IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-41251

UNITED STATES OF AMERICA, 

 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

Before WIENER, SOUTHWICK, and COSTA, Circuit Judges.

LESLIE H. SOUTHWICK, Circuit Judge:

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 cell phone. Fulton also makes arguments premised on the 

Confrontation and Grand Jury clauses, and he challenges the sufficiency of the 

evidence. We find no basis to disturb the judgment. We AFFIRM.

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,” or in effect, a prostitute. 

United States Court of Appeals

Fifth Circuit

FILED

January 29, 2019

Lyle W. Cayce

Clerk

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The probation officer began to investigate and saw that a particular 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 U.S. 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 cell phone 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 

made by the jury in two of his counts of conviction were not supported by 

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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, but the warrant was part 

of a separate investigation into Fulton’s narcotics activities. Fulton’s cell 

phone 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 was 

a year later before the data on the phone was accessed. The FBI discovered 

evidence on the phone 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 for specific terms, linking Fulton 

to five minor victims and 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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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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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 refer to telephones. The alleged 

functional equivalent was a reference to “ledgers.” A “ledger” is a “book . . . 

ordinarily employed for recording . . . transactions.” Ledger, OXFORD ENGLISH 

DICTIONARY (2d ed. 1989). We have held that a “cell phone . . . 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. Here, the officer who took 

Fulton’s phone was a nine-year veteran of his department’s narcotics unit. He 

testified at the suppression hearing to a belief the phone was used in narcotics 

activity. The belief was reasonable, making this cell phone the equivalent of a 

ledger. The narcotics warrant authorized the seizure of Fulton’s phone. We 

need not discuss the Government’s alternative arguments. 

B. Whether the nine-day delay was unreasonable

We have just held that Galveston Police were authorized to seize Fulton’s 

cell phone based on the warrant they obtained. That warrant, though, which 

did not identify any specific electronic devices, necessarily did not explicitly 

provide for a search into the contents of such devices either. A warrant to 

search the cell phone was obtained nine days after the seizure. Fulton says 

that delay invalidated the search. It is true that “a seizure reasonable at its 

inception . . . may become unreasonable as a result of its duration.” Segura v. 

United States, 468 U.S. 796, 812 (1984). 

An initial question arises from the fact that Galveston police obtained a 

warrant before ever seizing the phone. Might that warrant be all that was 

needed to conduct the later search of the phone’s contents? The warrant itself 

only sought the seizure of certain items. There is divergent authority on 

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whether a specific warrant to search contents that are seized is needed. One 

circuit has held that a warrant that expressly authorized seizure of a cell phone 

could permit on-site search of a phone’s contents without exigent 

circumstances. United States v. Fifer, 863 F.3d 759, 766 (7th Cir. 2017). We 

see a different emphasis in a scholarly work stating that “if a search warrant 

specifically names a cellphone only as one of the objects to be seized, absent 

exigent circumstances a search warrant will thereafter be required to 

authorize a search of that cellphone.” 2 WAYNE R. LAFAVE, SEARCH & SEIZURE:

A TREATISE ON THE FOURTH AMENDMENT § 4.11(a) (5th ed. Updated Oct. 2018)). 

The Government does not argue that the warrant for the seizure of 

“ledgers” would have permitted the search of the ledger-like phone’s contents. 

We move on, then, to the issue we will resolve: was it reasonable here to delay 

nine days between the warrant-based seizure of the phone and the issuance of 

a warrant authorizing a search of its contents?

We find no caselaw addressing our specific facts, namely, a seizure of a 

cell phone that was authorized by a warrant, then several days followed until 

a warrant to search the contents of the phone was obtained. Courts, though,

have wrestled with the effect of delay in obtaining a search warrant following 

a seizure that was proper for other reasons, such as a seizure of a computer 

based on consent as in United States v. Laist, 702 F.3d 608, 610–11 (11th Cir. 

2012), or based on probable cause and exigent circumstances, see United States 

v. Burgard, 675 F.3d 1029, 1031–32 (7th Cir. 2012). Such caselaw is analogous 

to our situation because in each case the seizure of the device was valid but a 

warrant was needed to learn what was hidden within.

In evaluating post-seizure reasonableness, we “must balance the nature 

and quality of the intrusion on the individual’s Fourth Amendment interests 

against the importance of the government interests.” Freeman v. City of 

Dallas, 186 F.3d 601, 605 (5th Cir. 1999). This circuit has not detailed any 

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criteria for balancing. Other circuits have considered such questions as the 

reasons for the delay in the issuance of a warrant; whether a suspect acted to 

diminish or increase his privacy and possessory interests in the seized item, 

such as giving the item to a third party or requesting the item’s return from 

police; and to what extent the item’s seizure affected other interests of the 

suspect, such as interfering with travel because of the seizure of luggage at an 

airport. See United States v. Martin, 157 F.3d 46, 54 (2d Cir. 1998); United 

States v. Stabile, 633 F.3d 219, 235–36 (3d Cir. 2011); Burgard, 675 F.3d at 

1033–34. Some circuits have developed lists of specific factors. See Laist, 702 

F.3d at 613–14; Burgard, 675 F.3d at 1033.

Instead of presuming to announce a test for all cases, we simply conclude 

that in this case, the salient considerations for determining the balance 

between the private and the public interests start with the fact that, before 

seizing the phone, the Galveston police obtained a warrant that was issued 

based on probable cause and that authorized the phone’s seizure. The initial 

action by an independent magistrate reduces concerns about the seizure.

Important on the defendant’s side of the balance, the owner of a cell 

phone has significant privacy interests in the device. See Riley v. California, 

134 S. Ct. 2473, 2489 (2014). The fact that a cell phone can be the functional 

equivalent not only of a ledger but of so much more means its seizure can have 

a substantial impact on an individual.

Despite the potential impact we just noted, we also consider it important 

that Fulton did not promptly assert his interest in retrieving the phone from 

police. He was released the same day he was arrested but there was no 

evidence he sought the return of his phone. A Seventh Circuit opinion held it 

to be relevant that the defendant “asserted his possessory interests . . . by 

voluntarily going to the police station to obtain a property receipt.” Burgard,

675 F.3d at 1034. No such action was taken here.

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What is somewhat difficult to assess is the Government’s diligence in 

seeking a warrant to search the phone. The officer who seized the phone and 

subsequently obtained the search warrant testified that he did not believe 

obtaining a warrant was a priority because the phone was “evidence.” It would

seem that at least this officer saw no urgency and may have been indicating 

his belief Fulton had lost his right to the phone until his office and prosecutors 

no longer needed it. In determining the balance of interests, we place on the 

scale the Government’s “relative diligence.” By that we mean there is not an 

abstract obligation to make acquiring a warrant authorizing a further search 

the immediate priority after seizure of any property. Assessing diligence is 

affected by other considerations, such as the nature of the item seized and any 

demands for its return. We conclude that the Government as to this cell phone

was neither indifferent nor zealous about the need to get a search warrant. 

As to length of time, that is less an independent consideration than 

simply the measure of the effect of other factors such as law-enforcement 

diligence. The delay of nine days here is similar to the six-day delay in 

obtaining a search warrant for a cell phone in Burgard, 675 F.3d at 1034. 

There, the court found the delay not to be “the result of complete abdication of 

[the officer’s] work or failure to ‘see any urgency.’” Id. We conclude that a nineday delay before acquiring a search warrant in this case, reflecting some 

attentiveness but not zeal by police, was reasonable.

On balance, the Government’s interests in seizing the phone, then 

allowing time for its proper search, prevail over Fulton’s interests. The 

introduction of evidence resulting from the search of the cell phone’s contents 

is not improper due to the nine-day delay in obtaining a search warrant.

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II. Confrontation Clause violation regarding a witness

Fulton argues that he was improperly limited on the range of crossexamination 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 Fulton 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 

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 crossexamination.’” 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. 

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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 

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 

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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 impeachment on this witness was minimal, as ample other 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 

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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-inchief. 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). 

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 minimal 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.

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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 

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 

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(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). 

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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