Crime Complete at Recruitment: Tenth Circuit Clarifies § 1591 Does Not Require a Completed Commercial Sex Act and Reaffirms Circumstantial Proof of Actual Possession

Introduction

In United States v. Thomas, No. 24-5131 (10th Cir. Oct. 22, 2025), the Tenth Circuit affirmed a jury verdict convicting Byron Cordell Thomas of two counts of sex trafficking, in violation of 18 U.S.C. § 1591, and one count of being a felon in possession of a firearm. The appeal raised classic sufficiency-of-the-evidence challenges but sharpened into a focused statutory question about the elements of § 1591: must the government prove that force, threats, fraud, or coercion were actually used to cause the victim to perform a commercial sex act, or is it sufficient to show that the defendant recruited the victim while knowing or recklessly disregarding that such means would be used to cause future commercial sex acts?

The panel—Judges McHugh, Moritz, and Carson—held that the statute requires proof of the defendant’s act (e.g., recruiting or enticing) combined with a culpable mental state concerning the intended use of prohibited means to cause commercial sex, not proof that a commercial sex act actually occurred. As to the gun charge, the court reiterated that actual possession can be proved via circumstantial evidence, including reasonable inferences drawn from a suspect’s flight.

Although issued as an unpublished order and judgment, and therefore not binding precedent except under law-of-the-case, res judicata, and collateral estoppel, the decision can be cited for its persuasive value and aligns the Tenth Circuit’s reading of § 1591 with the Seventh and Fourth Circuits’ interpretation.

Summary of the Opinion

The court reviewed the denial of the defendant’s Rule 29 motion de novo, applying the highly deferential standard that views the trial evidence and reasonable inferences in the light most favorable to the government and refrains from reweighing credibility. Under that standard:

Sex trafficking convictions: The panel rejected the defendant’s interpretation of § 1591 as requiring proof that force, fraud, or coercion was actually “used to cause” a person to perform a commercial sex act. Instead, relying on the statutory text and sister-circuit authority, the court held that the crime is complete when the defendant recruits, entices, or solicits a person while knowing or recklessly disregarding that prohibited means will be used to cause the person to engage in commercial sex acts in the future. The jury could rationally find that Mr. Thomas recruited two victims, C.T. and M.N., with knowledge that he would use both financial coercion (serious financial harm if they stopped) and physical force to keep them in prostitution.
Felon-in-possession conviction: The evidence sufficed to show actual possession immediately before arrest where the defendant fled, “ducked behind” a staircase, an officer heard a “clank” consistent with a firearm striking the ground, and a handgun was recovered at the base of the stairs. The lack of direct eyewitness testimony of the gun in the defendant’s hands and the absence of forensic evidence (fingerprints/DNA) did not defeat the verdict because possession can be proven circumstantially.

The court affirmed the district court’s judgment in all respects relevant to the appeal.

Analysis

Precedents Cited and Their Influence

United States v. Spradley, 146 F.4th 949, 963 (10th Cir. 2025): Cited for the standard of review. Denials of motions for judgment of acquittal are reviewed de novo, but the appellate court applies the familiar sufficiency-of-the-evidence lens that is highly deferential to the jury’s verdicts.
United States v. Thompson, 133 F.4th 1094, 1100 (10th Cir.), cert. denied, No. 25-5407, 2025 WL 2824514 (U.S. Oct. 6, 2025): Reiterated that courts view the evidence in the light most favorable to the government, do not resolve conflicts in evidence, and do not reweigh witness credibility. Reversal is warranted only if no rational juror could find guilt beyond a reasonable doubt.
United States v. Wearing, 865 F.3d 553, 556 (7th Cir. 2017): Emphasized that § 1591’s mental-state requirement targets the defendant’s plan for the victim at the time of recruitment, and the offense is complete once the defendant recruits with knowledge that force, threats, fraud, or coercion will be used to cause commercial sex acts.
United States v. Maynes, 880 F.3d 110, 114 (4th Cir. 2018): Held that § 1591 does not require proof that a commercial sex act actually occurred, collecting similar authorities. The Tenth Circuit expressly adopted this reading as persuasive.
United States v. Morales, 758 F.3d 1232, 1235–36 (10th Cir. 2014): Distinguished actual from constructive possession and approved reliance on circumstantial evidence to show actual possession, including recovery of a firearm along a defendant’s flight path. Thomas’s felon-in-possession affirmance closely tracks Morales.

Together, these precedents shaped the Tenth Circuit’s methodology: strong deference to jury verdicts, a text-forward understanding of § 1591 anchored by sister-circuit reasoning, and an evidentiary approach that treats circumstantial and direct evidence as equally valid in proving possession.

Legal Reasoning

1) The text and structure of § 1591

Section 1591(a) criminalizes, among other acts, recruiting, enticing, or soliciting a person “knowing, or in reckless disregard of the fact, that means of force, threats of force, fraud, [or] coercion … will be used to cause the person to engage in a commercial sex act.” The panel emphasized two features:

Actus reus: recruitment, enticement, solicitation, etc.
Mens rea: knowledge or reckless disregard that prohibited means “will be used to cause” commercial sex acts in the future.

By its forward-looking phrasing (“will be used to cause”), the statute is concerned with the defendant’s intent and plan at the point of recruitment, not with the ultimate occurrence of a commercial sex act. Adopting Wearing and Maynes, the panel concluded that proof of actual completion of a commercial sex act is not an element.

2) “Coercion” and “serious harm” within § 1591

The statute defines “coercion” to include “threats of serious harm” or “any scheme, plan, or pattern intended to cause a person to believe that failure to perform an act would result in serious harm.” 18 U.S.C. § 1591(e)(2). “Serious harm” includes nonphysical harms—“psychological, financial, or reputational”—that, under all the circumstances, would compel a reasonable person in the victim’s position to comply. § 1591(e)(5).

Applying these definitions, the court held the evidence permitted a rational inference that Thomas engineered financial dependency and wielded physical violence as part of a plan to maintain the victims’ participation in prostitution:

Financial coercion: C.T. and M.N. worked in Thomas’s operation yet had no money of their own and relied entirely on him for needs and wants. An expert testified that Thomas intended to manipulate women to the point they looked to him “for everything” (Suppl. R. vol. 1 at 501). C.T. testified that quitting would leave her with no money; M.N. feared that if Thomas “wasn’t there, then the money might not be there” (id. at 243). This supports a finding that Thomas used, or planned to use, serious financial harm to cause continued commercial sex acts.
Physical force: C.T. stated Thomas “put his hands on” her when he heard her discuss leaving (id. at 137). Another witness testified M.N. feared he would hurt her “if she tried to leave” (id. at 168). A jury could infer Thomas intended to use violence to prevent exit from the operation.

The defense’s attempt to recharacterize the assaults as unrelated “domestic violence” presented, at most, a competing inference. Under Thompson’s framework, the appellate court does not choose between permissible interpretations where the jury’s choice is rational.

3) Sufficiency of the evidence for felon-in-possession

The panel reaffirmed Morales’s approach to actual possession: it may be proven through circumstantial evidence. Here, when officers approached Thomas in a hotel parking lot, he fled, “ducked behind” an exterior staircase, and an officer heard a “clank” consistent with a gun hitting the ground (Suppl. R. vol. 1 at 93). Police then found a handgun at the base of those stairs. From this sequence, a rational juror could infer Thomas had direct physical control and discarded the gun during flight. The absence of an eyewitness observing the gun in his hands and lack of forensic tie-in did not mandate acquittal.

Impact and Practical Consequences

On sex-trafficking prosecutions under § 1591

No need to prove a completed commercial sex act: This opinion confirms—consistent with Wearing and Maynes—that the offense is complete upon recruitment with the requisite mens rea. Prosecutors can proceed where the evidence shows a defendant’s plan to use force, threats, fraud, or coercion to cause future commercial sex acts, even if law enforcement intervenes before any act occurs.
Recognition of economic coercion: By highlighting financial dependency as “serious harm,” the opinion underscores that nonphysical coercion can satisfy § 1591, provided the harm is sufficiently serious to compel a reasonable person in the victim’s circumstances.
Role of expert testimony: The panel’s reliance on an expert’s interpretation of manipulation patterns affirms the value of expert context in explaining trafficking dynamics to juries.

On evidentiary strategies and defenses

Recasting assaults as unrelated domestic violence may not succeed where the jury can reasonably infer that force serves the trafficking scheme. Appellate courts will not reweigh such inferences.
Forensic “gaps” do not doom a felon-in-possession case where temporal-spatial evidence and reasonable inferences (flight, audible metallic impact, immediate recovery along the flight path) support actual possession.

On future Tenth Circuit practice

While unpublished and therefore nonprecedential, Thomas has persuasive value that aligns the Tenth Circuit with sister circuits on the “recruitment-mens-rea” reading of § 1591. Parties can expect district courts to instruct juries consistent with the view that the government need not prove an actual commercial sex act, focusing instead on the defendant’s knowledge or reckless disregard at the time of recruitment or enticement.
The decision reinforces a consistent sufficiency review posture: circumstantial evidence carries the same weight as direct evidence, and credibility disputes are for juries.

Complex Concepts Simplified

Sufficiency-of-the-evidence review: On appeal, the question is not whether the judges themselves are convinced of guilt, but whether any rational juror could have found the elements beyond a reasonable doubt, viewing the evidence favorably to the verdict.
§ 1591’s mental state: The statute punishes recruiting (or similar acts) done “knowing” or in “reckless disregard” that unlawful means “will be used” to cause commercial sex. “Knowing” means actual awareness; “reckless disregard” means consciously ignoring a substantial risk that prohibited means will be used.
Coercion and serious harm: Coercion includes threats or schemes that make a person believe that not complying will result in serious harm. Serious harm isn’t limited to physical injury; it includes psychological, financial, or reputational harm serious enough that a reasonable person in the victim’s circumstances would comply to avoid it.
Actual vs. constructive possession (firearms): Actual possession is direct physical control over the firearm at a given time. Constructive possession exists when someone has the power and intent to control the gun, even if not physically holding it. Either form can support a felon-in-possession conviction, and either can be proven with circumstantial evidence.
Nonprecedential but persuasive: An unpublished order and judgment in the Tenth Circuit is not binding precedent (except under law-of-the-case, res judicata, or collateral estoppel), but it may be cited for persuasive value under Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.

Conclusion

United States v. Thomas delivers two important clarifications. First, in line with the Seventh and Fourth Circuits, the Tenth Circuit confirms that § 1591 focuses on the defendant’s mental state at the time of recruitment—knowledge or reckless disregard that force, threats, fraud, or coercion will be used to cause commercial sex acts—rather than requiring proof that a commercial sex act actually occurred. This reading also underscores the statutory embrace of nonphysical “serious harm,” including economic coercion, as a qualifying means of trafficking.

Second, the court reaffirms that actual possession of a firearm can be proven through circumstantial evidence, such as inferences drawn from flight, contemporaneous sounds consistent with a discarded gun, and immediate recovery along the flight path, without the necessity of direct observation or forensic linkage.

Although nonprecedential, Thomas is a significant and coherent application of statutory text and evidentiary principles. It will be persuasive for district courts and practitioners in the Tenth Circuit evaluating § 1591 charges and analyzing possession evidence, and it strengthens the growing inter-circuit consensus on the elements of federal sex trafficking.