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United States v. Szczerba

United States Court of Appeals, Eighth Circuit

July 26, 2018

United States of America Plaintiff- Appellee
Thomas Thadeus Szczerba, also known as Enzo Defendant-Appellant

          Submitted: March 14, 2018

          Appeal from United States District Court for the Eastern District of Missouri - St. Louis

          Before WOLLMAN, SHEPHERD, and ERICKSON, Circuit Judges.

          WOLLMAN, Circuit Judge.

         A jury found Thomas Thadeus Szczerba guilty of the following four offenses related to interstate prostitution: one count of conspiracy to commit an offense against the United States in violation of 18 U.S.C. § 371; one count of interstate transportation of an individual to engage in prostitution in violation of 18 U.S.C. §§ 2421 and 2; one count of use of facilities in interstate commerce with intent to aid an enterprise involving prostitution in violation of 18 U.S.C. §§ 1952(a)(3) and 2; and one count of use of facilities in interstate commerce with intent to distribute proceeds from an enterprise involving prostitution in violation of 18 U.S.C. §§ 1952(a)(1) and 2. The district court[1] sentenced Szczerba to 140 months' imprisonment. Szczerba appeals from the denial of his motion to suppress evidence, his motion to exclude expert evidence, his motion for a mistrial, his motion for a new trial based on the government's failure to disclose certain evidence, and his motion for judgment of acquittal. Szczerba also argues that the district court erred in calculating his sentence and imposed a substantively unreasonable sentence. We affirm.

         I. Background

         B.M. moved from Louisiana to Houston, Texas, for a fresh start. She met Szczerba in 2015, while she was working as a stripper at a club that he frequented. Szczerba befriended B.M. and introduced her to Keisha Edwards, a prostitute who used the alias Stacey Monroe. B.M. eventually moved into the apartment that Szczerba and Edwards shared. In June 2015, B.M. began performing sex acts for money, using the alias Avery Monroe. At that time, she was twenty-two years old.

         Szczerba and Edwards took photos of B.M. and posted them with an advertisement on, a website known for advertising prostitutes. Szczerba gave B.M. a phone and a script to use when customers called. She recorded in a notebook the customer's first name, the length of time the customer had requested, and the amount that the customer had agreed to pay. Szczerba and Edwards set the rates for B.M.'s services, requiring her to make $1, 000 per day. B.M. met customers at Szczerba's Houston apartment and at other locations. After having sex with the men, she gave Szczerba the money she received.

         Szczerba provided B.M. with condoms, food, clothing, and personal hygiene products. He controlled when she slept and when she ate. He regulated her phone access. He carried in his wallet a card on which were written B.M.'s full name, her social security number, and her family's address. B.M. testified that she felt threatened by Szczerba, and she worried that he would find her family. Szczerba publicly embarrassed and degraded B.M. by loudly calling her a bitch, a whore, and a slut.

         Szczerba's social media account described him as "the king, professional relationship consultant, thoroughbred, the horse trainer," and he included hashtags like #PGO and #AOB, which mean Pimping Going On and All On a Bitch. Law enforcement officers testified that the term "king" means pimp, that "stable" refers to the pimp's prostitutes, and that "thoroughbred trainer" means a pimp with "the most thoroughly trained girl; the top-of-the-line girl."

         In late June 2015, Szczerba drove B.M. from Houston to Chicago, Illinois, where they met Edwards. Several days later the three traveled to Wisconsin. On July 10, 2015, they traveled to St. Louis, where Edwards rented a room at a downtown hotel. Edwards and B.M. saw customers in each city, after Szczerba and Edwards placed advertisements for the services of Stacy and Avery Monroe on

         B.M. started her menstrual cycle during the stay in St. Louis. Szczerba told her to place a make-up sponge in her vagina so that customers would not know that she was menstruating. The sponge did not work, however, and B.M. bled on a customer during vaginal intercourse. B.M. worried that Szczerba would be angry if the customer did not pay, so she stopped intercourse and called Szczerba, who instructed her to place another sponge in her vagina, which she did. B.M. finished having intercourse with the customer, later describing it as "excruciating" and "like contractions."

         One of the make-up sponges was lodged in B.M.'s vagina. She asked Szczerba to take her to the hospital, but he decided to remove the sponge himself with tweezers. Szczerba eventually drove B.M. to the hospital to have the sponge removed. As he dropped her off, Szczerba told B.M. to use her alias and "Don't be stupid." A physician assistant removed the sponge and prescribed antibiotics for B.M., who used the first name Avery and her real last name. Although Szczerba wanted B.M. to continue working that night, she was in too much pain to see customers. She resumed working the next day.

         B.M. had not been meeting her $1, 000 daily quota in St. Louis, so Szczerba instructed her to go out and find customers. B.M. and Edwards went to a few bars in downtown St. Louis on July 15, 2015, and eventually met a man named Jordan. The three went back to Jordan's apartment, where they had drinks and used cocaine. An argument erupted when Edwards tried to steal Jordan's phone, causing Edwards to run out of the apartment. When Jordan and B.M. went down to the lobby of the apartment building, they discovered Edwards and Szczerba. According to B.M., "[e]veryone was screaming" and Jordan "was mad about the phone and was waving a gun at Szczerba."

         B.M. decided to flee. She lost a shoe as she ran and kicked off the other one. B.M. testified that she "ran until [she] found somewhere safe to hide." She climbed inside a dumpster, where she stayed until she no longer could hear Szczerba and Edwards calling for her. B.M. then climbed out of the dumpster, hid behind it, and called a friend in Houston, who used three-way calling to dial 911 at approximately 5:27 a.m. on July 16, 2015. When officers arrived, B.M. was standing shoeless and scared near a dumpster. Officers brought her to the hospital for medical care.

         Sergeant Patricia Nijkamp of the St. Louis Metropolitan Police Department met B.M. at the hospital. Nijkamp was an intelligence detective at the time and was responsible for investigating crimes related to human trafficking, sex trafficking, and labor trafficking.

         B.M. appeared shaken as she told Nijkamp about how Szczerba kept her from using her cell phone, from eating, and from sleeping, until she made $1, 000, and how he forced her to work while she was menstruating. B.M. gave Nijkamp a black notebook, which included the script for taking calls and listed the first names of various men, dates, times, addresses, lengths of time, and amounts to be charged.

         B.M. told Nijkamp the room number and hotel name where Szczerba and Edwards were staying and said that Szczerba had driven from Texas to Missouri in a gold Mercedes. Nijkamp confirmed that there was a room registered to Edwards at the hotel and that there was a gold Mercedes registered to Edwards in the hotel parking lot. Nijkamp thereafter went to the hotel room, where Szczerba and Edwards were arrested and refused consent to a search. After Nijkamp and other law enforcement officers secured the hotel room and the Mercedes, Nijkamp applied for a search warrant.

         After the warrant issued, officers searched the hotel room and the Mercedes. Among the items they found were several boxes of condoms, sex toys, dental dams, make-up sponges, feminine hygiene products, medication prescribed to Avery M., and several receipts. Szczerba and Edwards were charged in a seven-count superseding indictment with offenses related to sex trafficking and prostitution. After the district court denied the motions to suppress evidence and to exclude expert evidence, the case proceeded to trial. On the first day of trial, Edwards pleaded guilty to use of facilities in interstate commerce with intent to aid an enterprise involving prostitution and use of facilities in interstate commerce with intent to distribute proceeds from an enterprise involving prostitution.

         The government called as witnesses B.M., Nijkamp, and several other law enforcement officers. It presented the evidence discovered in the hotel room and in the Mercedes, as well as the recording of B.M.'s 911 call, the advertisements for Stacy and Avery Monroe, and evidence of Szczerba's bank transactions and his posts on social media. Over Szczerba's objection, the district court allowed Detective Derek Stigerts of the Sacramento, California, Police Department to testify as an expert. Stigerts defined terms that are commonly used in the "pimp/prostitution subculture." He also explained how prostitutes are advertised and how pimps recruit and control prostitutes.

         Before the fourth day of trial began, the prosecutor produced a summary of an interview prepared by Special Agent Jennifer Lynch of the Federal Bureau of Investigation (FBI). The summary previously had not been disclosed to defense counsel. According to the document, Lynch and Nijkamp interviewed a man who had met B.M. in St. Louis on July 15, 2015. After he bought B.M. and Edwards drinks, B.M. told the man she had been a stripper and showed him photos of her wearing lingerie. At approximately 12:30 or 1:00 a.m., the man declined to pay the women for sex. Defense counsel cross-examined Lynch about the contents of the summary and argued in closing that the incident tended to show that B.M.-not Szczerba or Edwards-advertised herself as a prostitute.

         On the fifth day of trial, after the case was submitted to the jury and the alternate juror was released, one of the jurors called in to report that he would not be able to continue serving as a juror. Before the court declared a mistrial and while it was explaining to the jury what had happened, the twelfth juror called and said that he could report for duty. The court overruled ...

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