United States v. Ricky Davis , 687 F. App'x 534 ( 2017 )

FILED
NOT FOR PUBLICATION
APR 14 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10402
Plaintiff-Appellee, DC No. CR 12-0056 AWI
v.
RICKY DAVIS, AKA Rick Dog, AKA MEMORANDUM*
Ricky Loks,
Defendant-Appellant.
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Argued and Submitted February 16, 2017
San Francisco, California
Before: TASHIMA and HURWITZ, Circuit Judges, and ADELMAN,**
District Judge.
Ricky Davis appeals his convictions and sentence for sexual exploitation and
attempted sex trafficking of a minor. We have jurisdiction pursuant to 28 U.S.C. §
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Lynn S. Adelman, United States District Judge for the
Eastern District of Wisconsin, sitting by designation.
1291. In this disposition we affirm Davis’ conviction for sexual exploitation of a
minor under 18 U.S.C. § 2251(a), reject his insufficiency of the evidence challenge
to his conviction for attempted sex trafficking under 18 U.S.C. §§ 1591(a), 1594,
and remand.1
1. At the close of the government’s case-in-chief, Davis unsuccessfully
moved for acquittal of Count 2, see Fed. R. Crim. P. 29. Davis challenges the
district court’s denial of his Rule 29 motion on the ground that the government
failed sufficiently to prove each of § 1591(a)’s elements. This argument is
unpersuasive.
We review de novo the denial of a motion for acquittal under Rule 29. See
United States v. Somsamouth, 352 F.3d 1271, 1274 (9th Cir. 2003). In doing so,
we “review the evidence presented against the defendant in the light most
favorable to the government” in order to determine whether “any rational trier of
fact could have found the essential elements of the crime beyond a reasonable
doubt.” Id. at 1274–75 (emphasis added) (citations and internal quotation marks
omitted).
1
In a concurrently filed opinion, we reverse Davis’ conviction for
attempted sex trafficking of a minor in violation of 18 U.S.C. §§ 1591(a), 1594,
and remand for further proceedings. We do not reach Davis’ arguments
challenging his now-vacated sentence. The facts are sufficiently set forth in our
opinion and we do not repeat them here.
2
Here, the evidence presented at trial, when viewed in the light most
favorable to the government, established that:
• prior to September 17, 2011, Davis and Bianca had sex in an
apartment into which they had to sneak “because,” according to
Bianca, “[she] look[ed] too young”;
• Bianca initially requested a “Hello Kitty” tattoo;
• on the night of September 17, 2011, Bianca told Davis she was “about
16 or 17” years old;
• Davis instructed Bianca on “a way to get money” by going on dates;
• Davis encouraged Bianca to get naked for the photographs because “it
would be sexier for the guys”;
• Davis made clear he intended to post these photographs on the
Redbook website;
• after taking the photographs, Davis and Bianca had sex;
• Davis facilitated Bianca’s Redbook dates by first having potential
customers text him and only then providing the customer with
Bianca’s phone number; and
• Davis actually did facilitate a connection between Bianca and at least
one individual with whom Bianca subsequently had sex in exchange
for money.
Based on this evidence, a rational trier of fact could conclude that the government
carried its burden with respect to each of § 1591(a)’s essential elements, including
3
the provision’s mens rea and actus reus requirements. Accordingly, Davis’
sufficiency of the evidence challenge fails.
2. Davis’ challenge to his conviction under § 2251(a) is precluded by our
precedent, United States v. U.S. Dist. Court for Cent. Dist. of Cal., 858 F.2d 534(9th Cir. 1988). There, we expressly rejected the argument that § 2251(a) “should
be interpreted to require the government to prove scienter as to age in its prima
facie case.” Id. at 536; see also id. at 537–38. And we went on to hold that “[t]he
defendant’s awareness of the subject’s minority is not an element of the offense.”
Id. at 538.
Davis argues that the Supreme Court’s subsequent decision in Eloni v.
United States, 135 S.Ct. 2001 (2015), requires the government to prove, at a
minimum, that he acted recklessly or negligently with respect to Bianca’s minority
status. Elonis, however, does not stand for this proposition. Rather, it affirmed the
continued soundness of United States v. X-Citement Video, Inc., 513 U.S. 64(1994), and concluded that, with respect to the federal threats statute, a defendant
must know that the transmitted communication contains a threat. See Elonis, 135
S.Ct. at 2011. Accordingly, we reject this challenge to Davis’ conviction for
sexual exploitation of a minor in violation of § 2251(a).
• ! •
4
For the reasons set forth herein and in our concurrently filed opinion, we
affirm Davis’ conviction under § 2251, but reverse his conviction under § 1591(a),
not for insufficiency of the evidence, but because the indictment on this count was
constructively amended, and remand to the district court for further proceedings.
AFFIRMED in part, REVERSED in part, and REMANDED.
5