Opinion
CRIMINAL ACTION NO. 13-361 CIVIL ACTION NO. 16-3835
10-26-2016
UNITED STATES OF AMERICA v. RAHIM MCINTYRE
MEMORANDUM
Before the court is the motion of Rahim McIntyre to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (Doc. # 116).
McIntyre was found guilty by a jury of two counts of sex trafficking and one count of attempted sex trafficking in violation of 18 U.S.C. §§ 1591(a) and 1594(a). Thereafter, this court imposed concurrent sentences of 262 months on each count. Our Court of Appeals affirmed. McIntyre thereafter timely filed the instant § 2255 motion. He contends that he is entitled to relief because his trial counsel was ineffective in six different respects.
Under Strickland v. Washington, the Supreme Court has explained that to establish ineffective assistance of counsel, McIntyre must first demonstrate that his counsel's performance fell below "an objective standard of reasonableness." 466 U.S. 668, 687-88 (1984). To do so, McIntyre must show that his counsel "made errors so serious that counsel was not functioning as the 'counsel' guaranteed [a] defendant by the Sixth Amendment." Id. at 687. McIntyre must then prove that he was prejudiced, that is, that "there is a reasonable probability that but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694. In assessing McIntyre's ineffective assistance of counsel claims, we "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689.
McIntyre first asserts that his counsel made prejudicial statements throughout trial that relieved the Government of proving all of the elements of its case under 18 U.S.C. § 1591(a). He contends that his counsel's concession before the jury that McIntyre was a pimp effectively changed his plea from not guilty to guilty. He additionally avers that there is a reasonable probability that counsel's remarks, "[t]he Devil is not as black as he is painted," made during his opening statement, caused the jury to turn against him due to its racial undertones.
Section 1591(a) provides:
(a) Whoever knowingly -
(1) in or affecting interstate or foreign commerce, or within the special maritime and territorial jurisdiction of the United States, recruits, entices, harbors, transports, provides, obtains, advertises, maintains, patronizes, or solicits by any means a person; or
(2) benefits, financially or by receiving anything of value, from participation in a venture which has engaged in an act described in violation of paragraph (1),
knowing, or, except where the act constituting the violation of paragraph (1) is advertising, in reckless disregard of the fact, that means of force, threats of force, fraud, coercion describe in (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 will be caused to engage in a commercial sex act, shall be punished as provided in subsection (b).
18 U.S.C. § 1591(a).
The statement that McIntyre was a pimp did not relieve the Government of proving the elements of the offenses, and it did not change McIntyre's plea from not guilty to guilty. Regardless of counsel's statement, the Government was required to prove all of the elements of the offenses beyond a reasonable doubt in order to prove McIntyre guilty. The elements under § 1591(a) included far more than that McIntyre was a pimp. To convict McIntyre the Government additionally had to establish that McIntyre knew that the victim was under the age of eighteen or that he knew that force, fraud, or coercion would be used with respect to the person engaged in a commercial sex act. The Government also had to prove that his conduct was in or affecting interstate commerce. Nothing that McIntyre's counsel said relieved the Government of proving these elements.
The Strickland Court recognized that counsel is given leeway to employ the strategy he or she considers most effective under the circumstances. See 466 U.S. 668, 691 (1984). The Supreme Court declared, "the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Id. at 689 (citing Michel v. Louisiana, 350 U.S. 91, 101 (1955)). McIntyre had admitted to pimping during more than one of the four proffers in which he had engaged with the Federal Bureau of Investigation. By telling the jury up front of McIntyre's admission, counsel was properly attempting to blunt the force of this fact before the Government introduced it into evidence. This trial strategy was not ineffective assistance of counsel. As the Strickland Court observed, "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable." 466 U.S. at 690-91.
McIntyre also attacks counsel's remarks, "[t]he Devil is not as black as he is painted." While this choice of words may not have been the most appropriate, they were used only once at the beginning of the trial. The evidence against McIntyre was strong. He cannot demonstrate that the remarks prejudiced the outcome of the trial.
McIntyre next contends that his counsel's representation was deficient because he failed to conduct a thorough pretrial investigation, resulting in an ill-prepared defense strategy and cross-examination. In support, McIntyre rehashes for forty pages the details of the testimony of the three female victims and points to minor discrepancies. He repeatedly argues that the Government's case was uncorroborated, largely testimonial evidence, and therefore it was imperative for counsel to investigate thoroughly all allegations.
Specifically, he maintains that his counsel failed to investigate a potential witness, Amanda Davis, whose testimony he contends would have rendered entirely false the testimony of witness K.W.. Davis, who did not testify at trial, acted as an organizer and recruiter of females into McIntyre's prostitution organization. At trial K.W., one of the three victim witnesses, testified that Davis recruited her into the organization in January 2006. In his motion, McIntyre alleges that during January 2006, Davis "may" have been an inpatient at a mental health facility, making it impossible for her to have recruited K.W. into the organization. McIntyre presents no evidence to support his contention that Davis was an inpatient at a mental health facility at that time. Nor does he explain how the omission of Davis' testimony resulted in prejudice.
K.W. testified about the criminal conduct of McIntyre. It is not material who recruited K.W.. She was recruited into his organization and engaged in prostitution. Moreover, McIntyre never argues that Davis would provide exculpatory testimony concerning his conduct. Under all of these circumstances, the failure of counsel to call Davis did not prejudice McIntyre.
We have reviewed McIntyre's other arguments about counsel's lack of preparation, and we find them to be totally without merit.
McIntyre further reiterates that the evidence was insufficient to support a conviction. He made this same argument in his earlier post-trial motions. He now labels this argument as an ineffective assistance of counsel claim and attempts to intertwine it with his critique of what he contends to be his counsel's ineffective cross-examination strategy. We will not revisit this insufficiency of the evidence claim that we have previously decided. Our decision to deny McIntyre's motion for a new trial under Rule 33 of the Federal Rules of Criminal Procedure and to deny his motion for judgment of acquittal under Rule 29 of the Federal Rules of Criminal Procedure has been affirmed by the Court of Appeals. See United States v. McIntyre, 612 Fed.Appx. 77, 79 (3d Cir. 2015).
We now turn to McIntyre's next argument that the Government failed to establish a casual nexus connection between force, fraud, or coercion, and a commercial sex act as required under § 1591(a). McIntyre's only reference to his counsel is that counsel was deficient for not challenging the Government on this issue. However, McIntyre is incorrect. Counsel raised this issue in post-trial motions. We addressed this issue and found there was sufficient evidence for the jury to find that McIntyre used force, threats of force, and coercion in attempt to cause at least one of the victims to engage in a commercial sex act. McIntyre appealed our decision to our Court of Appeals, and our decision was affirmed. See United States v. McIntyre, 612 Fed.Appx. 77, 80 (3d Cir. 2015). We decline to assess this claim a second time.
In his fourth ground of ineffective assistance of counsel, McIntyre asserts that the jury instructions inaccurately broadened the elements of the offenses, thereby constructively amending the charges against him. McIntyre maintains that counsel's representation was ineffective by failing to object to the instructions.
McIntyre contends that the jury instructions incorrectly instructed that § 1591 is satisfied so long as force, fraud, or coercion occurs, regardless of whether it causes the victim to engage in a commercial sex act. However, the court did not instruct the jury in the way McIntyre says. The court charged that the Government must prove that the defendant knew that force, fraud, or coercion would be used against the victim, and instructed that to convict, the Government must prove that the defendant knew the victim would be caused to engage in a commercial sex act. In accordance with 18 U.S.C. § 1591, the court charged:
Second, that the defendant knew either: that the person had not attained the age of eighteen, or that force, fraud, or coercion would be used with respect to this person. Third, that the defendant knew that this person would be caused to engage in a commercial sex act.We consider jury instructions in "the totality of the instructions and not a particular sentence or paragraph in isolation." United States v. Coyle, 63 F.3d 1239, 1245 (3d Cir. 1995). Section 1591(a)(2) requires that the defendant knew that, by means of force, fraud, or coercion, the victim would be caused to engage in a commercial sex act. See 18 U.S.C. § 1591(a)(2). Considering the second and third jury instructions together, it is clear the Government had the burden of proving beyond a reasonable doubt that the defendant knew that force, fraud, or coercion used against a victim would cause the victim to engage in a commercial sex act. The court's instructions were not in error.
The court has previously addressed the fact that Congress changed the language of 18 U.S.C. § 1591 between the time of the conduct underlying Count One and the time of the conduct underlying Counts Two and Three.
McIntyre also contends that the court improperly added that McIntyre had to know that he was causing the victim to engage in a commercial sex act. McIntyre's argument is incorrect, and is also not helpful to him. By adding the requirement of knowledge, the court made the Government's effort to convict more difficult than otherwise. The plain language of the statute requires that the act was done "knowing . . . that means of force, threats of force, fraud, coercion . . . will be used to cause the person to engage in a commercial sex act." See 18 U.S.C. § 1591(a)(2). The court's jury instructions were not improper and did not result in prejudice to him.
McIntyre maintains that the jury instructions constructively amended the indictment. The indictment is only constructively amended by jury instructions which effectively amend the indictment in a way that broadens the possible bases for conviction. See, e.g., United States v. Lee, 359 F.3d 194, 208 (3d Cir. 2004). These jury instructions did not. The instructions informed the jury that it must find that the defendant knew that force, fraud, or coercion would be used against the victim and that the defendant knew that force, fraud, or coercion would cause the victim to engage in a commercial sex act. Counsel's performance did not fall below the objective standard of reasonableness and did not prejudice McIntyre.
McIntyre's fifth ground for challenging his conviction is that his counsel was ineffective because he failed to challenge 18 U.S.C. § 1591 as unconstitutionally vague under Johnson v. United States, 135 S. Ct. 2551 (2015). Though he attempts to invoke Johnson by asserting that § 1591 is unconstitutionally vague as to whom it protects, the substance of his argument appears to be that § 1591 only applies where the victim is under the age of eighteen. His position that § 1591 is unconstitutionally vague is without merit. The Johnson decision is not apposite. Johnson held that the residual clause of the Armed Career Criminal Act, which imposed an enhanced prison sentence upon a defendant with three prior convictions for a "violent felony," violates the Due Process Clause as unconstitutionally vague. Johnson, 135 S.Ct. at 2557. There is no viable vagueness issue here.
McIntyre argues that § 1591 only applies where the victim is under the age of eighteen. He has previously raised this argument. Before trial, McIntyre moved under Rules 12(b)(2) and (3) of the Federal Rules of Criminal Procedure to dismiss Counts Two and Three of the indictment. He argued that § 1591 only applied to victims under the age of eighteen and the victims identified in Counts Two and Three of the indictment were not identified as minors. We denied McIntyre's motion. United States v. McIntyre, 2014 WL 1281054, at *3 (E.D. Pa. March 31, 2014). Again, McIntyre is incorrect on the law and has suffered no prejudice.
Finally McIntyre contends that his counsel's performance was deficient in failing to argue that the fifteen-year mandatory minimum sentence under the Adam Walsh Child Protection and Safety Act of 2006 only applies when the victim of 18 U.S.C. § 1591 is under the age of eighteen. See 42 U.S.C. §§ 16901, et seq. His counsel raised this issue on appeal. Our Court of Appeals affirmed McIntyre's conviction and sentence. United States v. McIntyre, 612 Fed.Appx. 77, 81 (3d Cir. 2015). As our Court of Appeals has already decided this issue, we will not address it here.
McIntyre alleges his counsel erred by referencing in his appellate brief a statute under which McIntyre was neither charged nor convicted, 18 U.S.C. § 2241. However, our Court of Appeals analyzed McIntyre's argument that the fifteen-year mandatory minimum sentence applies only when the victim is under the age of eighteen. Therefore, McIntyre was not prejudiced. See United States v. McIntyre, 612 Fed.Appx. 77, 80 (3d Cir. 2015). --------
Accordingly, McIntyre's petition to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 will be denied.