NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT __________

No. 20-2887 ___________

UNITED STATES OF AMERICA

v.

MIGUEL SCOTT ARNOLD, a/k/a Midnight,

Appellant

________________ Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Criminal Action No. 1:17-cr-00002-001) District Judge: Honorable Sylvia H. Rambo ________________

Submitted Under Third Circuit L.A.R. 34.1(a) July 7, 2021

Before: AMBRO, JORDAN, and BIBAS, Circuit Judges

(Opinion filed July 29, 2021)

OPINION*

AMBRO, Circuit Judge

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. Miguel Arnold appeals his sex-trafficking convictions. He argues there was

insufficient evidence to support one of his convictions, the indictment was impermissibly

duplicitous (meaning it joined two or more offenses in the same count), and the District

Court constructively amended the indictment. For the reasons stated below, we affirm.

I. Background

In January 2017, a grand jury indicted Miguel Arnold and four co-defendants.

Arnold was indicted on five counts, including conspiracy to commit sex trafficking by

force, fraud, and coercion in violation of

(c), and the substantive offense

of sex trafficking of multiple victims in violation of

(a), (b)(1). One of

the co-defendants, but not Arnold, was charged with sex trafficking of a minor.

At trial, the Government contended that Arnold was the ringleader of a single

conspiracy to commit sex trafficking. The defense conceded that Arnold was a trafficker

but suggested he did not operate within a hierarchical conspiracy. Instead, the defense

argued, Arnold was part of a less formal, “family”-like group of traffickers, each of whom

had a separate trafficking operation. App. at 525, 528.

During the proceedings, the Government offered evidence that underage victims

were trafficked without any timely objection from Arnold. The Government also presented

testimony about the age of certain victims to establish their susceptibility to force, fraud,

and coercion. Later in the proceedings, Arnold objected to the presentation of this

evidence, but the Court overruled his objection.

After a five-day trial, the jury convicted Arnold on four counts. The District Court

then sentenced him to 300 months in prison. He appeals.

2 II. Discussion1

Arnold raises three claims on appeal. None is persuasive.

A. Sufficiency of the Evidence

First, Arnold argues that the Government presented insufficient evidence to support

its theory of a single, large-scale conspiracy, and instead only proved that he and his co-

defendants were involved in separate and independent conspiracies. We evaluate “whether

the record, when viewed in the light most favorable to the government, contains substantial

evidence to support the jury’s verdict.” United States v. Kelly,

(3d Cir.

1989) (internal citations omitted). For a single conspiracy, we use a three-pronged test:

First, we examine whether there was a common goal among the conspirators . . . . Second, we look at the nature of the scheme to determine whether the agreement contemplated bringing to pass a continuous result that will not continue without the continuous cooperation of the conspirators . . . . Third, we examine the extent to which the participants overlap in the various dealings.

(internal quotation marks and citations omitted).

Arnold asserts that the Government’s evidence failed on all prongs of the Kelly test;

hence a rational juror could not have determined there was a unified conspiracy. However,

the District Court properly instructed the jury on the difference between single and multiple

conspiracies, and significant evidence supports the jury’s finding that Arnold and his co-

defendants operated a single conspiracy.

On the first Kelly prong, the Government presented evidence that Arnold and his

co-defendants knew each other and worked together toward the common goal of engaging

1 The District Court had jurisdiction under

. We have appellate jurisdiction pursuant to

and

(a). 3 in sex trafficking. For example, the Government demonstrated that Arnold and his co-

defendants worked as drivers for each other, recruited victims together, coordinated motel

stays, collaborated to recover on debts, traded victims to each other, and offered joint “two-

for-one” services where their prostitutes would work together to offer services at a

discounted rate. The Government also presented evidence that Arnold had monitored

interactions between his co-defendants and the police, which suggested a close relationship

between the co-defendants’ activities.

On the second prong, the Government presented evidence of interdependence

among Arnold and his co-defendants. In addition to the evidence described above, there

was testimony at trial that Arnold himself said he and his co-defendants were “all a family,

we all do this together.” App. at 271. Finally, the third prong cuts against Arnold due to

significant overlap in activity between the various co-defendants.

Drawing all inferences in the Government’s favor, as we must, we hold that a

rational juror could conclude Arnold and his co-defendants operated a single conspiracy.

We thus reject his first argument.

B. Duplicitous Charges

Arnold contends the indictment on Count 2, a sex trafficking charge based on

“multiple victims,” was duplicitous. He did not raise this issue before the District Court;

we therefore review for plain error, which requires that: (1) there was an error, (2) it was

plain, (3) it affected substantial rights, and (4) not correcting it would “seriously affect[]

the fairness, integrity or public reputation of judicial proceedings.” United States v.

Olano,

(1993) (internal quotation marks and citations omitted). An

4 error is plain if it is “obvious” or “clear under current law.” United States v. Vazquez,

(3d Cir. 2001) (en banc) (quoting Olano,

).

Assuming without deciding that there was an error on this issue, it was not plain.

In analyzing allegedly duplicitous indictments, we must determine the appropriate “unit

of prosecution,” United States v. Root,

(3d Cir. 2009), meaning, in this

case, whether the charges must be separated out by victim or whether it is permissible to

combine multiple victims in one count. Neither we nor the Supreme Court have

addressed the allowable unit of prosecution under

(a), the statute at issue

here. “It is generally true that lack of precedent alone will not prevent us from finding

plain error.” United States v. Jabateh,

(3d Cir. 2020) (internal

quotation marks and citation omitted). However, “for relief under the stringent Olano

standard, novel questions . . . must be capable of measurement against some other

absolutely clear legal norm.”

(internal quotation marks, citation, and brackets

omitted). There was no “absolutely clear legal norm” on this issue. We therefore reject

Arnold’s second argument.

C. Constructive Amendment of the Indictment

Third, Arnold claims the District Court constructively amended the indictment by

allowing evidence that some of the victims were minors, even though Arnold was not

personally indicted on the separate charge of trafficking a minor. Constructive

amendment occurs “when evidence, arguments, or the district court’s jury instructions

effectively ‘amend[] the indictment by broadening the possible bases for conviction from

that which appeared in the indictment.’” United States v. McKee,

(3d

5 Cir. 2007) (quoting United States v. Lee,

(3d Cir. 2004)). Permitting

evidence about the age of certain victims did not broaden the possible bases for

convicting Arnold. As to him, that evidence was offered only to support the elements of

the offenses with which he was charged under

. That statute required

the Government to prove that force, fraud, or coercion were used to cause a victim to

engage in a commercial sex act. The age of the victim in Arnold’s case was a relevant

consideration to show the victim’s susceptibility to fraud, force, or coercion, even though

he was not separately charged with trafficking a minor. Thus we see no error.

* * * * *

We thus affirm the District Court’s judgment of conviction.

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