The Akron Legal News

Federal appellate panel affirms trial court's judgment in underage sex trafficking case

ANNIE YAMSON
Special to the Legal News
Published: May 14, 2013

The 6th Circuit Court of Appeals has affirmed a northern Ohio trial court’s judgment to convict a defendant for juvenile sex trafficking.

Eric Tutstone had been the subject of an FBI investigation and was convicted of trafficking after trying to sell a juvenile female into prostitution, according to the case summary.

The arrest of Tutstone was the result of a series of events that started when he received a phone call from Sumara Venson Banos.

Case history stated that Banos “worked part-time as a madam” for 10 years but ended her work when an increasing number of male clients began requesting that she supply them with minor females for sexual relations.

Concerned, Banos notified law enforcement and subsequently agreed to become an FBI informant.

She acquired Tutstone’s phone number from her husband after asking if he knew anyone who could supply her with underage females.

Using a TracFone paid for by the FBI, Banos conversed with Tutstone who agreed to sell Banos his 16-year-old neighbor, S.J.

Tutstone offered to sell S.J. for $300 and assured Banos that “S.J. was ready to work for her and that he could control S.J. if Banos had any problems with her,” case summary stated.

On Dec. 9, 2013 Banos and Tutstone met at a Starbucks in downtown Cleveland and agreed to make the exchange. Case summary disclosed that they met after the end of S.J.’s school day.

Banos paid with prerecorded “buy money” provided by the FBI and Tutstone was arrested when he left the coffee shop with the money in his pocket.

Once in custody, Tutstone waived his Miranda rights, confessed that he knew S.J.’s age and signed a written statement.

However, during trial, Tutstone filed two motions for acquittal and both were denied.

He was convicted on one count of juvenile sex trafficking and one count of financially benefiting from sex trafficking and was sentenced to 135 months in prison for each charge.

Upon appeal, Tutstone claimed that the trial court failed to prove beyond a reasonable doubt that his conduct constituted interstate commerce.

Judge Jane Stranch wrote the opinion on behalf of the circuit court in which she cited the statute under which Tutstone was convicted, which defines trafficking as benefiting financially by recruiting, harboring, transporting or maintaining a person “in or affecting interstate or foreign commerce.”

“An attempt is punished like the completed crime,” wrote Stranch.

Congress enacted the statutes under which Tutstone was charged as part of a regulatory program known as the Trafficking Victims Protection Act of 2000.

“The TVPA criminalizes sex trafficking of children as well as sex trafficking of adults that is accomplished through force, fraud or coercion,” wrote Stranch. “In passing the TVPA, Congress was concerned that rapid expansion of the sex industry had brought about ‘sexual exploitation of persons, predominantly women and girls...’”

The TVPA states that traffickers primarily target “women and girls who are disproportionately affected by poverty ... luring them into their networks through false promises of decent working conditions at relatively good pay.” These widespread activities “substantially affect interstate and foreign commerce.”

Tutstone’s main contention in his appeal was that all of his conduct involving S.J. occurred within the state of Ohio and the government failed to prove that his actions had any connection to interstate commerce, as charged in his indictment.

“To demonstrate a connection between Tutstone’s conduct and interstate commerce, the government introduced into evidence the call detail records for the TracFone Banos used to communicate with Tutstone along with the expert testimony of FBI agent Horan,” Stranch explained.

An FBI agent worked on the agency’s Cellular Analysis Survey Team and received specialized training on how cellular telephones and networks operate. He testified as an expert witness on behalf of the prosecution.

“Based on his training and experience, (the agent) testified that TracFone is known as a Mobile Virtual Network Operator,” case history stated. “It does not maintain infrastructure or own any cell towers.”

Instead, TracFone operates by leasing mobile service from AT&T, allowing its customers to utilize AT&T’s interstate network. Neither company manufactures their phones in Ohio or maintains any billing facilities within the state.

During trial proceedings, the agent explained that a call sent between phones within Ohio is not necessarily limited to communication facilities within Ohio.

“When a message is sent, the cell phone establishes radio communication with a cell tower in Ohio,” Horan explained. “Switches within the network efficiently determine how and where to route the data.”

Although there are mobile switching centers in Ohio, data may be routed through more than one network computer database located in other states before the call arrives at its intended destination.

The agent testified that, theoretically, it is possible that the content of a cell phone call could travel solely through Ohio switches but even if that occurred, data is eventually routed to a billing gateway located in another state to account for the cost of using the network.

The agent said any AT&T cell phone calls that are remotely monitored by wiretap are diverted to the FBI’s facility in Quantico, Va.

“(The agent’s) testimony provided the jury with sufficient evidence to find that the cell phone calls between Tutstone and Banos in Ohio relating to the purchase of S.J. for the purpose of committing commercial sex acts were ‘in or affecting’ interstate commerce,” Stranch wrote.

The appellate panel concluded that the district court properly admitted the agent’s statements because his specialized knowledge, experience and training helped the jury to understand the technical aspects of the government’s proof.

“The government proved that Tutstone’s conduct was ‘in or affecting’ interstate commerce and that Tutstone benefited financially when he sold S.J. to Banos for money with knowledge that Banos would cause S.J. to engage in prostitution,” court opinion stated. “Accordingly, we affirm.”

Circuit Judge Karen Nelson Moore and District Judge Joseph Hood concurred.

The case is cited U.S.A. v. Eric Tutstone, No. 12-3373.

[Back]