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United States v. Withers

United States District Court, W.D. Wisconsin

June 22, 2017



          WILLIAM M. CONLEY District Judge

         On May 4, 2017, a jury convicted defendant Maurice Withers on three counts of sex trafficking using force, threats, or coercion in violation of 18 U.S.C. § 1591; one count of attempted sex trafficking using force, threats or coercion in violation of § 1594; two counts of sex trafficking a minor in violation of § 1591; one count of transportation of a minor for prostitution, in violation of 18 U.S.C. § 2423; and two counts of transportation for prostitution, in violation of 18 U.S.C. § 2421. Before the court is Mr. Withers' pro se motion for judgment of acquittal pursuant to Fed. R. Crim. P. 29. (Dkt. #142.) As Mr. Withers has failed to identify any issue that would entitle him to such extraordinary relief, his motion will be denied.


         At the outset, while the court will reach the merits of Withers' pro se motion, it does so in a somewhat cursory fashion to ensure that the guilty verdicts do not suffer from a glaring defect requiring immediate correction. Withers is represented by counsel in this case, and the Seventh Circuit has held that "a defendant who is represented by counsel relinquishes the right to file his own pro se submissions." United States v. Khatib, 606 Fed.Appx. 845, 847 (7th Cir. 2015); see also United States v. Patterson, 576 F.3d 431, 436 (7th Cir. 2009) ("The decision regarding whether to allow a defendant to represent himself when he is also represented by counsel is 'solely within the discretion of the trial court.") (citations omitted). Withers continues to be represented by his trial counsel for purposes of sentencing and neither he nor his attorneys has indicated an intent to disturb the status quo. Indeed, while Mr. Withers previously has expressed dissatisfaction with his trial attorneys, the court has repeatedly declined to appoint him new counsel because the relationship had not broken down and his counsel had been ably representing him throughout. The same holds true now, and it simply appears that his attorneys disagree with Mr. Withers' desire to pursue this motion. This is not surprising: the court is denying Mr. Withers' motion because it has no merit and only highlights that the jury had ample evidence to rely upon for its verdict.


         A district court has the authority to set aside a jury's verdict and enter a judgment of acquittal in response to a motion for judgment of acquittal or "renewfed] . . . motion, within 14 days after a guilty verdict or after the court discharges the jury, whichever is later." Fed. R. Crim. P. 29(c). In reviewing such a motion, the court: (1) defers to the jury's credibility determinations in particular; and (2) applies a highly deferential standard of review generally. Indeed, the court's review is limited to "'whether, after viewing the evidence in the light most favorable to the government, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" United States v. Torres-Chaves, 744 F.3d 988, 993 (7th Cir. 2014) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979) (emphasis in original)).

         I. Timeliness

         The government objected to his motion as untimely, but it will not be denied on that basis. Federal Rule of Criminal Procedure 45(b)(1)(B) permits the court to extend the 14-day time frame when a party fails to request an extension before that time frame expires "if the party failed to act because of excusable neglect." This language requires an equitable analysis, balancing "the danger of prejudice, the length of the delay and its potential impact on judicial proceedings, the reason for the delay, including whether it was within the reasonable control of the movant, and whether the movant acted in good faith." United States v. Gates, 716 F.3d 445, 448 (7th Cir. 2013) (quoting Pioneer Investment Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395 (1993)).

         Here, the jury returned the verdict on May 4, 2017, and court received Mr. Withers' motion on May 25, 2017, making it slightly more than a week late. The court has not required the government to respond, and the motion has not delayed this matter. Accordingly, the court will turn to the merits of his motion.

         II. Merits

         Mr. Withers challenges the guilty verdicts as to Counts 7, 3, 4, 8 and 9. As an initial matter, as to each verdict, he claims that the evidence did not support a finding that his actions affected interstate commerce because he never crossed state lines. However, the government's theory of the case did not rely on Mr. Withers actually crossing state lines for each count. Rather, it submitted several additional types of evidence related to the allegations described in this indictment that affected interstate commerce, including: records of Mr. Withers' and victim cell phone usage; numerous online advertisements posted by Mr. Withers (or at his direction) on the website "Backpage"; and Facebook messages and postings between Mr. Withers and the victims. As such, while the jury may have considered evidence that Mr. Withers' crossed state lines, it also received evidence that Mr. Withers' used the internet and his cell phone, both of which undoubtedly affects interstate commerce. United States v. Campbell, 770 F.3d 556, 574 (7th Cir. 2014) (agreeing that the use of the internet implicated interstate commerce for purposes of 18 U.S.C. § 1591 and acknowledging that "[o]ther circuits have interpreted the interstate commerce element of the TVPA expansively"); see United States v. Phea, 755 F.3d 255, 263 (5th Cir. 2014) (use of mobile phone, internet advertisement and out-of-state customer fulfilled interstate commerce element). Accordingly, the jury's findings that Mr. Withers' actions affected interstate commerce were sufficiently supported by evidence.

         A. Count 7

         Turning to the his arguments as to Count 7, Mr. Withers claims that the testimony of X regarding a night at the Potawatomi casino did not support a guilty verdict because no sex took place and there was no evidence of force or threat of force. Count 7 charged:

During the period from in or about June 2015 to in or about July 2015, in the Western District of Wisconsin and elsewhere, the defendant, Maurice Adonis Withers, knowingly recruited, enticed, harbored, transported, and maintained by any means "Jane Doe 4" [who now has been identified as X] in and affecting interstate commerce, knowing, or in reckless disregard of the fact, that "Jane Doe 4" had not ...

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