14-1709 United States v. Corley UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 

### SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32. 1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CI TING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NO T REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Seco nd Circuit, held at 1 the Thurgood Marshall United States Courthou se, 40 Foley Square, in the City of New York, 2 on the 9 th day of February, two thousand seventeen. 3 4 PRESENT: 5 G UIDO C ALABRESI , 6 S USAN L. C ARNEY , 7 Circuit Judges , 8 C AROL B AGLEY A MON , 9 District Judge

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_____________ _______________ _____________ 11 12 U NITED S TATES OF A MERICA , 13 14 Appellee , 15 16 v. No. 14-1709 17 18 R OYCE C ORLEY , AKA R ON I RON , 19 20 Defendant-Appellant

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_____________ _______________ _____________ 22 23 FOR APPELLANT: Royce Corley, pro se , Danbury, CT. 24 25 FOR APPELLEE: Amanda Kramer, Karl N. Metzner, 26 Assistant United States Attorneys, for Preet 27

 Judge Carol Bagley Amon, of the United Stat es District Court for the Eastern District of New York, sitting by designation.2 Bharara, United States Attorney for the 1 Southern District of New York, New 2 York, NY. 3 4 Appeal from the United States District Co urt for the Southern District of New York 5 (Patterson, J. ). 6 UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, 7 ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED

. 8 Appellant Royce Corley, proceeding pro se , appeals his conviction for three counts of 9 sex trafficking of a minor in violation of 18 U.S.C. § 1591(a), and one count of possession of 10 child pornography in violation of 18 U.S.C. § 2252A(a)(5)(B). At trial, the Government 11 presented evidence that Corley prostituted at least three minor victims, known by the 12 pseudonyms Jenna Smith, Elaine Jones, and Mariam Miller, 1 and possessed sexually explicit 13 photos of Smith. On appeal, Corley challe nges various evidentiary rulings, two jury 14 instructions, and the sufficiency of the evid ence supporting his convictions. We assume the 15 parties’ familiarity with the unde rlying facts, the procedural hist ory of the case, and the issues 16 on appeal. 17
I. Evidentiary Rulings 18
“We review a district court’ s evidentiary rulings for ab use of discretion, and will 19 reverse only for manifest error.” Cameron v. City of New York , 598 F.3d 50, 61 (2d Cir. 2010) 20 (citation omitted). 21
The district court did not ab use its discretion by admitting a photo of Jones. Corley 22 objects to the photo’s admission because it w as taken after an assault, when Jones was 23 hospitalized, crying, and had bloodshot eyes, circumstances that Corley argues made the 24

1 The victims’ last names are pseudonyms.3 photo unfairly prejudicial. Federal Rule of Evidence 403 provides that a district court may 1 exclude relevant evidence if its probative value is substantially outweighed by a danger of 2 unfair prejudice. Here, the photo was not unfair ly prejudicial. The G overnment deleted from 3 the image all clothing and background indicati ng that the photo was taken in a hospital, and 4 although Jones’s eyes appeared bloodshot, no inju ries to her were visible in the photo. The 5 photo had probative value because it was used to identify Jones as one of the girls Smith 6 introduced to Corley. 7
The district court also did not abuse its discretion by admitting the thumb drive. 8 Corley objected to its admission because (he asserts) it was not authenticated. Under Federal 9 Rule of Evidence 901(a), an item of evidence must “be ‘authenticated’ through introduction 10
of evidence sufficient to warrant a finding that the item is wh at the proponent says it is.” 11 Crawford v. Tribeca Lending Corp. , 815 F.3d 121, 126 (2d Cir. 201 6) (quoting Fed. R. Evid. 12 901(a)). Corley argues that the Government fa iled to prove that the thumb drive removed 13 from his pocket by Detective Mark Woods was the same thumb drive as that analyzed by the 14
FBI and introduced at trial. But Detective Wo ods identified the drive as the one that he 15 seized from Corley’s pocket. Sp ecial Agent John Robertson also identified the drive as the 16 one on which he conducted a forensic analys is. Absent any evidence to the contrary, the 17
district court was entitled to conclude that the thumb driv e analyzed by Special Agent 18 Robertson was more likely than not the one seized by Detective Woods. See United States v. 19 Gelzer , 50 F.3d 1133, 1141 (2d Cir. 1995). 20 Finally, the district court properly precluded Corley from cross-examining Smith and 21 Miller about their previous employment as pros titutes and other sexual conduct unrelated to 224 their employment with Corley. Under Federal Rule of Evidence 412, evidence offered to 1 prove that a victim engaged in other sexual beha vior is not admissible. It allows three limited 2 exceptions to the general prohibition: admissi on (1) to prove that another person was the 3 source of the injury, (2) to show consent, an d (3) to avoid a violation of the defendant’s 4 constitutional rights. Fed. R. Evid. 412(b)(1). Corley argues that the purpose of his cross5 examination was to prove that another person was responsible for the victims’ injuries and 6 that the minor victims consented to being pr ostitutes. But these exceptions do not apply 7 here. The Government did not charge Corley with physically harming any of the victims or 8 committing any form of sexual misconduct as to which the victims’ prior sexual behavior 9 would be relevant. Further, the victims co uld not consent becaus e they were minors. See 10
United States v. Elbert , 561 F.3d 771, 776 (8th Cir. 2009). 11
II. Jury Instructions 12
We review de novo jury instructions alle ged to be erroneous. United States v. Kozeny , 667 13 F.3d 122, 130 (2d Cir. 2011). We “will reverse only if all of the instructions, taken as a whole, 14 caused a defendant prejudice.” United States v. Bahel , 662 F.3d 610, 634 (2d Cir. 2011) 15 (citation omitted). 16

a. No Unanimity Needed as to Means 17 A jury cannot convict unless it finds unanimously that th e government proved each 18 element of the crime beyond a reasonable doubt. Richardson v. United States , 526 U.S. 813, 817 19 (1999). A jury need not be unanimous, however, as to the means of the crime—that is, as to 20 the underlying facts or theories satisfying an individual element. Id. 215 Corley objects here to the district court’s inst ruction to the jury that, to convict, it did 1 not need to conclude unanimously as to how Corley violated 18 U.S.C. § 1591(a), sex 2 trafficking of a minor. Section 1591(a) provides: 3 Whoever knowingly— 4 (1) in or affecting interstate or fo reign commerce, . . . recruits, entices, 5 harbors, transports, provides, obtains, advertises, maintains, patronizes, or 6 solicits by any means a person; or 7 (2) benefits, financially or by receiving anything of value, from 8 participation in a venture which ha s engaged in an act described in 9 violation of paragraph (1), 10 knowing . . . that the person has not atta ined the age of 18 years and will be 11 caused to engage in a commercial sex ac t, shall be punished as provided in 12 subsection (b). 13 18 U.S.C. § 1591(a). The plain reading of the st atute suggests that the first element of the 14 offense—the trafficking act—can be satisfied by the conduct listed in either subpart (1) or 15 subpart (2). Corley could be convicted under § 1591(a) if, for example, he either (1) 16 harbored, or (2) participated in a venture that harbored, minor victims. We therefore 17 conclude that (a)(1) and (2) establish alte rnative means of committing the offense. Cf. United 18
States v. Fuertes , 805 F.3d 485, 498 (4th Cir. 2015) (inter preting “force, fraud, or coercion” as 19 referring “to alternative means of commission” when determining if an offense under § 1591 20 is a crime of violence (emphasis in original)). Thus, the jury instructions properly noted the 21 two theories under which the jury could find that the first element was satisfied, and the 22 district court correctly informed the jury that it need not be unanim ous as to which theory 23 proved the element, but only in finding that the Government proved the element beyond a 24
reasonable doubt. 256 b. Knowledge Element and “Reasona ble Opportunity to Observe” 1 Corley also challenges the dist rict court’s instructions to the jury with regard to the 2 knowledge element of § 1591. In United States v. Robinson , we held that the government can 3 establish the defendant’s knowledge of the vict im’s minority by proving that the defendant 4 had a reasonable opportunity to observe the victim. 702 F.3d 22, 31-32 (2d Cir. 2012). This 5 “reasonable opportunity” method provides only one alternativ e to other means of proving 6 knowledge of the victim’s age. Id. The district court here correct ly instructed the jury, under 7
Robinson , that the Government could satisfy the knowledge element of the crime in three 8 ways: by establishing actual knowledge, reckless disregard of the fact that the victims were 9 underage, or reasonable opportunity to observe th e victims. It further explained that the jury 10 could find that Corley had a “reasonable oppor tunity” to observe the victims if he had a 11 “face-to-face interaction” with them. Corley ar gues that the district court erred in its 12 instruction that finding that a “face-to-face interaction” o ccurred would be sufficient to 13 satisfy the knowledge element, because whether Corley had a reasonable opportunity to 14 observe should have been a quest ion of fact for the jury to decide. But even if Corley is 15 correct that the court erred in this aspect of its instruction, the error is harmless. As 16 discussed below, the Government offe red ample evidence that Corley had actual knowledge 17 of the victims’ ages and the special verdict show ed that the jury found that the Government 18 had proven his actual knowledge. Thus, whet her or not the face-to-face instruction was 19 correct, Corley was not prej udiced by its use. 20

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227 III. Sufficiency of the Evidence 1
We review de novo challenges to the suffi ciency of the evidence. United States v. Harvey , 2 746 F.3d 87, 89 (2d Cir. 2014) (per curiam). A defendant raising such a challenge faces a 3 “heavy burden,” because “in assessing whethe r the evidence was suffi cient to sustain a 4 conviction, we view the evidence in the light most favorable to the government, drawing all 5 inferences in the government’s favor and deferri ng to the jury’s assessment of the witnesses’ 6 credibility.” Id. (internal quotation marks and citation omitted). A convicti on will be upheld 7
if “ any rational trier of fact could have found th e essential elements of a crime beyond a 8
reasonable doubt.” Id. (emphasis in original) (citation omitted). 9

a. Sex Trafficking of a Minor 10
1. Interstate Commerce 11 Corley argues that § 1591 requires the Government to show that he knowingly 12 engaged in interstate commerce, and the Govern ment failed to offer sufficient evidence to 13
that effect. We do not think that the “knowingly” modifier in § 1591(a) applies to the 14
section’s interstate commerce clause and othe r courts have ruled in accordance with our 15
view. See, e.g. , United States v. Chang Ru Meng Backman , 817 F.3d 662, 667 (9th Cir. 2016); 16 United States v. Sawyer , 733 F.3d 228, 230-31 (7th Cir. 2013). As to this element, the 17
Government need offer sufficien t evidence from which to infer only that Corley’s actions 18
affected interstate commerce. The eviden ce showed that Corl ey used a website, 19 Backpage.com, to post advertisemen ts featuring the minor victims. The parties stipulated 20 that Backpage processed the advertisemen t payments in Massachusetts and hosted the 21
advertisements on a server in Arizona. This evidence is sufficient to support an inference 228 that his actions affected interstate commerce. See United States v. Baston , 818 F.3d 651, 664-65 1 (11th Cir. 2016). 2
Even were we to conclude that the Gove rnment must also show his knowledge of 3 the interstate commerce element, the evidence was sufficient fo r a jury to conclude that 4 Corley knew that his advertisements were bringing clients into New York from out of state. 5
Smith testified that her custom ers learned of her services th rough Backpage advertisements 6
and that her customers were not li mited to New York State residents. Since their effect was 7 to bring out-of-state customers into New York for the purposes of engaging in sexual 8 relations for pay, a jury could reasonably c onclude that, by placing advertisements on 9 Backpage, Corley “knowingly affected” inters tate commerce. Corley’s challenge therefore 10
fails. 11
2. Trafficking Acts 12 Corley argues that there was no eviden ce that he committed any of the acts 13 (recruiting, harboring, transporting, providing, obtaining, or maintain ing the minor victims) 14 that constitute “trafficking” under the statute. His argument is thoroughly contradicted, 15 however, by the overwhelming evidence presented at trial. The Government presented 16 evidence supporting the foll owing findings: Corley regu larly created Backpage 17 advertisements for Smith, J ones, and Miller (“provided”); Corley drove Smith back to his 18 apartment, where he took advertisement photos of her, and drove Mill er to an apartment 19 where he said she would be working (“transported”); Corley personally recruited Smith and 20 Miller to work for him as prostitutes and ask ed Smith to recruit other women, and she 21 recruited Jones (“recruited”); and by giving them keys, Corley made available to them 229 various apartments in which Smith, Jones, and Miller lived and worked (“maintained”). 1 Thus, the Government’s eviden ce in this regard was ample. 2
3. Commercial Sex Act 3
The Government also introdu ced sufficient eviden ce to show that Corley trafficked 4 his victims for the purposes of commercial se x or prostitution. Section 1591 requires the 5 Government to prove that the defendant commi tted specific actions knowing that the victim 6 “will be caused to engage in a commercial se x act.” 18 U.S.C. § 1591(a). The statute defines a 7 “commercial sex act” as “any sex act, on account of which anything of value is given to or 8 received by any person.” 18 U.S.C. § 1591(e)(3). Corley argues that there was no evidence of 9 a commercial sex act having actually been perfor med by the victims. This argument does not 10 comport with the plain meaning of the stat ute, which requires only that the defendant 11
“know” that the victim “will be caused” to en gage in a commercial sex act; the statute does 12 not require that an actual co mmercial sex act have occurred. See United States v. Hornbuckle , 13 784 F.3d 549, 553- 54 (9th Cir 2015); United States v. Garcia-Gonzalez , 714 F.3d 306, 312 (5th 14 Cir. 2013). At trial, all three minor victims testified that Corl ey took them to an apartment, 15 took pictures that he said he would use to ad vertise their sexual se rvices, and gave them a 16 phone from which they received calls from clients. Based on this testimony, a jury could 17 infer that Corley knew in connection with the ac ts described above that each of the three 18 minor victims would be caused to engage in a commercial sex act. 19

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2210 b. Possession of Child Pornography 1
1. Ownership of the Thumb Drive 2
The Government offered sufficient eviden ce that Corley posse ssed the thumb drive 3 that contained child pornography. Detective Woods testified that he removed the thumb 4 drive from Corley’s pocket when he arrested Corl ey and entered it into the chain of custody. 5 Special Agent Robertson identified that driv e as the one on which he conducted a forensic 6 analysis. He testified, further, that the five images charged in the indictment were found on 7
the thumb drive. The thumb drive also containe d an image file entitled “ronironseal.png,” a 8 name that incorporates the alias Corley used in his prostitution business. Corley’s argument 9 challenging his conviction on this ground is thus unavailing. 10
2. Venue 11 Corley argues next that, because the thum b drive was seized in Queens, New York, 12 he could not have possessed it in the Southern District of New York. At the time of his 13 arrest, however, Corley lived in Manhattan, whic h is in the Southern District. A reasonable 14 jury could have concluded that Corley carried the thumb drive with him from Manhattan to 15 Queens. His challenge to venue fails. 16
3. Materials-In-Commerce 17 Corley challenges the sufficien cy of the evidence offered by the Government to show 18 that he possessed child pornography that was pr oduced using materials that had moved in 19 interstate commerce. Section 2252A(a)(5)(B) of Title 18 criminalizes possession of child 20 pornography “that was produced using material s that have been ma iled, or shipped or 21 transported in or affecting interstate or foreign commerce by any means.” 18 U.S.C. 2211 § 2252A(a)(5)(B). The parties stipulated that th e camera that Corley used to take the photos 1 of minor victim Smith, a Fuji Film FinePix camera, was manufactured outside the state of 2 New York. Corley argues that because th e minor victim did not testify about where the 3 pictures were taken, the jury could not re asonably conclude that the camera moved in 4 interstate or foreign commerce. This argument fa ils to persuade: the jury could infer that the 5 pictures were taken in New York based on Special Agent Robertson’s testimony that the 6 images were created in August 2011, and the minor victim’s te stimony that she was working 7 for Corley in New York from June 2011 through December 2011. The Government’s 8 evidence of materials-in-commerce, although minimal, was adequate. 9

c. Ages of the Victims for Both Charges 10 Corley contends that the Government did no t show he had actual knowledge of or 11 recklessly disregarded the ages of the victims. Bu t Miller testified to having told him that she 12 was 16; Jones did the same. And Smith testif ied that, after Corley saw her Facebook page— 13
which listed her correct date of birth—he asked her about it, providing a sufficient basis 14 from which the jury could infer that he was aware she was a minor. 15
* * * 16 We have considered all of Corley’s remaining arguments and find them to be without 17 merit. Accordingly, we AFFIRM the judgment of conviction. 18
FOR THE COURT: 19 Catherine O = Hagan Wolfe, Clerk of Court 20 21