Second Circuit Criminal Law Blog

Second Circuit Reverses One Conviction for Lack of Venue, Affirms Others Despite Unlawful Warrant

In United States v. Purcell, the Second Circuit (Lynch, Pooler, and Park) considered the conviction of defendant Lavellous Purcell on five counts all arising out of his operation of a prostitution business.  On appeal, Purcell argued that the warrants obtained in New York state court to retrieve data from Facebook violated the Fourth Amendment, that the convictions were based on insufficient evidence, and that the district court erroneously admitted certain testimony at trial.  In a thorough and detailed opinion, the Court denied nearly all of Purcell’s arguments.  However, in a reminder that venue is not to be assumed – nor can it involve “guesswork” – the Court reversed and remanded one of Purcell’s five convictions due to insufficient evidence of venue in the Southern District of New York.  The U.S. Attorney for the Southern District of New York has at times taken a broad view of venue, and while the Circuit has approved of its long reach in many prior cases, this was a bridge too far for the Circuit.


From about 2012 to 2017, Purcell recruited women from across the United States over Facebook, Instagram, and Tinder to work as prostitutes for him.  His business spanned several states, though he resided primarily in Long Island.  Gloria Palmer, his co-defendant and cousin who worked in the hotel industry, assisted him by providing discounted hotel rooms.  The women who worked for him were expected to refrain from engaging in relationships with men outside of their business, to have sex with Purcell, to report their activity and spending to him, and to give him the money they earned.  Purcell controlled nearly all aspects of their lives, and sometimes used threatening language and violence to enforce his rules. 

After procuring evidence from Facebook in part through the search warrants obtained in state court by the New York County District Attorney (“DANY”), the U.S. Attorney’s Office for the Southern District of New York charged Purcell on five counts related to interstate sex trafficking:  enticement to engage in unlawful sexual activity in violation of 18 U.S.C. §§ 2422(a) and 2 (Count One); transportation of individuals in interstate commerce to engage in prostitution, in violation of 18 U.S.C. §§ 2421(a) and 2 (Count Two); use of facilities of interstate commerce to promote unlawful activity, in violation of 18 U.S.C. §§ 1952(a)(3) and 2 (Count Three); conspiracy to use interstate commerce to promote unlawful activity, in violation of 18 U.S.C. § 371 (Count Four); and sex trafficking by force, fraud, and coercion, in violation of 18 U.S.C. §§ 1591(a)(1), (a)(2) and 2 (Count Five). 

The evidence relevant to his appeal related most specifically to four victims:  Marie Ann Wood (who provided testimony with respect to Count Five), Sharon Alwell (who provided testimony with respect to Count One), Samantha Vasquez (who did not testify at trial, but whose documentary evidence related to Counts One and Two), and Stephanie Alcantara (who provided testimony with respect to Count One).  The evidence is disturbing, and it is not hard to see why two prosecutors’ offices both conducted investigations into the defendants.

Marie Ann Wood:  Wood worked as a prostitute in California before relocating to New York City on her own in late 2012.  Soon after, Purcell contacted Wood on BackPage – a website Wood and others used to advertise prostitution – and tried to convince her to leave her pimp in California and worked for him.  At trial, she testified that she did not feel she had much of a choice in this matter; during their first meeting, she was alone in her hotel room with Purcell, and she knew no one else in the city.  She testified that she felt “obligated” to give Purcell the $800 in cash she had with her at the meeting.  She also testified that Purcell took her bags, said “let’s go,” and she followed him because she feared he might harm her if she disobeyed him.  They got into a car with two other women, where Purcell called the pimp in California to say Wood worked for Purcell now, and then made Wood change her phone number and took her phone.

After an evening at Purcell’s home in Hempstead, Long Island – where she was told to keep the door ajar while using the bathroom – the group drove to State College, Pennsylvania.  Wood testified that she drove for some of the trip, and tried to speed so that police officers would stop the car, and she could escape.  This did not happen.  After their arrival at a hotel in State College, Purcell set up “dates” for the women, and Wood was paid $150 and a $50 tip for her services.  Purcell took that money. 

The next morning, Wood finally had an opportunity to escape:  she received Purcell’s permission to retrieve her make-up bag from another room while calling potential dates.  Once in the room, she called her pimp in California and her sister to say she had been “taken” by Purcell.  When Purcell went to get pizza, Wood was able to grab her things from the adjacent room, and run out of the hotel barefoot in the cold.  A stranger drove her to the police.  Meanwhile, Purcell texted her: “Imma kill your fat nasty ass bitch you betta get away from my city.”

Before trial, the parties agreed that Wood’s initial statements at the police station were admissible as “excited utterances,” but that the government would not seek to introduce statements Wood made during her subsequent police interview (which likely would have deemed “testimonial” under the Confrontation Clause of the Sixth Amendment).  However, Purcell’s counsel questioned Wood about those statements on the stand.  In turn, the government presented testimony from the officer who interviewed her.

Sharon Alwell:  Alwell communicated with Purcell over the course of several weeks in 2016.  A single mother of two children, she lived in a small, shared apartment in Queens and sold toys at Coney Island to make money.  After she met Purcell through Tinder, they corresponded over the app and eventually by phone.  They spoke daily, and discussed his work; Alwell even heard him yelling at the women who were with him.  Purcell soon suggested that Alwell work for him as a prostitute and explained to her his rules; she eventually agreed to spend a weekend with him. 

Alwell testified that she decided she did not want to be a prostitute while at Purcell’s house in Hempstead, New York.  She did set up one date, but when Purcell drove her to the address, no one was there.  After that, Alwell stopped meeting with Purcell and did not engage in prostitution for him.

Samantha Vasquez:  Though she did not testify at trial, the government presented evidence (Facebook messages) that Vasquez worked as a prostitute for Purcell in 2016 and 2017.  For instance, the government presented messages between Purcell and Palmer, in which they discussed booking hotel rooms in New York, North Carolina, Virginia, and California for Vasquez. 

Stephanie Alcantara:  Alcantara was a detective in Charlotte, North Carolina, and had an undercover meeting with Purcell in July 2017.  She had contacted Purcell, showing an interest in working as a prostitute.  They met and he described his rules; he also asked her if she could travel for work, explaining that he lived in Las Vegas but travels “the world.” 

A jury convicted Purcell on all counts with respect to at least one victim.  He was sentenced to 216 months’ imprisonment, five years of supervised release, $138,250 in restitution, and a $500 mandatory special assessment.

The Warrants

Law enforcement had seized data from Purcell’s Facebook account – which was under the alias “Mike Hill” – and a related account, pursuant to warrants executed by DANY and the U.S. Attorney’s Office for the Southern District of New York.  The basis for the warrant applications included posts in which “Mike Hill” referred to himself as a pimp, and described “bitches” selling themselves for him. 

Before trial, Purcell challenged the first three warrants that were used to collect evidence from Facebook.  The first warrant, in August 2016, listed twenty-four aspects of the Facebook accounts to be searched and seized, including photos, metadata, chat history, etc.  DANY Senior Investigator Ariela DaSilva submitted an affidavit saying there was reasonable cause to believe the accounts contained evidence of a crime.  A New York state judge signed the warrant, but that warrant did not specify the suspected offense.  The warrant authorized Facebook to conduct the search and provide the NYPD with the results.  Facebook subsequently produced records for a limited time period, and refused to produce more.  A November 2016 warrant specified that there was reasonable cause to believe the account contained evidence of an offense not limited to prostitution.   In response to this warrant, Facebook turned over the same data it had turned over in response to the August 2016 warrant.

In September 2017, the DA’s office requested a third warrant, relying on subsequent posts by the target account showing recruitment efforts.  The warrant that issued was largely the same as the November 2016 warrant.  It did not, however, specify an offense.

Finally, in August 2018, Judge Denise Cote of the U.S. District Court for the Southern District of New York issued a search warrant for the “Mike Hill” Facebook account at the request of federal prosecutors.  Federal offenses were specified in the warrant. 

Prior to trial, the government disclaimed reliance on the August 2016 warrant, but maintained that the November 2016 warrant was constitutionally compliant.  It also conceded that the September 2017 warrant was facially defective because it did not specify an offense, but argued that the good-faith exception to the exclusionary rule nonetheless applied.  Purcell’s motion to suppress the evidence seized pursuant to the first three warrants was denied. 

On appeal, the Second Circuit agreed with the district court that the officers relying on those warrants did so in good faith – i.e., that to rely on the warrants was objectively reasonable.  “[T]he exclusion of evidence is inappropriate when the government acts ‘in objectively reasonable reliance’ on a search warrant, even when the warrant is subsequently invalidated.”  United States v. Ganias, 824 F.3d 199, 221 (2d Cir. 2016). 

The Court assumed, but did not decide, that the warrants were insufficiently particularized in violation of the Fourth Amendment.   Though the Court noted that the government had conceded that the September 2017 warrant was facially deficient because it failed to identify the specific offense for which probable cause existed, the officers reasonably relied on the warrant when they executed it.  In so holding, the Court also denied Purcell’s argument that the September 2017 warrant was overbroad because it authorized the search and seizure of essentially all of the data from the Facebook account.  Because the warrant specifically identified the kind of evidence subject to the seizure, it did not leave decisions over what kinds of data to seize to the officers executing the warrant.  Therefore, it was not a general warrant.  Indeed, the scope of the warrant was supported by probable cause – there was reason to believe that the suspected criminal activity spanned the entire account.

The unusual – or perhaps more modern – nature of the warrant also contributed to the application of the good-faith exception.  The warrants were not meant to function like a traditional warrant, where the government physically would have entered the Facebook premises to seize the records.  Rather, the warrants authorized Facebook to conduct the search, and then hand the results over to law enforcement.  Law enforcement’s subsequent review of those records was, at least according to the terms of the warrant, not part of the search, which occurred when Facebook received the warrant.  In that way, the warrants acted as a sort of “hybrid” warrant-and-subpoena:  like a warrant, it laid out the terms of a search and seizure, and was based on probable cause; but, like a subpoena, it directed a third party to provide the government with records specifically set forth in the warrant.  Indeed, according to the Court, this “hybrid” warrant-subpoena was less invasive than the traditional form of the warrant, pursuant to which law enforcement would have physically seized records or hard drives from the Facebook facilities. 

Due to the nature of this warrant, there was no need for the officers who executed the warrant by delivering it to Facebook, or the Facebook employees who handed over the data, to consult the specified offense (or here, with respect to the September 2017 warrant, lack thereof).  The Court concluded, therefore, that while its omission was constitutionally deficient, the specification of the offense in the September 2017 warrant was “functionally unnecessary.”  The “hybrid” warrant was not reliant on the offense; it was merely an “inadvertent error” to exclude the offense.  Accordingly, the Court concluded that the officers reasonably relied on the warrant.  In light of the reasonable behavior of the officers, the exclusionary rule would serve little deterrent purposes, and the good-faith exception to that rule applied.

The Court reached the same conclusion as to the November 2016 warrant, which did include a specified offense.

Sufficiency of the Evidence

On appeal, Purcell also challenged the sufficiency of the evidence as to (1) establishing venue in the Southern District of New York as required for Count One with respect to any of the victims, (2) establishing persuasion as required for Count One with respect to Vasquez, (3) establishing that Purcell transported Vasquez in interstate commerce as required for Count Two, and (4), establishing coercion of Wood as required for Count Five. 

The Court, reviewing the sufficiency of the evidence de novo, agreed with Purcell that the government had failed to establish venue as required for Count One.  It otherwise affirmed his convictions. 

Purcell was convicted by the jury – using a special verdict form – on Count One of enticing Alwell, Vasquez, and Alcantara to engage in unlawful sexual activity in violation of 18 U.S.C. §§ 2422(a) and 2.  Therefore, if there was sufficient evidence of venue as to even one of the victims, the conviction needed to be affirmed.  However, the Court determined that the government had not presented sufficient evidence of venue as to any of the victims.

“Both the Sixth Amendment and Federal Rule of Criminal Procedure 18 require that defendants be tried in the district where their crime was ‘committed.’”  United States v. Ramirez, 420 F.3d 134, 138 (2d Cir. 2005).  Therefore, the government has the burden to establish venue as to each charge by a preponderance of the evidence.  United States v. Tzolov, 642 F.3d 314, 318 (2d Cir. 2011).  When faced with a challenge to the sufficiency of the evidence establishing venue, the Second Circuit first identifies the conduct constituting the offense, and then determines the location of where those criminal acts took place.  See United States v. Davis, 689 F.3d 179, 185 (2d Cir. 2012).  There is not necessarily only one proper venue. 

Here, the Court concluded that Purcell’s act of enticement of each victim and then the victim’s interstate travel constituted conduct essential to the offense.  However, the inference that any of these acts took place in the Southern District of New York – rather than the Eastern District of New York or elsewhere – was too speculative to allow a jury to find venue by a preponderance of the evidence. 

For instance, the evidence showed that Purcell called Alwell, who lived in Rockaway, Queens and worked in Coney Island, Brooklyn (both in the Eastern District) while he was driving.  But there was no evidence he was driving in the Southern District at that time.  The Court was unpersuaded that his journey would have necessarily entailed passing through the Southern District, and instead noted that evidence such as cell-phone records of the call would be necessary to support such an inference.  Indeed, those records would also have had to show that Purcell called Alwell precisely when passing through the Southern District, however brief that passage might have been. 

The Court reached the same conclusion for the other victims.  The government at trial submitted hotel receipts, Facebook messages, and advertisements showing that Vasquez worked as a prostitute throughout the country.  None of those pieces of evidence were tied to the Southern District.  The government argued it was proper for the jury to infer that she travelled in the Southern District in connection with prostitution based only on evidence that she was in the Eastern District in November 2016, and in Virginia and California in December 2016.  The Court disagreed, concluding that this inference required “guesswork.”  The Court therefore held that evidence that she worked in the Eastern District was insufficient for a reasonable jury to conclude by a preponderance of the evidence that Purcell committed conduct essential to the offense in the Southern District.

With respect to Alcantara, the only evidence that Purcell committed crimes in the Southern District appeared to be that, in North Carolina, he intimated that she perform sex work for him “on the East Coast.”  But this, too, was speculative.  The Court also determined that any trip through the Southern District that Purcell took to meet Alwell in Long Island for their weekend together or to meet Alcantara in North Carolina was – even assuming that act was based on evidence and note pure speculation – merely preparatory to the offense, not part of the offense. 

For those reasons, the Court concluded that “no reasonable jury could find, based on a preponderance of the evidence presented at trial, that Purcell committed within the Southern District of New York any conduct essential to the offense of enticing any of the victims named in Count One to engage in prostitution, nor that any of the victims engaged in sex work or interstate travel for purposes of prostitution in that district . . . as a result of Purcell’s enticements.”  The Court therefore reversed the conviction, and remanded the case for dismissal of the charge and resentencing on the remaining counts.

The Court rejected Purcell’s other challenge to the sufficiency of the evidence establishing that Purcell knowingly transported Vasquez as required for Count Two, because Facebook messages showed that Purcell and Palmer coordinated the hotel accommodations for Vasquez in Brooklyn, Raleigh, Virginia Beach, San Jose, Phoenix, and Irvine.  The successive dates of the accommodations suggested that Purcell required Vasquez to travel between those locations.  Moreover, there was evidence Purcell went with her to some of the locations because he booked his own hotels rooms.  The Court concluded that arranging the accommodations was “tantamount” to facilitating travel, and therefore there was sufficient evidence to sustain the conviction.

The Court also rejected Purcell’s argument that the government had failed to establish sufficient evidence that he coerced Wood, as required for Count Five.  When sex trafficking is “effected by means of force, threats of force, fraud, or coercion,” the conviction carries a mandatory minimum sentence of fifteen years.  18 U.S.C. §1591.  The Court noted that Wood’s testimony demonstrated that she was genuinely fearful of Purcell, and she testified that she believed Purcell would have harmed her if she did not comply with his commands.  Indeed, testimony about her “dramatic exit,” as the Court described – where she ran barefoot from the hotel to a stranger for help – was sufficient for a reasonable jury to conclude that Wood engaged in the prostitution out of fear that she would otherwise be harmed.  Purcell’s rules, constant oversight, and general intimidating behavior also provided evidence allowing a reasonable jury to conclude that Purcell used coercion. 

Additional Arguments

Purcell argued that Count Five should be vacated and remanded because the district court erroneously permitted the officer who interviewed Wood at the police station testify.  The Court reviewed this challenged for plain error, since Purcell’s counsel did not object to the testimony at trial.  Specifically, Purcell argued on appeal that the government breached its pretrial agreement in which the parties decided that Wood’s initial statements to police would be admitted as excited utterances, but that the rest of the interview would not be introduced at trial.  While the Court noted that pretrial agreements not to introduce otherwise admissible evidence are generally enforceable, here, it was not clear that the government breached that promise.  It was Purcell’s counsel who cross-examined Wood about her police interview, and it would have been reasonable for the government to understand, since Purcell’s counsel opened the door, it could be put on testimony to respond to that cross-examination without breaking the agreement.  The Court stated that this was the most logical reading of the agreement and, in any case, it was certainly not “clear and obvious” error for the district court to permit the testimony.   Nor was the testimony inadmissible hearsay because it was a prior consistent statement that was permissibly used to rehabilitate a witness’s testimony.

Finally, the Court rejected Purcell’s Confrontation Clause argument because Wood testified at trial, and so Purcell had a full opportunity to confront her.


Judge Lynch’s exploration of issues involving “hybrid” warrants is useful since, as technology proliferates, these warrants – in which a third-party is directed to hand over data or documents to the government like they may respond to a subpoena – may soon become the norm.   Indeed, in the midst of a global pandemic, these hybrid warrants may provide safety and distance in situations where the government might once have entered premises.  And much of our data is stored electronically, so producing that data electronically may be more efficient and convenient for all parties who are involved.  We have seen Judge Lynch address issues involving technology and criminal procedure before and his decisions have worked to apply these venerable doctrines to the modern context that was unforeseen by the authors of the Bill of Rights.[1]

Of more note, however, is the Court’s holding regarding venue.[2]  The seemingly simple requirement may be more ripe for a challenge than some defendants may initially recognize.  Here, for instance, a New Yorker might have thought – been certain, even – that a trip through Manhattan would be necessary to some of Purcell’s and his victims’ travels.  Such a trip would have involved traveling over or through “the waters within the Eastern District,” which are technically part of the Southern District.  See 28 U.S.C. § 112(b).  But as the Court observed, that inference must be drawn from the evidence, and mere guesswork is insufficient.  Time will tell if this decision is an inflection point that will lead the Court to take a stricter approach to venue.[3]  Litigants, judges, and even the government, should take careful note of the evidence related to venue, and not assume it is met in every case brought confidently by the government.

By Maggie O’Neil and Harry Sandick

[1] We have discussed some of these decisions in our prior blog posts;;

[2] Many years ago, while in private practice, Judge Lynch won a reversal of a conviction for mail fraud based on venue grounds.  See United States v. Brennan, 183 F.3d 139 (2d Cir. 1999) (interpreting the mail fraud venue statute, 18 U.S.C. § 3237(a)).

[3] In 2018, Judge Chin dissented from a decision approving a venue claim by the government that struck him as being based on speculation.