United States v. Tony Brown ( 2020 )

FILED
NOT FOR PUBLICATION
JAN 15 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50495
Plaintiff-Appellee, D.C. No.
3:13-cr-04510-JAH-10
v.
TONY BROWN, AKA Lil’ Play Doh, MEMORANDUM*
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 17-50103
Plaintiff-Appellee, D.C. No.
3:13-cr-04510-JAH-3
v.
ROBERT BANKS III, AKA Pimpsy,
Defendant-Appellant.
Appeal from the United States District Court
for the Southern District of California
John A. Houston, District Judge, Presiding
Argued and Submitted November 5, 2019
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: SCHROEDER and FRIEDLAND, Circuit Judges, and ROSENTHAL, **
Chief District Judge.
Defendants-Appellants Tony Brown and Robert Banks III were associated
with the Skanless street gang in San Diego, whose members engaged in pimping
and related unlawful activities.1 In 2014, the government indicted them as part of a
large-scale RICO prosecution alleging that Skanless and another gang, Black Mob,
together constituted a RICO “association-in-fact” enterprise, Black Mob Skanless,
that engaged in sex trafficking and related racketeering acts. Brown and Banks
went to trial on the charges. Brown and Banks now appeal their convictions after
the jury trial.
While these defendants raise many issues, the most significant for the
purposes of our decision are the sufficiency of the evidence supporting the RICO
enterprise conviction, and whether various videos, depicting Brown, Banks, and
other gang members engaged in braggadocio behavior concerning their pimping
achievements and gang affiliations, were unduly prejudicial. We hold that the
**
The Honorable Lee H. Rosenthal, Chief United States District Judge
for the Southern District of Texas, sitting by designation.
1
Although the defendants contest whether Skanless in fact constituted a
street gang and whether they were members, the jury was entitled to infer that
Skanless functioned like a street gang and that the defendants were members of or
otherwise affiliated with it.
2
evidence was sufficient, and that the district court did not abuse its discretion in
admitting the videos into evidence; the limited number of videos to which the
defendants objected were probative in establishing their involvement, with others,
in promoting and entrenching pimping and prostitution activity and were not
unduly prejudicial given the unsavory nature of the entire case.
The defendants argue that the evidence was insufficient to establish that
Black Mob Skanless constituted a single RICO enterprise and that their acts were
undertaken for the benefit of the enterprise. The record contains a great deal of
evidence that connects members of Black Mob with members of Skanless. It also
contains evidence describing and illustrating the defendants’ conduct as gang
members, including advertising their relationships with other Black Mob Skanless
members, promoting and entrenching the enterprise’s hold over pimping activity
within its territory, and attending events with other Black Mob Skanless members
celebrating their pimping prowess. From this evidence, the jury could rationally
infer the existence of a pimping enterprise and activities undertaken by Brown and
Banks, with others, in support of that enterprise for their mutual benefit.
The district court admitted videos the government offered that depicted
various subjects, including rap music produced by the defendants and others, gang
members’ pimping celebrations, and individuals bragging about their pimping
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successes. Brown and Banks were shown in many of the videos. The videos they
challenge on appeal illustrated antisocial behavior associated with pimping. The
defendants contend that the district court abused its discretion in admitting the
videos because they were unduly prejudicial in featuring acts and words
demeaning to women, offensive language, and improper character evidence.
The videos were probative in that they provided evidence that Black Mob
Skanless was an enterprise organized for the purpose of entrenching members’
pimping activity in North Park, San Diego. The videos conveyed that Black Mob
Skanless controlled North Park, highlighted the territorial markers, and conveyed
warnings that rival gangs should keep their activities “over there” and not bring
them into North Park. The videos celebrated and promoted pimping and
prostitution activity and the defendants’ success as pimps. Although some of the
videos had prejudicial content, their prejudicial impact was largely cumulative of
the prejudicial impact of other evidence in the case, including expert testimony, a
video introduced by Banks himself, photographic still images, and text messages.
Accordingly, it was not an abuse of discretion for the district court to conclude that
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the videos’ probative value was not substantially outweighed by their prejudicial
effect. FED. R. EVID. 403.2
The defendants contend the videos were also improper character evidence
under Rule 404. Acts falling “within the temporal scope” of a conspiracy that
actually comprise the conspiracy are not subject to Rule 404, since they are
“inextricably intertwined” with the offense. United States v. Montgomery, 384
F.3d 1050, 1062 (9th Cir. 2004). The district court did not violate Rule 404 in
admitting the videos.
Turning to the other issues raised by the defendants, we conclude that none
warrants relief. They argue that the indictments should have been dismissed due to
prejudicial preindictment delay because Officer Cottle, who was tasked with
investigating their activity in 2001, was killed in overseas combat, and because
videotaped statements by sex trafficking victims taken at the time of the
investigation were also destroyed. But the defendants do not explain how the lost
evidence would have benefitted either or both of them. They merely ask us to
2
The defendants argue that the district court erred because it failed to view
the videos and therefore to engage in the proper balancing analysis. Although the
trial record suggests that the district court may have initially ruled on the
defendants’ motions in limine without viewing the videos, the record also reflects
that the district court offered to revisit the issue in response to appropriate
objections later, and does not indicate that the court failed to review the videos in
advance of their formal admission.
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assume it would have. To prevail on that claim, however, the defendants must
demonstrate “actual, non-speculative prejudice from the delay.” United States v.
Corona-Verbera, 509 F.3d 1105, 1112 (9th Cir. 2007). Moreover, the defendants
were able to cross-examine Officer Cottle’s partner at the time, Officer Scallon,
and the three victims of the incident. The district court did not abuse its discretion
in denying the defendants’ motion to dismiss the indictment. The preindictment
delay was not unduly prejudicial.
The defendants further argue that prosecution of Counts 2 to 5, which relate
to sex trafficking offenses the defendants were charged with committing in 2000
and 2001, violated both the Jencks Act, 18 U.S.C. § 3500, and California v.
Trombetta, 467 U.S. 479, 485 (1984), given the loss of the evidence contained in
the videotaped statements taken at the time. But the federal government was never
in possession of the videotapes, so the routine destruction of those tapes by local
officials did not violate the Jencks Act. See 18 U.S.C. § 3500(b); United States v.
Higginbotham, 539 F.2d 17, 21 (9th Cir. 1976). A fortiori, because there is no
indication in the record that the federal government acted in bad faith, there is no
due process violation. See Trombetta, 467 U.S. at 488. The district court therefore
correctly denied the motion to dismiss the indictment.
6
The district court also correctly denied the motion to dismiss Counts 2 to 5
as untimely under the statute of limitations in effect before the 2003 and 2006
amendments extending the statute under which the defendants were charged.
Because Congress evinced a clear intent to extend the statute of limitations for
these types of crimes in its amendments, and because there is no ex post facto
problem here, the prosecution was timely. United States v. Leo Sure Chief, 438
F.3d 920, 924 (9th Cir. 2006).
Brown argues that the district court erred in denying his motion to dismiss
Count 2 because he previously pleaded guilty to the same conduct in state court. A
single act that violates the laws of two separate sovereigns, however, can be two
separate crimes, and separate prosecutions by each sovereign do not violate the
Double Jeopardy Clause. See United States v. Price, 314 F.3d 417, 420 (9th Cir.
2002). The district court correctly denied the motion.
Banks argues that the district court should have suppressed evidence
obtained as a result of a 2001 traffic stop because it was obtained in violation of his
Fourth Amendment rights. When the investigating officers pulled him over, Banks
was driving without a license, an offense under California law. The officers
therefore had probable cause to detain him. Edgerly v. City and County of San
Francisco, 599 F.3d 946, 956 (9th Cir. 2010). And because after a driver is
7
detained, police officers may impound vehicles that “jeopardize public safety and
the efficient movement of vehicular traffic,” Miranda v. City of Cornelius, 429
F.3d 858, 864 (9th Cir. 2005), the 30-minute seizure of Banks that occurred while
the police officers figured out what to do with his vehicle was not unreasonable.
The district court properly denied Banks’s motion.
Relying on Scales v. United States, 367 U.S. 203 (1961), the defendants
assert that 18 U.S.C. § 1962(d), as interpreted by the Supreme Court in Salinas v.
United States, 522 U.S. 52 (1997), is unconstitutionally overbroad, because it
punishes membership in a RICO enterprise without proof of knowledge or specific
intent. But Salinas itself explained that a RICO enterprise charge requires proof
that a RICO conspirator “knew about and agreed to facilitate the scheme.” 552
U.S. at 66. RICO association-in-fact charges do not raise the due process concerns
that the defendants identify.
Nor did the district court err in instructing the jury on the RICO charge. The
jury instructions were adequate as to the need to prove the defendants’
participation.
Banks has not identified an error in the admission of the spreadsheet
summarizing his text messages. The spreadsheet was properly admitted under
Federal Rule of Evidence 1006, because it summarized thousands of Banks’s text
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messages. The district court also properly found that the text messages were not
hearsay under Federal Rule of Evidence 801(d)(2)(e) because the text messages
admitted were between Banks and other RICO co-conspirators during the charged
conspiracy.
Brown argues it was improper to admit the tax returns under Federal Rule of
Evidence 404(b). The trial record contains no evidence the returns were
fraudulent, and even if they were, there was no prejudice given that Brown’s
position is that he filed no returns. There is no question he avoided paying taxes.
The defendants argue that expert testimony about pimping and gang activity
was improper under Federal Rule of Evidence 702. “A district court’s rulings on
the admissibility of expert testimony are reviewed for . . . abuse of discretion,” and
will be reversed only if they are “manifestly erroneous.” United States v. Hankey,
203 F.3d 1160, 1167 (9th Cir. 2000). Because the details of pimping are not
common knowledge, it was not an abuse of discretion to admit the expert
testimony about pimping and prostitution. See United States v. Taylor, 239 F.3d
994, 998 (9th Cir. 2001). Nor did the testimony of case agent Detective Johnson
contain improper opinion testimony under Rule 701; he gave lay opinions
rationally based on his personal knowledge of the case. United States v. Gadson,
763 F.3d 1189, 1209–1210 (9th Cir. 2014). And gang expert Detective Resch,
9
who based his testimony on experience similar to that which we have previously
approved as a basis for gang expertise, see United States v. Hankey, 203 F.3d 1160,
1168-70 (9th Cir. 2000), did not testify in a dual capacity. His use of such
prefatory statements as “in my opinion” or “as far as I could tell” do not indicate
otherwise, and his identifications of gang members relied at least in part on his
specialized knowledge and on the type of evidence on which such experts typically
rely. See id. at 1169–70.
Banks also argues that the expert testimony about pimping and prostitution
from Detective Drilling was impermissible character evidence admitted in
violation of Federal Rule of Evidence 404(a) and unduly prejudicial in violation of
Federal Rule of Evidence 403. Because Banks did not object to this testimony on
Rule 404 grounds at trial, we review that issue for plain error. United States v.
Rizk, 660 F.3d 1125, 1132 (9th Cir. 2011).
Experts may offer testimony about general behavioral characteristics of a
class of victims to help a jury understand the charged offense. See United States v.
Hadley, 918 F.2d 848, 852–853 (9th Cir. 1990). It was not plain error for the
district court to allow this testimony about pimping and prostitution. The expert
testimony here was not unduly prejudicial because we have held that testimony
about “the relationships between pimps and prostitutes” helps jurors in assessing
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witness credibility. United States v. Brooks, 610 F.3d 1186, 1195–96 (9th Cir.
2010). There was no abuse of discretion in admitting this testimony under Rule
403.
The defendants argue that the testimony of Yasenia Armentero was perjured
because of prior inconsistent statements. Brown used many of the statements for
impeachment purposes; there is no basis for us to conclude Armentero’s testimony
was perjured. See Audett v. United States, 265 F.2d 837, 847 (9th Cir. 1959). The
defendants also contend that their Sixth Amendment rights were violated when
Armentero refused to answer all of their questions. The witness eventually
provided answers to all the questions. There was no error.
The defendants further argue that the district court’s admission of testimony
from minor victim witness Ariane U. violated due process because of substantial
government interference and that the district court improperly limited cross-
examination of this witness. “Whether substantial government interference
occurred is a factual determination . . . that we review for clear error.” United
States v. Vavages, 151 F.3d 1185, 1188 (9th Cir. 1998). Warning the victim of the
consequences of perjury, which is all the district court found occurred here, “does
not unduly pressure the witness’s choice to testify or violate the defendant’s right
to due process.” Williams v. Woodford, 384 F.3d 567, 603 (9th Cir. 2004). The
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district court did not err in making that determination, and there was no due
process violation in admitting this testimony. Nor was there an abuse of discretion
in limiting cross-examination on account of Ariane U.’s privilege to attorney-client
communications.
Minor victim Kara M.’s 2001 adopted statement was admissible as a past
recollection recorded. Because she had previously signed the document and
affirmed its accuracy in her limited testimony, it was not an abuse of discretion for
the district court to find that it constituted an adopted statement. See United States
v. Orellana-Blanco, 294 F.3d 1143, 1148 (9th Cir. 2002). Nor did admitting that
statement violate the Confrontation Clause, because Rule 803(5) does not require
further cross-examination of a witness once a statement is properly admitted as a
past recollection recorded. See United States v. Marshall, 532 F.2d 1279, 1285–86
(9th Cir. 1976). Banks had a full opportunity to cross-examine Kara M. on her
limited recollections about the accuracy of the statement.
Brown charges prosecutorial misconduct on several grounds, but does not
identify any resulting prejudice by or indeed any error on the part of the district
court.
Cumulative error does not warrant reversal; the defendants have not
demonstrated that the district court committed any prejudicial error.
AFFIRMED.
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