United States v. Steel Davis ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS FEB 14 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 18-10206
18-10275
Plaintiff-Appellee,
D.C. No.
v. 2:15-cr-00005-TLN-1
STEEL A. DAVIS,
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, 2019
San Francisco, California
Before: WARDLAW, W. FLETCHER, and LINN,** Circuit Judges.
Steel Davis, a National Guard veteran, appeals from his conviction on several
counts of wire fraud related to the National Guard’s recruitment incentive program
(“G-RAP”). Davis challenges several of the district court’s evidentiary rulings. We
affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Richard Linn, United States Circuit Judge for the U.S.
Court of Appeals for the Federal Circuit, sitting by designation.
The district court did not plainly err by not excluding the contested testimony
of recruits Crystal Ackerman, Anton Jensen, Daniel Stuart, Eric Tullius, and Jaren
Blair. Each witness recounted statements by Davis that either increased the
likelihood that the recruit would choose to enlist or decreased the likelihood that he
or she would be rejected by the National Guard. Both results increased the likelihood
of a G-RAP award. The testimony of these recruits was thus “inextricably
intertwined” with the charged scheme and is not inadmissible under Federal Rule of
Evidence 404. United States v. Vizcarra-Martinez, 66 F.3d 1006, 1012–13 (9th Cir.
1995) (holding that evidence that “constitutes a part of the transaction that serves as
the basis for the criminal charge” or is “necessary . . . in order to permit the
prosecutor to offer a coherent and comprehensible story regarding the commission
of the crime” is “inextricably intertwined”).
Davis’s assertion that he would have made these statements even without a
fraudulent G-RAP scheme in order to satisfy his duties as a recruiter does not
undermine the admissibility of the statements. Whether Davis’s statements were
legitimately part of his recruiter duties or were made in furtherance of the fraudulent
scheme was a factual question for the jury, not an evidentiary one.
Similarly, recruit Bryan Gregory’s account of Davis’s attempt to enlist him
into the G-RAP fraud is inextricably intertwined with the charged scheme. Those
statements were made in furtherance of the scheme “in the course of the conduct
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with which [Davis] was charged.” See United States v. Ramirez-Jiminez, 967 F.2d
1321, 1327 (9th Cir. 1992). Whether Gregory actually engaged in the fraud with
Davis is of no moment. See, e.g., United States v. Sayakhom, 186 F.3d 928, 937–38
(9th Cir. 1999), amended by 197 F.3d 959 (9th Cir. 1999) (allowing evidence of
uncharged unlawful activity of a company under a new name as evidence of the
knowledge of the illegality of the charged conduct under a different name); United
States v. Serang, 156 F.3d 910, 915 (9th Cir. 1998) (allowing, in a mail fraud case,
evidence of a co-conspirator’s prior unsuccessful attempts to set fire to a restaurant).
The statement to Recruiter Zane Lowrey is distinct because it was referring to
a G-RAP fraud with which Davis was not involved. Davis’s perspective on how
fraudulent earnings should be distributed is not direct evidence of Davis’s
involvement in the charged scheme. Davis’s statement to Lowrey also did not
provide context necessary for the prosecution to make its case. Nevertheless, the
admission of Lowrey’s testimony was not plain error. This is not the kind of
statement that “is so clear-cut, so obvious, [that] a competent district judge should
be able to avoid it without benefit of objection.” United States v. Ching Tang Lo,
447 F.3d 1212, 1228 (9th Cir. 2006). Moreover, there is no plain error when “there
is no significant possibility that the jury might have acquitted the defendant[]” had
the evidence not been admitted. United States v. Soto-Barraza, __ F.3d __, 2020
WL 253560, at *6 (9th Cir. 2020). There is overwhelming evidence to support
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Davis’s conviction, including: the testimony of Davis’s co-conspirators Kaps,
Nattress, and Hair; testimony by fifteen nominees that they gave Davis their personal
identifying information and did not know the co-conspirators who claimed them for
G-RAP; and the pattern of Davis’s spending, corresponding to withdrawals from his
co-conspirators’ accounts.
There is no merit to Davis’s cursory contention that the above statements
should have been excluded under Rule 403 balancing. See FED. R. EVID. 403. Not
excluding these statements was well within the district court’s discretion.
Davis next challenges the admission of statements he made to the
California Highway Patrol on November 27, 2009. The impeachment testimony
here is properly analyzed under Rule 609, not Rule 608. See United States v.
Osazuwa, 564 F.3d 1169, 1174 (9th Cir. 2009) (“[E]vidence relating to convictions
falls within the exclusive purview of Rule 609.”); id. at 1175 (“[W]e hold that Rule
608(b) permits impeachment only by specific acts that have not resulted in a criminal
conviction. Evidence relating to impeachment by way of criminal conviction is
treated exclusively under Rule 609.”).
Under Rule 609, “[a]bsent exceptional circumstances, evidence of a prior
conviction admitted for impeachment purposes may not include collateral details
and circumstances attendant upon the conviction.” Id. at 1175 (quoting United
States v. Sine, 493 F.3d 1021, 1036 n. 14 (9th Cir. 2007)); see also FED. R. EVID.
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609. The prosecutor’s questions, while not revealing Davis’s criminal conviction,
relate to the collateral details thereof and normally would be inadmissible under Rule
609. Nevertheless, the district court’s failure to exclude this line of questioning was
not plain error. Because the jury did not hear that Davis was subject to a criminal
conviction for the November 27 incident, the challenged colloquy amounted to no
more than Davis’s denying he lied to the police. This is the type of evidence that
otherwise is generally admissible. Again, we cannot say that admitting this
evidence was “so obvious[] [that] a competent district judge should be able to
avoid it without benefit of objection.” See Ching Tang Lo, 447 F.3d at 1228.
Moreover, the concern addressed in Osazuwa about double prejudice is not
present here. See Osazuwa, 564 F.3d at 1174 (explaining that inquiry into “a
bad act resulting in a conviction would be, in a sense, counted twice—once by
presenting the bad act itself and once by presenting the conviction that flowed
from it”).
Davis also challenges the lack of a limiting jury instruction on impeachment
evidence. But this is not the rare case where an erroneous jury instruction would
justify a finding of plain error. See United States v. Armijo, 5 F.3d 1229, 1232 (9th
Cir. 1993) (“Improper jury instructions will rarely justify a finding of plain error.”).
As discussed, the testimony of the potential recruits about Davis’s statements to
them are not impeachment evidence—they are direct evidence of Davis’s
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involvement in the charged scheme. The statement to Lowrey also was not
impeachment evidence. In each instance Davis merely denied being untruthful and
the prosecutor accepted his denials without more. No limiting jury instruction on
impeachment evidence was necessary.
Finally, Davis argues cumulative error. For the same reasons noted, supra,
this argument has no merit.
AFFIRMED.
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