United States v. Davon Smith

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 9, 2024
• Docket: 22-30007
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 9 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 22-30007

Plaintiff-Appellee, D.C. Nos. 3:19-cr-00056-JMK-MMS-1 v. 3:19-cr-00056-JMK-MMS

DAVON LYNN SMITH, AKA Drizzy, MEMORANDUM* Defendant-Appellant.

Appeal from the United States District Court for the District of Alaska Joshua M. Kindred, District Judge, Presiding

Argued and Submitted March 27, 2024 Seattle, Washington

Before: WARDLAW, W. FLETCHER, and MILLER, Circuit Judges.

Following a jury trial, Davon Smith was convicted of (1) possession of

heroin with intent to distribute, in violation of 21 U.S.C. § 841(a)(1); (2) sex

trafficking a minor, in violation of 18 U.S.C. § 1591(a)(1); (3) participation in a

sex trafficking venture, in violation of 18 U.S.C. § 1591(a)(2); and (4) sex

trafficking by force, fraud, or coercion, in violation of 18 U.S.C. § 1591(a)(1).

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Smith was sentenced to concurrent terms of 264 months of imprisonment on each

count. He appeals his convictions on Counts 2, 3, and 4, and his sentence on Count

1. We have jurisdiction under 28 U.S.C. § 1291. We affirm Smith’s convictions,

and we vacate and remand for resentencing as to Count 1.

We “review de novo whether a district court’s evidentiary rulings violated a

defendant’s constitutional rights.” United States v. Haines, 918 F.3d 694, 697 (9th

Cir. 2019). We review the admission of expert testimony and the exclusion of

evidence under a hearsay exception for abuse of discretion. United States v.

Johnson, 875 F.3d 1265, 1280 (9th Cir. 2017) (expert testimony); United States v.

Stinson, 647 F.3d 1196, 1210 (9th Cir. 2011) (hearsay exception). When a

defendant challenges a district court’s “limitation on the scope of questioning

within a given area” during cross-examination, we review that limitation for abuse

of discretion. United States v. Larson, 495 F.3d 1094, 1101 (9th Cir. 2007).

Unpreserved sentencing challenges are reviewed for plain error. United States v.

Grimaldo, 993 F.3d 1077, 1081 (9th Cir. 2021).

1. Because “evidence of a trafficking victim’s pre- or post-indictment

involvement in prostitution implicates her ‘other sexual behavior’ or ‘sexual

predisposition,’” the district court did not err when it excluded evidence of P.C.’s

prior commercial sex work under Federal Rule of Evidence 412. Haines, 918 F.3d

at 697 (quoting Fed. R. Evid. 412). Smith asserts that P.C.’s earlier commercial sex

2 work without a trafficker was relevant because it suggested that she was continuing

in a pattern of engaging in such work without being trafficked. But “evidence of

other prostitution activity has little or no relevance.” Id. “[J]ust because a victim

agreed to engage in sex for money on other occasions does not mean she

consented” to a defendant’s coercive acts, which here included Smith striking P.C.,

setting daily earnings requirements, and confiscating those earnings. Id. at 697–98.

Therefore, the district court’s exclusion of evidence of P.C.’s prior commercial sex

work did not violate Smith’s constitutional rights. Id. at 697–99.

2. Smith’s opening brief contains no record citations substantiating

his claim that the district court excluded evidence about P.C.’s relationship with

her ex-boyfriend Miles. See Fed. R. App. P. 28(a)(8)(A) (“The appellant’s brief

must contain . . . appellant’s contentions and the reasons for them, with citations to

the authorities and parts of the record on which the appellant relies.”); Sekiya v.

Gates, 508 F.3d 1198, 1200 (9th Cir. 2007) (per curiam). Therefore, we decline to

address that claim. See United States v. Williamson, 439 F.3d 1125, 1137–38 (9th

Cir. 2006).

3. Contrary to Smith’s assertions, the district court did not prevent Smith’s

counsel from cross-examining P.C. about a potential mandatory minimum

sentence. Although the court did prohibit Smith’s counsel from “simply press[ing]

‘play’” and “play[ing] the entirety of [P.C.’s] interview” with FBI agents, the court

3 stated that the “subject matter itself” of the interview was fair game on cross-

examination. This included agents’ discussion with P.C. about mandatory

minimum sentences. Smith is therefore wrong to say that the district court “kept

the jury from knowing” about the discussion of mandatory minimums.

4. Because FBI Agent Hardie’s expert testimony was neither unduly

prejudicial nor unreliable, the district court did not abuse its discretion by

admitting it. Smith argues that Agent Hardie’s testimony was “overly prejudicial”

and “glaringly incomplete” because it (1) omitted discussion of P.C.’s immunity

agreement, (2) did not “fit” the facts of the case, and (3) preceded P.C.’s and

M.R.’s testimony. But Smith concedes that Agent Hardie did not testify about

P.C.’s immunity agreement because Smith’s counsel never cross-examined him

about it. Agent Hardie’s testimony was both relevant to and closely aligned with

evidence presented in the case, particularly evidence of sex trafficking’s

psychological effects, dynamics, and terminology. See United States v. Taylor, 239

F.3d 994, 998 (9th Cir. 2001); United States v. Brooks, 610 F.3d 1186, 1196 (9th

Cir. 2010). And although it was presented prior to P.C.’s and M.R.’s testimony, we

have never held that an expert witness and victims must testify in a particular

order.

5. Despite Smith’s assertions, the district court never excluded select text

messages that Smith sent to P.C. as hearsay because Smith’s counsel did not seek

4 to introduce these messages for the truth of the matter asserted. We therefore

decline to address Smith’s argument about the district court’s supposed application

of the hearsay rule.

6. The district court did not abuse its direction when it applied United States

v. Castillo to bar Smith from cross-examining M.R. about an unrelated incident in

which M.R. misrepresented her age. 181 F.3d 1129 (9th Cir. 1999). Although

M.R.’s age was relevant to Count 3, multiple witnesses had already testified that

M.R. misrepresented her age. Thus, M.R.’s testimony about this incident would not

have been “central to the core issues of the trial,” United States v. Kincaid-

Chauncey, 556 F.3d 923, 932–33 (9th Cir. 2009), abrogated on other grounds by

Skilling v. United States, 561 U.S. 358 (2010), such that it could have overcome

the general rule against “extrinsic evidence . . . admitted to impeach testimony

invited by questions posed during cross-examination,” Castillo, 181 F.3d at 1133.

7. The statutory maximum sentence for Count 1 is 20 years of imprisonment.

21 U.S.C. § 841(b)(1)(C). Although Smith did not object to his 22-year sentence

on that count, we have held that a sentence that exceeds the statutory maximum

constitutes plain error and “violates a defendant’s substantial rights even if it runs

concurrent with an equal or longer, valid sentence.” United States v. Lillard, 57

F.4th 729, 736–37 (9th Cir. 2023). We therefore vacate the sentence on Count 1

and remand for resentencing on that count.

5 AFFIRMED, VACATED in part, and REMANDED in part.