United States v. Robert Powell

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 15, 2018
• Docket: 16-30253
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 15 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, Nos. 16-30253 17-30012 Plaintiff-Appellee, D.C. No. v. 2:15-cr-00244-RAJ-1

ROBERT RYAN POWELL, MEMORANDUM* Defendant-Appellant.

Appeal from the United States District Court for the Western District of Washington Richard A. Jones, District Judge, Presiding

Argued and Submitted June 4, 2018 Seattle, Washington

Before: BYBEE and N.R. SMITH, Circuit Judges, and ANTOON,** District Judge.

Defendant Robert Ryan Powell appeals his convictions on two counts of

transporting a juvenile with intent to engage in prostitution under 18 U.S.C.

§ 2423(a) and one count of sex trafficking by force, fraud, or coercion under 18

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable John Antoon II, United States District Judge for the Middle District of Florida, sitting by designation. U.S.C. § 1591(a)(1). We affirm.

1. Powell waived his challenge to the jury instructions by affirmatively

stating that he had no objection to the court’s failure to give any of his requested

jury instructions. His contention that the jury instructions constructively amended

the superseding indictment is thus not reviewable. See United States v. Perez, 116

F.3d 840, 845 (9th Cir. 1997) (en banc) (“Forfeited rights are reviewable for plain

error, while waived rights are not.”).

And even if we found this issue merely forfeited rather than waived, no plain

error was shown. “For a constructive amendment to inhere, jury instructions must

‘diverge materially’ from the indictment and evidence must have been ‘introduced

at trial that would enable the jury to convict the defendant for conduct with which

he was not charged.’” United States v. Alvarez-Ulloa, 784 F.3d 558, 570 (9th Cir.

2015) (quoting United States v. Ward, 747 F.3d 1184, 1191 (9th Cir. 2014)).

Neither of these circumstances is present here.

2. The superseding indictment was not duplicitous, nor did it deprive Powell

of adequate notice of the sex trafficking charge or his right of jury unanimity. “In

reviewing an indictment for duplicity, our task is not to review the evidence

presented at trial to determine whether it would support charging several crimes

rather than one, but rather solely to assess whether the indictment itself can be read

to charge only one violation in each count.” United States v. Yarbrough, 852 F.2d

2 16-30253 1522, 1530 (9th Cir. 1988) (internal quotation marks and citation omitted). Count

Three of the superseding indictment easily passes this assessment, and thus

Powell’s duplicity argument fails.

The superseding indictment also provided Powell with sufficient notice of

the charge against him in Count Three. An indictment’s sufficiency is measured

by whether it “contains the elements of the offense intended to be charged, and

sufficiently apprises the defendant of what he must be prepared to meet.” Russell

v. United States, 369 U.S. 749, 763 (1962) (internal quotation marks and citation

omitted). “An indictment must provide the essential facts necessary to apprise a

defendant of the crime charged; it need not specify the theories or evidence upon

which the government will rely to prove those facts.” United States v. Cochrane,

985 F.2d 1027, 1031 (9th Cir. 1993) (per curiam). Count Three of the superseding

indictment satisfies these standards.

Powell was not deprived of his right to a unanimous jury verdict. Although

Powell asserts that there were three “distinct” time periods involved and the jurors

may not have come to an agreement on which of the three time periods was the one

in which Powell trafficked the victim, Count Three charged, and the Government

presented evidence at trial establishing, ongoing trafficking of the victim by Powell

during the timeframe alleged in the superseding indictment—“beginning in or

about January 2014, and continuing until on or about January 13, 2015,” the date

3 16-30253 of Powell’s arrest. Moreover, Powell did not request a specific unanimity jury

instruction beyond the general instruction given by the district court.

3. The district court did not abuse its discretion in excluding evidence that

Powell sought to introduce of the adult victim’s sexual conduct before and after

Powell trafficked her. And even if the district court erred in excluding this

evidence, reversal would not be warranted because any erroneous exclusion was

harmless. See United States v. Yazzie, 59 F.3d 807, 815 (9th Cir. 1995).

4. The district court did not abuse its discretion in admitting, under Federal

Rules of Evidence 403 and 404(b), evidence of the facts underlying Powell’s 2007

Nevada conviction for transporting a prostitute. See United States v. Romero, 282

F.3d 683, 688 (9th Cir. 2002). That evidence was similar to the charged conduct,

tended to show Powell’s intent and motive, and was not too remote in time. See

United States v. Rendon-Duarte, 490 F.3d 1142, 1144 (9th Cir. 2007). And

although the district court’s admission of evidence regarding Powell’s 2008

California assault conviction is troubling due to its violent nature and the danger of

unfair prejudice, even if admission of that evidence was an abuse of discretion

reversal would be warranted “only if the error was not harmless.” Romero, 282

F.3d at 688. Here, any error was harmless because “it is more probable than not

that the error did not materially affect the verdict.” United States v. Liera, 585

F.3d 1237, 1244 (9th Cir. 2009) (internal quotation marks omitted).

4 16-30253 5. The district court did not plainly err in allowing witness N.C. to testify.

After the Government raised a concern about the witness’s competency due to

marijuana use, the district court insisted on voir dire of the witness before she

testified before the jury. After that voir dire, neither side objected to her

competency. The witness then provided coherent testimony both that afternoon

and the next morning. Powell failed to preserve this issue, and he fails to establish

any error, let alone a plain error.

AFFIRMED.

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