                                                                           FILED
                           NOT FOR PUBLICATION                              MAY 18 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 07-10106

              Plaintiff - Appellee,              D.C. No. CR-03-00550-EJG

  v.
                                                 MEMORANDUM *
WILL MOSS, Jr.,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Eastern District of California
                    Edward J. Garcia, District Judge, Presiding

                       Argued and Submitted May 11, 2010
                            San Francisco, California

Before: RYMER and McKEOWN, Circuit Judges, and FAWSETT, Senior District
Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Patricia C. Fawsett, Senior United States District
Judge for the Middle District of Florida, sitting by designation.
      Will Moss, Jr. appeals his conviction and sentence on numerous offenses

arising out of his involvement in a prostitution ring with underage women. We

affirm except for the conviction on counts 11 and 12, as to which we remand for

vacatur of one or the other to avoid multiplicitious convictions.




                                          I

      “The trial court is given wide latitude to determine how best to conduct the

voir dire.” United States v. Jones, 722 F.2d 528, 529 (9th Cir. 1983) (citation

omitted). The court was not obliged to allow attorney voir dire, and its own

questions were sufficient to probe the venire for bias or prejudice. See United

States v. Sarkisian, 197 F.3d 966, 979-80 (9th Cir. 1999) (approving a similar set

of questions). Moss suggests that the judge’s response to one prospective juror

chilled others from being forthcoming on the issues of race and subject matter, but

we disagree as the comment had to do with a different problem that did not

implicate race or subject matter.




                                          II

      The evidence was sufficient to convict Moss of participating in a venture in

violation of 18 U.S.C. § 1591(a)(2). Brooks, who joined Moss to make money for


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something she wanted to do, helped recruit and manage prostitutes (including two

underage women) and handled the enterprise’s finances in Moss’s absence.

Nothing in the statute says that Brooks could not be a co-venturer although in other

respects she was a victim herself. Given that she was associated in fact with Moss

for financial benefit from commercial sex on an on-going basis, a rational juror

could find beyond a reasonable doubt that Moss participated in a venture

criminalized by § 1591(a)(2).

      A rational juror could also find beyond a reasonable doubt that Moss

possessed a firearm in furtherance of count 3, 6, or 7 as charged in count 8. There

was evidence that he had a sawed off shotgun between July 13, 2005 and July 25,

2005, the relevant time period, on a recruiting and prostituting trip to Sacramento,

Stockton, and Oakland with Brooks, V.V., and new recruits; and that he used the

gun to scare and threaten his prostitutes, V.V. among them. Thus, count 3 suffices

as a predicate for conviction on count 8. As count 8 charges in the disjunctive, we

need not consider sufficiency of the evidence based on counts 6 or 7.




                                         III

      The government concedes that Moss’s convictions on counts 11 and 12 are

multiplicitous. Therefore, we remand to the district court with instructions to


                                          3
vacate the conviction, sentence, and $100 mandatory special assessment on one of

the two counts – leaving the conviction, sentence, and special assessment on the

other count intact.

      Moss argues that his convictions under 18 U.S.C. § 1591(a)(1) (counts 1 and

2) and under 18 U.S.C. § 1591(a)(2) (counts 3 and 4) are multiplicitous. However,

for conviction on counts 1 and 2, the government had to prove that Moss

personally harbored, recruited, or enticed his underage victims knowing they

would engage in prostitution, whereas for conviction on counts 3 and 4, it had to

prove that Moss benefitted financially from their prostitution. Thus, counts 1-2

and 3-4 charge separate conduct and, for this reason, multiplicity is not a concern.

United States v. Overton, 573 F.3d 679, 695 (9th Cir. 2009) (“[W]here separate

conduct supports each offense, the Fifth Amendment’s Double Jeopardy Clause is

not implicated.”).




                                         IV

      Moss’s argument that his Sixth Amendment rights were violated by the

district court’s reliance on uncharged conduct is foreclosed by United States v.

Treadwell, 593 F.3d 990, 1016-18 (9th Cir. 2010).




                                          4
      Moss contends that application of the cross-reference to U.S.S.G. § 2A3.1

should have been based on clear and convincing evidence, as the government

acknowledged in the district court. The district court explicitly found most of the

core facts underlying the cross-reference by clear and convincing evidence; to the

extent it did not so characterize all of the findings, the court’s view of the strength

of the evidence is clear from the sentencing proceeding as a whole. We see no

prejudicial error.

      Finally, Moss challenges his sentence as substantively unreasonable. He

faults the court for basing its determination on unreliable or untrue facts, but trial

testimony, credited by the jury, showed that, among other things, Moss beat all

seven women frequently and gratuitously, beat Brooks into unconsciousness, and

made sexual demands that were humiliating and constant. The district court

arrived at a sentence that it believed appropriate after careful consideration of

Moss’s conduct and criminal history, the Guidelines, and 28 U.S.C. § 3553(a). We

conclude that the sentence was reasonable.

      AFFIRMED IN PART; REMANDED IN PART.




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