United States Court of Appeals
For the First Circuit
No. 24-1769
UNITED STATES OF AMERICA,
Appellee,
v.
SHERRIFF COOPER,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nathaniel M. Gorton, U.S. District Judge]
Before
Gelpí, Rikelman, and Aframe,
Circuit Judges.
Judith H. Mizner, Assistant Federal Public Defender, District
of Massachusetts, for appellant.
Randall E. Kromm, Assistant United States Attorney, with whom
Leah B. Foley, United States Attorney, was on brief, for appellee.
August 6, 2026
RIKELMAN, Circuit Judge. A jury found Sherriff Cooper
guilty of multiple crimes connected to sex trafficking of a minor,
including forced labor. Cooper now lodges several challenges to
his convictions; he claims that one count of the indictment charged
more than one crime and that the government failed to produce
enough evidence against him at trial. He also contends that he
should have been tried on the forced labor charge in New York, not
Massachusetts, or, at a minimum, that the issue of venue should
have been put to the jury. Although we are unpersuaded by Cooper's
other arguments, we agree that the jury should have decided if
Massachusetts was the proper venue for the forced labor charge.
Thus, we vacate only Cooper's forced labor conviction and remand
for further proceedings.
I. BACKGROUND
A. Relevant Facts
In early 2017, Cooper worked as a security guard at
St. Mary's Center for Women and Children, a Massachusetts
Department of Children and Families (DCF) program for young
mothers.1 At St. Mary's, Cooper -- who was then 30 years
1 Cooper's multiple claims require us to evaluate the record
from various perspectives. For Cooper's challenges to the
sufficiency of the evidence against him, "we recount the relevant facts as presented at trial in the light most favorable to the
jury's verdict, consistent with record support." United States v. Coleman, 149 F.4th 1, 12 (1st Cir. 2025) (citation modified). In
analyzing his other claims, "we offer a balanced treatment, in
- 2 -old -- met J.C., a pregnant 15-year-old girl. The two began
communicating, both in person and via text message, and eventually
started a sexual relationship several months later, once J.C.
turned 16 in April.
J.C. gave birth in July 2017 at a local Boston hospital,
accompanied by a St. Mary's staff member. During her hospital
stay, J.C. asked the St. Mary's staff member to meet "her boo"
downstairs to retrieve the food he had brought for her. The staff
member recognized J.C.'s "boo" as Cooper and became concerned about
the relationship. She reported the incident to St. Mary's, which
subsequently filed a "51A" report with DCF -- a report alleging
abuse or neglect of a minor -- against Cooper. See Mass. Gen.
Laws ch. 119, § 51A. DCF conducted an investigation and determined
that the allegation that Cooper sexually exploited J.C. was
"supported."
After giving birth, J.C. briefly returned to St. Mary's
with her child but soon left to live with her mother. Cooper moved
in with her, as they were in a "relationship" by then. While
living together, Cooper became violent with J.C., including
"chok[ing]" her, "chasing [her] in the street with his car," and
"slapp[ing] [her] in [the] face" when he believed that she was
cheating on him.
which we objectively view the evidence of record." Id. (citation modified).
- 3 -In October 2017, DCF took custody of J.C.'s child, and
J.C. subsequently spent several weeks in a mental-health facility.
During those weeks, Cooper sent her letters and bought her a ring.
By December 2017, J.C. had moved to a DCF program for
young mothers in Newburyport, Massachusetts. While J.C. was in
Newburyport, she and Cooper spoke daily and met in person every
week. To prove that she was "loyal" to Cooper, J.C. had sex with
him in his car.
J.C. ran away from the Newburyport program in early 2018
to meet Cooper at a local train station. When J.C. arrived, Cooper
checked her for wires and broke her cell phone. The two then began
living together again, initially with Cooper's aunt in Boston, and
eventually in various other places, including Cooper's car.
After Cooper lost his job driving for Uber in the spring
of 2018, he told J.C. that she could either "go back to DCF" or
"stay with him" and "help him make money" through prostitution.
Cooper brought J.C. to a client and taught her "what to do" and
"what to say" during the sexual encounter. J.C. had sex with the
client, collected $100, and handed the money to Cooper. Cooper
told J.C. that she had "done a good job" and "that it wasn't that
hard." J.C. was barely 17 at the time.
Cooper eventually bought J.C. a disposable cell phone
and taught her how to answer the phone to set up "dates" (a term
for prostitution arrangements), including by describing payments
- 4 -as "donations" or "roses" to avoid detection. He also posted an
advertisement on Backpage -- a website that listed escort and
prostitution services -- using fake pictures and names and listing
the number to the disposable cell phone. After the government
shut down Backpage, J.C. continued to schedule dates with previous
clients who called or texted her on the disposable phone using the
TextNow application.
J.C. testified that, for a period in the spring of 2018,
she went on nearly 10 dates per night and worked almost every night
of the week. Cooper drove J.C. to these dates, waited for her in
his car, and then collected the cash payments from her. If she
did not want to work, Cooper would "hit" her and call her "lazy."
The "dates" continued through May 2018, shortly after J.C. turned
17.2
When J.C. asked Cooper if she could stop engaging in
prostitution, he responded "no[t] until [she] [could] go to the
strip club." According to J.C., Cooper was referring to a strip
club in New York, Junior's Cabaret, which required its performers
to be 18.
Cooper and J.C. traveled to New York on April 30, 2018,
during the time that J.C. was going on "dates" in Massachusetts,
Although J.C. was uncertain of when exactly the "dates"
2
stopped, she testified that she did not engage in prostitution
after moving to New York in June 2018.
- 5 -but they presented different accounts of the impetus for this trip.
According to J.C., because she was 17 at the time, Cooper brought
her to New York to obtain a fake ID so that she could work at the
strip club. But the ID they procured in New York did not fool the
security guard at Junior's Cabaret, and he turned J.C. away.
Cooper testified, however, that they traveled to New York to visit
his mother and his two children, not to obtain an ID for J.C.3 For
her part, J.C. acknowledged she and Cooper "hung out with
[Cooper's] kids" and "met his mom" during the trip but maintained
that the purpose of the trip was always to obtain a fake ID.
While Cooper and J.C. were in New York, Cooper posted a
prostitution advertisement on another website, Plenty of Fish.
Cooper brought J.C. on a "date" he arranged through the website,
but J.C. left out of fear of being raped when she encountered
multiple men at the meet-up location.
Cooper and J.C. then returned to Massachusetts
temporarily. During this interim period, Cooper coerced J.C. to
resume "dates" and hit her if she refused to answer the phone, go
on a date, or give him the money.
3We describe Cooper's trial testimony because it is relevant
to his venue challenges to Count Three, the forced labor charge.
See infra section II.C. But we do not consider this testimony in
reviewing the sufficiency of the evidence against Cooper for Counts One and Two, because it was the jury's prerogative not to credit
his testimony in reaching its verdict. See infra section II.B.
- 6 -On June 1, 2018, Cooper and J.C. tried to move to New
York. A police officer stopped them en route because of the window
tint of Cooper's car. After initially providing the police with
a fake name, J.C. eventually divulged her real identity. Because
J.C. was an underage "runaway," the officer returned her to DCF
custody but allowed Cooper to leave. Soon after, J.C. escaped
from DCF custody again, and Cooper picked her up and drove them to
New York that same day. While they were driving, Cooper destroyed
J.C.'s prepaid phone so they could not "be caught with it."
In New York, Cooper and J.C. lived in various places
throughout the summer and fall of 2018, including with Cooper's
mother in the Bronx. During this time, Cooper occasionally worked
as a janitor at a high school and later as a security guard. By
August, Cooper had obtained another ID for J.C., which was a
legitimate ID that belonged to a neighbor's daughter. J.C. applied
to work at Junior's Cabaret with this ID, and she became a regular
performer by mid-September, when she was still 17. J.C. testified
that she gave her earnings -- between $600 to $1,000 per
shift -- to Cooper.
J.C. described Cooper as "extremely violent" during
their time in New York. According to J.C., Cooper hit her and
sent her profanity-filled and violent text messages. One August
text read: "Bitch I'll fuckin cut ya throat" and "when I see you
tonight, I'm gonna fuck you up." In the fall of 2018, J.C. told
- 7 -Cooper she was pregnant, but Cooper said she could still work
because she was not "showing yet" and was just "being lazy." He
allowed her "a couple days off" after she had an abortion. And in
December, an upset Cooper came to Junior's Cabaret when J.C. did
not answer her phone and tried to follow her into the dancers'
dressing room, causing a scene. Finally, in late March or early
April 2019, J.C. told Cooper she was pregnant again and could not
work because it hurt her. After an argument, Cooper choked J.C.
over the bathtub, making her fear for her pregnancy. On the heels
of this abuse, and soon after she turned 18, J.C. returned to
Boston using a bus ticket that Cooper's mother had bought for her.
J.C. gave birth to their child in October 2019, and she
and Cooper continued to communicate via phone and text during this
time. One October text from Cooper read: "I'm so sorry for putting
you in that game," which J.C. testified was a term for prostitution
(and Cooper maintained was about stripping). In a separate text,
Cooper again apologized for having her "in that life." In a series
of text exchanges during this time, J.C. wrote: "All you want to
do is be a drug dealing, rapper, pimp" and implored Cooper to "go
get someone else pregnant and beat them up." A few messages later,
Cooper admitted: "I get emotional [when] I'm hurt and lonely like
[I] said I'm sorry. Everything you said about me is true." In
November, J.C. and Cooper moved to New Jersey to attempt to live
together again, this time with their baby. But, after four or
- 8 -five months, in the spring of 2020, J.C. moved out and called the
police after an argument when Cooper spit in her face.
After J.C. left Cooper, he sought visitation time with
their son. J.C. filed for a restraining order against Cooper in
June 2020 and requested an extension of the restraining order in
October 2020. She also spoke with law enforcement, leading to
Cooper's ultimate arrest on the charges at issue in this case.
B. Procedural History
In June 2021, a grand jury charged Cooper with three
crimes: sex trafficking of a minor and by force, fraud, and
coercion, in violation of 18 U.S.C. § 1591(a)(1), (b)(1), and
(b)(2) ("Count One"); transportation of a minor with intent that
the minor engage in illegal sexual activity, in violation of 18
U.S.C. § 2423(a) ("Count Two"); and forced labor, in violation of
18 U.S.C. § 1589(a) ("Count Three").
Before trial, Cooper filed multiple pro se motions to
dismiss and quash the indictment. He contended that Count One was
duplicitous and failed to provide fair notice of the charges
against him. And he challenged the venue for both Counts One and
Three.
The district court denied each of Cooper's motions to
dismiss, and Cooper proceeded to trial. Both J.C. and Cooper
testified, along with a number of other witnesses. After the
government rested its case, Cooper moved for an acquittal arguing
- 9 -that the government had introduced insufficient evidence to
convict him, but the district court denied his motion. See Fed.
R. Crim. P. 29(a). Cooper later asserted objections to the jury
instructions, including the absence of a venue instruction.
The jury ultimately convicted Cooper on all three
counts. As to Count One -- sex trafficking -- the jury indicated
on the verdict form that Cooper "knew, or recklessly disregarded"
both "that Ms. J.C. had not attained the age of 18 years" and that
"means of force, threats of force, fraud, coercion, or any
combination of such means, would be used to cause Ms. J.C. to
engage in a commercial sex act."
After the verdict, Cooper filed additional motions,
including for acquittal and for a new trial. See Fed. R. Crim. P.
29(c), 33. The district court denied those motions as well. See
United States v. Cooper, 744 F. Supp. 3d 107 (D. Mass. 2024). It
then sentenced Cooper to 216 months in prison and five years of
supervised release. The court also ordered Cooper to pay $97,200
in restitution to J.C.
Cooper timely appealed.
II. DISCUSSION
Cooper argues that we should reverse each of his
convictions. First, he brings various duplicity-related
challenges to Count One -- the sex trafficking charge. Second, he
challenges the sufficiency of the evidence to convict him on Counts
- 10 -One and Two. And finally, he lodges a multi-faceted attack on the
venue for Count Three -- the forced labor charge. He contends
that venue was not proper in Massachusetts or, at the very least,
that there was a genuine factual dispute about venue that should
have been decided by the jury. As we will explain, we conclude
that only one of his challenges has merit.
A. Duplicity (Count One)
Cooper maintains that Count One -- the sex trafficking
charge under § 1591(a)(1) -- was duplicitous on its face, failed
to provide him with adequate notice of the charges against him,
and raised the risk of a non-unanimous verdict. At bottom, each
of his duplicity-related arguments stems from his claim that
§ 1591(a)(1) sets out ten separate offenses instead of alternative
means of committing the single offense of sex trafficking. Whether
§ 1591(a)(1) prohibits more than one offense is a question of first
impression for our court.4 Because we agree with the district
4 In a recent decision, we stated that a violation of
§ 1591(a)(1) "requires proof in relevant part that someone: (1) knowingly (2) by means of interstate or foreign
commerce, (3) recruited, enticed, [etc.] by any means a person,
(4) knowing that the person has not attained the age of 18 years
and will be caused to engage in a commercial sex act." United States v. Pires, 138 F.4th 649, 658 (1st Cir. 2025) (citation
modified). Although our description in Pires of what the
government must prove to secure a conviction under § 1591(a)(1)
suggests that the ten acts listed in the provision are means, not elements, that case did not grapple with the duplicity question we decide today.
- 11 -court that the critical text in § 1591(a)(1) does not describe ten
separate crimes, we reject Cooper's duplicity-related arguments.
We review the district court's denial of Cooper's motion
to dismiss Count One on duplicity and lack of proper notice grounds
de novo. See United States v. Prieto, 812 F.3d 6, 11 (1st Cir.
2016); United States v. Coleman, 149 F.4th 1, 17 (1st Cir. 2025)
(reviewing sufficiency of indictment). And we also review de novo
the district court's decision to deny Cooper's request for a
unanimity instruction for Count One. See United States v.
Rodriguez, 115 F.4th 24, 46 (1st Cir. 2024); United States v.
Orlandella, 96 F.4th 71, 90 (1st Cir. 2024) ("[W]e review de novo
a party's right to a jury instruction on unanimity because their
right to such an instruction is a question of law.").
1. Means or Elements?
Cooper contends that Count One, which tracks the
language of § 1591(a)(1), was duplicitous, because it "join[ed] in
a single count two or more distinct offenses." United States v.
Pontz, 132 F.4th 10, 27 (1st Cir. 2025) (citation modified).
The chief evil of a duplicitous indictment is that "the
jury may find a defendant guilty on a count without having reached
a unanimous verdict on the commission of any particular offense."
United States v. Valerio, 48 F.3d 58, 63 (1st Cir. 1995). A
duplicitous indictment also "may (1) fail to give the defendant
adequate notice of the nature of the charges [against them],
- 12 -(2) threaten to subject the defendant to prejudicial evidentiary
rulings at trial, and (3) produce trial records inadequate to allow
a defendant" to raise an objection to a "subsequent prosecution
for the same offense." United States v. D'Amico, 496 F.3d 95, 99
n.3 (1st Cir. 2007), judgment vacated on other grounds, 552 U.S.
1173 (2008). Thus, the prohibition on duplicity seeks to safeguard
a defendant's right not to be tried twice for the same crime,
guaranteed by the Fifth Amendment, and to a verdict by a unanimous
jury, guaranteed by the Sixth Amendment. See United States v.
Trainor, 477 F.3d 24, 32 n.16 (1st Cir. 2007) (noting that "a jury
may find a defendant guilty on [a duplicitous] count without having
reached a unanimous verdict on the commission of any particular
offense, which in turn may prejudice a later double jeopardy
defense" (citation modified)); U.S. Const. amend. V, § 2
(protecting the right not to be tried twice "for the same
offense"); U.S. Const. amend. VI, § 1 (preserving the right to
trial "by an impartial jury").
Count One charged Cooper with violating 18 U.S.C.
§ 1591, which is titled "Sex trafficking of children or by force,
fraud, or coercion." Section 1591(a) states:
(a) Whoever knowingly --(1) in or affecting interstate or foreign
commerce, . . . recruits, entices, harbors,
transports, provides, obtains, advertises,
- 13 -maintains, patronizes, or solicits by any
means a person; or
(2) benefits, financially or by receiving
anything of value, from participation in a
venture which has engaged in an act described
in violation of paragraph (1),
knowing, or, except where the act constituting
the violation of paragraph (1) is advertising,
in reckless disregard of the fact, that means
of force, threats of force, fraud, coercion
described in subsection (e)(2), or any
combination of such means will be used to
cause the person to engage in a commercial sex
act, or that the person has not attained the
age of 18 years and will be caused to engage
in a commercial sex act, shall be punished as
provided in subsection (b).
18 U.S.C. § 1591(a).
Count One tracked the language of § 1591(a)(1). It
alleged that Cooper:
[D]id knowingly, in and affecting interstate
commerce, recruit, entice, harbor, transport,
provide, obtain, advertise, maintain,
patronize and solicit by any means [J.C.],
knowing and in reckless disregard of the fact
that means of force, threats of force, fraud,
coercion, and any combination of such means,
would be used to cause [J.C.] to engage in a
commercial sex act, and knowing and in
reckless disregard of the fact that [J.C.] had
not attained the age of 18 years and would be
caused to engage in a commercial sex act.
According to Cooper, the ten acts listed in
§ 1591(a)(1) -- "recruits, entices, harbors, transports,
provides, obtains, advertises, maintains, patronizes, or
solicits" -- represent distinct elements of ten separate offenses.
- 14 -See United States v. Taylor, 848 F.3d 476, 492 (1st Cir. 2017)
("Some statutes are divisible, meaning they list elements in the
alternative."). The government contends, however, that the
provision lists ten alternative means of committing just one
offense: sex trafficking. See Schad v. Arizona, 501 U.S. 624, 636
(1991) (explaining that statutes "frequently enumerate alternative
means of committing a crime without intending to define separate
elements or separate crimes"), abrogated on other grounds by
Edwards v. Vannoy, 593 U.S. 255 (2021).
Ultimately, to resolve this means-versus-elements
dispute, we must determine Congress's intent in enacting
§ 1591(a)(1). As we have held, "[w]hether a particular fact is a
means or an element is a 'value choice more appropriately made in
the first instance by a legislature than by a court.'" United
States v. Verrecchia, 196 F.3d 294, 299 (1st Cir. 1999) (citation
modified) (quoting Schad, 501 U.S. at 637). In conducting our
analysis of what Congress intended, we "begin[] -- and sometimes
end[] -- with the text of the statute of conviction." United
States v. Lee, 317 F.3d 26, 37 (1st Cir. 2003) (explaining how to
determine "the extent to which jury unanimity is required"). If
the statute's text "does not furnish decisive guidance," we expand
our analysis to the "overall structure of the law," the "statute's
legislative history," "relevant legal traditions," and any
- 15 -"implications for unfairness." Id. (citing Richardson v. United
States, 526 U.S. 813, 819-20 (1999); Schad, 501 U.S. at 637-38).
We start with the text of § 1591. Four aspects of the
text, when viewed together, indicate that Congress intended the
ten acts in § 1591(a)(1) to describe different means of committing
a single crime rather than elements of ten separate crimes. First,
"the proscribed conduct is listed in a single sentence" within
§ 1591(a)(1). United States v. Bradford, 148 F.4th 699, 707 (9th
Cir. 2025) (discussing § 1591(a)). By contrast, Congress has used
separate subsections in other statutes to "set out [separate
crimes] in the alternative." Taylor, 848 F.3d at 492 (concluding
the assault statute at issue "is plainly divisible" as "the
subsections [(a) and (b)] are set out in the alternative").
Consistent with this principle, at least one court has concluded
that subsections (1) and (2) in § 1591(a) represent different
crimes.5 See United States v. Lewis, No. 19-cr-307, 2021 WL
2809819, at *6-7 (D.D.C. July 6, 2021).
Second, the "nature of the behavior" that underlies most
of the ten acts does not "differ[] so significantly" so as to
warrant treating them as different crimes. Chambers v. United
States, 555 U.S. 122, 126 (2009), abrogated on other grounds by
Johnson v. United States, 576 U.S. 591 (2015); see id. at 127
5 Count One did not charge Cooper under § 1591(a)(2), so this
provision of the statute is not at issue.
- 16 -(determining that the relevant phrases in the statute at issue did
not define separate crimes because the phrases "describe[d]
roughly similar forms of behavior"). Instead, many of the ten
acts, such as enticing and recruiting, cover overlapping conduct
and "amount to variations on a single theme." Id. at 127.
No doubt, Cooper makes a valid point that there is less
overlap between some of the ten acts than others. For example, he
contends that "providing" covers conduct that is arguably
inconsistent with "patronizing." And he emphasizes that
advertising is qualitatively different from all the other acts
listed in § 1591(a)(1). But Cooper's argument throughout this
case has been that Congress intended that each of the ten acts
listed in § 1591(a)(1), no matter how similar, be treated as an
element of a separate crime. And, as we explained, accepting his
argument would require us to ignore the overlapping nature of many
of the listed acts, such as recruiting and enticing. Cf. United
States v. Burwell, 122 F.4th 984, 991 (D.C. Cir. 2024) ("The fact
that [the two statutory words] 'intimidation' and 'extortion' are
synonyms is strong evidence that Congress viewed extortion and
intimidation as alternative means to commit bank robbery."). Yet,
Cooper provides no principled or practical reason why we should
ignore that aspect of § 1591(a)(1)'s text. Cf. Mathis v. United
States, 579 U.S. 500, 506 (2016) (explaining that the inclusion of
- 17 -"diverse means" in a statute "merely . . . spells out various
factual ways of committing . . . the offense").
Third, we do not read the inclusion of the phrase "by
any means" at the end of the list of acts in § 1591(a)(1) to signal
Congress's intent to create ten separate crimes. In Cooper's view,
comparing Congress's use of "by any means" in this portion of the
provision to its use of the word "means" at the end of § 1591(a)
indicates that Congress intended the acts listed to represent
elements of ten separate crimes and specified that those elements
could be committed "by any means." Indeed, he argues that any
other reading of § 1591(a)(1) would make the provision redundant.
But we see no redundancy in § 1591(a)(1). Each of the
ten acts listed -- such as "recruit[ing]" or "entic[ing]" -- can
be accomplished in a multitude of ways. As Cooper admits, one can
"entice" a person with money, candy, or promises of stability.
Thus, the phrase "by any means" at the end of § 1591(a)(1) can be
read just as easily to confirm Congress's view that any form of
enticement or recruitment, for example, that caused a person to
engage in a commercial sex act amounts to a violation of the
statute.
Fourth, the penalty for violating § 1591(a)(1) does not
depend on which of the ten acts a defendant committed. See 18
U.S.C. § 1591(b). Instead, it depends on two other aspects of the
offense: (1) the age of the minor, and (2) whether "the offense
- 18 -was effected by means of force" or "not so effected." Id.
§ 1591(b)(1), (b)(2). Thus, whether the defendant engaged in
advertising or enticement, for example, makes no difference. That
Congress calibrated the penalty for sex trafficking to other
aspects of a defendant's conduct indicates that Congress did not
have "an intent . . . to link culpability" to a particular act
listed in § 1591(a)(1), undermining the conclusion that each act
is a separate element. Verrecchia, 196 F.3d at 299-300 (concluding
that the punishment provisions in the felon-in-possession statute
did not support a claim that the nature or number of firearms
possessed was an element of the crime).
To be sure, Cooper highlights features of the text that
arguably skew in his favor. He points out that § 1591(a) uses the
term "violation" and contends that the Supreme Court held in
Richardson that Congress's use of that term in the continuing
criminal enterprise (CCE) statute, 21 U.S.C. § 848, "support[ed]
the conclusion" that the text at issue described separate elements.
See 526 U.S. at 818-19 (reasoning that the "tradition of requiring
juror unanimity where the issue is whether a defendant has engaged
in conduct that 'violates' the law" supports the conclusion that
"each 'violation'" in the phrase "continuing series of violations"
of the federal drug laws "amounts to a separate element").
But Cooper ignores that the term "violation" in the CCE
statute appears in the critical text describing the crime
- 19 -itself -- "a person is engaged in a continuing criminal enterprise
if . . . such violation is a part of a continuing series of
violations of [the relevant provisions in the criminal
code] . . . ." 21 U.S.C. § 848(c)(2). Whereas, in § 1591(a),
"violation" is part of a textual sentence making clear that the
mens rea for advertising is different than that for the other acts
listed in § 1591(a)(1). Cooper also claims that the "extremely
broad" scope of the acts in § 1591(a)(1) is akin to the broad sweep
of the CCE statute. But this comparison does not hold up. The
word "violation" in the CCE statute "covers many different kinds
of behavior of varying degrees of seriousness," from removing drug
labels to distributing large quantities of drugs, prohibited by
the 90 sections of the federal criminal code that set out drug
crimes. Richardson, 526 U.S. at 819. By contrast, § 1591(a)(1)
is a single subsection that describes ten largely overlapping acts.
Cooper's final textual argument highlights the different
mens rea for "advertising." See 18 U.S.C. § 1591(a)
(". . . knowing, or, except where the act . . . is advertising, in
reckless disregard of the fact, that means of force" will cause a
commercial sex act (emphasis added)). And he is correct that a
different mens rea is one indication that statutory text
corresponds to an element not just a means. See, e.g., United
States v. Tavares, 843 F.3d 1, 14 (1st Cir. 2016) (concluding an
- 20 -offense "reads as a divisible statute" given one section "requires
a heightened mens rea").
Cooper then contends that, at a minimum, we should hold
that "advertising" is a separate offense under § 1591(a)(1) and
dismiss Count One on the ground that it is duplicitous "in part."
But Cooper did not make this argument to the district court or in
his opening brief on appeal. Thus, he has both forfeited and
waived this argument, and we leave for another day whether the
provision's text supports treating "advertising" as a separate
offense. See United States v. Shafa, 175 F.4th 1, 29 n.9 (1st
Cir. 2026) (explaining that "[w]e have consistently held
that . . . arguments not raised in a party's initial brief and
instead raised for the first time at oral argument are considered
waived" (quoting parenthetically United States v. Pizarro-Berrios,
448 F.3d 1, 5-6 (1st Cir. 2006))); United States v. Walker, 538
F.3d 21, 23 (1st Cir. 2008) (explaining that forfeiture occurs
when "a party fails to make a timely assertion of a right" at the
district court (citation modified)). All told, we conclude that
§ 1591(a)(1)'s text does not support treating all of the listed
acts as elements instead of means.
But even if the text were inconclusive, the legislative
and statutory history of § 1591 convinces us that the government
has the better argument about its meaning. See Verrecchia, 196
F.3d at 300 (considering legislative history as "further evidence
- 21 -of Congressional intent"). Congress enacted Section 1591 as part
of the Victims of Trafficking and Violence Protection Act of 2000
("the Act"). See Pub. L. No. 106-386, 114 Stat. 1464 (2000). In
findings accompanying the Act, Congress explained that "[e]xisting
legislation" in the United States prohibiting sex trafficking was
"inadequate," a "comprehensive law" was needed to "bring
traffickers to justice," and the Act's purpose was to ensure
"effective punishment of traffickers." Id. Div. A., § 102(a),
(b)(14). Division A of the Act is titled the "Trafficking Victims
Protection Act" (TVPA). Section 1591 is part of the TVPA and falls
under the subsection "Strengthening Prosecution and Punishment of
Traffickers." Id. Div. A., § 112.
Importantly, the Act contains a definitions section,
including for the term "Sex Trafficking." In 2000, Congress
defined sex trafficking as "the recruitment, harboring,
transportation, provision, or obtaining of a person for the purpose
of a commercial sex act." Id. Div. A, § 103(9). This definition
of the crime of "sex trafficking" mirrored the list of acts in the
original version of § 1591(a)(1), except that the verb "entice[]"
also appeared in the original version. See id. Div. A., § 112.
Over time, Congress amended § 1591(a)(1) to add to the
list of prohibited acts. A 2008 amendment added "maintains." See
William Wilberforce Trafficking Victims Protection Reauthorization
Act of 2008, Pub. L. No. 110-457, § 222, 122 Stat. 5044, 5069.
- 22 -And a later amendment via the Justice for Victims of Trafficking
Act of 2015 added "patronizes" and "solicits" with the purpose of
"clarify[ing] the range of conduct punished as sex trafficking."
Pub. L. No. 114-22, § 108, 129 Stat. 227, 238-39. Finally,
Congress added "advertises" to expand § 1591(a)(1) to its current
form. See id. § 118.
Both the original definition of the term "sex
trafficking" in the Act, which mirrored the original version of
§ 1591(a)(1), and Congress's amendments to § 1591(a)(1), indicate
that it considered this provision to prohibit one crime of sex
trafficking, which could be accomplished through multiple means.
Cooper has not pointed to any legislative or statutory history to
the contrary. Thus, the best evidence indicates that Congress's
focus in enacting § 1591(a)(1) was "the scope of the crime of
[trafficking] as a whole, [not] each act . . . comprised within
that whole." Lee, 317 F.3d at 39.
Finally, the other factors -- such as "[c]onsiderations
of tradition and potential unfairness" -- do not obviously weigh
in Cooper's favor. Verrecchia, 196 F.3d at 300-01. Cooper
contends that our interpretation of the acts as means would
"undermine[] the constitutional requirement of juror unanimity,"
because it risks "covering up disagreements about what the
defendant did." But, as the government points out, treating the
ten acts listed in § 1591(a)(1) as elements of ten different
- 23 -offenses would permit the government to charge an individual with
multiple crimes for conduct such as enticing a sex trafficking
victim and recruiting that same victim. Cooper does not explain
how that outcome would be more consistent with tradition or more
likely to ensure fairness for defendants.
Thus, we reject Cooper's argument that Count One was
duplicitous because § 1591(a)(1) sets out ten separate offenses.
See United States v. Garcia-Torres, 341 F.3d 61, 66 (1st Cir. 2003)
(quoting United States v. Barbato, 471 F.2d 918, 922 n.3 (1st Cir.
1973) (explaining "it is permissible for a count in an indictment
to allege all or several" of the "different means" listed in a
statute)). Our holding is consistent with the decisions of two of
our sister circuits, which have considered similar issues. See
United States v. Paul, 885 F.3d 1099, 1104 (8th Cir. 2018)
(suggesting that § 1591(a)'s statutory language of "recruits,
entices [etc.]" indicates "alternative ways of committing a single
offense" in holding that the district court did not plainly err in
failing to address issue of duplicity sua sponte); Bradford, 148
F.4th at 705-06 (rejecting argument that "advertising" was an
element of a "separate and distinct crime" prohibited by
§ 1591(a)(1)). To date, no circuit has concluded otherwise.
2. Remaining Duplicity Arguments
Because we reject Cooper's duplicity challenge to Count
One, his related arguments about lack of notice, the government's
- 24 -failure to elect a theory of prosecution, and his request for a
jury unanimity instruction also fail.
First, we have repeatedly held that an indictment that
tracks the language of the criminal statute at issue provides
sufficient notice to a defendant of the crime charged. See
Coleman, 149 F.4th at 18 (determining that "it was permissible to
list each statutorily available method of kidnapping in the
alternative in the indictment"). And when a statute lists multiple
means of committing that crime, the indictment is not defective
because it lists all those means in the alternative. See id.; see
also Schad, 501 U.S. at 631 ("[A]n indictment need not specify
which overt act, among several named, was the means by which a
crime was committed.").
Second, because we disagree with Cooper's duplicity
arguments, the government did not need to "elect a theory of
prosecution," as Cooper contends. Although a "prosecutor charging
a violation of a divisible statute must generally select the
relevant element from its list of alternatives," this rule does
not apply when a statute prohibits various means of committing a
single crime. See Descamps v. United States, 570 U.S. 254, 272
(2013).
Third, the district court did not err in declining to
provide Cooper's requested unanimity instruction on the
§ 1591(a)(1) charge because jury unanimity is not required "with
- 25 -respect to alternative means of committing one and the same
criminal act." United States v. Newell, 658 F.3d 1, 22 (1st Cir.
2011); see United States v. Pena, 910 F.3d 591, 602 (1st Cir.
2018). Cooper maintains that even if § 1591(a) lists alternative
means, rather than elements, the court still should have provided
a unanimity instruction to avoid confusion. But we have required
such a unanimity instruction only when the count at issue was
duplicitous. See Newell, 658 F.3d at 23. And we have held that
a defendant is "not entitled to a specific unanimity instruction"
as to a particular count if that count is not duplicitous.
Verrecchia, 196 F.3d at 298. Thus, there was no legal error here.
B. Sufficiency of the Evidence (Counts One and Two)
Cooper next contends that the government did not present
enough evidence at trial for a rational jury to find him guilty
beyond a reasonable doubt as to Counts One and Two. Specifically,
for Count One, he argues that the government failed to prove that
any sex trafficking was "in or affecting interstate commerce," as
required by 18 U.S.C. § 1591. And for Count Two, he claims that
the evidence was insufficient to show that he possessed the
required "intent that [J.C.] engage in prostitution" when crossing
state lines, under 18 U.S.C. § 2423(a). We are not persuaded by
either of Cooper's sufficiency arguments.
Cooper moved for acquittal at the close of the
government's case on sufficiency grounds as to Counts One and Two,
- 26 -and renewed the motion at the close of all the evidence, thus
preserving his sufficiency claims for appeal. As a result, we
review the district court's denial of his Rule 29 motion for
acquittal de novo. See Coleman, 149 F.4th at 42.
In evaluating Cooper's sufficiency claims, "the relevant
question is whether, after viewing the evidence [at trial] in the
light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond
a reasonable doubt." Id. (citation modified). To answer this
question, "we do not view each piece of evidence separately,
re-weigh the evidence, or second-guess the jury's credibility
calls." United States v. Minor, 63 F.4th 112, 125 (1st Cir. 2023).
For these reasons, "defendants challenging convictions for
insufficiency of the evidence face an uphill battle on appeal."
United States v. Lipscomb, 539 F.3d 32, 40 (1st Cir. 2008)
(citation modified).
1. Count One -- Interstate Commerce Element
Section 1591(a)(1) prohibits sex trafficking "in or
affecting interstate or foreign commerce." Cooper claims the
government's proof on this element was limited to J.C.'s testimony
that Cooper purchased an advertisement on Backpage and a cell phone
to schedule "dates" for her. He also describes her testimony as
"unsupported." According to Cooper, because the government
introduced "no ads" or "records" from Backpage, nor any evidence
- 27 -of where the cell phone was "purchased or manufactured" or that
Cooper "used" it, there was not enough evidence for a rational
jury to find beyond a reasonable doubt that his actions had a nexus
to interstate commerce. We disagree.
Most importantly, Cooper discounts J.C.'s trial
testimony in making his sufficiency arguments. J.C. testified
that Cooper advertised that she was available for "dates" on
Backpage and that he used and instructed her how to use the TextNow
application to schedule those dates. If the jury believed her,
then it would have faced no obstacle to finding beyond a reasonable
doubt that Cooper's actions in sex trafficking J.C. were in or
affected interstate commerce. And "[w]hether the jury found [J.C.]
credible is a decision we leave to the jury." Lipscomb, 539 F.3d
at 40 (rejecting sufficiency challenge). In conducting a
sufficiency of the evidence review, we do not question the
credibility of witnesses who testified before the jury unless that
testimony was "incredible or insubstantial on its face." Id.
(quoting parenthetically United States v. Gomez-Pabon, 911 F.2d
847, 853 (1st Cir. 1990) (rejecting sufficiency challenge "even if
[the witness's testimony] [was] uncorroborated")). Cooper has not
even attempted to make such a claim about J.C.'s testimony.
Cooper is also wrong that J.C.'s testimony was
unsupported by documentary evidence. At trial, the government
introduced records of the text conversations scheduling the
- 28 -prostitution dates via the TextNow application. And Cooper
acknowledges in his opening brief, as he must, our recent holding
that text messages transmitted via the internet can be a sufficient
hook for the interstate commerce element of a federal criminal
charge. See United States v. O'Donovan, 126 F.4th 17, 34-36 (1st
Cir. 2025) (holding that proof of iMessages sent over the internet
satisfied the interstate commerce element for a wire fraud charge).
Thus, we reject Cooper's sufficiency challenge as to
Count One.
2. Count Two -- Intent to Prostitute Element
For Count Two, the government was required to prove that
Cooper had the "intent that [J.C.] engage in prostitution" when he
transported her from Massachusetts to New York in April 2018. 18
U.S.C. § 2423(a) (criminalizing the knowing transportation of a
minor "in interstate or foreign commerce . . . with intent that
the individual engage in prostitution, or in any sexual activity
for which any person can be charged with a criminal offense"). To
satisfy this element, the government needed to establish that the
intent to prostitute J.C. was "at least one of [Cooper's]
motivations for taking the trip in the first place," even if not
his main motivation. United States v. Tavares, 705 F.3d 4, 17
(1st Cir. 2013) (quoting United States v. Ellis, 935 F.2d 385, 390
(1st Cir. 1991)).
- 29 -At trial, J.C. testified that this trip to New York
occurred during the period that Cooper forced her to go on "dates."
And she recounted that Cooper -- very soon after arriving in New
York -- posted an advertisement on Plenty of Fish and drove her to
a "date." From this testimony, the government contends, the jury
could have drawn a reasonable inference that "Cooper did not
abandon his intent to gain money from J.C.'s prostitution simply
because they crossed state lines."
To be sure, at trial, Cooper presented a different
account of the April 2018 trip. He testified that he and J.C.
traveled to New York to see his children and mother, because he
would not be able to visit for Mother's Day. But the "government's
evidence is not insufficient simply because [Cooper] presented a
competing scenario." United States v. Torres-Colon, 790 F.3d 26,
33 n.3 (1st Cir. 2015) (quoting United States v. Ayala–García, 574
F.3d 5, 11 (1st Cir. 2009)). As here, when the evidence "turns on
witness credibility" and conflicting stories, it is up to "the
jury [to] decide[] whom to believe." Ayala-García, 574 F.3d at
11. Based on J.C.'s testimony, a rational jury could have found
beyond a reasonable doubt that one of Cooper's purposes in bringing
J.C. to New York was for her to engage in prostitution. Thus, we
reject Cooper's sufficiency challenge as to Count Two.
- 30 -C. Venue Challenges (Count Three)
Finally, Cooper lodges multiple challenges related to
venue for Count Three -- the forced labor charge. This count
alleged that Cooper violated the forced labor statute, 18 U.S.C.
§ 1589(a), "in the District of Massachusetts, the Southern
District of New York, and elsewhere."
In Cooper's view, the government was required to
prosecute him for the forced labor charge in New York, not
Massachusetts. He argues that we should vacate his conviction on
Count Three for three separate reasons: (1) the district court
erred in denying his pretrial motion to dismiss the indictment for
lack of proper venue; (2) at trial, the government failed to
introduce enough evidence to establish venue in Massachusetts; and
(3) at the very least, the jury should have decided the venue
issue. We agree with Cooper on the last point.
"Venue in a criminal case is not an arcane technicality."
United States v. Salinas, 373 F.3d 161, 162 (1st Cir. 2004). As
the Supreme Court recently stated, venue "mattered more than might
be supposed to the Nation's Founders." Abouammo v. United States,
146 S.Ct. 1571, 1576 (2026). Indeed, the Constitution "safeguards"
a defendant's right to be tried in the proper venue "not once but
'twice.'" Id. (quoting United States v. Cabrales, 524 U.S. 1, 6
(1998)); see U.S. Const. amend. VI, § 1 (establishing the right to
trial "by an impartial jury of the State and district wherein the
- 31 -crime shall have been committed"); U.S. Const. art. III, § 2, cl. 3
(instructing that the "Trial of all Crimes" "shall be held in the
State where the said Crimes shall have been committed").6
Proper venue exists when there is "a match between the
place of commission of the crimes and the state [and district]
where the trial" takes place. United States v. Casch, 448 F.3d
1115, 1117 (9th Cir. 2006). The government bears the burden to
establish venue by a preponderance of the evidence. See Salinas,
373 F.3d at 163; United States v. Miller, 111 F.3d 747, 749-50
(10th Cir. 1997).
With these principles in mind, we turn to Cooper's
three-pronged venue challenge.
1. Motion to Dismiss the Indictment
Cooper filed multiple pretrial motions to dismiss Count
Three for lack of "territorial jurisdiction (venue)." The
government responded with a summary of the evidence it planned to
present at trial that connected the charge to Cooper's actions in
Massachusetts. It argued that forced labor is a "continuing
offense" and that Cooper "formulated and began to execute the plan
to force [J.C.] to labor in a strip club while they were still in
Massachusetts."
6 Federal Rule of Criminal Procedure 18 also requires a
criminal prosecution to occur in "a district where the offense was committed." Fed. R. Crim. P. 18.
- 32 -The district court denied Cooper's motion to dismiss
Count Three for lack of proper venue as "lack[ing] merit."7 It
explained that the dismissal of an indictment is reserved for
"extremely limited circumstances" that were not present in
Cooper's case. (Quoting Whitehouse v. U.S. Dist. Ct. for the Dist.
of R.I., 53 F.3d 1349, 1360 (1st Cir. 1995).) We review de novo
the court's ruling denying Cooper's motion to dismiss. See United
States v. Castillo, 158 F.4th 257, 271 (1st Cir. 2025).
Cooper claims that the government laid out all the facts
it had to support venue in Massachusetts in its opposition to his
motion to dismiss, and that those facts were just not enough. As
he points out, the government's own account made clear that the
forced labor -- J.C. working at Junior's Cabaret as a
stripper -- took place only in New York and did not begin until
September 2018, several months after she and Cooper had moved there
from Massachusetts. Thus, according to Cooper, the district court
should have dismissed Count Three for lack of proper venue.
Cooper has failed to show that the "extraordinary step"
of dismissing Count Three before trial was warranted here. See
United States v. Stokes, 124 F.3d 39, 44 (1st Cir. 1997). "[W]hat
counts" in "grading an indictment's sufficiency" are its
7 The district court's order referenced and denied
collectively the 13 pre-trial motions that Cooper had filed pro
se, so the court did not separately address Cooper's venue
argument.
- 33 -"allegations, which we must assume are true." United States v.
Guerrier, 669 F.3d 1, 3-4 (1st Cir. 2011). And this is so "even
when the challenge centers on the adequacy of the evidence
concerning" a "jurisdictional prerequisite." Id. (affirming the
sufficiency of an indictment against a defendant's challenge that
the government "had produced no evidence" to satisfy the statute's
interstate commerce element (emphasis omitted)).
When the government opposed Cooper's motion to dismiss,
it previewed J.C.'s expected testimony that, when she asked Cooper
if she could stop engaging in prostitution in Massachusetts, he
responded not until she started stripping in New York. And,
according to J.C., he then drove her to New York for the specific
purpose of obtaining a fake ID so that she could work at Junior's
Cabaret. The government went on to contend that, because forced
labor is a continuing offense that can be executed through a plan
or scheme, see 18 U.S.C. § 1589(a)(4), the jury could find based
on such testimony that Cooper initiated the plan to force J.C. to
strip at Junior's Cabaret while they were living in Massachusetts.
Although Cooper disputes these facts and claims that, at
most, they show legally insufficient "preparatory acts" in
Massachusetts, we "routinely rebuff efforts to use a motion to
dismiss as a way to test the sufficiency of the evidence behind an
indictment's allegations." Guerrier, 669 F.3d at 4. The only
case that Cooper cites to support his position held that "a
- 34 -district court may consider a pretrial motion to dismiss an
indictment where the government does not dispute . . . the
pertinent facts." (Quoting United States v. Rodríguez-Rivera, 918
F.3d 32, 35 (1st Cir. 2019) (citation modified).) But, as the
government points out, under Rodríguez-Rivera, a district court
may not dismiss an indictment on factual grounds before trial
unless the government agrees that it has already laid out all
evidence relevant to the issue at hand. See id. at 35-36. And
here, the government did not expressly concede in its opposition
to Cooper's motion to dismiss that it had previewed all the
relevant facts. Thus, we see no error in the district court's
ruling.
2. Sufficiency Challenge
Next, Cooper contends that the evidence the government
presented at trial on the forced labor charge was insufficient to
establish venue in Massachusetts by a preponderance of the
evidence. We review "the evidence of record in the light most
flattering to the venue determination." Salinas, 373 F.3d at 164.
Ultimately, whether there was enough evidence to support a finding
of proper venue is a question of law. Miller, 111 F.3d at 749
(citing 2 Wright & Miller's Federal Practice & Procedure § 307 (2d
ed. 1982)).
The forced labor statute makes it a crime whenever an
individual:
- 35 -[K]nowingly provides or obtains the labor or
services of a person by any . . . combination
of [four] means [including] . . . by means of
force [or] threats of force . . . [;] . . . by
means of serious harm or threats of serious
harm . . . [;] . . . [or] by means of any
scheme, plan, or pattern intended to cause the
person to believe that, if that person did not
perform such labor or services, . . . [they]
would suffer serious harm . . . .
18 U.S.C. § 1589(a). Because the statute "contains no explicit
venue provision," we look to the "substantive definition of the
crime" to determine where venue would be proper. Salinas, 373
F.3d at 165. This analysis requires us to "'identify the conduct
constituting the offense' -- the things a defendant must do to
violate the statute at issue," and then "ascertain the 'location'
of those 'criminal acts' -- the place where their 'commission'
occurred." Abouammo, 146 S. Ct. at 1576 (quoting United States v.
Rodriguez-Moreno, 526 U.S. 275, 279 (1999)).
The parties' venue dispute centers on whether the forced
labor began in Massachusetts or New York. And that is because
Cooper has not contested, other than in a short footnote in his
opening brief, that we can treat forced labor as a continuing
offense in resolving this appeal. For continuing offenses, venue
can be established wherever the "offense was begun, continued, or
completed," 18 U.S.C. § 3237(a), and the government has not argued
that the forced labor continued or ended in Massachusetts. Thus,
we focus on where the offense began.
- 36 -According to Cooper, the venue claim is a slam dunk for
him. As he points out, the forced labor charge was based on J.C.'s
work as a stripper at Junior's Cabaret, and she did not begin
working there until September 2018, several months after they moved
to New York. He argues that even if he had hatched a plan to force
J.C. to work as a stripper while they still lived in Massachusetts,
any acts he took to further that plan in that state were merely
"preparatory" and thus legally insufficient. Cooper cites to
out-of-circuit precedent for the premise that "preparatory acts
alone cannot support venue." (Quoting United States v. Strain,
396 F.3d 689, 697 (5th Cir. 2005) (holding that the defendant's
"telephone conversations" and "subsequent journey" originating in
the district were "preparatory acts" for the offense of harboring
a fugitive).)
The government counters that § 1589 does not just
criminalize obtaining labor; it criminalizes obtaining labor "by
prohibited means," such as through a "scheme, plan, or pattern" or
"threats of force." See 18 U.S.C. § 1589(a)(1), (4). It also
argues that the "prohibited means" requirement is an element of
the crime, and thus the scheme, plan, or threats of force are
intrinsic to the crime itself. And the government points out that
this is exactly how the district court instructed the jury; the
court explained that, for Count Three, the jury "must find that
the defendant used or employed one or more of the three identified
- 37 -prohibited means to provide or obtain the labor or services of the
alleged victim."
We agree with the government's reading of § 1589(a).
The forced labor statute criminalizes more than just "obtain[ing]
the labor" of a person; it criminalizes obtaining the labor "by"
one of the four prohibited means. 18 U.S.C. § 1589(a)(1)-(4); see
Martínez-Rodríguez v. Giles, 31 F.4th 1139, 1149 (9th Cir. 2022)
(holding that the "actus reus" of § 1589(a) "requires proof that
the defendant provided or obtained the labor or services of a
person by one or more of the four enumerated means" (citation
modified)); cf. United States v. Bradley, 390 F.3d 145, 150 (1st
Cir. 2004), vacated on other grounds, 545 U.S. 1101 (2005)
(explaining Congress "intended expressly to counter" a narrow
interpretation of the forced labor statute that would limit the
"prohibit[ed] . . . conduct" to only "physical or legal coercion"
(emphasis omitted)).
Viewing the trial record in the light most favorable to
the government, we conclude that it presented enough evidence for
a rational jury to find, by a preponderance of the evidence, that
the "scheme, plan," or "threats of force" to compel J.C. to work
as a stripper began in Massachusetts. Thus, we reject Cooper's
sufficiency challenge as to venue.
- 38 -3. Jury Instruction
At the charge conference, Cooper requested that the
district court put the question of venue to the jury. He proposed
an instruction that would have required the jury to decide:
[W]hether, as to each separate count, there is
a sufficient connection to the District of
Massachusetts[.] . . . You should note on
this issue -- and this issue alone -- the
Government need not prove venue beyond a
reasonable doubt, but only by a preponderance
of the evidence.
The court declined to give that instruction or any jury instruction
on venue.
Cooper contends that the district court legally erred by
not putting the issue of venue to the jury. He maintains that a
venue instruction was "integral to [his] defense," pointing to his
closing argument that "venue [was] not proper" in Massachusetts
for the forced labor offense because "[a]ll of [the offense] took
place in New York." According to Cooper, taking the venue
determination away from the jury was not harmless error, and thus
we must vacate his forced labor conviction.
i. Waiver
In response, the government contends that Cooper waived
his claim that the jury should have decided the question of venue,
and thus we need not address the merits of his challenge. It
offers an assortment of waiver arguments, including that Cooper's
proposed jury instruction on venue was "not a 'correct' statement
- 39 -of law" and that he failed to ask the district court to "deliver
its own, correct venue instruction." On top of these initial
points, the government emphasizes that we have never "held that
[our] theory-of-defense precedent applies to venue instructions."
At the same time, the government does not dispute -- nor
could it -- that Cooper requested at the charge conference that
the jury decide whether venue was proper in Massachusetts. It
also concedes that Cooper both objected when the district court
failed to instruct the jury on venue at the close of trial and
moved for acquittal or a new trial on venue grounds after the
verdict. Finally, it admits that the district court refused to
instruct the jury on venue not because it disagreed with Cooper's
particular proposed instruction, but because it concluded that the
issue should not go to the jury at all. As the court stated: "I'm
not going to instruct on venue."
We have not yet had occasion to determine when venue
should be decided by the jury. But the government and Cooper agree
that United States v. Perez, 280 F.3d 318 (3rd Cir. 2002), is the
leading federal court opinion on this issue.
Under the Perez framework, when the indictment alleges
venue without a facially obvious defect,8 a defendant has a valid
8 As a reminder, Cooper also moved to dismiss Count Three of
the indictment for lack of venue in Massachusetts, so he would
have satisfied the Perez framework even if the indictment had "a
facially obvious defect."
- 40 -claim to put the question of venue to the jury "if (1) [he] objects
to venue prior to or at the close of the prosecution's
case-in-chief, (2) there is a genuine issue of material fact with
regard to proper venue, and (3) [he] timely requests a jury
instruction." Perez, 280 F.3d at 334; see also, e.g., Miller, 111
F.3d at 751 (explaining that "[s]everal circuits have adopted the
'in issue' test"); United States v. Haire, 371 F.3d 833, 840 (D.C.
Cir. 2004) (adopting Perez's so-called "in issue" framework),
judgment vacated on other grounds, 543 U.S. 1109 (2005). Some
disagreement does exist on how much a defendant must do to create
a genuine dispute of material fact about proper venue such that
the issue must go to the jury. See Perez, 280 F.3d at 333-34.
But we are not aware of any court that has concluded that a
defendant who satisfies the Perez framework has waived such a claim
altogether.
We hold that a defendant who meets the Perez framework
has done enough to put the court and the government on notice of
his claim that the jury should decide the question of venue.9 The
record is clear that, via his actions before, during, and after
trial, Cooper checked all the boxes under the Perez framework.
Thus, we reject the government's waiver arguments.
9 We do not mean to suggest that Perez establishes the floor
for what a defendant must do to preserve a claim that a jury should decide the issue of venue. But because Cooper has satisfied the
Perez framework, we need not delve further into that question.
- 41 -ii. Merits
We now turn to the merits -- whether, on the facts here,
Cooper placed venue for the forced labor charge "in issue" such
that the jury had to decide if venue was proper in Massachusetts.
Cooper's argument is simple. He contends that,
throughout the case, the government maintained that the forced
labor charge was based on J.C.'s work as an underage stripper at
Junior's Cabaret in New York. And as Cooper points out, J.C. did
not even begin working at Junior's Cabaret until September 2018,
three months after they moved to New York. Thus, Cooper asserts,
a rational jury easily could have found that the proper venue for
the forced labor charge was New York. And, as Cooper highlights,
he made this very claim to the jury at trial. In his closing
argument, he emphasized that the "government's theory" of the
forced labor offense was that he forced J.C. to work as a stripper.
"All" of that alleged conduct "took place in New York," he argued,
and thus "venue [was] not proper" in Massachusetts.
Cooper also contends that he generally disputed J.C.'s
testimony at trial, including that he forced her to work at
Junior's Cabaret by threatening her in Massachusetts with various
forms of harm if she refused. To that end, he argues that, even
if the trip to New York in April 2018 could be considered part of
the forced labor offense based on J.C.'s testimony, he created a
genuine dispute at trial about the reason for that trip. See supra
- 42 -section II.B.2. In response, the government essentially concedes
this point.10
We conclude that Cooper did enough to put venue "in
issue" at his trial. To be sure, federal courts have articulated
various standards for what qualifies as a defendant putting venue
"in issue." See Perez, 280 F.3d at 333-34 (discussing how
different circuits articulate the "in issue" test). But the
majority view is that "actually disput[ing]" the location of the
crime charged by, for example, placing testimony or documents into
the trial record is enough. Id. at 334-35 (explaining that
"[t]rial testimony" that "establish[es] a genuine issue of
material fact" "may place venue in issue"); see also Miller, 111
F.3d at 751 (holding that if a defendant "create[s] a factual
dispute" at trial "with respect to the location of the crime,"
whether through "trial testimony or otherwise," they have placed
venue in issue).11 We agree with the majority view.
When pressed at oral argument, the government acknowledged
10
that if the jury credited Cooper's testimony, it was enough to
create a factual dispute that put venue "in issue." It then conceded that, under Perez, Cooper would have been entitled to a
jury instruction on venue in light of such a factual dispute.
11The Seventh Circuit, however, has suggested that a
defendant must "make venue a serious issue" to put the venue
question to the jury. United States v. Muhammad, 502 F.3d 646,
656 (7th Cir. 2007) (emphasis added) (holding that the defendant
did not put venue "in issue" because the government's countervailing evidence on the location of the crime was
"overwhelming"). It is not entirely clear if the Seventh Circuit's decision in Muhammad rested on the conclusion that the evidence
- 43 -Because Cooper put venue "in issue" for the forced labor
charge with his trial testimony, it was legal error for the
district court not to instruct the jury to decide the question of
venue.12
iii. Harmless Error
The government claims that any error in failing to put
the venue issue to the jury was harmless. It argues that the
jury's verdict on the other counts makes the possibility that the
jury would have rejected venue in Massachusetts for the forced
labor charge "vanishingly remote."
Several of our sister circuits have evaluated claims of
error based on a district court's failure to put the venue question
to the jury. See, e.g., Miller, 111 F.3d at 750; Perez, 280 F.3d
at 333-35; United States v. Moran-Garcia, 966 F.3d 966, 969 (9th
Cir. 2020). These courts agree that such error, although of
"constitutional magnitude," "is not structural," meaning the error
"does not deprive the trial of fundamental fairness." Casch, 448
F.3d at 1117 (citing Arizona v. Fulminante, 499 U.S. 279, 309-10
(1991)); cf. Johnson v. United States, 520 U.S. 461, 468 (1997)
introduced by the defendant in that case was too thin to create a "genuine" dispute. In any event, Cooper did enough here even under the test in Muhammad, because the government's venue evidence on
the forced labor charge was not "overwhelming."
12 Although we decide today that testimony or other record
evidence disputing the location of the crime is sufficient to put venue "in issue," we do not purport to define all the ways a
defendant may put venue "in issue."
- 44 -("We have found structural errors only in a very limited class of
cases."). Instead, like other trial errors, these courts generally
review this error for harmlessness. See Casch, 448 F.3d at 1117;
Miller, 111 F.3d at 751 (reviewing for harmless error).
Consistent with the consensus view, we hold that the
failure to give a venue jury instruction should be subject to a
harmless error analysis. See, e.g., Moran-Garcia, 966 F.3d at
970; United States v. Kelly, 535 F.3d 1229, 1239 n.7 (10th Cir.
2008). Thus, the "burden is on the government to prove beyond a
reasonable doubt" that a failure to give a venue instruction was
harmless. Miller, 111 F.3d at 751; see also Fed. R. Crim. P.
52(a).
Although our sister circuits agree that it is the
government's burden to show that this error was harmless, they
disagree to some extent on when a failure to put the venue question
to the jury is "harmless beyond a reasonable doubt."13 We have
previously suggested that "[w]hen proof of venue is so clear that
13For example, the Fourth Circuit formulates a slightly less
demanding test, holding such error is harmless "where the evidence of proper venue was 'substantial and uncontroverted.'" United States v. Taylor, 784 F. App'x. 145, 152 (4th Cir. 2019) (quoting United States v. Martinez, 901 F.2d 374, 377 (4th Cir. 1990)). By comparison, the Tenth Circuit requires a showing that "the jury's guilty verdict on the charged offense necessarily incorporates a
finding of proper venue." Kelly, 535 F.3d at 1239 n.7 (quoting
Miller, 111 F.3d at 751). And the Ninth Circuit requires that the "evidence, had it been viewed by a rational jury, could only have led to" a finding of proper venue. Moran-Garcia, 966 F.3d at 970
(citation modified).
- 45 -no reasonable juror could have found otherwise," any error in
instructing on venue could not qualify as plain error. United
States v. Georgacarakos, 988 F.2d 1289, 1297 (1st Cir. 1993). To
be sure, our ruling in that case concerned a legally incorrect
jury instruction on venue, not the failure to give an instruction
altogether. See id. But our discussion in Georgacarakos on what
could constitute plain error when it comes to instructing the jury
on venue is informative and indicates that a failure to instruct
may be harmless if no reasonable juror could have found that venue
was lacking. See id.; see also Moran-Garcia, 966 F.3d at 970
(holding that when "a court has failed to give a venue instruction
to the jury, that error will be viewed as harmless if the evidence
viewed rationally by a jury could only support a conclusion that
venue existed" (citation modified)); Kelly, 535 F.3d at 1239 n.7
(explaining that "failure to instruct on venue, when requested, is
reversible error unless it is beyond a reasonable doubt that the
jury's guilty verdict on the charged offense necessarily
incorporates a finding of proper venue" (quoting Miller, 111 F.3d
at 751)).
In any event, even under the most government-friendly
version of the harmless error standard in the venue context, we
cannot conclude that the error here was harmless beyond a
reasonable doubt. On our review of the record, the jury could
have convicted Cooper on the first two counts without necessarily
- 46 -concluding that venue was proper in Massachusetts for the forced
labor charge.14 For example, the jury could have found that Cooper
sex trafficked J.C. by force until April or May 2018, while they
lived in Massachusetts, supporting a guilty verdict on Count One.
It also could have concluded that Cooper transported J.C. to New
York in April 2018 with an intent to prostitute her, supporting a
guilty verdict on Count Two. Yet the record provides no clues on
how the jury conceived of venue for Count Three because the
evidence could have supported a finding that the forced labor
(1) began in Massachusetts or (2) occurred entirely in New York.
Without any venue instruction, the jury could have convicted on
Count Three without ever considering if Cooper formulated a plan
or scheme to force J.C. to strip while they were still in
Massachusetts.15
Although the government suggests that the jury could
have conceived of the "forced labor" as Cooper prostituting J.C.,16
Because Count Three of the indictment referred to both the
14
District of Massachusetts and the Southern District of New York,
it is the kind of "multidistrict indictment" that precludes
"find[ing] the elements of the charged offense without finding the factual predicate for proper venue in the trial jurisdiction."
Miller, 111 F.3d at 751.
15This is especially so given that the district court
explicitly instructed the jury that it "may accept all of a
witness's testimony or reject all of it, or you may accept part
and reject another part."
The government raised this alternative theory for the first
16
time on appeal. To support this theory, it pointed to a jury note
- 47 -that was not the theory it pursued at trial. At the start of the
case, the government presented Count Three as based on Cooper
forcing J.C. to work at Junior's Cabaret. It reiterated that
theory at the end of the trial. In its closing argument, after
asserting that Cooper "forc[ed] J.C. to work at Junior's Cabaret,"
the government stated that, "[f]or this criminal conduct, the
defendant [was] charged in Count Three with forced labor." It
then went on to explain to the jury why, in its view, it had met
its burden to "prove that [Cooper] used force [or other threats]
to keep J.C. stripping at the club and giving her money to him."
And the government then called out the specific evidence that
supported this claim: J.C.'s testimony "about the violence in New
York," and the "text messages of threats" to J.C. "when they were
down in New York."
Given the government's arguments throughout trial, the
jury could have convicted Cooper on the forced labor charge by
finding that he forced J.C. to work as an underage stripper at
Junior's Cabaret from September 2018 to May 2019 -- conduct that
asking whether the forced labor for Count Three "consist[s] of
just stripping or" whether it "include[s] prostitution." In response, the district court repeated its instruction that "the
words 'labor' and 'services' [sh]ould be construed based upon
the[ir] ordinary meaning." This single jury note is not enough
for us to conclude that any error was harmless beyond a reasonable doubt on the ground that the jury must have convicted Cooper of
forced labor under the prostitution theory. See Moran-Garcia, 966 F.3d at 970.
- 48 -occurred entirely in New York. Thus, we cannot conclude that the
government has established that the failure to put the venue
question to the jury was harmless beyond a reasonable doubt.
III. CONCLUSION
For all these reasons, we affirm the convictions on Count
One and Count Two, vacate the conviction on Count Three, and remand
for further proceedings consistent with this opinion.17
17 Because we vacate Cooper's conviction on Count Three, we
do not address his sentencing challenges.
- 49 -