’ as applying to all the subsequently listed
elements of the crime.” 25 The court explained, “[i]n ordinary English, where a
transitive verb has an object, listeners in most contexts assume that an adverb
(such as knowingly) that modifies the transitive verb tells the listener how the
subject performed the entire action, including the object as set forth in the
sentence.” 26     Absent “special contexts” or “a more detailed explanation of
background circumstances that call for [a different] reading,” the Court
concluded that the adverb modifies the full object of the transitive verb,
including all of its characteristics (e.g., “of another person”). 27       Because the
element “of another person” was a characteristic of the direct object of the
transitive verbs in the statute and there was no special context, the Court held
that “knowingly” applied to that element as well. 28
      The interstate nexus element of § 1591(a)—“in or affecting interstate or
foreign commerce”—is not a part of the direct object of the transitive verbs



      23   Flores–Figueroa, 556 U.S. at 649.
      24   Id. at 648-49.
      25   Id. at 650.
      26   Id.
      27   Id. at 652.
      28   Id. at 652, 657.
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                                       No. 12-51031
“recruits, entices, harbors, transports, provides, obtains, or maintains by any
means.” The direct object in the sentence is “a person”; however, it is not the
person who must be in or affecting interstate or foreign commerce. Rather, it
is the actions described by the transitive verbs that must occur in, or affect,
interstate or foreign commerce. The interstate nexus element is in essence an
adverbial phrase modifying the transitive verbs. The Supreme Court’s decision
in Flores–Figueroa does not speak directly to whether an adverb (such as
knowingly) that modifies a transitive verb also extends to adverbial phrases
that also modify the transitive verb.
       At least two other Courts of Appeals have concluded that Flores-Figueroa
does not compel the application of “knowingly” to the interstate nexus element
of § 1591(a). 29 In light of this, along with the lack of precedent on the issue in
this circuit, Phea cannot show that the jury charge, in which the district court
construed § 1591(a) as not requiring knowledge that the defendant’s conduct
was in, or affected, interstate commerce, was plainly erroneous.
                                             D
       Phea asserts that the district court’s instruction went beyond the Fifth
Circuit’s Pattern Jury Instructions on interstate commerce by specifically
referencing “telephones, the Internet, or hotels that serviced interstate
travelers,” and that this influenced the jury’s verdict because this was the exact
evidence on which the prosecution relied. We note that this circuit has no
pattern instruction for § 1591, and the district court’s instruction is a verbatim




       29See United States v. Sawyer, 733 F.3d 228, 229 (7th Cir. 2013); United States v.
Evans, 476 F.3d 1176, 1180 n.2 (11th Cir. 2007); see also United States v. Myers, 430 F. App’x
812, 816 (11th Cir. 2011) (unpublished) (holding that Evans remains good law after Flores–
Figueroa).
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                                            No. 12-51031
recitation of the Eleventh Circuit’s Pattern Jury Instruction for offenses under
§ 1591(a). 30
       With regard to whether the instruction was incorrect, the relevant
inquiry is “whether [the jury instruction was] a correct statement of the law,
whether it clearly instruct[ed] jurors, and whether it [was] factually
supportable.” 31 The district court correctly stated the law that telephones, the
Internet, and hotels that service interstate travelers are all means or facilities
of interstate commerce sufficient to establish the requisite interstate nexus. 32
The instruction was supported by the facts of the case.
       The other challenge to the instruction is that it referred to “acts of
harboring a person” generally, rather than specific acts of Phea harboring K.R.,
and that the instruction incorrectly suggested to the jury that it could convict
him if it found that acts of harboring in general affect interstate commerce. In
United States v. Anderson, 33 we approved an instruction containing identical
language. 34 Additionally, specific jury instructions are to be judged not in
isolation, “but must be considered in the context of the instructions as a whole
and the trial record.” 35 Viewing the instruction as a whole, it is clear that the



       30 See ELEVENTH CIRCUIT PATTERN JURY INSTRUCTIONS (Criminal Cases), Offense
Instruction No. 63 (2010).
       31   United States v. Montes, 602 F.3d 381, 386 (5th Cir. 2010) (internal citations
omitted).
       32 See Heart of Atlanta Motel, Inc. v. U.S., 379 U.S. 241, 261 (1964) (hotels catering to
interstate guests can satisfy the requisite interstate nexus); United States v. Barlow, 568
F.3d 215, 220 (5th Cir. 2009) (holding interstate nexus satisfied because of use of the
Internet); United States v. Marek, 238 F.3d 310, 318 (5th Cir. 2001) (en banc) (noting that
telephones are facilities of interstate commerce that can create “a criminal federal
jurisdictional nexus during intrastate use”).
       33   560 F.3d 275 (5th Cir. 2009).
       34   Anderson, 560 F.3d at 278-80.
        United States v. Simkanin, 420 F.3d 397, 406 (5th Cir. 2005) (quoting Estelle v.
       35

McGuire, 502 U.S. 62, 72 (1991)).
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                                           No. 12-51031
“acts of harboring a person” mentioned by the district court referred to “the
defendant’s conduct” discussed in the first paragraph of the instruction and not
to acts of harboring in general. The district court did not err in including this
language in its instruction. 36
                                                IV
       Phea asserts that the prosecutor made various improper statements
during closing argument.               In reviewing claims of improper prosecutorial
arguments, “[w]e first analyze whether the prosecutor’s remark was legally
improper.” 37       In closing argument, a prosecutor is limited to “discussing
properly admitted evidence and any reasonable inferences or conclusions that
can be drawn from that evidence . . . [and] is not permitted to make an appeal
to passion or prejudice calculated to inflame the jury.” 38 “Improper argument
warrants reversal when ‘taken as a whole in the context of the entire case, [it]
prejudicially affect[ed] substantial rights of the defendant.’” 39 “To make that
determination, we assess (1) the magnitude of the statement’s prejudice, (2)
the effect of any cautionary instructions given, and (3) the strength of the
evidence of the defendant’s guilt.” 40            Because Phea did not object to the
prosecutor’s statements in the district court, our review is for plain error. 41




       36 See United States v. Whitfield, 590 F.3d 325, 354 (5th Cir. 2009) (“It is well-settled
that a district court does not err by giving a charge that tracks this Circuit’s pattern jury
instructions and that is a correct statement of the law.”).
       37   United States v. Mendoza, 522 F.3d 482, 491 (5th Cir. 2008).
       38United States v. Turner, 674 F.3d 420, 439 (5th Cir. 2012) (internal quotation marks
and citations omitted).
       39United States v. Hitt, 473 F.3d 146, 161 (5th Cir. 2006) (alterations in original)
(quoting United States v. Corona, 551 F.2d 1386, 1388 (5th Cir. 1977)).
       40   Turner, 674 F.3d at 439 (internal quotation marks omitted).
       41   See, e.g., Hitt, 473 F.3d at 161.
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                                          No. 12-51031
      The first statement Phea challenges as improper was the prosecutor’s
statement that,
            I’ve got a 19-month-old daughter who wouldn’t let me feed
      her applesauce last night. She’s a big girl. She’s going to do it
      herself. But she has a loving environment. She’s just trying on
      her own to do things on her own.

               That’s natural.

             This girl didn’t really have that. She didn’t try to grow up
      too fast; she didn’t have much of a choice. She was kind of thrown
      into it, wasn’t she?

References to the prosecutor’s daughter are neither properly admitted evidence
nor a reasonable inference from that evidence, and thus the prosecutor’s
reference was legally improper. Nevertheless, the statement does not appear
“calculated to inflame the jury,” and likely had only minimal prejudicial effect,
if any. 42 Indeed, Phea gives no explanation as to how the comment prejudiced
him. Phea has not shown that the statement prejudiced his substantial rights.
      Phea alleges that the prosecutor improperly made a personal appeal to
the jury to convict Phea on the § 1591 count by asking the jurors to “not take
the easy way out” because “Count One is about that girl.” The full context of
the comments indicates that the prosecutor was responding to an earlier
argument by Phea’s counsel that Phea was guilty of aiding and abetting the
promotion of prostitution (Count Two) but that he did not force or coerce K.R.
to engage in prostitution. The remarks challenged by Phea were immediately
followed by statements that the evidence supported a conclusion that K.R. had
been forced by Phea to have sex for money. This was not a personal appeal to




      42   Cf. Turner, 674 F.3d at 439.
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                                         No. 12-51031
the jury but rather a plea to convict based on the evidence, which is
permissible. 43
       Lastly, Phea asserts that the prosecutor improperly vouched for K.R.’s
credibility and evidence in comparison to Phea’s testimony.                        The alleged
vouching statements of the prosecutor consisted of arguments that: (1) Phea’s
vulgar attitude toward the mother of Phea’s children suggested that K.R. was
therefore likely telling the truth about Phea beating and tasing her; (2) the
statement “Come work for me. Come make moves. Let’s get some cash
together” clearly constituted recruiting and enticing; and (3) Phea’s testimony
suggesting that he was “stand-up” was contradicted by the evidence indicating
that he was a pimp. All of these remarks “were comprised of restatements of
properly admitted evidence . . . and reasonable inferences or conclusions that
can be drawn from that evidence,” and are therefore not improper. 44
       Additionally, any prejudice resulting from any of the challenged
statements was mediated by the district court’s instruction that “[s]tatements,
arguments, and questions by lawyers are not evidence.” Factoring in the clear
evidence establishing each of the elements for conviction under § 1591(a), Phea
cannot establish that the prosecutor’s statements at closing argument
prejudiced his substantial rights.
                                                V
       Phea argues that he should receive a new trial. We review the denial of
a motion for a new trial for abuse of discretion. 45 Because Phea’s motion was



       43See United States v. Ruiz, 987 F.2d 243, 248-49 (5th Cir. 1993) (explaining that
appeals to the jury to do its duty and to act as the conscience of the community are
permissible).
       44See United States v. Reagan, 725 F.3d 471, 493 (5th Cir. 2013) (alteration in original)
(internal quotation marks omitted).
       45   United States v. Piazza, 647 F.3d 559, 564 (5th Cir. 2011).
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                                        No. 12-51031
not based on newly discovered evidence, he was required to file his motion
within fourteen days after the jury reached its verdict on July 10, 2012. 46 He
did not file the motion for a new trial until October 17, 2012, well after the
fourteen-day deadline, and the district court denied his motion as untimely.
Phea has presented no argument that his failure to timely file the motion for
a new trial resulted from excusable neglect. The district court did not abuse
its discretion in determining that the motion was time-barred. 47
                                               VI
      Phea challenges his sentence on the ground that the district court erred
in applying an enhancement for the use of a computer. 48 We review the district
court’s interpretation or application of the Sentencing Guidelines de novo and
its factual findings for clear error. 49 There is no clear error if the district court’s
finding is plausible in light of the record as a whole. 50
      The district court applied the enhancement under United States
Sentencing Guidelines Manual § 2G1.3(b)(3), which provides for a two-level
enhancement to a defendant’s offense level
             [i]f the offense involved the use of a computer or an
      interactive computer service to (A) persuade, entice, coerce, or
      facilitate the travel of, the minor to engage in prohibited sexual
      conduct; or (B) entice, encourage, offer, or solicit a person to engage
      in prohibited sexual conduct with the minor. 51

The district court found that Phea had used a computer “as a means of
communication[] . . . to organize [K.R.’s] travels to Amarillo” and to advertise


      46   FED. R. CRIM. P. 33(b)(2).
      47   United States v. Isgar, 739 F.3d 829, 841 (5th Cir. 2014).
      48   Phea Br. at 56.
      49   United States v. Cisneros–Gutierrez, 517 F.3d 751, 764 (5th Cir. 2008).
      50   Id.
      51   UNITED STATES SENTENCING GUIDELINES MANUAL § 2G1.3(b)(3).
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                                       No. 12-51031
K.R. as a prostitute on Backpage.com. Both of these findings are plausible in
light of the record and are not clearly erroneous. Furthermore, they support a
determination that Phea used a computer to facilitate the travel of K.R. to
engage in prohibited sexual conduct, thereby satisfying § 2G1.3(b)(3)(A).
      Phea asserts that because he used a computer to communicate with K.R.
only for two days and none of the messages were sexual, his case is
distinguishable from other cases in which defendants were deemed to have
used a computer to persuade, entice, coerce, or facilitate the travel of a minor
for the purpose of engaging in prohibited sexual conduct.                However, this
ignores the fact that nothing in the text of § 2G1.3(b)(3)(A) requires that the
communications be over a long period of time or that they be sexual in nature. 52
In any event, Phea’s briefing in this court candidly admits that “[s]exual banter
ensued” in the online communications between Phea and K.R. before she
traveled to Amarillo.        The record supports this characterization of the
communications. Phea’s argument fails.
                                   *        *         *
      For the foregoing reasons, Phea’s conviction and sentence are
AFFIRMED.




      52Cf. United States v. Lay, 583 F.3d 436, 447 (6th Cir. 2009) (explaining that the
“enhancement may be applied even if the defendant did not send specific sexual requests by
computer”).
                                           20
