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To Agree or Not to Agree: Jury Decisions in Sex Trafficking Cases
United States v. Mickey, 897 F.3d 1173, 1175 (9th Cir. 2018)

By: EMMA EASTWOOD-PATICCHIO

Lashasha Ray was a 21-year-old member of the United States Navy when she married Willie Mickey in 2010.1 She expected a typical marriage, but Mickey had other plans. After marrying Ray, Mickey told her that he planned to “continue seeing other women.” He became romantically involved with several women, even moving them into the Navy housing provided to Ray, both when Ray was deployed and when she lived at home.

Far from a model husband, Mickey became a pimp.

A Pimp’s Pattern: Friendship to Force

Mickey quickly established a pattern with his victims, most of whom were young and in need of housing.2 For four years, he befriended victims, offered them shelter, and engaged in romantic relationships with them, all the while failing to mention that he had a wife and lived in her military housing.

During his time as a pimp, Mickey prostituted at least 10 of his victims. His victims had a variety of past experiences. Some had advertised and performed commercial sex acts previously. Others had never engaged in commercial sex acts before. Regardless of a victim’s background, Mickey used a combination of psychological manipulation and violence to convince her to engage in commercial sex acts for his benefit and deter her from leaving.

For example, one victim, K.I., had already engaged in commercial sex acts on her own to support herself and her drug addiction. However, after Mickey met K.I. on the campus of a San Diego community college and earned her trust, she moved in with him and started giving him all her profits. She began a romantic relationship with him, listed his e-mail on her online posts, and traveled with other victims to out-calls he organized. Mickey’s manipulation was so effective that K.I. still called him her boyfriend at trial and denied his control over her activities, even though he had gone to jail for throwing a large rock at the back of her head on Valentine’s Day after she said she was tired and wanted to leave.

A.P., on the other hand, had never engaged in commercial sex acts before meeting Mickey. She moved from her parents’ home into Mickey and Ray’s house immediately after graduating high school. She was under the impression that Mickey was her boyfriend and worked security at the Naval bases. Instead of finding the freedom from supervision she desired, A.P. found new rules, such as taking “dates,” picking up clients on the streets, and giving Mickey all of the money she earned. When Mickey was not satisfied with something A.P. said or did, he punched her, always below the neck because “‘tricks’ wanted to see a not bruised up face.”3 When apologies and professions of love no longer kept her from leaving, he hit her “all over” and threw a stepping stool at the back of her head, not allowing her to escape until he left the next day. This escape eventually led to Mickey’s arrest.

Guilty of Sex Trafficking by Special Verdict

Police arrested Mickey on April 9, 2015, in the presence of yet another victim who had been homeless and relied on Mickey for help. The Government indicted Mickey for three counts of sex trafficking under 18 U.S.C. § 1591,4 dropping one count before trial.

After a five-day trial in the Southern District of California, the jury found Mickey guilty of both counts of sex trafficking. In order to convict someone of sex trafficking, a jury must find that the trafficker used force, threats of force, fraud, coercion, or “any combination of such means.”5

The prosecutor, in this case, asked the jury to fill out a special verdict form, which asks the jury to answer specific factual questions. A general verdict form, in contrast, simply asks the jury whether they found the defendant guilty or not guilty. The special verdict form, which asked about the individual means Mickey may have used to traffic his victims, revealed that the jury agreed unanimously that Mickey used “any combination of such means” on K.I. and force, threats of force, coercion, and “any combination of such means” on A.P.

District Judge Barry Ted Moskowitz sentenced Mickey to 17 years in prison, followed by 10 years of supervised release.

Unpacking Unanimity: Juries Do Not Need to Be Unanimous on The Specific Combination of Means 

Mickey appealed the district court decision, arguing that Judge Moskowitz was required to give a “specific unanimity instruction” for the count involving K.I.6 Such instruction would require the jury to agree unanimously on the “precise combination of means Mickey used to cause K.I. to engage in a commercial sex act.”7 According to Mickey, if some jurors thought Mickey used force and coercion and others thought Mickey used threats of force and coercion, the verdict would not be unanimous and Mickey would be found not guilty.

The Ninth Circuit affirmed the lower court, resting the holding on whether the listed alternatives were elements or means of the crime. If they were elements, the jurors must agree on the specific combination of alternatives; if they were means, the jurors “may disagree yet still convict.”8 The Ninth Circuit held that the alternatives were means because (1) the word “means” appears twice in the relevant statutory text, including “any combination of such means,” (2) none of the alternatives carries a different punishment, (3) the statute does not identify the alternatives as elements, and (4) the title of the statute indicates that the alternatives are means.9

The Ninth Circuit’s decision is in line with more general federal appellate case law concerning unanimity of verdicts for means of a crime,10 but it is the first decision to apply this logic directly to the alternatives listed in 18 U.S.C. § 1591.

Danger in the Details

Although the Ninth Circuit upheld Mickey’s conviction, the court cautioned against the Government’s practice of using special verdict forms instead of general verdict forms in human trafficking cases. Since the Government only needed to prove that Mickey committed sex trafficking, rather than how he committed sex trafficking, the Ninth Circuit worried that asking juries to decide the means—or the “how”—might confuse the jury and create a “considerable, and unnecessary, risk of error.”11 Thus, although special verdict forms help the Government learn how juries think about human trafficking and defend against possible changes to evidence standards,12 the Ninth Circuit’s rebuke of this practice may lead the Government to abandon it despite its benefits.

Regardless of the form of jury verdict, the Ninth Circuit’s decision, in this case, made an important stride towards straightforward convictions in sex trafficking cases. After Mickey, juries can now convict for sex trafficking even if they do not agree on the means the trafficker used.

 


  • 1 United States v. Mickey, 897 F.3d 1173, 1175 (9th Cir. 2018).
  • 2 Answering Brief for the United States at 3, United States v. Mickey, 897 F.3d 1173 (9th Cir. 2018) (No. 16-50343).
  • 3 Id. at 8.
  • 4 “Whoever knowingly in or affecting interstate or foreign commerce . . . recruits, entices, harbors, transports, provides, obtains, advertises, maintains, patronizes, or solicits by any means a person . . . knowing, or except . . . advertising, in reckless disregard of the fact that means of force, threats of force, fraud, coercion . . ., or any combination of such means will be used to cause the person to engage in a commercial sex act, . . . shall be punished.” 18 U.S.C. § 1591(a).
  • Id.
  • This argument did not affect A.P. since the jury agreed unanimously on three other means besides the combination option.
  • Mickey, 897 F.3d at 1177.
  • Rendon v. Holder, 764 F.3d 1077, 1086 (9th Cir. 2014). See also Mathis v. United States, 136 S. Ct. 2243, 2256 (2016); Richardson v. United States, 526 U.S. 813, 817 (1999); Schad v. Arizona, 501 U.S. 624, 631-32 (1991).
  • United States v. Todd, 627 F.3d 329, 335 (9th Cir. 2010) (M. Smith, J., concurring) (citation omitted) (“Although statutory titles are not part of the legislation, they may be instructive in putting the statute into context.”)
  • 10 E.g., Mathis v. United States, 136 S. Ct. 2243, 2248 (2016); United States v. Starks, 861 F.3d 306 (1st Cir. 2017) (“[E]lements must be found unanimously by a jury, while means need not be.”).
  • 11 United States v. Mickey, 897 F.3d 1173, 1182 (9th Cir. 2018).
  • 12 Transcript of Oral Argument, Mickey, 897 F.3d 1173 (No. 16-50343).

About the author

Emma Eastwood-Paticchio

Emma Eastwood-Paticchio

Emma is a third-year law student at Stanford Law School. She graduated from Middlebury College in 2015 and then worked as a research analyst at the Office of the Attorney General of New York. Since starting law school, Emma has helped form a new student organization, Stanford Law Students against Gendered Violence, and leads an accompanying pro bono project focused on domestic violence policy work and direct services. She is also an online editor of Stanford Law Review. Emma has interned at the Brooklyn District Attorney’s Office as a Fair and Just Prosecution Fellow, WilmerHale, and Equal Rights Advocates. She hopes to work on policy reform on behalf of survivors of trafficking and other gendered violence.