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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 19-10681
Non-Argument Calendar
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D.C. Docket No. 2:18-cr-14006-KAM-1
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
DONDELL CYRUS DAVIDSON,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(February 5, 2020)
Before ROSENBAUM, BLACK and MARCUS, Circuit Judges.
PER CURIAM:
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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
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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
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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
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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.
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