United States District Court, W.D. Wisconsin
OPINION AND ORDER
WILLIAM M. CONLEY District Judge
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.
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.
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)).
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)).
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.
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.
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
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 ...