United States v. Percy Love, III

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 21, 2018
• Docket: 16-10066
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION NOV 21 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 16-10066

Plaintiff-Appellee, D.C. No. 2:13-cr-00306-TLN-1 v.

PERCY LOVE III, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of California Troy L. Nunley, District Judge, Presiding

Argued and Submitted November 14, 2018 San Francisco, California

Before: SCHROEDER and WATFORD, Circuit Judges, and EZRA,** District Judge.

Percy Love appeals his jury conviction and sentence for sex trafficking by

force, fraud, or coercion, and for sex trafficking a child, in violation of 18 U.S.C.

§ 1591(a)(1). Love argues that the district court (1) violated his public-trial rights

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable David A. Ezra, United States District Judge for the District of Hawaii, sitting by designation. by excluding his mother and sister from the courtroom; (2) insufficiently defined

force and fraud for the jury; (3) improperly instructed the jury on the standard for

Count Two; (4) permitted improper argument from the government in closing; and

(5) inflated his sentence. For the reasons explained below, we affirm.

The district court did not err when it excluded Love’s mother and sister from

the courtroom after they testified because both women could potentially have been

recalled as rebuttal witnesses. Their exclusion was therefore proper under the Rule

615 witness-sequestration order that Love had requested. See Fed. R. Evid. 615

(“At the request of a party the court shall order witnesses excluded so that they

cannot hear other witnesses’ testimony”); see also United States v. Ell, 718 F.2d

291, 293 (9th Cir. 1983) (explaining Rule 615 sequestration orders still apply after

a witness finishes testifying). Rule 615 sequestrations do not violate the Sixth

Amendment’s public-trial guarantees. See United States v. Sherlock, 962 F.2d

1349, 1356 (9th Cir. 1989) (“The right to a public trial [] is not absolute and must

give way . . . to other interests essential to the fair administration of justice”)

(citations omitted).

Not one of Love’s jury instruction challenges warrants reversal. Because 18

U.S.C. § 1591 does not define force or fraud, the district court properly instructed

the jury to use the ordinary meaning of both terms. See United States v. Smith, 719

2 F.3d 1120, 1125 n.6 (9th Cir. 2013) (citing In re Roman Catholic Archbishop of

Portland in Or., 661 F.3d 417, 432 (9th Cir. 2011)). Further, given the

overwhelming evidence that Love used brute force against his victims, no

reasonable juror would have been confused as to whether Love’s conduct meets the

ordinary definition of “force.” See id. at 1125 (concluding plain definition of

“force” is “violence or such threat or display of physical aggression toward a

person as reasonably inspires fear of pain, bodily harm, or death . . .”) (quoting

Webster’s Third New International Dictionary, 887, 904 (2002)).

Nor was it error to decline Love’s request for a unanimity instruction on

Count Two. Because the evidence on Count Two pertained to an isolated and

physical attack, there is no genuine possibility that Love was convicted on Count

Two because different jurors concluded that he committed different acts. See

United States v. Mickey, 897 F.3d 1173, 1182 (9th Cir. 2018) (affirming denial of

specific unanimity instruction on § 1591(a) charge).

Third, the district court did not plainly err when it instructed the jury on

Count Two using § 1591’s 2008 definition of “serious harm,” which included

threats of nonphysical harm, rather than the definition in effect when Love

committed the charged acts. Even if erroneous, the district court’s definition

caused no prejudice because the evidence on Count Two pertained to unequivocal

3 physical harm: The evidence showed Love repeatedly punched F.W. and threw her

against a wall.

Love has not shown reversible error based on the prosecutor’s statement in

closing that Love is the kind of person that has sex with a 14-year old. Because

Love did not object below, reversal is warranted only if the prosecutor’s comment

“so infected the trial with unfairness as to make the resulting conviction a denial of

due process.” See Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting

Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)). Here, viewed in context,

the prosecutor’s statement neither undermined the fundamental fairness of the trial

nor contributed to a miscarriage of justice.

Finally, the district court did not err at sentencing by applying both U.S.S.G.

§ 4B1.5(b)(1)’s sentencing enhancement and § 4B1.1’s career offender guideline

because applying § 4B1.1 would not have changed Love’s offense level or criminal

history category.

AFFIRMED.