United States v. Dondell Cyrus Davidson

• Court: Court of Appeals for the Eleventh Circuit
• Decided: February 5, 2020
• Docket: 19-10681
• Status: Unpublished

Opinion

Case: 19-10681 Date Filed: 02/05/2020 Page: 1 of 5

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-10681 Non-Argument Calendar ________________________

D.C. Docket No. 2:18-cr-14006-KAM-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

DONDELL CYRUS DAVIDSON,

Defendant-Appellant.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(February 4, 2020)

Before ROSENBAUM, BLACK and MARCUS, Circuit Judges.

PER CURIAM: Case: 19-10681 Date Filed: 02/05/2020 Page: 2 of 5

Dondell Davidson appeals his convictions for enticing a minor to engage in

sexually explicit conduct for the purpose of producing a visual depiction of such

conduct, in violation of 18 U.S.C. § 2251(a) and (e) (Count One), and committing

a felony offense involving a minor while being required to register as a sex

offender, in violation of 18 U.S.C. § 2260A (Count Two). He asserts the district

court erred in denying his motion to sever the two counts because his status as a

registered sex offender was only relevant to Count Two and was highly prejudicial

as to Count One. Davidson contends severing the claims would not have resulted

in delay or impairment and the district court did not cure the prejudice through its

limiting jury instruction. After review,1 we affirm the district court.

Where the union of offenses in an indictment, an information, or a

consolidation for trial appears to prejudice a defendant or the government, either

party may file a motion for severance, by which the district court “may order

separate trials of counts . . . or provide any other relief that justice requires.” Fed.

R. Crim. P. 14(a). Rule 14 “requires a trial court to balance the rights of the

defendants and the government to a trial that is free from the prejudice that may

result from joint trials against the public’s interest in efficient and economic

administration of justice.” United States v. Novaton, 271 F.3d 968, 989 (11th Cir.

2001) (quotations omitted). “In order to justify reversal of a [d]istrict [c]ourt’s

1 We review the denial of a motion to sever for an abuse of discretion. United States v. Slaughter, 708 F.3d 1208, 1213 (11th Cir. 2013). 2 Case: 19-10681 Date Filed: 02/05/2020 Page: 3 of 5

denial of a motion to sever, the appellant must demonstrate that he received an

unfair trial and suffered compelling prejudice. This is a heavy burden, and one

which mere conclusory allegations cannot carry.” United States v. Slaughter, 708

F.3d 1208, 1213 (11th Cir. 2013) (quotations omitted). “Severance is not required

when the possible prejudice may be cured by a cautionary instruction.” Id.

(quotations omitted). We must assess, by considering all of the specific

circumstances in the instant case, whether “it is within the capacity of jurors to

follow a court’s limiting instructions and appraise the independent evidence

against a defendant solely on that defendant’s own . . . conduct in relation to the

allegations contained in the indictment and render a fair and impartial verdict.”

United States v. Hersh, 297 F.3d 1233, 1243 (11th Cir. 2002) (quotations

omitted).

Davidson cannot satisfy his burden of showing he received an unfair trial

and suffered compelling prejudice from the denial of his motion to sever. 2 See

Slaughter, 708 F.3d at 1213. First, the district court provided jury instructions that

specifically instructed the jury to only consider the stipulation that he was a

registered sex offender with respect to Count Two. This Court assumes, unless

presented with other evidence, that a jury follows instructions. See United States v. 2 Davidson does not contest the two charges against him were properly joined. As a result, Davidson had abandoned any argument there was improper joinder. See United States v. Jernigan, 341 F.3d 1273, 1283 n.8 (11th Cir. 2003) (stating to raise a claim or issue on appeal, a defendant must plainly and prominently address the matter in his appellate brief, or else it is abandoned). 3 Case: 19-10681 Date Filed: 02/05/2020 Page: 4 of 5

Walser, 3 F.3d 380, 387 (11th Cir. 1993). Davidson has provided no evidence to

the contrary. Second, contrary to Davidson’s contention, the sex offender

registration documents were relevant to Count One to establish that the phone

number associated with the messages sent to A.J. belonged to Davidson, as it was

the same phone number listed on his registration. Third, the district court properly

weighed the level of prejudice, the efficiency of bifurcation, and the ability to

remedy any possible prejudice. See Novaton, 271 F.3d at 989. The district court,

in its discretion, determined that, by disclosing Davidson’s status as a sex offender

as part of voir dire in order to “flush out any jurors who [were] going to be biased

or prejudiced or unable to presume him not guilty,” and by allowing a special

curative instruction, the court could limit the possible prejudice. Davidson has not

shown the district court abused its discretion in making that determination.

Additionally, the facts here are similar to those in Slaughter. There, we

determined the district court did not abuse its discretion in denying the

defendant’s motion to sever two charged counts where the defendant was charged

with use of the internet to entice a minor to engage in sexual activity, in violation

of 18 U.S.C. § 2422(b) (Count One), and commission of a felony involving a

minor while being required to register as a sex offender, in violation of 18 U.S.C.

§ 2260A (Count Two). 708 F.3d at 1210-11, 1213-14. The only additional

evidence provided with respect to Count Two was the defendant’s stipulation he

4 Case: 19-10681 Date Filed: 02/05/2020 Page: 5 of 5

was required to register as a sex offender when he committed the enticement

offense in Count One. Id. at 1213. The district court read a limiting instruction,

written by the defendant and accepted by the district court as written, about the

use of the stipulation. Id. We noted “the jury had already heard substantial,

sexually explicit evidence that [the defendant] intended to engage in sexual

activity with two underage girls, and carried out plans to meet them at a hotel

room.” Id. As a result, any additional prejudice the defendant suffered through

the introduction of his stipulation was not compelling enough to establish he

received an unfair trial, given the evidence already presented to the jury. Id.

Similarly, the jury heard substantial evidence detailing Davidson’s request

for sexually explicit videos and images from a minor. The jury also heard

testimony relating to his messages asking A.J. when they could perform sexually

explicit acts together, even after Davidson learned that A.J. was underage. While

Davidson argues that Slaughter was wrongly decided, we are bound to apply

Slaughter unless it is overruled by this Court, sitting en banc, or by the Supreme

Court. See United States v. Kaley, 579 F.3d 1246, 1255 (11th Cir. 2009).

Accordingly, we affirm Davidson’s convictions.

AFFIRMED.