     Case: 17-41251   Document: 00515013555        Page: 1   Date Filed: 06/27/2019




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

                                    No. 17-41251                      FILED
                                                                  June 27, 2019
                                                                 Lyle W. Cayce
UNITED STATES OF AMERICA,                                             Clerk

             Plaintiff - Appellee

v.

CHARLES DEVAN FULTON, SR., also known as Black, also known as Blacc,

             Defendant - Appellant




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


                      ON PETITION FOR REHEARING


Before WIENER, SOUTHWICK, and COSTA, Circuit Judges.
LESLIE H. SOUTHWICK, Circuit Judge:
      The petition for rehearing is DENIED.          The court’s prior opinion is
withdrawn, and this opinion is substituted.
      A jury convicted Charles Fulton, Sr. on four counts of sex trafficking and
one count of conspiracy. The most significant issue concerns a long-delayed
search of his cellphone.     Fulton also makes arguments drawn from the
Confrontation and Grand Jury clauses of the Constitution, and he challenges
the sufficiency of the evidence. We AFFIRM.
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                                  No. 17-41251
              FACTUAL AND PROCEDURAL BACKGROUND
      In October 2014, a Galveston juvenile probation officer learned from the
father of a juvenile she supervised that the girl was pictured in an online
advertisement offering her services as an “escort” – in effect, a prostitute. The
probation officer began to investigate and saw that the house where the girl
had been arrested was a location where other young girls consistently were
arrested. She began monitoring incoming police reports, spoke with some of
the girls, compiled a list of names and ages, and gathered information from
other probation officers. Her investigation revealed common links among the
girls: Charles Fulton, Sr. and a residence on Avenue L. In February and early
March 2015, the Galveston Police Department, in tandem with the FBI, began
an investigation.    Police discovered that Fulton acted as the girls’ pimp,
directing them to prostitution dates; providing them with food, condoms,
housing, and drugs; and having sex with some of them as young as 15.
      In May 2016, Fulton was indicted in the United States District Court for
the Southern District of Texas on six counts of sex trafficking in violation of 18
U.S.C. § 1591(a)–(b) (2015), with a different minor victim identified in each
count. Fulton was also charged with a seventh count for conspiracy to commit
sex trafficking under 18 U.S.C. § 1594(c). He was found guilty after a jury trial
on four of the substantive counts and on the conspiracy count. The district
court sentenced him to prison for concurrent life terms.


                                 DISCUSSION
      We will analyze four issues. First, Fulton asserts the district court
admitted evidence obtained from his cellphone in violation of the Fourth
Amendment. Second, he argues the district court violated the Confrontation
Clause by prohibiting him from questioning one of the minor victims about a
purported aggravated assault charge. Third, he argues that special findings
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                                        No. 17-41251
made by the jury in two of his counts of conviction were not supported by
sufficient evidence. Finally, Fulton contends the district court violated the
Grand Jury Clause by constructively amending the indictment. 1


I.     Search of Fulton’s phone
       In February 2015, Galveston police obtained a search warrant on the
Avenue L house where the prostitution was based. The warrant, though, was
due to a separate investigation into Fulton’s narcotics activities. Fulton’s
cellphone was seized. Nine days later, police obtained a second warrant to
examine its contents but were unable to bypass the phone’s security features.
Around this same time, the FBI agent assisting with the Fulton sex-trafficking
investigation learned that the Galveston police had the phone. The agent
acquired it to determine if the FBI could access the phone’s data. Three weeks
later, that agent obtained a federal warrant to search the phone. Still, it took
a year before the data on the phone was accessed. The FBI discovered evidence
that helped piece together Fulton’s involvement with the minor victims.
Fulton moved to suppress the evidence, but the district court denied the
motion. At trial, the Government introduced evidence of the phone’s contents
through the testimony of the FBI agent and of minor victims. The district court
also admitted evidence such as text messages, a photograph, and the results of
searches of the phone’s files, linking Fulton to five minor victims and revealing
behaviors consistent with sex trafficking.




       1 At trial, Fulton also raised issues bearing on Jencks Act, Brady, and Giglio material.
See 18 U.S.C. § 3500; Brady v. Maryland, 373 U.S. 83 (1963); Giglio v. United States, 405
U.S. 150 (1972). At oral argument in this court he requested that we review the district
court’s determinations on these issues. In his brief he mentioned his request for Brady
material and suggested we “review the propriety of the district court’s determinations.” We
will not consider such “passing reference[s]” that are devoid of legal analysis. Hollis v. Lynch,
827 F.3d 436, 451 (5th Cir. 2016) (citation omitted).
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                                 No. 17-41251
      On appeal, Fulton argues that the phone’s seizure in the February 2015
raid violated the Fourth Amendment. He alternatively argues that even if the
initial seizure had been lawful, the nine-day delay in obtaining a warrant to
search it was unconstitutional. At oral argument, Fulton’s counsel stated that
those two arguments are the limit of the objections to the search and seizure.
Thus, no issue is made about the FBI’s obtaining the phone, procuring its own
search warrant, and finally accessing the data on the phone a year later.
      We review a ruling on a motion to suppress “in the light most favorable
to the verdict,” accepting “the district court’s factual findings unless clearly
erroneous or influenced by an incorrect view of the law” and reviewing
“questions of law de novo.” United States v. Carrillo-Morales, 27 F.3d 1054,
1060–61 (5th Cir. 1994). The disagreements here are ones of law. We review
the sufficiency of the warrant authorizing the seizure of Fulton’s phone de
novo. United States v. Cavazos, 288 F.3d 706, 709 (5th Cir. 2002). We also
review the district court’s determination of the reasonableness of a search or
seizure de novo. United States v. Jones, 133 F.3d 358, 360 (5th Cir. 1998).


      A.    Whether the narcotics warrant authorized the phone’s seizure
      We start with whether the initial seizure of the phone was proper.
Fulton contends “the warrant did not particularly describe the phone as one of
the items to be seized.” The Constitution states that a warrant should not
issue without “particularly describing” what is to be seized.       U.S. CONST.
amend. IV. A warrant’s particularity is sufficient if “a reasonable officer would
know what items he is permitted to seize,” which does not mean all items
authorized to be taken must be specifically identified. United States v. Aguirre,
664 F.3d 606, 614 (5th Cir. 2011). “We have upheld searches as valid under
the particularity requirement where a searched or seized item was not named


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                                 No. 17-41251
in the warrant, either specifically or by type, but was the functional equivalent
of other items that were adequately described.” Id.
      This narcotics warrant did not mention cellphones.            The alleged
equivalent was a reference to “ledgers,” which is a “book . . . ordinarily
employed for recording . . . transactions.”          Ledger, OXFORD ENGLISH
DICTIONARY (2d ed. 1989). The government argues that is enough, because
this court has held that a cellphone that is “used as a mode of both spoken and
written communication and containing text messages and call logs, served as
the equivalent of records and documentation of sales or other drug activity.”
Aguirre, 664 F.3d at 615. In that precedent, a warrant permitted seizure of a
cellphone when it referred to “personal assets including computers, disks,
printers and monitors utilized in the drug trafficking organization.” Id. at
614–15. That is because what was seized were “the functional equivalents of
several items listed” on the warrant.        Id. at 615.   We also held that if
meaningful particularity is not possible, “generic language suffices if it
particularizes the types of items to be seized.” Id. at 614 (quoting Williams v.
Kunze, 806 F.2d 594, 598 (5th Cir. 1986)).
      We do not see the same factors involved in the present case. There was
nothing in the Galveston warrant suggesting that anything similar to
computers or even electronics was to be seized. Moreover, the officer in this
case was a veteran of the Galveston Police Department’s narcotics unit, and he
indicated at the suppression hearing that he knew cellphones are used in the
drug trade.   Though a ledger can serve one of the myriad purposes of a
cellphone, we do not extend the concept of “functional equivalency” to items so
different, particularly one as specific, distinguishable, and anticipatable as a
cellphone.
      We now examine an exception to the exclusionary rule that nonetheless
allows the introduction of the evidence from the phone.
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                                 No. 17-41251
      B. Good faith
      An exception for good faith may allow the introduction of evidence
unlawfully obtained “[w]hen police act under a warrant that is invalid for lack
of probable cause.” Herring v. United States, 555 U.S. 135, 142 (2009). Here,
of course, we have held the initial seizure of the phone to be invalid because,
regardless of probable cause, the phone was not covered by the warrant.
      To constitute good faith, the “executing officer’s reliance on the
[deficient] warrant [must be] objectively reasonable and made in good faith.”
United States v. Massi, 761 F.3d 512, 525 (5th Cir. 2014) (citation omitted).
The Government argues the FBI agent’s reliance on the federal search warrant
meets these requirements. Fulton argues we should the good faith exception
should not apply “to situations where law enforcement unreasonably delays in
obtaining a search warrant.”      The district court refused to consider this
exception because it held the phone and its contents to be admissible on other
grounds.
      In Massi, law enforcement officers prolonged a proper investigatory stop
based on reasonable suspicion well beyond the time permitted. Id. at 522–23.
The officers detained the suspects for several hours “until evidence could be
corroborated, an affidavit prepared, and the search warrant obtained.” Id. at
523. We applied the following test to determine whether the invalid seizure of
the suspects while evidentiary justification for a warrant was developed would
nonetheless allow the introduction of evidence that was later obtained:
      (1) the prior law enforcement conduct that uncovered evidence
      used in the affidavit for the warrant must be “close enough to the
      line of validity” that an objectively reasonable officer preparing the
      affidavit or executing the warrant would believe that the
      information supporting the warrant was not tainted by
      unconstitutional conduct, and (2) the resulting search warrant
      must have been sought and executed by a law enforcement officer
      in good faith.

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                                 No. 17-41251
Id. at 528.
       This same approach can be applied when, as here, the initial seizure of
an object was without justification, but a later-obtained warrant led to the
discovery of incriminating evidence.
       We have already discussed the events that followed the seizure of the
cellphone. We conclude that viewed objectively, an FBI agent who obtained a
search warrant in these circumstances would not have had reason to believe
the seizure and continued possession of the cellphone by the Galveston police
were unlawful. We so conclude because the question of whether the warrant
applied to the cellphone does not lead to an easy negative answer, though that
is the one we have given. Consequently, the seizure of the cellphone was “close
enough to the line of validity” to permit the officer to prepare the second
warrant that led to the search of the cellphone. The federal search warrant
was “sought and executed by a law enforcement officer in good faith.” Id.
       The cellphone evidence obtained was properly admitted.


II.    Confrontation Clause violation regarding a witness
       Fulton argues he was improperly limited on the range of cross-
examination of a witness. The Government called Minor Victim 3 to testify.
She admitted that the FBI agent investigating the sex trafficking case sought
her assistance and that she initially refused to help. She also admitted that
she later contacted the FBI agent after she was jailed apparently on state
charges. She changed her mind again later, resisted testifying, and appeared
at trial only after being brought to court under a material-witness warrant.
       Fulton wanted to cross-examine her on what he understood to be an
aggravated assault arrest in her “juvenile history” to probe her motives for
contacting the FBI agent. Fulton sought to impeach her on the theory that she
contacted the FBI agent thinking he could help her “get off that aggravated
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                                  No. 17-41251
assault charge.” There is no indication that any assault charge was related to
Fulton’s offense. The district court refused to let Fulton pursue this line of
questioning. Counsel was permitted to ask if “any member of law enforcement
offered [her] any kind of . . . benefit in exchange for testifying.” Fulton argues
this restriction violated his Sixth Amendment right to confrontation.
      We review alleged Confrontation Clause violations de novo.          United
States v. Jimenez, 464 F.3d 555, 558 (5th Cir. 2006). We analyze “whether the
jury had sufficient information to appraise the bias and motives of the
witness.”     United States v. Templeton, 624 F.3d 215, 223 (5th Cir. 2010)
(citation omitted). Fulton “need only show that ‘a reasonable jury might have
received a significantly different impression of the witness’s credibility had
defense counsel been permitted to pursue his proposed line of cross-
examination.’” Id. (citation omitted). In the context of purported deals with
the Government, it does not matter whether an agreement was reached: “What
counts is whether the witness may be shading his testimony in an effort to
please the prosecution.” Greene v. Wainwright, 634 F.2d 272, 276 (5th Cir.
1981). At the same time, the Confrontation Clause does not permit a defendant
to cross-examine a witness if there are sufficient concerns of “harassment,
prejudice, confusion of the issues, the witness’ safety, or interrogation that is
repetitive or only marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673,
679 (1986).
      Fulton relies primarily on Davis v. Alaska, 415 U.S. 308 (1974). The
defendant there was convicted in state court based on “crucial” testimony from
a juvenile who was on probation after having previously been adjudicated
delinquent in state court for two burglaries. Id. at 310–11. The defendant
wanted to introduce the witness’s juvenile record for these reasons: the witness
may “have made a hasty and faulty identification of petitioner to shift
suspicion away from himself as one who [actually committed the crime, and
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                                  No. 17-41251
the witness] might have been subject to undue pressure from the police and
made his identifications under fear of possible probation revocation.” Id. at
311.     Instead of the juvenile record’s being admitted, the defendant was
allowed to ask questions about the witness’s state of mind in cooperating with
the police. Id. at 311–13. This limitation violated the Confrontation Clause.
Id. at 318. Without the specificity of the juvenile record, jurors “might well
have thought that defense counsel was engaged in a speculative and baseless
line of attack on the credibility of an apparently blameless witness.” Id.
        Fulton argues that Minor Victim 3 had reason to alter her testimony in
a federal prosecution in order to receive assistance in a state juvenile
proceeding. We consider the fact that this witness’s prosecutions were by two
different sovereigns on two unrelated crimes to be critical. Davis is based on
the fact that state prosecutors had the ability and perhaps some reason to
charge that witness with the same offense and perhaps also could have affected
his state probation on two other burglary offenses; the witness had ample
motivation for identifying a different culprit. Id. at 317–18. We see no reason
to make such assumptions when the witness appeared in a federal court trial
and the separate matter was in state court.          “[N]othing in the record or
pleadings suggest[ed] that the federal prosecutor could have influenced any
state juvenile-court proceedings and thereby provided an inducement for the
victims to testify in the federal trial.” United States v. Miller, 538 F. App’x 501,
501 (5th Cir. 2013) (citing United States v. Thorn, 917 F.2d 170, 176 (5th Cir.
1990) (proper to limit cross-examination when there was no showing federal
prosecutors could influence an unrelated state prosecution of a witness)).
        We conclude that Fulton has not shown that the witness had a reason to
be biased based on the unrelated offense. We also conclude that the effect of
limiting cross-examination of this witness was minimal, as ample other


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                                    No. 17-41251
evidence existed of Fulton’s guilt of this offense. The district court did not err
in not allowing Fulton to probe this witness about any state charge.


III.     Sufficiency of evidence on special findings
         The statute of Fulton’s convictions on the substantive counts required
that he either knew or recklessly disregarded (1) “that means of force, threats
of force, fraud, coercion . . . or any combination of such means will be used to
cause the [victim] to engage in a commercial sex act” or (2) “that the [victim]
has not attained the age of 18 years and will be caused to engage in a
commercial sex act.” 18 U.S.C. § 1591(a) (2015). Fulton was convicted on four
of these substantive counts. For two of them, Counts 2 and 7, the district court
instructed the jury to look only for the second of the two possible findings.
Conviction on those counts is not contested.
         On Counts 4 and 6, the district court instructed the jury that it could
make either finding. Accordingly, the jury entered special findings on Counts
4 and 6 that Fulton “used force, threats of force, fraud or coercion” and “at the
time of the offense, the victim had attained the age of 14 years but had not
attained the age of 18 years.” Fulton argues there was insufficient evidence
for the jury to find he “used force, threats of force, fraud or coercion” on these
two counts.
          Fulton moved in the district court for a judgment of acquittal after the
Government’s case-in-chief. He renewed the motion after his own case-in-
chief. Consequently, we review his evidentiary sufficiency contentions de novo;
the analysis considers “all evidence in the light most favorable to the verdict”
and asks “only whether the jury’s decision was rational, not whether it was
correct.” United States v. Lewis, 774 F.3d 837, 841 (5th Cir. 2014) (citations
omitted).


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                                  No. 17-41251
        There is evidence Fulton used force and threats with the minor victims
associated with Counts 4 and 6.          There was testimony he threatened
to “beat . . . up” one victim. He also hit the other victim because she was
leaving him, making “a big handprint on [her] face.” That victim further
testified Fulton choked her for “talking to other guys.”         There was also
testimony that Fulton emotionally and financially manipulated the victims so
as to support a finding of coercion. See § 1591(e)(2), (e)(4) (2015).
        Even if this evidence were not sufficient, Fulton’s convictions would be
unaffected. Either one of the special findings in Counts 4 and 6 supported a
conviction under Section 1591(a). A finding of force, threats, fraud, or coercion
carried a minimum sentence of 15 years; a finding that the victim “had
attained the age of 14 years but had not attained the age of 18 years” carried
a minimum sentence of 10 years. § 1591(b). Either finding carried a maximum
sentence of life. Id. Even if we hold the findings of force, threats, fraud, or
coercion were not supported by sufficient evidence, it remains true the jury
found the victims to be younger than 18. That leaves Fulton guilty under
Counts 4 and 6 with a maximum sentence of life, which he received for both.
We leave his convictions on Counts 4 and 6 undisturbed.


IV.     Grand Jury Clause violation
        The final issue concerns what is argued to be effectively an improper
amendment of the indictment concerning Fulton’s knowledge of the age of his
victims. Section 1591(a) permits the Government to convict a defendant on
alternative theories. For one of the theories, the Government is not required
to prove that the defendant “knew, or recklessly disregarded the fact, that the
person had not attained the age of 18 years.” § 1591(c). Instead, the evidence
only has to prove that “the defendant had a reasonable opportunity to observe


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                                   No. 17-41251
the” victim.   Id.    Fulton’s indictment does not mention this “reasonable
opportunity to observe” concept.
      Fulton argues on appeal that the district court imported this concept
into the case by giving this jury instruction: “If the Government proves beyond
a reasonable doubt that the defendant had a reasonable opportunity to observe
the [alleged victims] . . . then the government does not have to prove that the
defendant knew that the person had not attained the age of 18 years.” Fulton
argues this instruction allowed the jury to convict on a basis broader than that
stated by the indictment. He did not make this argument in district court.
      Our analysis starts with the special role of indictments under our
Constitution: “No person shall be held to answer for a capital, or otherwise
infamous crime, unless on a presentment or indictment of a Grand Jury.” U.S.
CONST. amend V. A district court errs by “permit[ting] the defendant to be
convicted upon a factual basis that effectively modifies an essential element of
the offense charged or permits the government to convict [a] defendant on a
materially different theory or set of facts than that with which she was
charged.”   United States v. Thompson, 647 F.3d 180, 184 (5th Cir. 2011)
(citation omitted).
      In one precedent we discussed the exact issue presented by Fulton.
There, an indictment charged two defendants under Subsections 1591(a) and
(b)(2) “but did not include the ‘reasonable opportunity’ language found in
[S]ubsection (c).” United States v. Lockhart, 844 F.3d 501, 515 (5th Cir. 2016).
As here, the district court instructed the jury using Subsection (c) language.
Id. We held “the district court materially modified an essential element of the
indictment by transforming the offense . . . the indictment charged . . . from
one requiring a specific mens rea into a strict liability offense.” Id. at 515–16
(emphasis added).


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                                  No. 17-41251
      That error caused us to reverse the judgment of conviction of one
defendant but not of the other. Id. at 516. Prejudice need not be shown if a
timely objection is made in the district court to the violation of the right to be
tried only by a properly issued indictment; only one of the two Lockhart
defendants objected.     Id. at 515–16, 515 n.3.     His was the judgment of
conviction we vacated. Id.
      His codefendant did not object to the broadening of the indictment, and
we reviewed his conviction for plain error. Id. at 515 n.3. We will reverse a
conviction for plain error only when: “(1) [the instruction] was erroneous; (2)
the error was plain; and (3) the plain error affected the substantial rights of
the defendant.” United States v. Daniels, 252 F.3d 411, 414 (5th Cir. 2001).
Even if those requirements are met, we will exercise discretion to reverse the
district court only if “the error ‘seriously affect[s] the fairness, integrity or
public reputation of judicial proceedings.’” Id. (citation omitted). We held in
Lockhart that regardless of the first three factors of plain error review, we
would decline to exercise our discretion to reverse because of the “substantial
evidence against” the defendant. Lockhart, 844 F. 3d at 515 n.3.
      The evidence against Fulton was also “substantial,” and we refuse to
vacate his convictions based on the jury instruction.
      AFFIRMED.




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