Court Chucks Sentences for NY Sex Traffickers

MANHATTAN (CN) - The Second Circuit supported lighter sentences Tuesday for three Long Island men who forced undocumented immigrants to work as prostitutes and may have raped some of the women.

Antonio Rivera, Jason Villaman and John Whaley had lured their victims, young immigrants from Honduras, Guatemala, Mexico and El Salvador, with advertisements in Spanish-language newspapers, investigators found.

The trio told the women they'd have to dress suggestively and possibly dance with customers to work as waitresses at two bars called Sonidos de la Frontera and La Hija del Mariachi.

Later, however, the men threatened to beat the women or have them deported if they didn't also strip and have sex with customers.

The three men were convicted in 2013 of sex trafficking, forced labor, and alien harboring and transportation.

In addition to running a brothel, the court also found indications that the three men raped some of the women, either by force or by getting them so drunk they were "functionally unconscious." One woman testified she had been raped in full view of customers.

Rivera, the owner of the two bars, was sentenced to 60 years in prison. Villaman and Whaley were given 25 and 30 years, respectively.

In vacating the three men's sentences, the federal appeals court found that the terms exceeded the statutory maximum.

Though the trial court cited rapes in imposing a two-level sentence enhancement for each of the victims, the appeals panel found that those enhancements had already been incorporated into the sex-trafficking conviction.

The court was divided 2-1 in rejecting the men's remaining appeal, which complained about the court's refusal to admit evidence that some of the women had worked previously as strippers or prostitutes, and that others had quit the bar but returned later, or had recruited friends to also work at the bars.

Though the men contended that this move violated their Sixth Amendment right to question their accusers, the appellate majority found that the trial court properly found such questioning irrelevant to the charges of coercion.

"Defendants knew of the immigration status of the victims and used that knowledge to craft their threats to coerce the victims to perform sexual acts against their will," Judge Richard Wesley wrote for the majority. "The threatened and actual abuse, in toto, was serious enough to cause reasonable people of the same background and in the same circumstances to feel coerced."

Past is not prologue to future, the court wrote, and the fact that some of the women may have voluntarily worked as prostitutes previously did not mean that the three men did not force them to do it at the bars.

"Knowing that suggestive behavior of even sexual acts might become a part of the job does not mean that the victims therefore consented to being threatened or coerced into performing sexual acts they did not with to perform," Wesley wrote. "Prior sexual conduct for money or pleasure was irrelevant to whether the victims' sexual activities at the bars were the result of coercion."

Judge Dennis Jacobs wrote in dissent that the exclusion of the waitresses' past "sexual behavior" violate the constitutional rights of the three defendants.

"A reasonable juror could conclude that prior, voluntary work in the industry suggested that the employment arrangement here was consensual and not entered into by fraud," Jacobs wrote.

Attorneys for the defendants had also argued that the trial court flubbed the jury instructions by not defining coercion as what a "reasonable person" would feel given the circumstances.

During the trial the court instructed jurors to decide whether any of the victims were "vulnerable in some way" to coercion and stated that "not all persons are of the same courage or firmness." If a victim seemed vulnerable, the jury instructions stated, then coercion could be inferred.

Though the appellate majority found that the trial court should have both instructed the jury to consider the particular vulnerabilities of a person while also looking at whether it was "objectively reasonable" in the circumstance, they called the error "harmless beyond a reasonable doubt ... [because] the threats of harm to the victims were sufficiently serious to cause both the victims and reasonable people of the same background and in the same circumstances to feel coerced."

Judge Jacobs dissented on this point, too, saying the botched jury instructions "compounds the evidentiary error."

"The two leave me with real questions about the fairness of this trial," Jacobs added.

Though the court sent the case back for resentencing, Jacobs said they should have called for a completely new trial.

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